In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3619
Q UINTEN E. S PIVEY,
Plaintiff-Appellant,
v.
A DAPTIVE M ARKETING LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:07-CV-00779—Michael J. Reagan, Judge.
A RGUED M AY 18, 2010—D ECIDED S EPTEMBER 20, 2010
Before O’C ONNOR, Associate Justice, and K ANNE and
R OVNER, Circuit Judges.
O’C ONNOR, Associate Justice (Ret.). Quinten E. Spivey
challenges the district court’s grant of summary judg-
ment against him on his claims against Adaptive Mar-
The Honorable Sandra Day O’Connor, Associate Justice of
the United States Supreme Court (Ret.), sitting by designation
pursuant to 28 U.S.C. § 294(a).
2 No. 09-3619
keting for breach of contract and unjust enrichment.
Because we find that no reasonable jury could find in
favor of Spivey, we affirm the judgment of the district
court.
I
Appellant Spivey called a telemarketing number in
January 2003 and ordered an Atkins diet product. This
dispute arises from the rest of that telephone conversation.
A.
Adaptive has produced a partial recording of what it
alleges is the conversation between the telemarketer and
Appellant. According to the district court, the recording
is as follows:
Telemarketer: Thank you for your order. We’re
sending you a risk free 30-day membership to
HomeWorks, offering hundreds of dollars in savings
at stores like the Home Depot, K-Mart, Linens &
Things and many more. After 30 days, the service is
extended to a full year for just $8.00 per month, just
$96.00 annually. Billed in advance as HomeWorks
with the credit card you are using today. You will
be charged an annual fee at the end of your 30-day
trial period and at the beginning of each new mem-
bership year. If you want to cancel, simply call the
toll-free number that appears in your kit in the first
30 days and you will not be billed. If you don’t save
No. 09-3619 3
hundreds of dollars in your first year, just call and
you’ll get a full refund. So look for your kit in your
mail is that okay?
Male: Okay.
Spivey v. Adaptive Mktg., LLC, 660 F. Supp. 2d 940, 943-44
(S.D. Ill. 2009). Adaptive alleges that the male in the
conversation was Spivey. Spivey’s credit card state-
ments show a charge of $96.00 by HomeWorks in
March 2003, a charge of $149.95 by HomeWorks due in
January 2004, charges of $199.95 in January 2005 and
January 2006, and an additional charge of an undeter-
mined amount in January 2007. See Appellee’s Resp.
App. (RA) at 65-69. After Spivey called to protest the
January 2007 charge, $179.70 was refunded. Pl.’s Resp. to
Def.’s First Set of Interrogs. at 3, Appellant’s Appendix
[hereinafter App.] at 56.
In his first amended complaint, Spivey claimed that
he did not recall participating in the conversation and
could not confirm that the voice in the recording was
his. In later filings, Spivey admitted that the male voice
in the recording sounds like his voice with a cold, but
maintained that the short length of the male’s state-
ment prevented him from conclusively determining
whether the voice was his. He continued to maintain
that he did not recall taking part in the conversation. Pl.’s
Resp. to Def.’s First Set of Reqs. for Admis. at 1, RA at 70.
The complaint also avers that Spivey did not receive
a “welcome kit” from Adaptive, as discussed in the
conversation, or, that if a welcome kit was delivered to
his home, it was designed to look like junk mail so that
4 No. 09-3619
he discarded it without opening it. In a later deposi-
tion, Appellee’s attorneys extensively questioned Spivey
about the welcome kit, as detailed below:
Q. Can you confirm or deny the welcome kit and the
terms and conditions contained in there that you
talk about in the other part of your Complaint?
A. Can I confirm or deny—
Q. That you received them.
A. I have no record of receiving them. No knowl-
edge of receiving them.
Q. My question is, can you confirm or deny that you
received them? . . .
A. What I can confirm is that I do not have a file that
contains anything from Adaptive, and that it is
my general practice to open and review all the
mail that comes to my home. That’s—that’s all
I can confirm.
....
Q. Can you tell me I did not receive that piece of mail?
A. I can tell you I did not receive that piece of mail.
Q. Okay. It didn’t show up at your house, and you
threw it away?
A. I do not believe that I did or would have done that.
Q. Okay. It’s your testimony and you’re swearing
under oath—you are taking the oath seriously,
I believe that. I just want to make sure I know
exactly what you’re saying. You’re telling me you
No. 09-3619 5
did not receive it. You’re not telling me I don’t
remember receiving it. Those are two different
things, in my mind.
