Windy City Metal Fab v. CIT Technology Fin ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1567
WINDY CITY METAL FABRICATORS &
SUPPLY, INCORPORATED and MIDWEST
INK COMPANY, on Behalf of Itself
and All Others Similarly Situated,
Plaintiffs-Appellants,
v.
CIT TECHNOLOGY FINANCING SERVICES,
INCORPORATED and REED SMITH, a New
Jersey Limited Partnership,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 5451—Wayne R. Anderson, Judge.
____________
ARGUED OCTOBER 25, 2007—DECIDED AUGUST 1, 2008
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and KANNE,
Circuit Judges.
RIPPLE, Circuit Judge. Windy City Metal Fabricators &
Supply Inc. (“Windy City”) sued CIT Technology Financ-
ing Services (“CIT”) and the law firm Reed Smith in
Illinois state court. After Reed Smith removed the action
2 No. 07-1567
to the district court based on diversity of citizenship,1
Midwest Ink Co. was added as a plaintiff. CIT and Reed
Smith filed a motion to dismiss, which the district court
granted. The plaintiffs timely appealed the dismissal.2 For
the reasons stated in this opinion, we affirm in part and
reverse in part the judgment of the district court. The
case is remanded for further proceedings consistent
with this opinion.
I
BACKGROUND
A.
Because this case comes to us after the district court
dismissed the complaint for failure to state a claim, we
take as true the facts alleged in the complaint. Tamayo
v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). The
events at issue in this appeal came about as a result of
the activities of Norvergence, a now-bankrupt company.
When still in business, Norvergence leased to business
customers a telecommunications service package called
the Matrix Solution. The package included the customer’s
communication service and hardware that could be
1
The federal court had diversity jurisdiction under 28 U.S.C.
§ 1332. Windy City and Midwest Ink are Illinois corporations
with their principal places of business in Illinois. CIT is a
Massachusetts corporation with its principal place of business
in New Jersey. Reed Smith is a limited liability partnership
that, at the time of removal, had no partners who were citizens
of Illinois.
2
We have appellate jurisdiction under 28 U.S.C. § 1291.
No. 07-1567 3
leased only from Norvergence through an equipment
rental agreement. Norvergence claimed that the equip-
ment contained proprietary components that reduced a
user’s telecommunications bill; in fact, the equipment
had no effect on the customer’s telecommunications
services. In some instances, Norvergence did not even
connect the devices.
After Norvergence entered into an equipment rental
agreement with a customer, it assigned that agreement
to one of a number of third parties. The customer re-
ceived standard telecommunications equipment that actu-
ally was worth only a small fraction of the customer’s
monthly payment on the equipment rental agreement.
Norvergence used the funds, which it obtained by
selling the equipment rental agreement to the third
party, to pay the customer’s telecommunications
services bill. Norvergence was unable, however, to con-
tinue to pay its customers’ bills because it paid more for
the monthly services than it obtained by selling the
rental agreements. Norvergence went bankrupt. Its cus-
tomers were left without telecommunications service,
but they had continuing obligations under the equipment
rental agreement to pay the third-party assignee for the
equipment.
Windy City and Midwest Ink are two businesses that
purchased these equipment rental agreements from
Norvergence. Norvergence sold their rental agreements
to CIT. When Norvergence later went bankrupt, Windy
City and Midwest Ink stopped receiving telecommunica-
tions services because Norvergence was no longer paying
for the services. Windy City and Midwest Ink neverthe-
less had a continuing obligation under the assigned
equipment rental agreement to lease equipment from CIT.
4 No. 07-1567
The Illinois Attorney General obtained a default judg-
ment against Norvergence in an Illinois court. Under that
judgment, the contracts between Norvergence and its
Illinois consumers were held to have been void ab initio
because they stemmed from solicitations that were the
result of unfair business practices and fraud on the part of
Norvergence. Reed Smith, acting on behalf of CIT, then
executed an Assurance of Voluntary Discontinuance (the
“Assurance”) with the Illinois Attorney General. Under
its terms, CIT offered to reduce by eighty-five percent
the amount that each customer owed to CIT on its rental
agreement and to refund sixty-seven percent of the
insurance-related charges paid by the customer on the
rental agreements.
As required by the Assurance, CIT sent a settlement
letter directly to each of its lessees, including Windy
City and Midwest Ink. Shortly thereafter, Reed Smith
also sent a letter to Windy City’s attorneys in order to
ensure that they were aware of the letter. Midwest Ink
accepted the settlement offer, but Windy City did not
accept it.
B.
