The opinion of the court was delivered by: McGARR, Chief Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs Trak Microcomputer Corporation ("Trak") and Dr.
Prem S. Chopra bring this action against defendants Wearne
Bros. ("Wearne"), Wearnes (USA), Inc. ("Wearnes USA"), Wearnes
Technology Pvt. Ltd. ("Wearnes Tech"), and Weltec Digital,
Inc. ("Weltec"). Wearnes USA and Weltec have filed a
counterclaim against Trak, Chopra, and James M. Rehnquist
(even though the counterclaim, insofar as it applies to
Rehnquist, who is not a plaintiff in this action, should be
captioned a third-party complaint, it will hereinafter be
referred to as the "counterclaim" and Rehnquist will be
referred to as a counterdefendant). This cause is before this
court on plaintiffs' motion for an order compelling Wearnes
Tech to answer, the motion of the counterdefendants to dismiss
the counterclaim, and defendants' motion to dismiss various
aspects of plaintiffs' amended complaint.
Plaintiffs' Motion For an Order to Compel Wearnes Tech to
Answer
Plaintiffs contend that Wearnes Tech, a Singapore
corporation, was served with the complaint and summons in
Singapore by mail, pursuant to Fed.R.Civ.P. 4(i)(1)(D). Rule
4(i)(1)(D) permits service in a foreign country to be made by
any form of mail requiring a signed receipt, addressed and
dispatched by the Clerk of the Court to the party to be
served. Plaintiffs assert, and it is not disputed, that a
summons and complaint were mailed to Wearnes Tech by the
Clerk, return receipt requested. The summons and complaint,
however, were returned to the Clerk. The envelope in which
they had been sent was marked in a manner which reflected that
the reason for the non-delivery of the package was that the
package was refused. The package does not indicate by whom or
for what reason the package was refused.
Rule 4(i)(2) provides that proof of service made pursuant to
Rule 4(i)(1)(D) shall include a receipt signed by the
addressee or other evidence of delivery to the addressee
satisfactory to the court. By memorandum opinion and order
dated February 15, 1985 (the "memorandum opinion"), this court
granted Wearne Tech's motion to dismiss on the basis that it
had not been effectively served. This court held that Trak had
not provided any proof of delivery to Wearnes Tech; Trak did
not produce a receipt signed by the addressee or any other
proof of delivery. Memorandum opinion at p. 8.
This court now finds, based on the evidence before it, that
plaintiffs have presented sufficient evidence of delivery of
the summons and complaint to satisfy Rule 4(i)(2). The manner
in which the returned envelope was marked suggests that actual
delivery of the summons and complaint was made to Wearnes
Tech. On the envelope, the Postal Service provided a space for
the mail carrier to mark the reason for not delivering the
package. The possible reasons for non-delivery were "gone
away," "no such name," "no such number," or "refused." The
mail carrier only marked "refused." It is reasonable to infer
from this mark that the summons and complaint were delivered
to Wearnes Tech at the address specified by the Clerk, but,
for some unknown reason, a person who apparently spoke on
behalf of Wearnes Tech refused to accept the package.
In addition to the evidence before this court which suggests
that delivery of the summons and complaint was made on Wearnes
Tech, this court also notes that Wearnes Tech has actual
notice of the case at bar. Appearances have been filed by
attorneys on behalf of Wearnes Tech. Thus, there is no danger
that Wearnes Tech has not received notice of this action.
In light of the circumstances of this case, this court finds
that sufficient proof of delivery of the summons and complaint
has been made to satisfy Rule 4(i)(2). Wearnes Tech is ordered
to file an answer to plaintiffs' amended complaint within 20
days.
Plaintiffs' Motion to Dismiss the Counterclaim
The counterclaim against Trak, Chopra, and Rehnquist seeks
to recover damages allegedly resulting from the
counterdefendants' fraud and misrepresentations. The
counterclaim alleges Chopra and Rehnquist were seeking an
investor or partner to pour cash into Trak, which was
experiencing financial difficulties. To that end, Chopra and
Rehnquist initiated meetings in Singapore which led to
discussions in May through August of 1984, between Weltec and
Wearnes USA on the one hand and the counterdefendants on the
other. Wearnes USA and Weltec allege that during these
discussions, counterdefendants made a series of false
representations and material omissions in order to induce
Wearnes USA and Weltec to pursue negotiations with Trak.
Specifically, the counterclaim alleges that the
counterdefendants falsified Trak's March 31, 1984 financial
statements, failed to disclose Trak's business decline after
March 31, failed to disclose problems with certain Trak
products, and submitted other financial projections, marketing
plans, and brochures which described Trak's future in
misleading glowing terms. Wearnes USA and Weltec allegedly
relied upon the fraudulent misrepresentations and were misled
by the material omissions, incurring damages in connection
with their good faith negotiations and by pursuing the Trak
venture to the exclusion of others.
Counterdefendants contend that the counterclaim should be
dismissed because it fails to state the circumstances of the
alleged fraud with the particularity required by Rule 9(b).
Rule 9(b) requires a complaint for fraud to allege facts
concerning the time period of the alleged misrepresentations,
the nature of the alleged misrepresentations, and the
individuals involved. Chicago Heights Venture v. Dynamit Nobel
of America, Inc., 575 F. Supp. 214, 220 (N.D.Ill. 1983).
Although the allegations of fraud must be concrete and
particularized enough to give notice to the defendants of the
conduct complained of to enable the defendants to prepare a
defense, Rule 9(b) does not require the plaintiff to plead
evidentiary matters. D & G Enterprises v. Continental Illinois
National Bank & Trust Co. of Chicago, 574 F. Supp. 263, 267
(N.D.Ill. 1983).
Chopra and Rehnquist contend that the counterclaim must
nevertheless be dismissed as to them because it does not
allege that they made any misrepresentations or material
omissions as individuals. Rather, it merely alleges that they
acted as officers and agents of Trak. It does not come as a
surprise to this court that they fail to cite any authority in
support of their argument. The law clearly holds a corporate
officer individually liable for the fraudulent acts in which
he participates. Citizens Savings & Loan Association v.
Fischer, 67 Ill. App.2d 315, 322, 214 N.E.2d 612, 615 ...