Camasta v. Jos. a Bank Clothiers, Inc.

• Decision Date: 07 February 2013
• Docket Number: Case No. 12 C 7782
• Parties: PATRICK EDWARD CAMASTA, individually and as the representative of a class of similarly-situated persons, Plaintiffs, v. JOS. A BANK CLOTHIERS, INC. a/k/a JOS. A. BANK, Defendant.
• Court: U.S. District Court — Northern District of Illinois

PATRICK EDWARD CAMASTA, individuallyand as the representative of a class of similarly-situated persons, Plaintiffs,

v.JOS. A BANK CLOTHIERS, INC. a/k/a JOS. A. BANK, Defendant.

Case No. 12 C 7782

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

Dated: February 7, 2013

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Plaintiff Patrick Edward Camasta ("Camasta") filed a complaint on behalf of himself and similarly situated Illinois consumers alleging that Defendant Jos. A. Bank Clothiers, Inc.'s ("JAB") violated the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1 et seq., and the Uniform Deceptive Trade Practices Act ("UDTPA"), 814 ILCS 510 et seq. (R. 23-1, Ex. A, Compl.) JAB removed this case to federal court on September 9, 2012, based on 28 U.S.C. §§ 1332(d), 1441, 1446, and 1453, as amended in relevant part by the Class Action Fairness Act of 2005. (R. 1, Notice of Removal.) Before the Court is JAB's motion to dismiss Camasta's complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6).¹ (R. 22, Mot.) For the following reasons, the Court grants the motion.

BACKGROUND

Plaintiff Patrick Camasta alleges the following facts, which the Court deems true for purposes of this motion.

On July 27, 2012, Camasta went to one of Defendant JAB's retail clothing stores in Deer Park, Illinois. (Compl. ¶ 11.) While at the store, Camasta saw an advertisement that certain shirts were on sale. (Id. ¶ 12.) Believing that JAB was selling the shirts at a reduced price, plaintiff purchased multiple shirts, paying a total of $178.69. (Id. ¶¶ 12, 13.) Specifically, Camasta bought one shirt for $87.50, and received two shirts for free, and paid $79.50 for another shirt and received two more free shirts. (R. 23-1, Ex. 1 at 15.)

At some point after July 27, 2012, Camasta "learned that the 'sale' was in fact not a temporary price reduction." (Id. ¶ 16.) Rather, JAB "advertise[d] the normal retail price as a temporary price reduction." (Id.) Had Camasta known that the advertised "sale" price was the normal retail price, he "would not have been induced to purchase, could have purchased for less than the amount paid, or could have gone to another retail store for a true 'sale' price of a comparable item." (Id. ¶¶ 35, 47) Instead, the advertised sale price induced Camasta to purchase items he would not have otherwise purchased and he did not receive the discount he expected. (Id. ¶¶ 36, 48.)

LEGAL STANDARD

I. Rule 12(b)(6)

"A motion under Rule 12(b)(6) tets whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader isentitled to relief." Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). Under the federal notice pleading standards, a plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Put differently, 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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570). "In evaluating the sufficiency of the complaint, [courts] view it in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences from the allegations in the plaintiff's favor." AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). A plaintiff may plead himself out of court by alleging facts showing that he has no legal claim. See Peterson v. McGladrey & Pullen, LLP, 676 F.3d 594, 600 (7th Cir. 2012); Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011).

II. Rule 9(b)

In pleading fraud in federal court, Rule 9(b) imposes a higher pleading standard than that required under Rule 8. See Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 446 (7th Cir. 2011). Specifically, Rule 9(b) requires a pleading to state with particularity the circumstances constituting the alleged fraud. See Fed. R. Civ. P. 9(b); Pirelli, 631 F.3d at 441-42. This "ordinarily requires describing the 'who, what, when, where, and how' of the fraud, although the exact level of particularity that is required will necessarilydiffer based on the facts of the case." AnchorBank, 649 F.3d at 615 (citation omitted); see also Pirelli, 631 F.3d at 441-42. "Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally," however. Fed. R. Civ. P. 9(b). "[T]he particularity requirement of Rule 9(b) is designed to discourage a 'sue first, ask questions later' philosophy." Pirelli, 631 F.3d at 441 (citation omitted).