A. I don’t know if I can answer the question any
better than that. I have no recollection, no record
of receiving it.
Dep. of Quinten E. Spivey, July 9, 2009 at 29-31 [hereinafter
Spivey Dep.], App. at 430-32; see also Spivey Dep. at 15,
RA at 75; Spivey Dep. at 36, RA at 80.
In response to Spivey’s testimony about the welcome
kit, Adaptive proffered evidence as to its standard busi-
ness practices. In an affidavit and deposition, Adaptive’s
Director of Affinity Marketing, Judy Muller, explained
that in instances like this one where Adaptive uses a
third party to market Adaptive’s products, the third party
solicits customers, but Adaptive remains responsible
for fulfillment, including shipment of membership mate-
rials and provision of customer service. Muller Aff. at 2,
App. at 514. Specifically, Muller testified that fulfillment
includes sending the customer a “self-mailer, 11 by 17
postcard essentially,” that contains a list of “benefit
providers, a membership card with a membership ID
number, terms and conditions, and an 800 number to
access the program, as well as a website URL to access
the program.” Spivey, 660 F. Supp. 2d at 947 (quoting
Muller Dep.). Muller further testified that after a sale
is loaded into Adaptive’s database, the fulfillment mate-
rials are mailed and usually reach the customer in seven
to ten business days. Id. She also explained that Adap-
tive’s “corporate policy” is to send renewal notices for
annual billings. Id.
6 No. 09-3619
Adaptive provided a copy of the Membership Agree-
ment that was effective for the period in which Spivey
allegedly joined the HomeWorks program and that Adap-
tive alleges it mailed to Spivey. In relevant part, the
Agreement provides:
TERMS OF MEMBERSHIP AND MEMBERSHIP
AGREEMENT . . . UPON ENROLLMENT, YOU
AGREE TO THESE TERMS AND CONDITIONS.
WE URGE YOU TO READ THIS MEMBERSHIP
AGREEMENT CAREFULLY AND IF YOU HAVE
ANY QUESTIONS, CALL OUR CUSTOMER SER-
VICE REPRESENTATIVES AT THE NUMBERS
LISTED ON YOUR MEMBERSHIP CARD.
....
2. Membership Term. Your Membership is effective
for a period of twelve months following the member-
ship enrollment date under the annual membership
plan or for the period agreed upon under the install-
ment membership plan authorized by You. . . .
3. Renewal of Membership. Unless You notify Us
that You wish to terminate this Agreement and
cancel Your Membership by following the instructions
below, your Membership will be renewed automati-
cally and You will be charged the then-effective Mem-
bership Fee which will appear on your statement.
4. Payment of Enrollment Fee. The payment of your
trial period and Enrollment Fee . . . is made auto-
matically by a direct charge(s) to the billing source
authorized by You in accordance with the payment
No. 09-3619 7
terms to which You agreed. We reserve the right to
increase or decrease the Enrollment Fee for each
renewal Membership Term effective upon renewal
of your Membership. Under the monthly billing
plan, We may, at our discretion, increase the
monthly Enrollment Fee once in any twelve month
period not more than $2.00 per month. . . .
....
7. Entire Agreement. This Agreement contains all of
the Terms of Membership and no representations,
inducements, promises or agreements concerning
the Membership not included in this Agreement
shall be effective or enforceable. . . .
....
9. TERMINATION OF MEMBERSHIP. YOU MAY
TERMINATE THIS AGREEMENT AND YOUR MEM-
BERSHIP AT ANY TIME BY CALLING US AT THE
TOLL FREE NUMBER ON YOUR MEMBERSHIP
CARD OR BY NOTIFYING US IN WRITING AT
MEMBERSHIP SERVICES, P.O. BOX 24311, OMAHA,
NEBRASKA. YOUR CANCELLATION WILL BE
EFFECTIVE PROMPTLY UPON THE RECEIPT OF
YOUR CANCELLATION NOTICE . . . . Doc. No. 122-2,
VTRU 01697-01698.
Spivey, 660 F. Supp. 2d at 944-45. On these facts and as
detailed below, the district court granted Adaptive’s
motion for summary judgment on all claims.
8 No. 09-3619
B.