In 2005, Windy City filed its original proposed class
action complaint against CIT in Illinois state court. It
sought to represent Norvergence customers whose rental
agreements had been assigned to CIT. Reed Smith was
added as a defendant in the fall of 2005, and it removed the
action to the district court. Midwest Ink was added sub-
sequently as a plaintiff to represent the potential class
members who had accepted CIT’s settlement offer. The
revised second amended complaint, the operative
No. 07-1567 5
version on this appeal, set forth eight counts, including
claims of common-law fraud and violations of the Illinois
Consumer Fraud and Deceptive Business Practices Act,
815 ILCS 505/1 et seq. (“Consumer Fraud Act”). The
complaint sought compensatory, statutory and punitive
damages, as well as preliminary and permanent injunc-
tive relief, against both CIT and Reed Smith.
The district court dismissed the complaint with prejudice
under Federal Rule of Civil Procedure 12(b)(6) for failure
to plead fraud with the specificity required by Federal Rule
of Civil Procedure 9(b). The plaintiffs moved for leave to
further amend the complaint, but the district court denied
their motion. The plaintiffs timely appealed.
II
DISCUSSION
We review de novo a district court’s grant of a Rule
12(b)(6) motion to dismiss. Tamayo, 526 F.3d at 1081. As a
general rule, in testing the sufficiency of a complaint,
notice pleading remains the standard. A plaintiff’s com-
plaint need only provide a “short and plain statement of
the claim showing that the pleader is entitled to relief”
that is also sufficient to provide the defendant with “fair
notice” of the claim and its basis. Bell Atl. Corp. v. Twombly,
127 S. Ct. 1955, 1964 (2007); Fed. R. Civ. P. 8(a)(2). In
order to demonstrate that he is entitled to relief, how-
ever, the pleader must show through his allegations that
“it is plausible, rather than merely speculative, that he
is entitled to relief.” Tamayo, 526 F.3d at 1083 (quota-
tion omitted); see also Bell Atl., 127 S. Ct. at 1965-66. A
complaint must do more than merely “avoid foreclosing
6 No. 07-1567
possible bases for relief.” Tamayo, 526 F.3d at 1084 (quota-
tion omitted). It “must actually suggest that the plaintiff
has a right to relief, by providing allegations that raise a
right to relief above the speculative level.” Id. (quotation
omitted).
In the present case, the plaintiffs’ complaint includes
claims against CIT and Reed Smith that allege common-
law fraud and violations of the Consumer Fraud Act. The
parties agree that, with respect to most of these claims,
the heightened pleading standards of Federal Rule of
Civil Procedure 9(b) govern. Under Rule 9(b), a plaintiff
must state with particularity “all averments of fraud or
mistake.” Fed. R. Civ. P. 9(b); see also Gen. Elec. Capital Corp.
v. Lease Resolution Corp., 128 F.3d 1074, 1078 (7th Cir. 1997).
The circumstances of fraud or mistake include “the
identity of the person who made the misrepresentation,
the time, place and content of the misrepresentation,
and the method by which the misrepresentation was
communicated to the plaintiff.” Gen. Elec. Capital, 128
F.3d at 1078 (quotation omitted); see also DiLeo v. Ernst &
Young, 901 F.2d 624, 627 (7th Cir. 1990) (describing Rule
9(b) particularity as “the who, what, when, where, and
how: the first paragraph of any newspaper story”).
The plaintiffs believe that the district court erred in
dismissing their common law fraud claims against CIT and
Reed Smith for failure to state with particularity the
circumstances of the alleged fraud. They also submit
that their claims against CIT under the Consumer Fraud
Act may go forward without meeting the particularity
No. 07-1567 7
requirement of Rule 9(b).3 We now address each of these
contentions.
A.
Fraud Claims
The district court dismissed all of the plaintiffs’ claims
against CIT and Reed Smith on the ground that the
claims sounded in fraud but failed to meet the
particularity requirement of Rule 9(b). The court ruled
that, although the complaint described Norvergence’s
fraud with particularity, it failed to describe CIT’s con-
nection to any fraud with the particularity required by
Rule 9(b). The court also held that the plaintiffs had failed
to state with particularity the fraud allegedly committed
by Reed Smith. The district court therefore dismissed all
the fraud claims against CIT and Reed Smith because
the plaintiffs had failed to plead who had made a fraudu-
lent statement, when the fraudulent statement was
made and how the fraudulent statement was communi-
cated.
