II. Motion to Dismiss Under Rule 12(b)(6)
Defendants have moved to dismiss five of the six counts. A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) 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, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Chaney v. Suburban Bus Division of the Regional Transp. Auth., 52 F.3d 623, 627 (7th Cir. 1995). At this stage in the litigation we take as true all factual allegations made in the complaint, and construe all reasonable inferences therefrom in plaintiff's favor. Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995).
A. Count I (Breach of Contract)
Defendants first contend that Count I is deficient because the alleged contract between ISC, Fleetguard and Cummins is too indefinite to be enforceable, and it fails to set forth such key elements as price, quantity and duration. Plaintiff responds that defendants made specific oral representations of an intention to purchase their products, and any missing terms can be supplied through the course of dealings between the parties and the voluminous documents attached to the complaint as exhibits.
Under Illinois law,
the intention of the parties determines whether a contract has been formed. Bradley Real Estate v. Dolan Assocs., Ltd., 266 Ill. App. 3d 709, 640 N.E.2d 9, 11, 203 Ill. Dec. 582 (Ill. App. Ct. 1994); Bercoon, Weiner, Glick & Brook v. Manufacturers Hanover Trust Co., 818 F. Supp. 1152, 1155 (N.D. Ill. 1993). "Although the intent of the parties to an oral contract is generally a question of fact, it may become a question of law if the facts are undisputed and there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them." David Copperfield's Disappearing, Inc. v. Haddon Advertising Agency, Inc., 897 F.2d 288, 292 (7th Cir. 1990) (quotations and citation omitted). ISC argues that on several occasions Hudgens and other members of Fleetguard represented to ISC that if it produced certain chemical products according to defendants' specifications and needs, then defendants would purchase these chemicals from ISC. These allegations, if believed, could support a finding that defendants intended to be bound by their promise to purchase future orders from ISC.
However, as defendants correctly point out, many elements of this alleged agreement are not mentioned in the complaint. In particular, there is no allegation that the parties agreed on (1) the prices of the products to be sold, (2) the duration of the agreement, or (3) the amount of each type of chemical to be sold. The first deficiency will not defeat plaintiff's contract claim, as a reasonable price term may be implied to a contract.
810 ILCS 5/2-305(1); Ingrassia v. Ingrassia, 156 Ill. App. 3d 483, 509 N.E.2d 729, 737, 109 Ill. Dec. 68 (Ill. App. Ct.), app. denied, 113 Ill. Dec. 299, 515 N.E.2d 108 (Ill. 1987); Ryan v. Wersi Elecs. GmbH and Co., 3 F.3d 174, 180 (7th Cir. 1993). So too with the second objection, since "ordinarily, where no definite term is fixed during which an executory contract shall continue in force, it is terminable at the will of either party." First Nat. Bank of Cicero v. Sylvester, 196 Ill. App. 3d 902, 554 N.E.2d 1063, 1069, 144 Ill. Dec. 24 (Ill. App. Ct.), app. denied, 133 Ill. 2d 555, 149 Ill. Dec. 320, 561 N.E.2d 690 (Ill. 1990); Rush-Presbyterian-St. Luke's Medical Center v. Hellenic Republic, 980 F.2d 449, 452 (7th Cir. 1992).
The third objection is more substantial. Plaintiff alleges that Fleetguard and Cummins agreed to purchase all of their requirements of the new acid cleanser ISC specially developed for them, as well as all of their "secondary source requirements" for several other chemicals. The alleged quantity term concerning the newly developed acid cleanser--all of defendants' requirements--is sufficiently definite to form a binding agreement. See 810 ILCS 5/2-306(1). However, requirements contracts must be exclusive to be enforceable--that is, the purchaser must agree to buy all of its requirements from the seller. Torres v. City of Chicago, 261 Ill. App. 3d 499, 632 N.E.2d 54, 57-57, 197 Ill. Dec. 985 (Ill. App. Ct.), app. denied, 157 Ill. 2d 523, 205 Ill. Dec. 188, 642 N.E.2d 1305 (Ill. 1994); Canteen Corp. v. Former Foods, Inc., 238 Ill. App. 3d 167, 606 N.E.2d 174, 183, 179 Ill. Dec. 342 (Ill. App. Ct. 1992), app. denied, 148 Ill. 2d 640, 183 Ill. Dec. 16, 610 N.E.2d 1260 (Ill. 1993); Wald v. Chicago Shippers Ass'n, 175 Ill. App. 3d 607, 529 N.E.2d 1138, 1146, 125 Ill. Dec. 62 (Ill. App. Ct. 1988). Thus, plaintiff cannot assert a breach of contract claim based on defendants' alleged promise to purchase their "secondary requirements" from ISC, since such a promise necessarily implies that defendants will also purchase additional amounts of the products in question from other sellers. Accordingly, although plaintiff's requirements claim survives, defendant's motion is granted with respect to the "secondary requirements" claim.
