Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

VENTURE ASSOCS. CORP. v. ZENITH DATA SYS. CORP.

June 2, 1992

VENTURE ASSOCIATES CORP., a Tennessee Corporation, Plaintiff,
v.
ZENITH DATA SYSTEMS CORPORATION, a Delaware Corporation, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 This diversity action arises out of an alleged agreement to purchase the assets of an affiliate company of the defendant. Plaintiff Venture Associate Corporation ("Venture") brings this single-count complaint against Zenith Data Systems Corporation ("ZDS"), claiming breach of contract. Presently before the court are (1) ZDS's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and (2) Venture's motion to exclude exhibits attached to ZDS's motion to dismiss. For the reasons set forth below, we deny Venture's motion to exclude, and grant ZDS's motion to dismiss.

 I. Motion to Dismiss Standard

 A motion to dismiss should not be granted unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); see also Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986). We take the "well-pleaded allegations of the complaint as true and view them, as well as reasonable inferences therefrom, in the light most favorable to the plaintiff." Balabanos v. North Am. Inv. Group, Ltd., 708 F. Supp. 1488, 1491 n.1 (N.D. Ill. 1988) (citing Ellsworth).

 II. Background

 In November 1990, Venture received an unsolicited offer from Financiere Indosuez, the authorized broker for ZDS, to consider the purchase of ZDS's Heath Business. After preliminary negotiations, on May 31, 1991, Venture mailed to Financiere Indosuez a signed "Letter of Intent" to purchase the assets of the Health Business for a price of $ 11 million. Thomas Kelly, Vice President Finance of ZDS, responded in writing on June 11, 1991, accepting in principle the terms and conditions of the Letter of Intent, and inviting negotiations to reach a definitive agreement. On June 12, 1991, Venture confirmed in writing its receipt and acceptance of the June 11 letter, and indicated that it would begin to prepare the first draft of a definitive purchase agreement.

 While reviewing the draft agreement submitted by Venture, on September 6, 1991, ZDS wrote Venture--knowing that the letter would be relied upon by prospective lenders--stating that the execution of a formal written agreement was anticipated on September 13, 1991, because substantial agreement on all major economic and legal aspects of the transaction had been reached. Thereafter, ZDS prepared a revised purchase agreement, sending it to Venture on September 11, 1991. On September 13, 1991, Venture returned the agreement, proposing minor, nonsubstantive changes and agreeing to immediately execute the document as amended. The agreement was never retyped by ZDS, and was never signed by the parties. Nonetheless, Venture contends that each side manifested mutual assent, culminating in an agreement with its terms embodied in the September 13, 1991 document, as amended by Venture's minor handwritten notations.

 Venture states that during early October, 1991, ZDS concluded that it had undervalued the assets of the Health Business by at least $ 3.5 million. Accordingly, on October 15, 1991, Financiere Indosuez, acting at the direction of ZDS, wrote to Venture, stating that the sale could only proceed upon adjustment of the purchase price. Venture considered this demand a breach of contract, yet in the interests of avoiding litigation met with ZDS to discuss the new term. Venture reviewed ZDS's proposal and refused to execute a newly drafted sales agreement. On November 13, 1991, Thomas Kelly wrote to Venture and reiterated that the price of the Health Business stood at $ 14.5 million. Venture states that as of September 13, 1991, it had performed all of the conditions imposed under the agreement, and as a result of the breach suffered direct and consequential damages in excess of $ 3.5 million.

 III. Motion to Exclude

 In support of its motion to dismiss, ZDS attached as exhibits a copy of the complaint, the May 31, 1991 Letter of Intent, Thomas Kelly's letter of June 11, 1991, and Venture's letter of June 12, 1991. Noting that the additional documents were not attached to the complaint, Venture argues that these documents should be excluded or, in the alternative, that this court should treat the motion as one for summary judgment to be disposed of in accordance with Fed. R. Civ. P. 56. We take neither course.

 It is settled law that documents integral to plaintiff's claim, yet not appended to its complaint, will be considered part of the pleading if attached by a defendant in a motion to dismiss. See Field v. Trump, 850 F.2d 938, 949 (2d Cir. 1988), cert. denied, 489 U.S. 1012, 109 S. Ct. 1122, 103 L. Ed. 2d 185 (1989); Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d 732, 739 n.12 (7th Cir. 1986), cert. denied, 482 U.S. 915, 107 S. Ct. 3188, 96 L. Ed. 2d 676 (1987); In re First Chicago Corp. Sec. Litig., 769 F. Supp. 1444, 1450 (N.D. Ill. 1991); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1327, at 762-63 (2d ed. 1990). In its complaint, Venture cites to each of the additional documents in question. Complaint PP 6-7, at 2. Significantly, in order to establish the existence of a contract, Venture states: "The manifestation of [the parties'] mutual assent is found in all of the written documents exchanged between them up to and including September 13, 1991." Id. P. 10, at 3. As these documents pierce the core of Venture's breach of contract claim, we will consider them in conjunction with ZDS's motion to dismiss and, to the extent that the written documents contradict the allegations in the complaint, the former controls. See In re First Chicago Corp. Sec. Litig., 769 F. Supp. at 1450; 5 C. Wright & A. Miller, supra, § 1327, at 766-67.

 IV. Motion to Dismiss

 As noted by the Seventh Circuit, courts are often confronted with "a pattern common in commercial life," Empro Mfg. Co. v. Ball-Co Mfg., ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.