Camasta v. Jos. A. Bank Clothiers, Inc., 13–2831.

Decision Date01 August 2014
Docket NumberNo. 13–2831.,13–2831.
Citation761 F.3d 732
PartiesPatrick E. CAMASTA, Plaintiff–Appellant, v. JOS. A. BANK CLOTHIERS, INC., also known as Jos. A. Bank, Defendant–Appellee.
CourtU.S. Court of Appeals — Seventh Circuit


David M. Oppenheim, Anderson & Wanca, Rolling Meadows, IL, for PlaintiffAppellant.

Timothy J. McCaffrey, Pircher, Nichols & Meeks, Chicago, IL, Eric M. Walter, Jim J. Shoemake, Guilfoil, Petzall & Shoemake, St. Louis, MO, for DefendantAppellee.

Before BAUER, WILLIAMS, and TINDER, Circuit Judges.

BAUER, Circuit Judge.

PlaintiffAppellant Patrick E. Camasta (Camasta) filed suit against DefendantAppellee Jos. A. Bank Clothiers, Inc. (JAB), alleging violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) in regard to certain JAB sale practices. JAB filed a motion to dismiss Camasta's First Amended Complaint on the basis of a failure to state a claim under which relief could be granted. The district court granted JAB's motion and dismissed the lawsuit in its entiretywith prejudice. We find that the district court did not abuse its discretion and affirm.


JAB is a company that designs, manufactures, and sells men's tailored and casual clothing and accessories. JAB has thirty-one retail locations in Illinois. On July 27, 2012, Camasta went to a JAB retail location in Deer Park, Illinois. Prior to making his purchases, Camasta contends that he saw an advertisement about “sale prices” for certain items. Camasta did not specify when or where he saw the advertisements, what exactly the advertisements said, what the “sale prices” were, or what particular merchandise was eligible for the sale.

When Camasta visited JAB, customers were offered a promotion: “buy one shirt, get two shirts free.” Camasta chose to take advantage of the offer and purchased six shirts for $167 without tax. Specifically, Camasta paid $79.50 for one shirt getting two similar shirts for free, and bought another shirt for $87.50 allowing him to receive an additional two similar shirts for free.

After this purchase, Camasta claims that he learned the JAB “sale” was not actually a reduced price, but instead that it was the JAB pattern and practice to advertise normal retail prices as temporary price reductions. Camasta claims that this sales technique was used in all of JAB's Illinois retail locations. He did not indicate when, where, or how he learned of the claimed fraudulent sales technique. Camasta asserts that but for his belief that the advertised sale was a limited time offer, he would not have purchased the six shirts and could have purchased the shirts for a lower price at another store, or could have shopped around to obtain a better price elsewhere. Camasta provided no factual support for these assertions.

Camasta did not claim that he was denied the terms or pricing he saw advertised or that he did not receive the shirts he selected. He does not claim that there was anything about the shirts themselves that made them defective or caused him to change his opinion about their value. Camasta simply argues that his expectations for the discount he received were unrealized when he learned that the sale was not a temporary price reduction, but rather the normal retail price of JAB's merchandise.

On behalf of himself and a putative class, Camasta filed his first complaint against JAB on August 29, 2012. Camasta's two-count complaint accused JAB of violating both the ICFA and the Uniform Deceptive Trade Practices Act (“UDTPA”) based on the company's “sales practice of advertising the normal retail price as a temporary price reduction.” The putative class consisted of consumers who purchased any “on sale” item at any JAB retail location in Illinois. In his complaint, Camasta included a non-exhaustive list he compiled of JAB's advertised sales promotions and discounted prices between August 25, 2010, and August 24, 2012. The various purported sales were promoted through print, radio, television, direct mailings, e-mails, and in-store displays.

JAB removed the case to federal court and moved to dismiss Camasta's original complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In the original complaint, Camasta requested the court to apply the less-stringent pleading standard of Federal Rule of Civil Procedure 8(a) because he claimed “unfair” conduct under the ICFA, not fraud. The district court rejected Camasta's request, granted JAB's motion to dismiss without prejudice, and gave Camasta leave to file an amended complaint to adequately state a claim.

