Lowe v. CVS Pharmacy, Inc.
233 F. Supp. 3d 636
N.D. Ill.2017Background
- Plaintiffs Carl Lowe and Kearby Kaiser sue CVS, MinuteClinic, and West under the TCPA and Illinois ATDA for unsolicited prerecorded/autodialed calls; Kaiser’s claims against MinuteClinic rest on a single September 11, 2013 prerecorded promotional call.
- Kaiser’s phone has a 312 (Chicago) area code; MinuteClinic obtained the number after Kaiser received a 2012 flu shot at an Illinois MinuteClinic.
- At deposition Kaiser testified ambiguously that he likely was on an overseas vacation (phone off) when the call occurred; after the deposition he submitted an affidavit and supporting records stating he was in Illinois on the call date.
- Defendants moved to dismiss under Rule 12(b)(2) for lack of personal jurisdiction as to MinuteClinic (and as to CVS/West insofar as claims rest on that call), arguing Kaiser’s deposition shows the call occurred outside Illinois.
- Court found defendants had formally preserved jurisdictional objections but had waived them by conduct (participating in discovery and litigation for ~2 years).
- On the merits, the court held that Kaiser’s affidavit (and deposition taken as a whole) sufficed to make a prima facie showing of specific personal jurisdiction; alternatively, even if the call was placed while Kaiser was abroad, retrieving the voicemail in Illinois after return and the facts that the number had an Illinois area code and was obtained via an Illinois clinic supplied purposeful direction supporting jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants waived personal jurisdiction defense | Defendants denied jurisdictional allegations in answer but otherwise litigated; plaintiff argues delay caused waiver | Defendants say they preserved the defense in the answer and only recently discovered facts at deposition | Court: Formal preservation in answer but conduct (2 years of litigation/discovery) amounted to waiver by conduct; nonetheless court addressed merits |
| Whether Kaiser’s contradictory deposition/affidavit is a sham | Kaiser: deposition was vague; affidavit and records clarify he was in Illinois on Sept. 11, 2013 | Defendants: affidavit contradicts sworn deposition and should be disregarded under sham-affidavit doctrine | Court: deposition was internally inconsistent; lapse of memory plausible; affidavit not a sham; plaintiff met prima facie burden |
| Whether MinuteClinic purposefully directed conduct at Illinois (specific jurisdiction) | Kaiser: number had Illinois area code, was obtained from Illinois visit, message directed recipient to local MinuteClinic => purposeful direction to Illinois | MinuteClinic: call was placed when Kaiser was overseas; retrieving voicemail in Illinois shouldn’t create jurisdiction; area code alone insufficient | Court: finding of purposeful direction — the call targeted a number affiliated with Illinois, obtained via Illinois clinic and message invited local clinic visit; retrieving voicemail in Illinois suffices for nexus |
| Whether exercising jurisdiction comports with fair play and substantial justice | Kaiser: defendants already litigated here; burden minimal relative to judicial efficiency | Defendants: subjecting them to suit based on where plaintiff later listened to voicemail is unfair/absurd | Court: exercise of jurisdiction is fair and efficient given defendants’ participation and facts tying call to Illinois; dismissal denied |
Key Cases Cited
- Int’l Shoe Co. v. Washington, 326 U.S. 310 (establishes minimum contacts due process standard)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (purposeful availment/anticipation analysis for specific jurisdiction)
- Tamburo v. Dworkin, 601 F.3d 693 (Seventh Circuit framework for purposeful direction and intentional torts)
- Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773 (plaintiff’s burden to make prima facie showing of personal jurisdiction)
- Cont’l Bank, N.A. v. Meyer, 10 F.3d 1293 (waiver of jurisdictional defenses by litigation conduct)
- Golan v. Veritas Entm’t, LLC, 788 F.3d 814 (voicemails/prerecorded messages can give rise to TCPA claims when later retrieved)