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Mblcorp. v. Diekman

OPINION FILED SEPTEMBER 17, 1985.

MBL (USA) CORPORATION, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,

v.

FREDERICK J. DIEKMAN ET AL., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS, (CHEMI-FLEX, INC., ET AL., THIRD-PARTY DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County; the Hon. Albert S. Porter, Judge, presiding.

JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 29, 1985.

Appellants Frederick J. Diekman, FBN Industries, and Surface Additions, Inc. (hereinafter referred to collectively as Diekman), appeal from an order of the circuit court that dismissed their amended counterclaim with prejudice. The amended counterclaim alleged that appellees MBL (USA) Corp. (hereinafter MBL), Chemi-Flex, Inc., and Ernest Meeder conspired to monopolize the urethane timing belt market in Illinois in violation of the Illinois Antitrust Act (Ill. Rev. Stat. 1983, ch. 38, par. 60-1 et seq.). After appellees moved to dismiss the amended counterclaim under sections 2-615 and 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, pars. 2-615, 2-619), the circuit court dismissed the counterclaim by ruling that the counterclaim was barred by the statute of limitations and that it failed to state a cause of action for monopolization and conspiracy.

Appellant Diekman appealed and argues three points: (1) that the motions to dismiss were improper; (2) that the amended counterclaim did state a cause of action; and (3) that the cause of action was not barred by the statute of limitations.

This is the second time that these parties have appeared before this court. In our first opinion, MBL (USA) Corp. v. Diekman (1983), 112 Ill. App.3d 229, 445 N.E.2d 418, appeal denied (1983), 94 Ill.2d 553, we found the following facts. Appellee MBL is owned by two Japanese companies. In 1979, MBL acquired appellee Chemi-Flex, Inc., an Illinois corporation engaged in the business of manufacturing urethane timing belts, flat belts, and related products. Chemi-Flex, Inc., was formed by appellee Ernest Meeder in 1971.

Appellant Diekman is a former employee of Chemi-Flex, who began working for it part-time while he was a student. After Diekman graduated from college, he began working for Chemi-Flex full-time in 1972. In December 1972, Diekman signed a restrictive covenant, which is the basis of MBL's suit against Diekman.

Diekman worked for Chemi-Flex until he was fired in 1978. He was rehired in 1979 after Chemi-Flex had been acquired by MBL. At that time, the president of MBL asked Diekman to sign a restrictive covenant agreement. He refused to do so because it was too restrictive and unfair. No further discussions took place, and Diekman never signed the agreement. According to Diekman, he was fired in September 1979 over continuing disputes about hiring practices and the manner in which the company was being run. MBL's officers claimed that Diekman left voluntarily.

Later that year, Diekman formed two corporations, appellants FBN Industries and Surface Additions, Inc. Diekman began to design machines for belt-producing equipment. When MBL learned that Diekman was planning on competing with it, it sent Diekman a letter and asked that he comply with the restrictive covenant that he signed in 1972. MBL also requested Diekman to disclose his designs and other business activities. Diekman refused, and MBL filed a verified complaint and moved for injunctive relief. A temporary restraining order was entered on December 30, 1980. After a hearing, the court dissolved the TRO and refused to issue a preliminary injunction. MBL appealed, and we affirmed. MBL (USA) Corp. v. Diekman (1983), 112 Ill. App.3d 229, 445 N.E.2d 418, appeal denied (1983), 94 Ill.2d 553.

Diekman filed his original answer and counterclaim on April 24, 1981. In it, he alleged that:

"1. Chemi-Flex, Inc. and Ernest Meeder have been and are engaged in the business of producing and distributing urethane timing belts and related products.

2. Chemi-Flex, Inc. and Ernest Meeder sold and distributed a substantial part of the urethane timings in the Midwest area.

3. Since at least December 18, 1972, Chemi-Flex, Inc. and Ernest Meeder have attempted to contract in restraint of trade, to maintain and use a monopoly power and to unreasonably restrain trade and eliminate competition in the manufacture and sale of urethane timing belts * * *." (Emphasis added.)

It was the last statement, that alleged a 1972 date, on which the trial court based its ruling that the cause of action, filed in 1981, was barred by the applicable four-year statute of limitations. Ill. Rev. Stat. 1983, ch. 38, par. 60-7(2).

After MBL moved to strike and dismiss the counterclaim, Diekman filed his amended counterclaim. ...


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