IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JUAN DORADO, et al., )

)

Plaintiffs, )

)

v. ) No. 12 C 137

)

BALLY TOTAL FITNESS HOLDING )

CORP., et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Juan Dorado (“Dorado”) and Michael Markzon (“Markzon”) have

just filed a putative Class Action Complaint against Bally Total

Fitness Holding Corp. (“Bally”) and L.A. Fitness International,

LLC (“L.A. Fitness”), advancing several asserted grounds to

invoke federal subject matter jurisdiction. This sua sponte

memorandum opinion and order is issued at the threshold to

address some problematic aspects of the Complaint.

To begin with, Dorado and Markzon seek to call upon 18

U.S.C. §1346 as the purported predicate for federal question

jurisdiction. But that statute is part of the federal criminal

code, and the United States Supreme Court consistently teaches

that in the absence of any congressional conferral of

jurisdiction, no claim can properly be implied from such federal

enactments (see, e.g., Alexander v. Sandoval, 532 U.S. 275, 286-

87 (2001) and the numerous citations included there).

Moreover, the criminal statute that the Complaint cites

simply provides a definition of the term “scheme or artifice to
defraud” “f]or the purposes of this chapter” (a chapter that sets

out various categories of fraud for which federal criminal

prosecutions can be brought). If counsel were correct in their

bizarre view of federal jurisdiction, every lawsuit charging

fraud of any sort costing any amount (however small) could be 1

brought in the federal courts--an absurd proposition. That then

means that Dorado and Markzon must look to diversity of

citizenship as the door for entering the federal courthouse.

In that respect, PARTIES ¶¶1 and 2 of the Complaint speak 2

of the residences (not the states of citizenship) of Dorado and

Markzon. That being so, such cases as Adams v. Catrambone, 359

F.3d 858, 861 n.3 (7th Cir. 2004) direct that the Complaint must

be dismissed on that ground alone. But because that flaw is most

likely curable (for most though not all persons’ residences

coincide with their respective states of citizenship), this Court

 It will be remembered that federal question litigation, 1

unlike diversity cases, has no amount-in-controversy requirement.

 Counsel for Dorado and Markzon exhibits just as odd a 2

conception of federal pleading as his just-discussed approach to

federal question jurisdiction. Instead of following the

universal practice of consecutive numbering of paragraphs in the

Complaint, counsel sets out a number of centered subject matter

headings (PARTIES, FACTS, CLASS ACTION ALLEGATIONS and three

headings identifying “COUNTS” [theories of recovery]) and starts

the allegations under each of those headings with paragraphs

numbered (1), (2) and so on. That practice makes citations to

the Complaint cumbersome, as well as nonconformant to the forms

that Fed. R. Civ. P. 84 suggests as models. Even worse, the

allegations in the four paragraphs included under the

JURISDICTION & VENUE rubric are not numbered at all.

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will soldier on.

Complaint PARTIES ¶3 identifies Bally, like both plaintiffs,

as an Illinois citizen. That being true, any conventional claims

dependent on the existence of diversity lack the total diversity

required ever since Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267

(1806), so that Dorado and Markzon would strike out in that

respect as well.

That then leaves the Complaint’s invocation under

JURISDICTION & VENUE of 28 U.S.C. §1332(d)(“Section 1332(d),” the

Class Action Fairness Act [“CAFA”]), because it is said there

that “the amount in controversy exceeds $5,000,000.” On that

score the Complaint poses questions without providing the

answers--simply citing CAFA does not do the job. For example:

1. Count II’s attempt to bring into play the Illinois

Consumer Fraud and Deceptive Business Practices Act, 815

ILCS 505, ignores the complexities of applying that statute

to non-Illinois consumers. As Avery v. State Farm Mut.

Auto. Ins. Co., 216 Ill.2d 100, 187, 835 N.E.2d 801, 853-54

explains:

Accordingly, we hold that a plaintiff may pursue a

private cause of action under the Consumer Fraud

Act if the circumstances that relate to the

disputed transaction occur primarily and

substantially in Illinois. In adopting this

holding, we recognize that there is no single

formula or bright-line test for determining

whether a transaction occurs within this state. 

Rather, each case must be decided on its own

facts.

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That appears to cut against the Complaint’s effort to obtain

certification of a nationwide class, for which purpose the

Dorado-Markzon counsel has noticed up a motion for

presentment on January 17 (more on that subject later).

2. Count III’s reliance on Illinois law on a breach of

contract theory does not explain why local law here applies

to the proposed nationwide class of persons referred to in

Paragraph (1) as owning “a Bally life-time membership.”

3. Section 1332(d)(4) suggests that this action may

well be one in which this District Court must decline to

exercise CAFA jurisdiction.

Although there may be other problems lurking in the

Complaint, what has been said here may suffice for now. Counsel

has noticed up a motion for presentment at 9:15 a.m. January 17

for the purpose of seeking class action certification. Whenever 3

that motion is properly before this Court (see n.3), counsel

should come prepared to speak to the matters addressed here (and

perhaps other questions that counsel for Bally or L.A. Fitness

may pose at that time).

________________________________________

Milton I. Shadur

Date: January 13, 2012 Senior United States District Judge

 This Court has noted, however, that counsel--seemingly 3

running true to form--has given inadequate notice of that motion

(see this District Court’s LR 5.3(a)(2)). That being so, the

motion cannot be presented on January 17 unless defendants agree

to waive the notice issue.

4