Madison - St. Clair Record

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K-Mart's motion to dismiss class action in court May 20

By Steve Gonzalez | May 12, 2005

Lou Bonacorsi

Jennifer Kingston

A class action lawsuit over a 52-cent discrepancy will be in court Friday, May 20 on a motion to dismiss.

K-Mart, which was sued by Ashley Peach of Granite City because the store did not refund a gift card balance in cash, will make its case before Circuit Judge Nicholas Byron.

“Plaintiff’s entire complaint should be dismissed for failure to state a claim upon which relief can be granted,” K-Mart claims in its motion to dismiss.

K-mart is represented by Louis Bonacorsi and Jennifer Kingston of Bryan Cave LLP in St. Louis.

In its motion, K-Mart claims that Peach did not state any facts establishing that the store engaged in any unfair act or practice. Defense also will argue that Peach cannot prove she suffered actual damages.

Represented by the Wood River-based Lakin Law Firm, Peach is seeking real and punitive damages in the case not to exceed $75,000.

“The gift card was bought for the express purpose of purchasing K-Mart inventory and it cannot now be transformed into a right to collect cash,” K-mart claims.

Peach also filed similar lawsuits against Wal-Mart and Fashion Bug claiming the retailers failed to return remaining balances on gift cards, but she recently dropped her suit against Fashion Bug. (See related story).

Wal-Mart also has filed a motion before Judge Byron to dismiss the class action complaint. However, it will not be heard until June 17.

“Peach has not—and cannot—allege that she is unable to use the remaining balance on her gift card,” K-mart argues.

According to Peach's attorney Jeffery Millar, K-Mart "wrongfully and without (her) authorization assumed control, dominion, and ownership over that remaining balance."

Millar represents Peach in all three class action cases.

Peach also accuses K-Mart of unfairly charging a $2.10 “service fee” on gift cards that go unused for two years. In her complaint, she claims that K-Mart's ulterior motive of this fee is to reduce card account balances to zero.

K-Mart states that Illinois law does not provide for the award of treble punitive damages based on a conversion or an unjust enrichment theory, therefore Peach’s request for damages in wholly unsupported in law.

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Bryan Cave