for failure to state a claim upon which relief may be granted.
In Count VII, Gordon has brought a breach of contract action
for unpaid commissions allegedly due him, and Matthew Bender has
filed its answer denying this claim. Count VIII incorporates the
bulk of Count VII, but raises a slightly different issue.
Gordon's commission agreement with Matthew Bender theoretically
may preclude his recovery under Count VII because, for example,
the agreement states that commissions were payable "at the time
of the shipment of each volume" (para. 22, Count VIII), and
Gordon was no longer an employee at the time of shipment and
therefore had no direct right under the agreement to the
commissions. However, in Count VIII Gordon alleges that Matthew
Bender terminated him in "a bad faith attempt to deprive him of
very substantial commissions which were to become payable to him"
(para. 24, Count VIII).
Matthew Bender moves to dismiss Count VIII on two basic
grounds: since the employment was one at will, the existence of
an obligation of good faith dealing cannot prevent the
termination; and since Count VII seeks recovery of the same thing
as Count VIII, it is duplicative. Both Gordon and Matthew Bender
discuss whether this Count VIII sounds in tort, contract, or
both. The Court finds it unnecessary to untangle this web at this
stage, since the motion to dismiss must be denied.
The law seems fairly clear that an employee at will may not be
deprived of commissions (in large part "earned" prior to
separating from the employer) by a discharge made in bad faith
and intended to deprive the employee of the commissions.
Heuvelman v. Triplett Electrical Instrument Co., supra,
23 Ill. App.2d 231, 161 N.E.2d 875, 878. See also Buysse v. Paine,
Webber, Jackson & Curtis, Inc., 623 F.2d 1244, 1249 (8th Cir.
1980) (dictum) (applying Minnesota law); Rees v. Bank Building
and Equipment Corporation, 332 F.2d 548, 550 (7th Cir.), cert.
denied, 379 U.S. 932, 85 S.Ct. 332, 13 L.Ed.2d 344 (1964)
(applying Missouri law); Manuel v. Intern. Harvester Co.,
502 F. Supp. 45, 51 (N.D.Ill. 1980) (applying Illinois law).
Neither of Matthew Bender's arguments undercut the legal
validity of Count VIII. The existence of an at will employment
does not preclude this count. In fact, it would seem to be an
essential component of this cause of action under the case
law.*fn5 Further, for the reasons stated above the Court finds
that Counts VII and VIII are not duplicative but allege different
theories of recovery. The motion to dismiss Count VIII is denied.
Gordon brings Count IX as an action for "unjust enrichment,"
claiming that under the law of quasi contract he is entitled to
recover his accrued and accruing pension benefits, plus
commissions due him for sales consummated prior to his
termination, since Matthew Bender would be unjustly enriched were
it permitted to keep these amounts.
Matthew Bender moves to dismiss Count IX. It states that the
action as to the pension benefits is preempted by ERISA, and that
Illinois law does not permit a cause of action in quasi contract
where an express contract exists. For the reasons stated above
with regard to Count III, Matthew Bender is correct that the
claim for the pension benefits is preempted. In addition, Count
IX fails to state a cause of action with respect either to the
commissions or the pension benefits.
The parties agree that the governing law is stated in
Industrial Lift Truck v. Mitsubishi Intern., 104 Ill.App.3d 357,
60 Ill.Dec. 100,
432 N.E.2d 999, 103 (1st Dist. 1982): "The general rule is that
no quasi contractual claim can arise when a contract exists
between the parties concerning the same subject matter on which
the quasi contractual claim rests. (See La Throp v. Bell Federal
Savings & Loan Association (1977), 68 Ill.2d 375, 12 Ill.Dec.
565, 370 N.E.2d 188, cert. denied, 436 U.S. 925, 98 S.Ct. 2818,
56 L.Ed.2d 768 (1978); Goodman v. Motor Products Corp., (1959)
22 Ill. App.2d 378, 161 N.E.2d 31.)" (emphasis added).
However, Gordon and Matthew Bender disagree about the meaning
of the term "same subject matter." Gordon concedes that there are
express agreements concerning commissions and pension benefits.
But he argues that since the commission agreement "is silent
regarding commissions due on books sold during his employment but
not delivered until later [,and] the pension plan does not speak
about any payment of accrued benefits after a termination to
avoid vesting" (Plaintiff's Response, at 28), these subject
matters are not covered.
Gordon's argument demonstrates a fundamental misunderstanding
of the nature of an action in quasi contract. His position is
predicated on the belief that if an express contract is silent as
to a particular matter or provision, then an action in quasi
contract will lie when a dispute arises as to this matter. This
is not the law.
In La Throp, supra, the plaintiffs sought by way of a quasi
contract action to recover interest being held by the defendants
which had been earned from use of the plaintiffs' funds. The
Illinois Supreme Court found there was "no express provision in
the contract indicating that the plaintiffs intended that the
defendant should segregate the advance funds from its general
account, nor is there any provision requiring defendant to pay
plaintiffs earnings on such funds." 12 Ill.Dec. at 569, 370
N.E.2d at 192. The court held that the plaintiffs had failed to
state a claim for unjust enrichment. "It has been pointed out
that `the absence of a provision to pay interest on the
impoundment funds is equivalent to an agreement that it should
not be paid. . . . [W]here there is a specific contract which
governs the relationship of the parties, the doctrine of unjust
enrichment has no application.' (Brooks v. Valley National Bank
(1976), 113 Ariz. 169, 174, 548 P.2d 1166, 1171.)" 12 Ill.Dec. at
572, 370 N.E.2d at 195.
