Jamison v. Summer Infant (usa) Inc.

778 F.Supp.2d 900

74 UCC Rep.Serv.2d 408

Alissa JAMISON, Mandy Brantley on behalf of themselves individually and all others similarly situated, Plaintiffs,

v.SUMMER INFANT (USA), INC., a Delaware Corporation, and Toys “R” Us d/b/a Babies “R” Us, a Delaware Corporation, Defendants.

No. 09 C 7513.

United States District Court, N.D. Illinois, Eastern Division.

April 18, 2011.

Aron David Robinson, Law Office of Aron D. Robinson, Henry E. Turner, Lisa R. Carter, Nicole Nehama Auerbach, Valorem Law Group LLC, Allison Amy Krumhorn, Lance A. Raphael, Stacy Michelle Bardo, Chicago, IL, for Plaintiffs.Charles H. Cole, Margaret Martha Fitzsimmons, Richard J. Juarez, Schuyler, Roche & Zwirner, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Alissa Jamison (“Jamison”) and Mandy Brantley (“Brantley”) (collectively, “Plaintiffs”) bring this class action against Summer Infant (USA), Inc. (“Summer Infant”), and Toys “R” Us–Delaware, Inc. (“Toys ‘R’ Us”) ¹ (collectively, “Defendants”) for alleged violations of state and federal law.² Presently before the Court is Defendants' motion to dismiss the second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 63, Defs.' Mot.) For the reasons stated below, the motion is denied in part and granted in part.

RELEVANT FACTS

The products at issue in this case are baby monitors manufactured by Summer Infant and sold by Babies “R” Us that were purchased and used by Plaintiffs (hereinafter, the “Video Monitors”). (R. 62, Second Am. Compl. ¶¶ 17–19.) Baby monitors are used by parents and caretakers to monitor the sounds, and more recently, the visual display in a child's room. ( Id. ¶ 13.) The Video Monitors have two components: (1) “a base unit which is switched to ‘on’ and placed in the room where the baby is”; and (2) “a receiving unit that receives the audio and/or video transmitted by the base unit.” ( Id. ¶ 21.)

The Video Monitors at issue here “use public airwaves to transmit signals, are unencrypted, and are thus susceptible to the signal being picked up by other monitors or receivers.” ( Id. ¶ 17.) According to Plaintiffs, the video and audio signals are capable of being viewed by third persons as far away as “a football field's distance from the consumers' home,” and “it has been documented that video monitors like those at issue in this case can be picked up by individuals driving through neighborhoods with receivers in their vehicles.” ( Id.¶¶ 24–25.) Consumers purchase the Video Monitors as a safety and convenience measure to monitor their children inside the privacy of their own homes. ( Id. ¶ 12.) Thus, Plaintiffs contend, “it is foreseeable that the privacy and personal safety of the consumers is compromised when the Video Monitors broadcast the children's images, the inside of the home, and the activities going on within the home for a great distance outside of the consumers' homes.” ( Id.)

The fact that the Video Monitor's signal is unencrypted is absent from the Video Monitors' boxes and advertising for the Video Monitors. ( Id. ¶ 26.) Video baby monitors of comparable price and with similar features as the Video Monitors use an encrypted signal. ( Id. ¶ 28.) Plaintiffs claim that the Video Monitors would have cost less or would have been less marketable had there been a disclosure that the Video Monitors fail to provide basic encryption, and that Defendants' failure to disclose the lack of encryption has placed the purchasers of the Video Monitors and their families at serious risk from both a safety and privacy standpoint. ( Id. ¶¶ 29–30.)

A. Jamison's Claims

Jamison purchased two Video Monitors, specifically Summer Infant's Model No. 02090. ( Id. ¶ 18.) She purchased the first Video Monitor in or around 2006 at a Babies “R” Us store in Massachusetts. ( Id. ¶ 31.) She used this Video Monitor in Illinois to monitor her infant son. ( Id.) Jamison purchased a second Video Monitor in the spring of 2008 at a Babies “R” Us store in Illinois. ( Id.) This second Video Monitor was used to view her newborn daughter in their home in Illinois. ( Id.)

Jamison placed the base units of the two Video Monitors, which she kept on at all times, in each child's respective room. ( Id. ¶¶ 33–34). The receiving units of the Video Monitors were placed in the room where Jamison or her husband were located. ( Id. ¶ 33.) Jamison says she and her husband entered their children's rooms to care for their children at all hours of the day and night, in various states of dress. ( Id. ¶¶ 35–36.) Jamison breastfed both of her children when they were babies, often while in the baby's room where the Video Monitor base unit was left on. ( Id.)