The district court first assessed Spivey’s claim that
Adaptive breached an oral contract formed during the
telemarketing call by charging an annual fee in subse-
quent years higher than the $96 annual charge men-
tioned in the telemarketing call. In response, Adaptive
pointed to the Written Agreement, which expressly per-
mits increases to the annual enrollment fee. To deter-
mine whether Adaptive had breached an oral contract
in charging more than $96 per year, the district court
had to examine whether there was an oral contract that
could have been breached. Citing Illinois law, the court
noted that Spivey, as the party seeking relief from an
alleged breach, bears the burden of establishing both
the existence and terms of the oral agreement. Id. at 945.
The district court noted Spivey’s “reservations” as to
whether the call had in fact occurred, but explained
that “[i]n order for Spivey’s breach of contract claim to
go forward, the Court must assume that the conversa-
tion, as memorialized above, occurred and that Spivey
accepted a trial membership in HomeWorks. If Spivey
maintains otherwise, then there was no contract to
breach, and his claim must be dismissed.” Id. at 946. The
court accordingly assumed that the conversation had
occurred and resulted in the following terms:
Spivey agreed to accept a risk-free 30-day member-
ship in HomeWorks, which, after the 30-day trial
period would be extended to a full year for $8.00 per
month, or $96.00 annually. Spivey would be charged
an annual fee at the end of the trial period and at the
No. 09-3619 9
beginning of each membership year. Spivey would not
be charged if he canceled within the trial period and
would receive a full refund if he canceled within
the first year. A kit would be mailed to Spivey.
Id. The court then turned to the question of whether
Spivey was bound by the terms of the written agreement
that Adaptive allegedly mailed as part of its welcome kit.
In weighing Spivey’s testimony about whether he
received the agreement against Adaptive’s testimony
about its business practices regarding mailing welcome
kits, the district court relied on precedents from this
circuit holding that “[w]here a letter is properly
addressed and mailed, there is ‘a presumption that it
reached its destination in usual time and was actually
received by the person to whom it was addressed,’ ”
Boomer v. AT&T Corp., 309 F.3d 404, 415 n.5 (7th Cir. 2002)
(quoting Hagner v. United States, 285 U.S. 427 (1932)). The
district court relied on the Muller deposition as evi-
dence of Adaptive’s mailing practices. See Godfrey v.
United States, 997 F.2d 335, 338 (7th Cir. 1993) (holding
that a presumption of receipt exists where there is “proof
of procedures followed in the regular course of opera-
tions which give rise to a strong inference that the [cor-
respondence] was properly addressed and mailed”).
The deposition combined with Adaptive’s presentation
of Spivey’s accurate home address provided to the tele-
marketer, Spivey’s equivocal deposition responses to
questions asking whether he denied receiving the wel-
come kit, and Spivey’s failure to contend that he did not
receive the diet product he ordered in the same tele-
10 No. 09-3619
phone call to support a presumption that Spivey re-
ceived the welcome kit.
The district court then relied on two decisions of this
circuit, ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir.
1996), and Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th
Cir. 1997), to conclude that Spivey was bound by the
terms of the written agreement because Adaptive invited
acceptance by conduct—in this instance, inaction. The
district court explained, “By not calling the toll-free
number in the first 30 days (or even in the first year)—as
advised by the telemarketer and set forth in the agree-
ment—Spivey accepted the offered services and the
terms and conditions under which they were offered.”
Spivey, 660 F. Supp. 2d at 949. Spivey, the court held,
had a “clear mechanism and reasonable opportunity to
reject” the service, and having failed to do so, he “is
bound by the written terms provided after the trans-
action.” Id.
The court also noted that the terms of the alleged oral
agreement and the written agreement were not contra-
dictory because the oral agreement did not suggest that
the annual price would be forever static at $96 per year.
The oral agreement’s silence on future increases or de-
creases, the court held, meant that the written agree-
ment’s provision allowing for the increase of the annual
charge did not contradict the oral agreement. Id. at 950.
Based on its analysis of the existence, applicability, and
specific terms of the written agreement, the district court
held that there was no genuine issue of material fact in
dispute, and Adaptive was entitled to summary judg-
ment. Id. The court, however, also provided a second,
No. 09-3619 11
independent theory for dismissing Spivey’s claims: the
voluntary payment doctrine.
Pursuant to the voluntary payment doctrine, a common-
law doctrine incorporated into Illinois law, “a plaintiff
who voluntarily pays money in reply to an incorrect or
illegal claim of right cannot recover that payment unless
he can show fraud, coercion, or mistake of fact.” Randazzo
v. Harris Bank Palatine, N.A., 262 F.3d 663, 666 (7th Cir.