This is the only common sense result. If parties enter into an
agreement, they choose to be bound by its terms. The failure to
provide for other terms may be intentional, or may be due to
oversight. But in any case, this is a matter of contract
construction in an action for breach of an express contract. An
action sounding in quasi contract will not lie.
Gordon's argument was squarely rejected in Industrial Lift
Truck, supra. An express agreement governed the relationship
between Industrial Lift and Mitsubishi. After Mitsubishi
terminated the contract, Industrial Lift brought an action
sounding in quasi contract on the grounds that it had performed
services for Mitsubishi but had not been paid for them. The court
found that an action in quasi contract would not lie. Though no
term in the express agreement between the parties dealt with the
issue raised by the plaintiff, the subject matter of compensation
clearly was covered by the contract.
Gordon's like attempt to equate "subject matter" and "contract
provision or term" has no support. His rights to commissions and
pension benefits are covered by the express agreements governing
"the relationship of the parties." La Throp, supra, 12 Ill.Dec.
at 572, 370 N.E.2d at 195, quoting Brooks v. Valley National
Bank, supra. No cause of action for quasi contract will lie.
Gordon has confused the issue by asserting that Matthew Bender
"misapprehends Mr. Gordon's right under the Federal Rules of
Civil Procedure [8(e)(2)] to plead in his complaint alternative
legal grounds for recovery" (Plaintiff's Response, at 29). Such
alternative claims might be stated if in Count IX Gordon alleged
that no express agreement existed with regard either to
commissions or pension benefits. Instead
he has pleaded the opposite. Paragraph 17 of Count IX states that
Gordon was made a participant in Matthew Bender's pension plan.
Paragraph 20 states that Gordon and Matthew Bender entered into a
commission agreement, and attached as Exhibit J to the complaint
is a copy of this agreement for 1980. Gordon has alleged the
existence of express contracts covering the same subject matters
which are the basis of his quasi contract claims. Count IX fails
to state a claim for which relief may be granted and therefore it
Gordon's Count XI alleges the basic underlying facts, and goes
on to state:
17. Matthew Bender's termination of Mr. Gordon was
motivated by malice and was intended to, and did,
inflict emotional harm upon Mr. Gordon.
18. As a result of the malicious termination, Mr.
Gordon has suffered, and suffers, a profound loss of
self-esteem, mental depression, and multiple somatic
The defendant has moved to dismiss Count XI for failure to state
a claim of intentional infliction of emotional distress upon
which relief may be granted.
Matthew Bender states that to survive a motion to dismiss, a
plaintiff bringing such a cause must allege actions which are
extreme, outrageous, and severe. Public Finance Corp. v. Davis,
66 Ill.2d 85, 4 Ill.Dec. 652, 360 N.E.2d 765 (1977). This is a
correct statement of the law, but does not by itself answer the
question of whether a complaint can make it past the pleading
The Seventh Circuit recently held that a cause of action for
intentional infliction of emotional distress did survive a motion
to dismiss. Geist v. Martin, 675 F.2d 859 (7th Cir. 1982). Geist
complained that the defendants' "conduct, was done with the
intent, or with reckless disregard of the probability of causing
emotional distress to Millicent Geist. The defendants' . . .
conduct was outrageous. As (the) proximate cause [sic] of
Defendants' . . . conduct, Millicent Geist suffered severe and
extreme emotional distress . . ." Id. at 865, n. * (Swygert, J.,
Gordon too has alleged that Matthew Bender acted with intent to
inflict emotional harm upon him, and his allegations of malice
and profound mental and physical harm are equivalent to Geist's
allegations of outrageousness and severe emotional distress.
Count XI meets the requirements of Conley v. Gibson, 355 U.S. 41,
78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The motion to dismiss is
Finally, as the last count of his twelve-count complaint Gordon
has brought an action for an accounting in which he claims that
Matthew Bender has not sent him the weekly and monthly sales
reports which would allow him to determine exactly what
commissions are due him.
Matthew Bender has moved to dismiss Count XII, stating that
since these documents clearly would be relevant to Gordon's Count
VII, alleging a breach of contract for unpaid commissions — Count
VII being one of the four counts which Matthew Bender has
answered — the information would be discoverable through
Fed.R.Civ.P. 34. Gordon has responded that if Matthew Bender
would agree to furnish these documents during discovery, he would
stipulate to the dismissal of Count XII. In an effort to cut
through this Gordian knot, the Court hereby orders Matthew Bender
to produce these documents for Gordon's inspection within 28 days
of this order, and dismisses Count XII.
THEREFORE IT IS ORDERED that
1. The defendant Matthew Bender's motions to dismiss Counts I,
II, III, VI, IX, and XII are granted.
2. The motions to dismiss Counts VIII and XI are denied.
Matthew Bender is ordered to answer Counts VIII and XI within ten
3. Matthew Bender is ordered to produce for Gordon's
inspection, within 28 days, the weekly and monthly sales reports
relating to sales made by Gordon.
4. A status hearing is set for May 11, 1983, at 9:45 a.m. The
parties are ordered to submit at this status hearing a jointly
drafted and mutually agreed upon discovery plan and schedule
listing dates for the exchange of documents and for filing and
answering interrogatories, and further listing the names of those
persons whom each party plans to depose and dates for the taking
of these depositions.
IT IS SO ORDERED