B. Count II - Unjust Enrichment
Count II asserts a claim for unjust enrichment. As defendants correctly observe, plaintiffs may not prevail on an unjust enrichment claim if a contract governs the relationship between the parties. See First Commodity Traders Inc. v. Heinold Commodities Inc., 766 F.2d 1007, 1011 (7th Cir. 1985). Based on this principle, defendants argue that the allegation of a breach of contract in Count I precludes plaintiffs from raising an unjust enrichment claim in Count II. The Federal Rules of Civil Procedure, however, undermine defendants' argument for dismissal of Count II. Rule 8(e)(2) provides that "a party may set forth two or more statements of a claim . . . alternately or hypothetically, either in one count . . . or in separate counts . . . A party may also state as many separate claims . . . as the party has regardless of consistency . . ." Fed. R. Civ. P. 8(e)(2). Under Rule 8(e)(2), plaintiffs may raise alternative claims of breach of contract and unjust enrichment despite the inconsistency of these claims. See McIntosh v. Magna Systems, Inc., 539 F. Supp. 1185, 1190-91 (N.D. Ill. 1982). Consequently, this court declines to dismiss Count II. Nonetheless, the court recognizes that plaintiffs cannot maintain an unjust enrichment claim against all seven defendants. To recover under an unjust enrichment theory, plaintiffs must show that defendants "voluntarily accepted a benefit which it would be inequitable for [them] to retain without payment." Premier Electrical Construction Co. v. LaSalle National Bank, 132 Ill. App. 3d 485, 496, 477 N.E.2d 1249, 1257, 87 Ill. Dec. 721 (1984). Of the seven defendants, only Investors VII and its partners voluntarily accepted a benefit from Braman-Leibowitz. Therefore, the court must dismiss Realcorp, Woodfield Gardens, and Investors I from Count II.
C. Count III - Conversion
Count III asserts that defendants knowingly and willfully converted plaintiffs' property. Although plaintiffs attempt to state a tort claim for conversion, they are essentially seeking compensation for an economic loss. The Illinois courts have concluded that economic losses are not recoverable in tort. See, e.g., National Can Corp. v. Whittaker Corp., 505 F. Supp. 147, 149-50 (N.D. Ill. 1981); Fireman's Fund American Insurance Cos. v. Burns Electronic Security Services, Inc., 93 Ill. App. 3d 298, 300-01, 417 N.E.2d 131, 133-34, 48 Ill. Dec. 729 (1980). The Fireman's Fund court equated economic loss with the loss of the benefit of a bargain. Fireman's Fund, 93 Ill. App. 3d at 300, 417 N.E.2d at 133. In the instant case, plaintiffs claim that they never received the benefit of their bargain with defendants. Plaintiffs assert that defendants owe money to Braman-Leibowitz. To state a claim for conversion, however, plaintiffs must do more than allege that defendants had a "mere obligation to pay money." Mijatovich v. Columbia Savings and Loan Association, 168 Ill. App. 3d 313, 316, 522 N.E.2d 728, 731, 119 Ill. Dec. 66 (1988). Plaintiffs point out that they are also seeking the return of the partnership units they conveyed to Investors VII. Nonetheless, plaintiffs' pursuit of this alternative remedy does not salvage their conversion claim. By requesting the return of their partnership units in Woodfield Gardens, plaintiffs are merely seeking restitution, a contractual remedy for an economic loss. Because plaintiffs' alleged injuries amount to nothing more than economic loss, plaintiffs cannot assert a tort claim for conversion.
D. Count IV - Indemnification
In Count IV, plaintiffs claim that defendants must indemnify Braman-Leibowitz for all sums paid under the secured recourse note. Plaintiffs concede that they did not enter into an express indemnity contract with defendants. Nonetheless, plaintiffs maintain that the relationship between Braman-Leibowitz and defendants created an implied indemnification agreement. The concept of implied indemnity finds some support in the common law: "Indemnity derives from principles of contract, and may be express or implied. Implied indemnity traditionally requires a pre-tort relationship which gives rise to a duty to indemnify." Davis v. FMC Corp., 537 F. Supp. 466, 467 (C.D. Ill. 1982). In the instant case, however, the relationship between the parties does not implicate a duty to indemnify. Assuming that the February 1986 sale agreement governs the parties' relationship, the terms of that agreement do not permit the court to imply indemnity. By its own express terms, the sale agreement represents the "total agreement" between Braman-Leibowitz and Investors VII concerning the Woodfield Gardens transaction. Even if the sale agreement does not control the parties' relationship, plaintiffs have not alleged sufficient facts to warrant the conclusion that their dealings with defendants created an implied duty to indemnify. Consequently, plaintiffs have failed to state a claim for indemnification.
II. Motion to Strike Certain Allegations
Defendants also move to strike certain allegations made in plaintiffs' complaint. Specifically, defendants object to paragraphs 18 and 19 of the complaint. These paragraphs contain allegations about the repurchase negotiations between Braman-Leibowitz and Realcorp. Additionally, defendants move to strike Exhibit C to the complaint, an August 1985 letter that proposes a settlement of the parties' repurchase dispute.
Plaintiffs contend that paragraphs 18 and 19 and Exhibit C allege the actual existence of a settlement. On the contrary, the allegations challenged by defendants involve settlement negotiations that took place before the parties reached a compromise. Pursuant to Fed. R. Evid. 408, such compromise negotiations are inadmissible to prove defendants' liability. Plaintiffs argue that the court should not strike the allegations concerning the settlement negotiations because these allegations include defendants' admission of an obligation to repurchase plaintiffs' units. This argument ignores the plain language of Rule 408: "Evidence of conduct or statements made in compromise negotiations is likewise not admissible." Fed. R. Evid. 408. By admitting such statements in the instant case, this court would undermine the purpose of Rule 408: "to encourage settlements. The fear is that settlement negotiations will be inhibited if the parties know that their statements may later be used as admissions of liability." Central Soya Co. v. Epstein Fisheries, Inc., 676 F.2d 939, 944 (7th Cir. 1982). Therefore, based on Rule 408 and the considerations underlying its adoption, the court grants defendants' motion to strike pursuant to Fed. R. Civ. P. 12(f).
For the foregoing reasons, defendants' motion to dismiss is granted in part. The court dismisses Realcorp, Woodfield Gardens, and Investors I from Counts I and II. The court also dismisses Counts III and IV. Nonetheless, the court denies defendants' motion to dismiss Count II. Finally, the court grants defendants' motion to strike paragraphs 18 and 19 and Exhibit C from plaintiffs' complaint.
IT IS SO ORDERED.
Dated: June 29, 1989
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