2001) (citing Smith v. Prime Cable of Chi., 658 N.E.2d 1325,
1329-30 (Ill. App. Ct. 1995)). The district court held that
the doctrine applied to this case because Spivey volun-
tarily paid credit card charges for HomeWorks in 2003,
2004, 2005, and 2006 and did not challenge any of the
charges when they appeared. Spivey, 660 F. Supp. 2d at
951. The court rejected Spivey’s mistake of fact defense,
which rested on the claim that Spivey believed that
his wife, a school teacher, had made the charges. The
court held Spivey “made no effort to discover the nature
of the charge to his credit card and paid it ‘in silence.’ As
a result, [his claim] does not come within the ‘mistake
of fact’ exception to the voluntary payment doctrine.” Id.
Finally, as relevant to this appeal, the district court
rejected Spivey’s unjust enrichment claim because such
a claim is impermissible where a contract governs the
relationship between the parties, and the voluntary
payment doctrine would preclude payment anyway. Id.
at 952.
The district court entered summary judgment for
Adaptive on all counts, and Spivey appealed.
12 No. 09-3619
II
The district court’s jurisdiction in this case arose
from 28 U.S.C. § 1332(d)(2)(A), as amended by the Class
Action Fairness Act of 2005, which requires, among
other things, diversity of citizenship among the parties.1
This court has jurisdiction under 28 U.S.C. § 1291, and
because this is a diversity case, we apply Illinois law.
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
We review the district court’s grant of summary judg-
ment de novo, and we must construe all facts and rea-
sonable inferences in the light most favorable to the
non-moving party. Goelzer v. Sheboygan Cty., 604 F.3d 987,
992 (7th Cir. 2010). Summary judgment is appropriate “if
the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is
entitled to summary judgment as a matter of law.” Fed. R.
Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
A factual dispute is “material” only if the dispute’s res-
olution might change the outcome of the suit under the
governing law. Stokes v. Bd. of Educ. of the City of Chi., 599
F.3d 617, 619 (7th Cir. 2010); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). And a factual issue
is “genuine” only “if the evidence is such that a rea-
sonable jury could return a verdict for the nonmoving
party.” Id.; Stokes, 599 F.3d at 619.
1
Spivey initially filed this suit as a class action, but the dis-
trict court dismissed it before a class was certified. See Spivey,
660 F. Supp. 2d at 952-53.
No. 09-3619 13
Spivey argues that the district court erred: 1) in pre-
suming that Spivey received the written terms from
Adaptive; 2) by finding that the written agreement gov-
erned the relationship between the parties; and 3) in
applying the voluntary payment doctrine to bar recov-
ery. Because we decide this case under the voluntary
payment doctrine, we need not address the district
court’s alternative holdings on the existence and implica-
tions of an oral and written contract. The voluntary
payment doctrine precludes Spivey from recouping
his 2003-2006 payments to Adaptive under any theory,
and we therefore affirm the district court’s grant of sum-
mary judgment for Adaptive.
III
The voluntary payment doctrine has long been recog-
nized in common law and accepted by the Illinois
courts whose jurisprudence we apply in this diversity
action. The doctrine, stated succinctly, maintains that
“[a]bsent fraud, coercion or mistake of fact, monies paid
under a claim of right to payment but under a mistake
of law are not recoverable.” Randazzo, 262 F.3d at 668
(quoting Smith v. Prime Cable of Chi., 658 N.E.2d 1325, 1330
(Ill. App. 1995)); see also Harris v. ChartOne, 841 N.E.2d
1028, 1031 (Ill. App. 2005) (“It has been a universally
recognized rule that absent fraud, duress, or mistake
of fact, money voluntarily paid on a claim of right to
the payment cannot be recovered on the ground that the
claim was illegal.”). The doctrine “applies to any cause
of action which seeks to recover a payment on a claim
14 No. 09-3619
of right, whether that claim is premised on a contractual
relationship or a statutory obligation . . . .” Id.
The Illinois courts have explained that the reason for
the rule is:
quite obvious when applied to a case of payment on a
mere demand of money unaccompanied with any
power or authority to enforce such demand, except
by a suit at law. In such case, if the party would
resist an unjust demand, he must do so at the thresh-
old. The parties treat with each other on equal terms,
and if litigation is intended by the one of whom the
money is demanded, it should precede payment.
