Chi. Car Care Inc. v. A.R.R. Enters., Inc.

CHICAGO CAR CARE INC.,on behalf of plaintiff and the class members defined herein, Plaintiff, v. A.R.R. ENTERPRISES, INC., et al., Defendants.

No. 19-cv-07687

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 29, 2021

Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER

Plaintiff Chicago Car Care, Inc. ("Chicago Car") alleges that it received an unsolicited fax advertisement from A.R.R. Enterprises, Inc., doing business as Atlanta Wheels and Accessories ("Atlanta Wheels").¹ Chicago Car seeks to represent classes of fax recipients in Illinois and across the country that were allegedly reached by Atlanta Wheels's fax advertisement campaign, asserting claims pursuant to the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, and Illinois state law. (Compl., Dkt. No. 1.) Atlanta Wheels now asks the Court to dismiss the state law claims and strike the class allegations. (Dkt. No. 16.) For the reasons that follow, Atlanta Wheels's motion to dismiss Counts II, III, and IV is granted, and those counts are dismissed without prejudice. Its request to strike the class allegations is denied.

BACKGROUND

For the purposes of Atlanta Wheels's motion to dismiss and strike, the Court accepts as true the well-pleaded facts in the Complaint and views them in the light most favorable to Chicago Car. See Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 826-27 (7th Cir. 2015) (motionsto dismiss); Jones v. BRG Sports, Inc., No. 18 C 7250, 2019 WL 3554374, at *4 (N.D. Ill. Aug. 1, 2019) (motions to strike). The Complaint alleges as follows.

On June 7, 2017, Chicago Car received an unsolicited fax advertisement from Atlanta Wheels. (Compl. ¶¶ 9, 11.) In the one-page advertisement, Atlanta Wheels announces itself to be a "WHOLESALE DISTRIBUTOR!," offers automobile wheels for sale, and provides a phone number and website. (Compl., Ex. A, Fax Advertisement, Dkt No. 1-1.) Chicago Car did not have a prior relationship with Atlanta Wheels and had not authorized Atlanta Wheels to send the fax. (Compl. ¶ 14.) Atlanta Wheels sent many such faxes, which reached at least 40 other persons in Illinois. (Id. ¶¶ 16-17.) The faxes consumed recipients' ink, toner, and paper. (Id. ¶¶ 22, 38, 53.)

Chicago Car's complaint contains four counts. Count I alleges that Atlanta Wheels violated the TCPA by sending unsolicited advertising faxes. Counts II, III, and IV allege that Atlanta Wheels also violated the Illinois Consumer Fraud Act ("ICFA"), 815 ILCS 505/1 et seq., committed common law conversion, and committed common law trespass to chattels by sending unsolicited advertising faxes that appropriated Chicago Car's fax equipment, paper, and ink or toner. For each count, Chicago Car also makes class allegations pursuant to Federal Rule of Civil Procedure 23(b)(3).

DISCUSSION

To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The pleading standard does not require a complaint to contain detailed factual allegations. Twombly, 550 U.S. at 555. Rather, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liablefor the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Nonetheless, the Court need not accept a party's legal conclusions, and a party cannot defeat a motion to dismiss with "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id.

I. State Law Claims

Courts in this District frequently have considered whether recipients of unsolicited fax advertisements can sustain the state-law claims brought here. In recent decisions, as discussed below, courts overwhelmingly hold that fax advertisements do not cause sufficient harm to sustain the state law claims Chicago Car sets forth here.

A. Illinois Consumer Fraud Act

Chicago Car alleges that Atlanta Wheels's act or practice of sending advertisement faxes was unfair and thus violated the ICFA. Courts weigh three factors when evaluating unfairness claims under the ICFA: "(1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers." Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951, 961 (Ill. 2002). All three criteria do not need to be met; instead, "[a] practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." Id. (quoting Cheshire Mortg. Serv., Inc. v. Montes, 612 A.2d 1130, 1143 (Conn. 1992)).

Other courts in this District have held that the second and third ICFA factors weigh strongly against ICFA liability based on an unsolicited fax advertisement. See, e.g., A Custom Heating & Air Conditioning, Inc. v. Kabbage, Inc. No. 16 C 2513, 2017 WL 2619144, at *6 (N.D. Ill. June 16, 2017) ("[A] burgeoning majority of courts—and all the recent decisions—hold that receiving one- or two-page unsolicited faxes does not trigger Robinson's other two factors.")Regarding the second factor (whether the practice is immoral, unethical, oppressive, or unscrupulous), one court observed:

The improper use of one piece of paper, a small amount of toner, and a few seconds of an employee's time is not oppressive conduct, nor does it fit within the definitions of any of the other terms [immoral, unethical, or unscrupulous]. Rather, sending an unsolicited fax is more akin to taking someone else's pen and notebook without their permission and writing some notes on one sheet of paper.