Camasta filed his First Amended Complaint on behalf of himself and the putative class, claiming that JAB violated the ICFA based on unlawful sales practices and included the same list of JAB's advertised sales that he included in his original complaint. He offered no additional facts to support the heightened pleading requirement of Rule 9(b). Again, JAB moved to dismiss Camasta's complaint pursuant to Rule 12(b)(6). Camasta did not request leave to amend.

The district court found that Camasta's First Amended Complaint lacked “any analysis or explanation of how [Camasta] fulfilled Rule 9(b)'s requirements” and that he “failed to provide any specific details” in support of his claim under the ICFA. The district court identified five primary reasons for the deficiency of Camasta's claim: (1) Camasta did not provide any additional details about the content of the advertisement he saw the day he purchased shirts from JAB beyond the claim that merchandise was being offered at “sale prices” and was “on sale;” (2) he vaguely asserted that he learned that the sale was not a temporary price reduction, but failed to give any particulars as to how that knowledge was brought to his attention; (3) he provided insufficient evidence to show that the claimed sales technique employed by JAB was part of a general sales practice utilized by JAB; (4) the claim that he suffered “actual damage” was speculative and conclusory because he did not allege that he paid more for the shirts than their actual value; and (5) his request for injunctive relief failed to allege future harm from JAB's conduct.

The district court dismissed Camasta's First Amended Complaint with prejudice. Camasta timely appealed to this court.


A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.1997). A district court's decision to grant a motion to dismiss is reviewed de novo. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir.2010). To survive a motion to dismiss under Rule 12(b)(6), the complaint must provide enough factual information to “state a claim to relief that is plausible on its face” and “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Even so, the complaint does not need to state all possible legal theories. Dixon v. Page, 291 F.3d 485, 486–87 (7th Cir.2002).

Determining whether a complaint states a claim upon which relief may be granted is dependant upon the context of the case and “requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While all well-pled facts are taken as true and viewed in a light most favorable to the plaintiff, Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 742–43 (7th Cir.2010), [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

Since Camasta's claim was of fraud under the ICFA, the sufficiency of his complaint is analyzed under the heightened pleading standard set forth in Federal Rule of Civil Procedure 9(b). See Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 446–47 (7th Cir.2011). Rule 9(b) requires a pleading to “state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). While the precise level of particularity required under Rule 9(b) depends upon the facts of the case, the pleading “ordinarily requires describing the who, what, when, where, and how of the fraud.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir.2011) (internal quotations omitted). One of the purposes of the particularity and specificity required under Rule 9(b) is “to force the plaintiff to do more than the usual investigation before filing his complaint.” Ackerman v. Northwestern Mutual Life Ins. Co., 172 F.3d 467, 469 (7th Cir.1999).

Camasta argues that he should only have to meet the less-stringent pleading standard of Rule 8(a). This less stringent pleading standard provides that [a] complaint need not narrate all relevant facts or recite the law; all it has to do is set out a claim for relief.” Hrubec v. Nat'l R.R. Passenger Corp., 981 F.2d 962, 963 (7th Cir.1992); Fed.R.Civ.P. 8(a)(2). However, in analogous cases we have required the heightened pleading standard of Rule 9(b). In Pirelli, the plaintiff argued that the pleading requirement of Rule 8(a) should apply to his claim because he included an allegation of fraudulent conduct that was “unfair” under the ICFA. 631 F.3d at 446. We upheld the district court's dismissal of the complaint for failing to comply with the requirements of Rule 9(b) because [a] claim that ‘sounds in fraud’—in other words, one that is premised upon a course of fraudulent conduct—can implicate 9(b)'s heightened pleading requirements.” Id. at 446–47 (citing Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir.2007)).

Here, Camasta claims that he was induced to purchase shirts from JAB by their “fraudulent sales practices” that “mislead,” “misrepresent,” and “defraud...

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