When the person making the payment can only be
reached by a proceeding at law, he is bound to make
his defense in the first instance, and he cannot post-
pone the litigation by paying the demand in silence
or under a reservation of right to litigate the claim,
and afterward sue to recover the amount paid.
Smith, 658 N.E.2d at 1330 (quoting 66 Am. Jur. 2d Restitu-
tion & Implied Contracts § 94, at 1035-36 (1973)). As this
court explained in Randazzo, the voluntary payment
doctrine “ensures that those who desire to assert a legal
right do so at the first possible opportunity; this way,
all interested parties are aware of that position
and have the opportunity to tailor their own conduct ac-
cordingly.” Randazzo, 262 F.3d at 668.
Adaptive raises the voluntary payment doctrine as an
affirmative defense to Spivey’s claim. In response,
Spivey does not contest that his credit card statements
reflected a charge by HomeWorks Plus in 2003, 2004,
No. 09-3619 15
2005, and 2006; nor does he contest that he made pay-
ments to Adaptive via his credit card company in
those years. As the district court noted, the charges,
exemplified by the 2006 charge, were visible on Spivey’s
statement as HomeWorks Plus and provided an accom-
panying phone number to call about that specific charge.
Spivey, 660 F. Supp. 2d at 951.
In response, Spivey asserts that he paid the charges
under a mistake of fact—a recognized exception to
the applicability of the voluntary payment doctrine. See
Randazzo, 262 F.3d at 668. The mistake Spivey alleges,
however, is not one having to do with the actions of
the Appellee. Spivey claims that he “believed that
HomeWorks Plus was a product that his wife, a school
teacher, had purchased.” Appellant’s Br. at 37. Although
Spivey is certainly correct that “HomeWorks Plus”
bears a similarity to the “homework” often assigned by
teachers, Spivey cannot overcome the voluntary pay-
ment defense because he made an erroneous assumption
for four years that could have been easily clarified, as
it ultimately was, by discussing the charge with his wife
and making a call to the phone number provided on
his bill.
The relevant facts regarding the basis for and means
to challenge the HomeWorks charge were neither ob-
scured, nor inaccessible. Goldstein Oil Co. v. Cook Cty., 509
N.E.2d 538, 542 (Ill. App. Ct. 1987) (rejecting plaintiff’s
claim that the voluntary payment doctrine was inap-
plicable because “the facts were not obscured nor were
they inaccessible as plaintiff claims” and in fact the rele-
16 No. 09-3619
vant information was available “from [plaintiff’s] own
client”); see also Randazzo, 262 F.3d at 667 (explaining that
the voluntary payment doctrine “holds that a person who
voluntarily pays another with full knowledge of the
facts will not be entitled to restitution”). As the district
court noted, the charge by Adaptive provided the name
of the charge as HomeWorks Plus—the name of the
product discussed in the telemarketing phone call—and
provided a telephone number next to the charge for
customers to call. Spivey, 660 F. Supp. 2d at 951.
In the five years during which HomeWorks charges
appeared on Spivey’s credit card bills, “he made no
effort to discover the nature of the charge to his credit
card and paid it ‘in silence.’ To the extent that Spivey
was ignorant of the charges on his credit card statement,
it was because he failed or refused to apprise himself
of that knowledge and he must bear the consequences.”
Id. at 951-52. As the Illinois courts have explained, “[I]t is
no exception to the voluntary-payment doctrine when
the plaintiff makes no effort to ascertain the factual basis
of the [charge] but pays it anyway.” Harris, 841 N.E.2d
at 1032; see also Goldstein Oil Co., 509 N.E.2d at 542.
Where, as here, “the plaintiff’s lack of knowledge could
be attributed to its lack of investigation into the defen-
dant’s claim of liability and the basis upon which the
defendant was seeking the [payment],” Harris, 841
N.E.2d at 1032, the Illinois courts have rejected a mistake
of fact claim. So do we.
We therefore affirm the district court’s grant of sum-
mary judgment for Adaptive on the ground that the
No. 09-3619 17
voluntary payment doctrine applies in this case and
precludes Spivey from recovering the payments to
Adaptive.
IV
Because we hold that the voluntary payment doctrine
bars Spivey’s claims, we need not and do not reach
the alternative contract-based grounds for the district
court’s entry of summary judgment for Adaptive. For
the reasons stated above, we affirm the judgment of
the district court.
A FFIRMED.
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