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No. 02 C 8435 Page 3

implicate the records of every Target store in at least the United States for a number of years.
An effort to comply reasonably (indeed, undoubtedly) would entail costs in excess of $75,000.
And that confers subject matter jurisdiction over a case that cannot survive a challenge based

on state law. See In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 609 (7"

Cir. 1997), as recently followed in Tropp v. Western-Southern Life Insurance Co. d/b/a Western

Southern Financial Group, 2004 WL 1858369, --- F.3d --- (7" Cir. 8/20/04).
CONCLUSION

For the foregoing reasons, plaintiffs second motion to reconsider is denied.

JAMES B. MORAN
nior Judge, U.S. District Court

bes 31, 2004,


Mitete Order Bot y06097)

United States District Court, Northern District of Illinois

Nai of Assigned Judy Si r
or Magistrate Judge James B. Moran than‘Asslaned Judge
CASE NUMBER 02 C 8435 DATE 8/31/2004
CASE TERRY XYDAKIS vs. TARGET, INC., d/b/a MARSHALL FIELDS
TITLE

Lin the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

qa)

MOTION:
MEMORANDUM OPINION AND ORDER
DOCKET ENTRY:
qa oa Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) 1a) Answer brief to motion due____. Reply to answer brief due.
(4) im Ruling/Hearingon___setfor__—_at
(5) oO Status hearing[held/continued to] [set for/re-set for]on__—setfor___—_at
(6) im} Pretrial conference[held/continued to] [set for/re-set for]on___———s setfor_—s at,
(e) Oo Trial{set for/re-set for]on___at
(8) im [Bench/Jury trial] [Hearing] held/continued to__at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) ClLocal Rule 41.1 CFRCP41(a)(1) [ FRCP41(a)(2).
do) [Other docket entry] | Enter Memorandum Opinion And Order. Plaintiff's second motion to

reconsider is denied.

| [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. umber of notices

Notices mailed by judge's staff, SEP g 3 2004
Notified counsel by telephone. dale docketed
Docketing to mail notices.

Mail AO 450 form. dod A t,
Copy to judge/magistrate judge. S see a1 20

ave mailed notice
courtroom

LG deputy’s Co :3 Hd 12 Say Noe
initials

Datg/time received;

central: Clerk's Office! railing deputy initiats



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TERRY XYDAKIS, on behalf of himself’ )
and all other persons similarly situated, )

Plaintiff,
vs. No. 02 C 8435 bs

TARGET, INC., d/b/a MARSHALL
FIELDS,

SEP 6 4 2004

wevenererverve HS

Defendant.
MEMORANDUM OPINION AND ORDER

On June 8, 2004, we denied plaintiffs motion to reconsider the dismissal of his claims
He subsequently filed a second motion to reconsider that dismissal or alternatively to dismiss
the claims for lack of subject matter jurisdiction. For the following reasons, that motion is
denied.

This case is illustrative of the fact that the federal courts are of limited jurisdiction and
that a plaintiff can sail up on the reefs when he seeks to make a federal case out of a state law
claim.

Plaintiff originally filed suit on behalf of a nationwide class of all persons who were
unable to purchase a product advertised by Target, Inc. during an indeterminate time because,
during the sales period, the product was not in stock. While he sought damages for the class,
he also asked for injunctive relief and described the class as a Rule 23(b)(2) class. This was
undoubtedly because his claim rested only on Illinois law, he sought to invoke diversity
jurisdiction, and it was obvious that his damages did not exceed $75,000. In most class actions
in federal court that jurisdictional threshold does not pose a problem because there is some
federal claim, but here there was none.

In the subsequent skirmishing about the scope of discovery, we noted that the monetary


n~

No. 02 € 8435 Page 2

claims made reliance upon a Rule 23(b)(2) class misplaced. Plaintiff then amended his complaint
so as to seek equitable relief alone. We then dismissed the complaint in its entirety, finding that
plaintiff failed to allege that he was actually harmed by defendant’s conduct, as is required by
the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA).

Plaintiff's contention that we have placed him in a “Catch-22" is unconvincing.
Aswe alluded to in the September 9, 2003 order, Rule 23(b)(2) is not the proper tool for plaintiff
to use in seeking to recover damages, but rather a vehicle for seeking actual injunctive relief for
a large class of wronged plaintiffs.| Plaintiff made a conscious choice to pursue his claim as a
class action rather than to seck damages arising from defendant’s alleged violations of the ICFA.
In so doing, he essentially pleaded himself out of court — the ICFA allows only those individuals
actually damaged by consumer fraud to bring a claim.

Nothing in this or previous orders prevents plaintiff from turning to state court to seek
recovery for his actual damages (which he admits fall well short of $75,000) under the ICFA nor
prevents defendant from relying upon the orders here for whatever preclusive effect they may
have. We dismissed the amended complaint because, in choosing not to allege damages, plaintiff
failed to state a claim for relief.

Plaintiff also contends that any dismissal should have been for lack of subject matter
jurisdiction. He claims that the injunctive relief sought did not reasonably have a value in excess
of $75,000, although he had alleged that it did. That he must allege actual damages to survive
a motion to dismiss is a creature of state law. Whether or not it can reasonably be claimed that
the amount involved in a claim for equitable relief exceeds $75,000 is a matter of federal law.

In the First Amended Complaint the class alleged is the same as before, and the claim would

\possibly a class representative could seek only his own damages in a Rule 23(b)(2) class action — we
have not considered that — but a class representative could not properly say he wanted to be paid, but because
he preferred to litigate in federal court no one else in the class should get that relief.