3
The plaintiffs additionally contend, without relying on factual
or legal support, that the district court erred in refusing to
permit them to file a third amended complaint. An appellant is
required to provide “citations to the authorities and parts of the
record” in support of his argument. Fed. R. App. P. 28(a)(9). “We
have made it clear that a litigant who fails to press a point by
supporting it with pertinent authority, or by showing why it is
sound despite a lack of supporting authority, forfeits the
point.” Tyler v. Runyon, 70 F.3d 458, 464 (7th Cir. 1995) (quota-
tion omitted). We therefore shall not address this perfunctory
and underdeveloped argument on appeal. Id.; see also Estate
of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir. 2005).
8 No. 07-1567
On appeal, the plaintiffs’ only contention is that the
district court wrongly required them to provide evidence
of fraud to defeat a Rule 12(b)(6) motion. They correctly
point out that the district court employed the word
“evidence” when describing the allegations that the
complaint failed to state with particularity. For instance,
the district court said that “[n]o evidence . . . [was] offered
to establish who at CIT knew that the assigned [equip-
ment rental agreement] was for a bundled service and
equipment lease agreement, or name the individuals
who should have known, when they should have known,
or how they would have known.” Windy City Metal Fabrica-
tors & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., No. 05 C
5451, 2007 WL 495276, at *4 (N.D. Ill. Feb. 9, 2007).
Despite its use of inartful terminology, the district court
properly dismissed the plaintiffs’ fraud claims for failure
to state with particularity “who made the fraudulent
statement, when the fraudulent statement was made,
and how the fraudulent statement was made.” Id. at *3. The
district court did not require the complaint to provide
actual evidence of the claims; it merely required that
the claims be pleaded with the requisite particularity. See
id. Moreover, the district court correctly determined
that the complaint failed to plead with particularity
the who, when and how of the alleged frauds, all of
which are required by Rule 9(b) for allegations of fraud.
See Gen. Elec. Capital, 128 F.3d at 1078; DiLeo, 901 F.2d at
627. The district court therefore properly dismissed the
fraud counts for failure to comply with Rule 9(b).4
4
Count 5 of the operative complaint also alleges that Reed
Smith, the law firm that represented CIT, conspired to accom-
(continued...)
No. 07-1567 9
B.
“Unfair Conduct” Under The Consumer Fraud Act
The plaintiffs submit that their claim under the Illinois
Consumer Fraud Act may go forward without meeting
the heightened standard of pleading fraud claims under
Rule 9(b). In their view, a claim under the Consumer
Fraud Act may allege either deceptive practices, which
sound in fraud, or unfair practices, which do not. Because
the allegations in Count I do not allege fraud but an unfair
trade practice, they maintain, the governing pleading
standard is the one contained in Rule 8.
1.
The Illinois Consumer Fraud Act “is a regulatory and
remedial statute intended to protect consumers . . . against
fraud, unfair methods of competition, and other unfair
and deceptive business practices.” Robinson v. Toyota
Motor Credit Corp., 775 N.E.2d 951, 960 (Ill. 2002). The
Supreme Court of Illinois has held that recovery under
the Consumer Fraud Act “may be had for unfair as well
as deceptive conduct.” Id. In interpreting unfair conduct
under the Consumer Fraud Act, Illinois courts look to
the federal interpretations of unfair conduct under sec-
tion 5(a) of the Federal Trade Commission Act, 15 U.S.C.
4
(...continued)
plish the fraudulent scheme allegedly undertaken by its client.
This claim must fail as well. Reading the allegations of this
claim in the light most favorable to the plaintiffs, it simply
alleges that Reed Smith negotiated on behalf of its client with
the Attorney General of Illinois and then counseled its client
with respect to how to comply with the resulting agreement.
10 No. 07-1567
§ 45. Robinson, 775 N.E.2d at 960; 815 ILCS 505/2. Thus,
three considerations guide an Illinois court’s determina-
tion of whether conduct is unfair under the Consumer
Fraud Act: “(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, 775 N.E.2d at 961. A court may
find unfairness even if the claim does not satisfy all three
criteria. Id. For example, 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.Because neither fraud nor mistake is an element of
unfair conduct under Illinois’ Consumer Fraud Act, a
cause of action for unfair practices under the Con-
sumer Fraud Act need only meet the notice pleading
standard of Rule 8(a), not the particularity requirement in
Rule 9(b). Therefore, under federal notice pleading stan-
dards, the complaint need only provide a short and
plain statement of the claim that shows, through its
allegations, that recovery is plausible rather than merely
speculative. Tamayo, 526 F.3d at 1083; see also Bell Atl.,
127 S. Ct. at 1964; Fed. R. Civ. P. 8(a)(2).
2.