ANALYSIS

I. Heightened Pleading Standard

As a threshold matter, the Court must determine whether Rule 9(b)'s heightened pleading standard applies to Camasta's complaint. See Pirelli, 631 F.3d at 446 (Rule 9(b) imposes a higher pleading standard applicable to count averring fraud). Camasta argues that Rule 9(b) does not apply "[b]ecause neither fraud nor mistake is an element of unfair conduct under the ICFA." (R. 28, Resp. at 3.) Camasta, however, specifically alleges fraud in his allegations under both the ICFA and the UDTPA. See id. at 441 ("When a plaintiff in federal court alleges fraud under the ICFA, the heightened pleading standard of Federal Rule of Civil Procedure 9(b) applies."); see also Telefonix, Inc. v. Response Engineering, Inc., No. 12 C 4362, 2012 WL 5499437, at *3 (N.D. Ill. Nov. 13, 2012) ("Rule 9(b)'s standard can apply to counts based on fraudulent conduct, not just counts of fraud."); see also, RMB Fasteners, Ltd. v. Heads & Threads Intern., LLC, No. 11 CV 02071, 2012 WL 401490, at *10 (N.D. Ill. Feb. 7, 2012) ("Rule 9(b)'s heightened pleading standard applies to averments of fraud, not claims of fraud, so whether the rule applies will depend on the plaintiffs' factual allegations.") (citing Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007) (internal quotations omitted)). "Fraud includes anything calculated to deceive, whether it be a single act or combination ofcircumstances, whether the suppression of truth or the suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth or by look or gesture." Strohmaier v. Yemm Chevrolet, 211 F. Supp. 2d 1036, 1043 (N.D. Ill. 2001) (citing Regenold v. The Baby Fold, Inc., 68 Ill.2d 419, 435, 12 Ill. Dec. 151, 369 N.E.2d 858 (1977)). In fact, Camasta even describes JAB's actions as "fraudulent," "misleading," and constituting "consumer fraud." See, e.g., ¶¶ 3, 16, 17, 21, 23, 24, 30, 37, 42); see Sharkey v. NAC Marketing Co., LLC , No. 12 C 4354, 2012 WL 5967409, at *7 (N.D. Ill. Nov. 28, 2012) ("Allegations of deceptive acts or practices [under the ICFA] are subject to Rule 9(b)'s heightened pleading requirement and therefore must be pled with particularity."). Because Camasta bases his claims on a "misleading and fraudulent sale technique," the complaint must meet the particularity requirements of Rule 9(b). See id. ¶ 23.²

II. The Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA")

"The elements of a claim under the ICFA are: (1) a deceptive or unfair act or practice by the defendant; (2) the defendant's intent that the plaintiff rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during a course of conduct involving trade or commerce." Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574 (7th Cir. 2012) (citing Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir. 2010). Additionally, a private party, like Camasta, "must show 'actual damage' in order to maintain an action under the ICFA." Kim v. Carter's Inc., 598 F.3d 362, 365 (7th Cir. 2010) (citing 815 ILCS 505/10a); see also People ex rel. Madigan v. United Const. of Am., Inc., No. 1-12-0308, 2012 WL 5911795, at *6 (Ill. App. Ct.Nov. 20, 2012) ("Private individuals have standing to litigate a violation only if they have actual damages") (citing Zekman v. Direct Am. Marketers, Inc., 182 Ill.2d 359, 373, 231 Ill. Dec. 80, 695 N.E.2d 853 (Ill. 1998). JAB argues that Camasta has not sufficiently plead any actual damage. (Mot. at 10-16.)

Specifically, JAB argues that Camasta's claim fails because he only alleges that he did not receive the type of discount he expected, which is not actual pecuniary harm. (Id.) Indeed, Camasta "does not allege that he believed the [] prices were unfair, excessive, or not a fair price to pay for the merchandise he received." (Mot. at 11.) According to JAB, two recent Illinois decisions - Kim v. Carter's Inc., 598 F.3d at 365 and Mulligan v. QVC, Inc., 381 Ill. App. 3d 620, 626-27, 321 Ill. Dec. 257, 888 N.E.2d 1190 (Ill. App. Ct. 2008) - dictate that Camasta's allegations do not constitute actual harm under the ICFA. (Mot. at 11-12.)

In Carter's Inc., the Seventh Circuit affirmed the trial court's dismissal of plaintiffs' ICFA allegations for failure to state a claim because the plaintiffs had not suffered any actual pecuniary harm. 598 F.3d at 365-66. In Carter's Inc., the defendant clothing retailer listed "suggested prices" on its price tags and frequently advertised percentage discounts off those "suggested prices." Id. at 363. The plaintiffs argued that the "suggested prices" convinced customers that they were purchasing items at a significant discount even though the "suggested prices" were "fictitious" and "substantially higher" than what the products sold for on a...