Papa John’s Files Motion to Dismiss Delivery Tax “Shotgun” Lawsuit

Papa John’s USA, Inc. has filed a motion to have a delivery tax class action lawsuit filed against the pizza restaurant dismissed, calling it a “shotgun pleading” and saying that the state of Illinois does not allow lawsuits for the purpose of recovering taxes that have already been collected and sent to the state.

“‘Shotgun’ complaints are those which ‘overwhelm defendants with an unclear mass of allegations and make it difficult or impossible for defendants to make informed responses to the plaintiff’s allegations,'” the Papa John pizza class action lawsuit motion to dismiss states.

Papa John’s explains that “shotgun pleadings” occur in two circumstances.

“First, it can happen when one party pleads multiple parties did an act, without identifying which party did what specifically,” the motion to dismiss explains.

“Second, it can happen when one party pleads multiple counts, and does not identify which specific facts” apply to which count, “but instead rely on a blanket incorporation clause,” it adds.

The attorneys representing Papa John’s says that the delivery tax class action lawsuit against the pizza chain “is guilty of both deficiencies.”

First, this is done by lumping Papa John’s International, Inc. and Papa John’s USA, Inc. together, even thought they are “distinct companies,” the motion to dismiss explains.

Second, this is done because the lawsuit “improperly incorporates by reference every preceding paragraph and every preceding claim” into each Count, it explains further.

The Papa John’s delivery tax lawsuit was filed by plaintiff Zachary Tucker of Illinois in the U.S. District Court in the Southern District of Illinois.

Tucker “alleges that after he placed a delivery order by phone with a Papa John’s location in Wood River, Illinois, he was charged a sales tax on the delivery fee that he maintains, was not required by” the Illinois Use Tax Act.

According to the motion to dismiss, Tucker did not object to paying the sales tax at the time of purchase, he did not claim that he was “intentionally charged sales tax on exempt amounts,” he does not accuse Papa John’s of keeping the “alleged overcharges instead of remitting them” to the state of Illinois, he does not claim that Papa John’s “benefitted in any way from collecting the alleged overcharges,” he does not cite “any incentive ” on the part of Papa John’s to charge more via a “sales tax on exempt amounts” when the pizza chain is attempting to keep prices as low as possible and remain competitive, and Tucker never “requested a refund from [Papa John’s] before filing this lawsuit.”

Tucker’s charges against Papa John’s in the delivery tax class action lawsuit include negligence, negligent misrepresentation, breach of contract and breach of duty of good faith and fair dealing, declaratory relief, violation of the Illinois Consumer Fraud Act, and the Uniform Deceptive Trade Practices Act.

Tucker wants the Class to include “‘[a]ll persons who ordered food from any Papa John’s location in the State of Illinois and selected to have their order delivered, were charged a delivery fee, and were charged and paid sales tax on the itemized delivery fee.'”

In addition to categorizing the delivery tax class action lawsuit as a shotgun lawsuit, Papa John’s also explains that such lawsuits are not allowed under Illinois law.

“Illinois precedent — as a matter of law — precludes plaintiffs from maintaining any claim for overpaid sales taxes, much less a class action,” the motion to dismiss explains.

“Illinois courts have long recognized that a purchaser cannot recover sales tax that has been remitted to the state,” it adds.

The plaintiffs are represented by Jason Whittemore of Wagner Vaughan & McLaughlin PA and Francis Flynn and Tiffany Yiatras of Carey Dannis & Lowe PC.

The defendants are represented by W. Jason Rankin of HeplerBroom LLC.

The Papa John’s Delivery Tax Class Action Lawsuit is Zachary Tucker et al. v. Papa John’s International Inc. et al., Case No. 3:14-cv-00618-NJR-PMF in the U.S. District Court for the District of Illinois.