By contrast with the federal pleading regimen under
Rule 8, Illinois requires fact pleading even to non-fraud
claims. See Knox Coll. v. Celotex Corp., 430 N.E.2d 976, 985
(Ill. 1981); Robinson, 775 N.E.2d at 961 (reviewing an
appellate court’s holding that none of a plaintiff’s allega-
tions had been stated with sufficient particularity and
specificity to show that the defendant’s conduct was
unfair), 962 (“Plaintiffs argue here that all automobile
No. 07-1567 11
leases have standard provisions and that leases are not
negotiable. However, no such averments appear in the
pleadings. Thus, the appellate court correctly held that
plaintiffs’ bald claim of unfairness . . . was not sufficient
to state a claim.”). We can see no reason, however, why
the standards of Rule 8 of the Federal Rules of Civil
Procedure, rather than Illinois fact pleading require-
ments, should not apply here. It is well settled that a
federal court sitting in diversity applies federal pleading
requirements “even when the claim pleaded arises under
state rather than federal law.” Muick v. Glenayre Elecs., 280
F.3d 741, 743 (7th Cir. 2002) (applying federal pleading
requirements to an Illinois cause of action); see also
Hefferman v. Bass, 467 F.3d 596 (7th Cir. 2006) (same);
Johnson v. Hondo, Inc., 125 F.3d 408, 417 (7th Cir. 1997) (“[I]t
is rudimentary that pleading requirements in the federal
courts are governed by the federal rules and not by the
practice of the courts in the state in which the federal court
happens to be sitting.” (internal quotation marks omitted));
Colton v. Swain, 527 F.2d 296, 304 (7th Cir. 1975). Although
we have never explained in detail the basis for this deter-
mination, a review of the basic principles governing
federal-state choice of law in the context of federal diver-
sity jurisdiction makes clear that the federal rule must be
the governing approach in this case.
It is, of course, well established that, as a general matter,
a district court exercising jurisdiction because the
parties are of diverse citizenship must apply state sub-
stantive law and federal procedural law. Erie R.R. v.
Tompkins, 304 U.S. 64 (1938). When evaluating whether a
particular state law is procedural or substantive, district
courts take as their starting point the “outcome-determina-
tive” test of Guaranty Trust Co. v. York, 326 U.S. 99, 109
12 No. 07-1567
(1945). In that case, the Supreme Court held that “the
outcome of the litigation in the federal court should be
substantially the same, so far as legal rules determine
the outcome of a litigation, as it would be if tried in a
State court.”5 Id.The bedrock case for the precise issue that confronts us
today, however, must be a case that followed Guaranty
Trust—Hanna v. Plumer, 380 U.S. 460 (1965). In Hanna, the
Court was confronted, as we are today, with a conflict
between a state rule of procedure and a federal rule of
procedure. 380 U.S. at 469-70. The Court set forth the
approach that must guide our present inquiry: We must
determine whether there is an actual conflict between the
federal and the state rule by determining “whether the
scope of the federal rule is sufficiently broad to control
the issue before the court.” Id. at 470. If the federal rule
is sufficiently broad to control the issue, then we must
evaluate the rule to ensure that the rule has not “exceeded
the congressional mandate embodied in the Rules En-
abling Act nor transgressed constitutional bounds.” Id. at
464. If the federal rule does fall within constitutional
boundaries, then it should be applied, despite the fact
that its application might alter the mode of enforcing a
state-created right. Id. at 473-74. If it is not, then the tradi-
tional Erie analysis of Guaranty Trust is appropriate and
the court should proceed to apply the outcome-deter-
minative test. Id. at 470.
5
In Guaranty Trust, the Court determined that applying a state
statute of limitations was appropriate despite the fact that
such statutes often are referred to as “procedural.” Guaranty
Trust Co. v. York, 326 U.S. 99, 109 (1945).
No. 07-1567 13
On several occasions, in applying the approach it out-
lined in Hanna, the Supreme Court had to focus on whether
there was an irreconcilable conflict between a federal
and a state rule of procedure. We turn briefly to those
cases to determine whether the difference between the
federal approach to pleading and the Illinois approach is an
irreconcilable one. In Walker v. Armco Steel Corp., 446 U.S.
740, 750 (1980), the Court determined that Rule 3 of the
Federal Rules of Civil Procedure, which addresses when an
action is commenced in federal court, was not suffi-
ciently broad to address the effect of the tolling of a
state statute of limitations on when a case commences
under state law. That determination, said the Court, is a
substantive policy decision of the state as to the dead-
line after which a defendant may have peace of mind
and after which it would be unfair to expect the defendant
to mount a defense. Walker, 446 U.S. at 751.
