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TEKTEL, INC. v. MAIER

November 25, 1992

TEKTEL, INC., a Delaware Corporation, Plaintiff,
v.
HOWARD S. MAIER, a New York citizen, Defendant.



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

MEMORANDUM OPINION AND ORDER

 MARVIN E. ASPEN, District Judge:

 Plaintiff Tektel, Inc. ("Tektel), has brought this action against Howard S. Maier ("Maier") seeking payment allegedly due on a secured promissory note. Defendant Maier has raised affirmative defenses and filed a four-count counterclaim against Tektel. Tektel now moves to strike portions of Maier's Answer and to dismiss the defendant's counterclaim in its entirety. For the reasons set forth below, we deny plaintiff's motion to strike, grant his motion to dismiss paragraph 7(b) of Count II, and deny his motion to dismiss other portions of Count II and Counts I, III, and IV.

 I. Standard of Review

 In considering a motion to dismiss, the court accepts the factual allegations of the complaint as true. See Hughes v. Rowe, 449 U.S. 5, 10, 101 S. Ct. 173, 176, 66 L. Ed. 2d 163 (1980) (per curiam) (citing Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972); Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir. 1990). Furthermore, 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," a court should not grant a motion to dismiss. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). Accordingly, the court views the well-pleaded complaint's allegations, as well as reasonable inferences therefrom, in the light most favorable to the plaintiff. See Balabanos v. North Am. Invest. Group, Ltd., 708 F. Supp. 1488, 1491 n.1 (N.D. Ill. 1988) (citing 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)).

 II. Factual Background

 On or about June 3, 1983, Tektel and Maier entered into a Stock Purchase and Sale Agreement ("Stock Agreement"), whereby Maier purchased $ 78,000 of Tektel common stock. As amended on June 29, 1983, the Stock Agreement provided that if Maier's employment with Tektel was terminated within one year, Tektel would have the option to purchase up to 100% of that stock, at the lower of its free market value or book value. The Stock Agreement also provided that Tektel would have the right to set off the purchase price of the stock against any debts Maier might have to Tektel.

 On June 6, 1983, Maier began to work for Tektel as Vice President of Sales and Marketing. On or about June 8, 1983, the two parties entered into an Employment Agreement which provided for an employment term of five years at a salary of $ 100,000 per annum. The Employment Agreement established that Tektel could terminate Maier before the five years expired only for good cause.

 Also on or about June 8,1983, Maier executed a Secured Promissory Note ("Note") from Tektel for the sum of $ 75,000. Payment was due on or before June 8, 1988, with interest at the rate charged by American National Bank and Trust Company to its most favorable borrowers on short-term commercial loans. At times during the life of the loan, that interest rate rose above 9%.

 On December 8, 1983, Maier alleges that Tektel terminated his employment. On September 4, 1992, Tektel sued Maier for failing to make payment due on the Note.

 III. Discussion

 A. Motion to Strike

 Pursuant to Federal Rule of Civil Procedure 12(f), Tektel moves to strike portions of Maier's answer as redundant, immaterial, and not responsive to the allegations. Paragraph 4 alleges that "on or about June 8, 1983, Maier executed a secured promissory note ("Note"), a true and correct copy of which is attached hereto as Exhibit A and incorporated herein by reference. Cmplt. at P 4. Maier answered as follows:

 Howard Maier admits that on or about June 8, 1983 he signed a Secured Promissory Note, a copy of which is attached to the Complaint a Exhibit A, to evidence a ...


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