The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff, Hilary R. Brudnicki, an Illinois citizen,
initiated this action against defendant, General Electric Company
("G.E."), a foreign corporation, in the Circuit Court
of the Eighteenth Judicial Circuit, DuPage County, Illinois.
The case was subsequently removed as a diversity action to the
Northern District of Illinois pursuant to 28 U.S.C. § 1441(a)
and (b). Plaintiff's four-count complaint seeks recovery for
damages suffered as a result of his discharge from G.E. in
alleged breach of an oral contract of employment entered
between the parties on or about February 28, 1977. Presently
before the Court is defendant's motion to dismiss all four
counts of plaintiff's amended complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
A complaint will not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim that would
entitle him to the relief requested. Cruz v. Beto,
405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80
(1957). As the Seventh Circuit has noted:
Under the Federal Rules of Civil Procedure, it is
well established that, on a motion to dismiss, a
complaint must be construed in the light most
favorable to the plaintiff, the allegations
thereof being taken as true; and if it appears
reasonably conceivable that at trial the
plaintiff can establish a set of facts entitling
him to some relief, the complaint should not be
Mathers Fund, Inc. v. Colwell Co., 564 F.2d 780, 783 (7th Cir.
1977). Applying this standard to the present case, defendant's
motion to dismiss Counts I, II and IV will be denied and
defendant's motion to dismiss Count III will be granted.
Count I of plaintiff's complaint alleges that his dismissal
from G.E. on August 19, 1980, breached the terms and
conditions of discharge established under an oral employment
contract entered between the parties in 1977.*fn1 The oral
contract at issue allegedly provided that plaintiff would be
discharged from employment only if he failed to comply with
the lawful directives of the defendant and only after G.E.
gave plaintiff advance warning of the consequences of his
failure to comply with those directives. Although defendant
cannot at this stage dispute plaintiff's allegation that these
terms were breached by defendant's conduct, G.E. has argued in
its motion to dismiss that the oral contract is void and
unenforceable under the Illinois Statute of Frauds.
Ill.Rev.Stat. 1979, ch. 59, § 1.*fn2
Under Illinois law, a contract is unenforceable only if it
is impossible of performance within one year. Sinclair v.
Sullivan Chevrolet Co., 45 Ill. App.2d 10, 14, 195 N.E.2d 250
(3d Dist. 1964). Defendant's Statute of Frauds argument is
predicated in part on language in plaintiff's original verified
complaint which suggested that the oral employment agreement
between the parties would extend over 24 years until plaintiff
retired at age 65. Complaint, Count I, ¶¶ 4-5. This
characterization, if true, would render the employment
agreement void under the Statute of Frauds because
full performance could not be completed within one year.
Cf. Gilliland v. Allstate Insurance Co., 69 Ill. App.3d 630,
633, 26 Ill.Dec. 444, 388 N.E.2d 68 (1st Dist. 1979). Plaintiff
argues, however, that because his employment with G.E. was to
last "as long as Plaintiff . . . substantially compl[ied] with
all the lawful directions of Defendants," First Amended
Complaint, Count I, ¶ 5, plaintiff's obligations under the
agreement could be fully performed within one year.
Viewed from the time the employment relationship began,
plaintiff presumably could have ended his compliance with
G.E.'s directions and have been terminated under the terms of
the agreements before the end of the first year. The issue,
then, is whether the potential of this termination is
sufficient to render the agreement capable of being fully
performed within one year.
The possibility of an employee's termination within one year
does not necessarily remove the employment contract at issue
from the reach of the Statute of Frauds. Sinclair, supra 45
Ill. App.2d at 14-15, 195 N.E.2d 250. Similarly, the
possibility that an employee may die or resign within the first
year does not necessarily save the oral agreement from the bar
of the Statute. Gilliland, supra 69 Ill. App.3d at 633, 26
Ill.Dec. 444, 388 N.E.2d 68. Such contingencies threaten the
longevity of any employment relationship. Whether the
possibility of an employee's death or termination takes the
employment agreement from the bar of the Statute in a specific
case depends in large part on the underlying purpose and
specific terms of the agreement itself. Cf. George F. Mueller &
Sons, Inc. v. Northern Illinois Gas Co., 12 Ill. App.3d 362,
367, 299 N.E.2d 601 (1st Dist. 1973); Balstad v. Solem Machine
Co., 26 Ill. App.2d 419, 422-23, 168 N.E.2d 732 (2d Dist.
1960); Osgood v. Skinner, 111 Ill. App. 606, 617-18 (1st Dist.
1904). The facts necessary for this Court to make such a
determination are not presently before us.*fn3
Defendant moves to dismiss Count I on the alternative theory
that if this employment agreement was of indefinite duration
in terms of time, it must have been terminable at will under
Illinois law. Therefore, defendant reasons, G.E.'s dismissal
of plaintiff without just cause was merely an exercise of its
right to terminate an employee under state law. This
interpretation overlooks, however, that an employment
relationship terminable at will in Illinois is subject to the
termination provisions of the employment contracts at issue.
Criscione v. Sears, Roebuck & Co., 66 Ill. App.3d 664, 667, 23
Ill.Dec. 455, 384 N.E.2d 91 (1st Dist. 1978). Cf. Pleasure
Driveway & Park District of Peoria v. Jones, 51 Ill. App.3d 182,
190, 9 Ill.Dec. 677, 367 N.E.2d 111 (3d Dist. 1977). The
employment agreement alleged here, for example, expressly
provided that termination could occur only after plaintiff
failed to comply with defendant's lawful directives and after
plaintiff was given adequate notice. In this context,
therefore, plaintiff has alleged a claim upon which relief may
Defendant argues finally that Count I fails to state a claim
upon which relief can be granted because the underlying
contract is void for lack of mutuality of obligation between
the parties. Specifically, defendant's position appears to be
that plaintiff's promise to and performance of the duties of
employment for which he was paid is not sufficient
consideration to support G.E.'s additional contractual promise
to permanently employ plaintiff under a termination provision
more limited than terminable at will. The sufficiency of
plaintiff's consideration in return for G.E.'s promise of
"permanent" employment is, however, a question of fact which
the Court cannot resolve on a motion to dismiss.*fn4
Accordingly, defendant's motion to dismiss Count I is ...