After purchasing the second Video Monitor, while watching the receiving unit one day, Jamison saw a neighbor's son appear on the monitor. ( Id. ¶ 37.) The neighbor lived on the fourth floor of a building across the street from Jamison. ( Id.) Both Jamison and her neighbor “were shocked to learn that their Video Monitors had this type of transmission capability.” ( Id. ¶ 38.) Jamison has since changed the way she uses the Video Monitors, and would not have purchased them had she known they broadcasted the images of her children and her children's rooms to the public. ( Id. ¶ 39.)

B. Brantley's Claims

Brantley had a similar experience as Jamison. Brantley purchased Summer Infant Model No. 02220 at a Babies “R” Us store in Colorado in or around February 2008. ( Id. ¶¶ 18, 40.) Brantley used the Video Monitor in South Carolina to monitor her baby. ( Id. ¶ 41.) Like Jamison, Brantley was unaware that the Video Monitor was transmitting the images of her baby's room to the public, so she entered her baby's room “at various times of day and in varying states of dress.” ( Id. ¶ 42.)

At some point in 2009, Brantley's neighbor informed her that he could see her on his Video Monitor. ( Id. ¶ 43.) Brantley was “appalled” to learn that this was possible, and called Summer Infant's customer service line. ( Id. ¶¶ 44–45.) She was told that she could not be assisted because she was outside of the one-year warranty period. ( Id. ¶ 45.) Brantley would not have purchased the Video Monitor had she known it was capable of broadcasting the image and sounds of her baby's room to the public. ( Id.¶ 46.)

PROCEDURAL HISTORY

On December 3, 2009, Defendants removed this case to federal court pursuant to 28 U.S.C. § 1446, as amended in relevant part by the Class Action Fairness Act of 2005, 28 U.S.C. § 1332. (R. 1, Not. of Removal.) In the initial state court complaint, the named plaintiff was Wes Denkov (“Denkov”). ( Id., Ex. A.) On December 4, 2009, the Court dismissed the state court complaint without prejudice. (R. 8, Minute Entry.) Denkov filed an amended complaint on December 21, 2009. (R. 12, Am. Compl.) On January 11, 2010, Defendants filed a motion to dismiss the amended complaint. (R. 28, Defs.' Mot. Am. Compl.) Denkov filed a motion to substitute a party on March 22, 2010, which was amended on March 31, 2010. (R. 37, Pl.'s Mot. to Substitute Party; R. 40, Pl.'s Am. Mot. to Substitute Party.) On April 21, 2010, the Court denied Denkov's amended motion to substitute a party and granted Defendants' motion to dismiss, dismissing the amended complaint without prejudice. (R. 47, Minute Entry.)

On November 11, 2010, the second amended complaint (the “complaint”) was filed with Jamison and Brantley as the named plaintiffs. (R. 62, Second Am. Compl.) In Count I of the complaint, Plaintiffs allege that Defendants violated the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 Ill. Comp. Stat. 505/1 et seq. , by omitting in the advertising and warnings on the Video Monitors' boxes the material fact that the product broadcast in an unencrypted fashion. (R. 62, Second Am. Compl. ¶¶ 56–73.) In Count II, Plaintiffs aver that Defendants violated the Magnuson–Moss Warranty Act, 15 U.S.C. § 2310, et seq. (“Magnuson–Moss Act” or the “Act”) by breaching the implied warranty of merchantability under Illinois and other states' laws by selling products that cannot be used securely for their ordinary purpose. (R. 62, Second Am. Compl. ¶¶ 74–82.) In Count III, Plaintiffs allege a claim for unjust enrichment. ( Id. ¶¶ 83–90.) Finally, in Count IV, Plaintiffs claim that Defendants were negligent in the manufacturing, distribution, and sale of the Video Monitor and failed to give adequate warnings that the Video Monitor could broadcast an unencrypted signal. ( Id. ¶¶ 91–96.)

Defendants moved to dismiss the complaint on December 2, 2010. (R. 63, Defs.' Mot.) In their motion, Defendants argue that Plaintiffs cannot state a claim upon which relief can be granted because Plaintiffs' claims are preempted by federal regulations, Plaintiffs have no expectation of privacy, and the Video Monitors functioned as designed. ( Id. at 2–3.)

LEGAL STANDARD

A motion under Rule 12(b)(6) “challenges the sufficiency of the complaint to state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir.2009). In ruling on a motion to dismiss, the Court construes the complaint “in the light most favorable to the nonmoving party, accept[ing] well-pleaded facts as true, and draw[ing] all inferences in her favor.” Reger Dev. LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir.2010). To survive a motion to dismiss for failure to state a claim, the complaint must overcome “two easy-to-clear hurdles”: (1) “the complaint must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds on which it rests”; and (2) “its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a ‘speculative level [.]’ ” Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir.2008). “Plausibility” in this context does not imply that a court “should decide whose version to believe, or which...