Stonecrafters, Inc. v. Foxfire Printing & Packaging, Inc., 633 F. Supp. 2d 610, 616 (N.D. Ill. 2009). Similarly, the third factor of "significant harm" requires more than the cost and inconvenience of receiving a single fax. W. Ry. Devices Corp. v. Lusida Rubber Prod., Inc., No. 06 C 0052, 2006 WL 1697119, at *6 (N.D. Ill. June 13, 2006) ("[T]he cost of receiving and printing a single page facsimile advertisement cannot be characterized as 'significant harm.'") Nor can this defect be cured by aggregating claims, considering the extremely small value of the individual claims at issue. See Stonecrafters, 633 F. Supp. 2d at 617 ("[A] thousand people suffering damage in the amount of a couple of pennies . . . only amounts to an aggregate harm of $20.")

Chicago Car contends that a public policy violation alone is sufficient to establish ICFA liability but it fails to support this proposition. See People v. Howard, 888 N.E.2d 85, 90-91 (Ill. 2008) (rejecting de minimis doctrine as to criminal statute's definition of "unlawful act"); Batson v. Live Nation Ent., Inc., 746 F.3d 827, 830-832 (7th Cir. 2014) (discussing Illinois public policy regarding antitrust violations, but not discussing the de minimis doctrine). Certainly, an ICFA claim must satisfy "at least one" of the three criteria. Batson, 746 F.3d at 830. But Chicago Car goes too far in arguing that establishing any one ICFA criterion suffices to state a claim. Perhaps some conduct offending public policy could constitute an ICFA violation despite failing to meet the "oppressive conduct" or "significant harm" factors, but the junk fax practices at issue here donot because the second and third factors weigh so strongly against Chicago Car. The Court acknowledges that Illinois law treats the sending of junk faxes as a fineable petty offense, see 720 ILCS 5/26-3, but cannot conclude that all fineable actions trigger ICFA liability. Chicago Car similarly fails to persuade with its other arguments: that practices inflicting unavoidable injury are necessarily oppressive and unfair; that junk faxing at large costs recipients millions of dollars; that the small harms caused by junk faxing may aggregate to a significant amount; and that junk faxing unfairly advantages the sender over rule-following competitors. The Court follows the decisions in Stonecrafters, 633 F. Supp. 2d 610, and Lusida, 2006 WL 1697119, and holds that Chicago Car has failed to state a claim. Count II is dismissed.

B. Conversion and Trespass to Chattels

Chicago Car also alleges conversion under Illinois law, which requires a showing of "(1) a right to the property; (2) an absolute and unconditional right to the immediate possession of the property; (3) a demand for possession; and (4) that the defendant wrongfully and without authorization assumed control, dominion, or ownership over the property." Van Diest Supply Co. v. Shelby Cty. State Bank, 425 F.3d 437, 439 (7th Cir. 2005) (citing Cirrincione v. Johnson, 703 N.E.2d 67, 70 (Ill. 1998)). And it further asserts a claim for trespass to chattels, which requires "an injury to or interference with possession, with or without physical force, to personal property" involving "intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another." Able Home Health, LLC v. Onsite Healthcare, Inc., S.C., No. 16-CV-8219, 2017 WL 2152429, at *7 (N.D. Ill. May 17, 2017) (citations omitted). Trespass to chattels is "on the same spectrum" as conversion, differing "only with respect to the extent of interference with the property owner's rights." G. Neil Garrett, D.D.S., P.C. v. New Albertson's, Inc., No. 13 C 7965, 2014 WL 2198242, at *5 (N.D. Ill. May 27, 2014).

Courts in this District regularly reject conversion claims based on unsolicited fax advertisements pursuant to the de minimis doctrine. See Stonecrafters, 633 F. Supp. 2d at 613 ("[T]he ancient maxim 'de minimis non curat lex' might well have been coined for the occasion in which a conversion claim is brought based solely on the loss of paper and toner consumed during the generation of a one-page unsolicited fax advertisement." (internal quotation...