IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION
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Stephen L. Kershner, et al., Plaintiffs, vs. Murray & Trettel, Inc., et al., Defendants |
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Case No.: 03 CH 21621 Hon. Patrick E. McGann |
This matter comes on to be heard on the Motion of the Defendant, Murray & Trettel, Inc. to dismiss Counts II & IV of the Plaintiffs’ Complaint in accordance with 735 ILCS 5/2-615. The well-pled facts will be set out, as necessary, in the discussion of this Court’s decision.
Legal Standard
A Section 2-615 motion attacks the legal sufficiency of the plaintiffs’ claim. The motion does not raise affirmative factual defenses, but rather alleges defects only on the face of the complaint. The question presented by a Section 2-615 motion to dismiss is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. A cause of action will not be dismissed on the pleadings unless it clearly appears that no setbacks can be proved which will entitle the plaintiff to recover. Vernon v. Schuster 179 Ill. 2d 338, 344 (1997); Bryson v. News America Publications, Inc., 174 Ill. 2nd 77, 86 -87 (1986).
II. Discussion
The Plaintiffs have filed a four count Complaint against Murray & Trettel, Inc. In Count II, the Plaintiffs seek damages for the common law tort of conversion. In addition, the Plaintiffs seek an injunction against further acts of conversion. A claim for damages is an adequate remedy at law; hence, any claim for injunctive relief is inappropriate. Kanter & Eisenberg v. Madison Assoc., 116 Ill. 2nd 506, 510 (1987). The Plaintiffs correctly argue that an injunction will issue in situations where money damages are available but the defendant's conduct is continuing nature or will result in a multiplicity of damage actions. However, this argument ignores the availability of injunctive relief pursuant to the statutory injunctive remedy provided under the Telephone Consumer Protection Act of 1990. 47 U.S.C. 227 (b) (3). This also affords the Plaintiffs an adequate legal remedy which precludes injunctive relief on their common law claims. Hence, the Plaintiffs’ prayer for injunctive relief is stricken from Count II.
The same deficiency appears in Count IV (incorrectly identified as Count V), and that prayer for relief will be limited to monetary damages. Moreover, Count IV is more properly an element of damage for an independent tort. Indeed, the count is duplicitous of the claim for conversion and will be dismissed with prejudice on that basis.
As to Count III, which alleges a violation of the Illinois Consumer Fraud and Deceptive Practices Act (815 ILCS 505/2), the complaint fails to allege sufficient conduct on behalf of the Defendant to satisfy the test sent out in Robinson v. Toyota Motor Credit Corporation, 201 Ill. 2d 403, 417-418 (2002). As correctly pointed out by the Defendant, the allegation the complaint speaks to the transmission of one unauthorized facsimile message. In testing the legal sufficiency of a complaint in a class action sending, the court must consider the conduct as it affects the putative class representative as an individual and not on a class wide basis. Under this analysis, Count III fails and is dismissed consistent with the analysis in Whiting v. MSI Marketing, Inc., 02 CH 6332; and INSPE Associates, Ltd. v. Charter One Bank, 03 CH 10965.