By contrast, in Burlington Northern Railroad Co. v. Woods,
480 U.S. 1 (1987), the Supreme Court determined that
there was a true conflict between a federal rule of proce-
dure and a state statute. In that case, a state statute pro-
vided that when an appellate court affirmed a money
judgment without substantial modification, it was to
impose a ten-percent penalty on any appellant who had
obtained a stay of that judgment pending appeal by
executing a bond. By contrast, Federal Rule of Appellate
Procedure 38 affords the federal courts of appeals
plenary discretion to award damages upon a determina-
tion that the appeal was frivolous. The Court held that a
federal appellate court ought to apply the federal rule. The
two rules conflicted, and the federal rule was a constitu-
tional exercise of federal rule-making authority and
affected only the process of enforcing litigants’ rights and
not the rights themselves. Id. at 8.
14 No. 07-1567
Here, it is clear that a conflict between the federal and
state pleading rule does exist. Compare Fed. R. Civ. P. 8
(requiring only notice pleading), with 735 ILCS 5/2-601
(requiring that pleadings contain substantial allegations of
fact), and Knox Coll., 430 N.E.2d at 985-86 (same). The
federal and the state provisions address the same sub-
ject and require adherence to conflicting standards.
Continuing to follow the analytical model of Hanna,
we next ask whether Rule 8 is within the congressional
mandate. The Rules Enabling Act gives the Supreme Court
“the power to prescribe, by general rules, the forms of
process, writs, pleadings, and motions . . . of the district
courts of the United States.” 28 U.S.C. § 2072 (emphasis
added). Prescribing the specificity with which a claim
must be pleaded relates solely to the practice and proce-
dure of a court and clearly falls within the scope of the
Rules Enabling Act. There is, moreover, no basis for
concluding that the regulation of pleading requirements
in federal court is beyond the limits of federal constitu-
tional authority. See Hanna, 380 U.S. at 464. Consequently,
we evaluate the state-law claims in this case under
the federal pleading standards.
3.
When we turn to the unfair conduct allegations of
Count I, it is clear that this claim meets the federal notice
pleading standards by “providing allegations that raise
a right to relief above the speculative level.” Tamayo, 526
F.3d at 1084 (quotation omitted). Count I alleges that CIT
used unfair practices, specifically the dissemination of
false advertisements for the purpose of inducing the
plaintiffs to enter into unconscionable equipment rental
No. 07-1567 15
agreements. It further alleges that CIT violated the Con-
sumer Fraud Act by attempting to enforce those agree-
ments. R.79 at ¶ 77. Finally, the complaint goes on to
allege that the plaintiffs suffered a loss as a result of these
allegedly illegal equipment rental agreements. These
allegations address the three considerations that, in
combination, guide a court’s determination of whether
conduct is unfair. See Robinson, 775 N.E.2d at 961 (holding
that an unfairness determination should consider:
“(1) whether the practice offends public policy; (2) whether
it is immoral, unethical, oppressive, or unscrupulous;
(3) whether it causes substantial injury to consumers”).
Although the complaint does not use specifically the
words “immoral, unethical, oppressive, or unscrupulous,”
it alleges conduct that, if proven, could support this
statutory definition of unfairness under the Consumer
Fraud Act. See id. By claiming that CIT engaged in unfair
conduct and averring facts that, if proven, make relief
more than merely speculative, Tamayo, 526 F.3d at 1084,
the plaintiffs stated adequately a claim for relief.
It is important to note that, in the procedural posture of
this case, we must take the allegations of the plaintiffs in
the light most favorable to them. Indeed, CIT has not
answered the complaint at this stage and its position on
such matters as the holder in due course defense and,
specifically, the implications of the Assurance which it
executed with the Attorney General of Illinois has not
been stated explicitly in the present procedural context. See
IFC Credit Corp. v. United Bus. & Indus. Fed. Credit Union,
512 F.3d 989 (7th Cir. 2008).
16 No. 07-1567
Conclusion
For the foregoing reasons, we hold that the district
court dismissed properly the entirety of the plaintiffs’
fraud claims, but that the court erred in dismissing the
plaintiffs’ claims for unfair practices under the Illinois
Consumer Fraud Act against CIT. The judgment of the
district court accordingly is affirmed in part and reversed
and remanded in part for further proceedings consistent
with this opinion. Reed Smith may recover the costs of this
appeal. The other parties shall bear their own costs of this
appeal.
AFFIRMED in part and
REVERSED and REMANDED in part
USCA-02-C-0072—8-1-08