inconsistency of these claims." Braman v. Woodfield Gardens Associates, 715 F. Supp. 226, 229 (N.D. Ill. 1989). While it is true that Pasant must elect one of two inconsistent remedies at some time; that time is not now. Double recovery is not threatened in the pleading stage and pleading rules allow a plaintiff, such as Pasant, to plead inconsistent contractual theories. Therefore, the court finds that Pasant's request for commissions and incentive compensation is not barred on grounds that such remedy is inconsistent with his alternative remedy of suing for damages on the agreement.
In addition, Jackson Life argues that Pasant's request for commissions and other monetary relief is barred on grounds that Pasant has failed to tender the consideration he received pursuant to the settlement agreement prior to or at the time of his filing suit. Jackson Life contends that the remedy is barred by a well-settled rule of Michigan law which states that "tender of consideration received is a condition precedent to the right to repudiate a contract of settlement". Stefanac v. Cranbrook Educ. Community, 435 Mich. 155, 163, 458 N.W.2d 56, 60 (1990). Contrary to Pasant's assertions, this tender rule is not limited to claims seeking the recision of a contract. See Kirl v. Zinner, 274 Mich. 331, 264 N.W. 391, 392 (1936) ("it is a general and salutary rule that one repudiating or seeking to avoid a compromise settlement or release, and thereby revert to the original right of action, must place the other party in statu quo . . . .").
Jackson Life correctly relies on Stefanac. First, the tender rule discussed in the case applies to settlement agreements, not original contracts. Id. The subject matter of the present suit is indeed a "settlement agreement" by its nature and by admission of the parties. (Settlement Agreement at paras. 7-9.) Second, Stefanac is Michigan precedent and this court has determined previously that Michigan law controls the contract dispute. See Pasant v. Jackson Nat'l Life Ins. Co. of America, 751 F. Supp. 762, 764 (N.D. Ill. 1990).
The court is in agreement with Jackson Life that Stefanac bars the pursuit of repudiation remedies in the present case. The agreement entered into by the parties was "in consideration for resolving the claims which each . . . raised [in the Michigan suit]." (Settlement Agreement at 1.) For its part, Jackson Life claims that it paid Pasant $ 100,000 and retirement plan distributions. (Defendant's Statement of Uncontested Material Facts for its Motion for Summary Judgment at para. 4.) Since the Michigan case was dismissed with prejudice on October 28, 1988, it can be assumed that Jackson Life did indeed deliver to Pasant the monies promised under the settlement agreement.
On the other hand, as the pleadings make clear, Pasant did not return the monies received pursuant to the settlement agreement prior to or at the time of filing suit. In its statement of uncontested facts, Jackson Life states that "plaintiff has not alleged, and there is no indication in the record, that plaintiff ever tendered back to defendant funds received pursuant to the settlement agreement." (Defendant's Statement of Uncontested Material Facts for its Motion for Partial Summary Judgment at para. 9.) This statement stands uncontested since Pasant failed to file any statement of material facts contradicting Jackson Life's 12(m) statement. See Harbin v. Sun Life Assurance Co. of Canada, 710 F. Supp. 1167, 1168 (N.D. Ill. 1989) (citing Local Rule 12(m), now Local Rule 12(n), Rules of the United States District Court for the Northern District of Illinois).
Pasant also makes an implicit admission that he did not tender funds received pursuant to the settlement agreement prior to or at the time of filing suit. Jackson Life argues for the application of the Stefanac rule in its reply to Pasant's response. Pasant, in his sur-reply, addresses this argument and merely claims that the tender of a covenant not-to-compete is an impossibility. His sur-reply does not even bother to address the factual issue of whether he returned the settlement monies. If Pasant had indeed returned these funds, the court would expect him to so allege in response to Jackson Life's Stefanac argument. Pasant's silence on this issue along with para. 9 of Jackson Life's statement of uncontested material facts provide sufficient basis for a determination that Pasant did not return funds received pursuant to the settlement agreement prior to or at the time of filing suit.
Accordingly, the court finds that Pasant's request for commissions and incentive compensation is barred because he did not return the funds he received pursuant to the settlement agreement prior to or at the time of filing suit.
A "plaintiff is not entitled to retain the benefit of an agreement and at the same time bring suit in contravention of the agreement." Stefanac, 435 Mich. at 176. Therefore, Jackson Life's motion for partial summary judgment on Count I is granted.
The court had deferred ruling on four of Pasant's document requests, 21, 22, 24 and 25, pending resolution of Jackson Life's motion for partial summary judgment. In light of the court's decision to grant partial summary judgment on Count I, Pasant's document requests are denied.
Pasant has also recently requested leave to file an amended complaint. Based on the court's previous decisions and its decision today, this request is denied. Count III of the amended complaint cannot be pled since it is identical to Count III of the original complaint which the court dismissed in Pasant v. Jackson Nat'l Life Ins. Co. of America, 751 F. Supp. 762 (N.D. Ill. 1990). Counts IV and V of the amended complaint are, in essence, a fuller request for the relief that the court has just denied. In these counts, Pasant is seeking commissions and incentive compensation allegedly owed pursuant to an oral and/or written agreement. These claims, though, were compromised by the settlement agreement and cannot be pursued since the consideration received under the agreement has not been returned. Accordingly, Pasant's motion to amend his complaint is denied.
IT IS SO ORDERED.