Defendants also argue that even if ISC has properly alleged a breach of contract claim in Count I, such a claim is barred by the statute of frauds provision of the U.C.C., 810 ILCS 5/2-201.
Defendants contend that this provision applies because ISC alleges a contract for the sale of at least $ 500 worth of goods. Plaintiff first attacks the notion that the U.C.C. applies at all, arguing that the instant contract is a "mixed" one for goods and services.
However, as discussed above, supra note 3, because the predominate purpose of this alleged agreement was for the sale of chemicals rather than for ISC's services, the U.C.C. applies. ISC next contends that the U.C.C. is satisfied by "the voluminous correspondence between the parties." Clearly, this conclusory statement is insufficient to demonstrate that the requirements of the U.C.C. have been fulfilled. Nor has our independent review of the exhibits attached to the complaint uncovered any document, signed by the defendants, which sufficiently indicates that a contract for the sale of goods was made.
However, at this juncture we cannot say that plaintiff will be unable to seek refuge in the judicial-admission exception to the U.C.C.'s statute of frauds. See 810 ILCS 5/2-201(3)(b). Nor are we inclined to grant the motion based on the present submissions, as defendants have not denied the existence of the alleged oral agreement in an answer or by affidavit. Cf. DF Activities Corp. v. Brown, 851 F.2d 920, 922 (7th Cir. 1988) (affirming 12(b)(6) dismissal for failing to satisfy statute of frauds where defendant submitted affidavit denying existence of alleged oral agreement); Triangle Marketing, Inc. v. Action Indus., Inc., 630 F. Supp. 1578, 1583-84 (N.D. Ill. 1986) (dismissing claim under 12(b)(6) for failing to satisfy statute of frauds where defendant denied existence of contract in pleadings). Rather, resolution of this issue should be deferred until defendants affirmatively deny the existence of the alleged oral agreement, see Triangle Marketing, 630 F. Supp. at 1583, or plaintiff can draw from defendants an admission which would permit the application of 810 ILCS 5/2-201(3)(b). See Ruca Hardware, Ltd. v. Chien, 1995 U.S. Dist. LEXIS 6678, No. 94 C 3635, 1995 WL 307172, at *5-6 (N.D. Ill. May 17, 1995) (denying motion to dismiss until plaintiff had opportunity to depose defendants and elicit admission on existence of alleged agreement). Accordingly, defendant's motion to dismiss the remainder of Count I for failing to satisfy the U.C.C.'s statute of frauds is denied.
B. Count II (Good Faith and Fair Dealing)
Defendants next move to dismiss plaintiff's claim for breach of the implied covenant of good faith and fair dealing. Basically, defendants argue that if no claim for breach of contract exists, then no claim for breach of the implied covenant will lie. Although we have rejected the underlying premise of defendants' argument, and found that plaintiff has (at least in part) stated a claim for breach of contract, we nonetheless conclude that Count II should be dismissed. This is because the obligation to deal in good faith is implied by Illinois law into every contract and breach of that duty is simply a breach of the underlying contract. See LaScola v. U.S. Sprint Comm., 946 F.2d 559, 565 (7th Cir. 1991) (implied duty of good faith does not create independent cause of action). Thus, ISC's breach of the implied duty of good faith cannot stand as a separate count, but must be included within its breach of contract claim in Count I. See Stuart Park Assocs. Ltd. Partnership v. Ameritech Pension Trust, 846 F. Supp. 701, 713-14 (N.D. Ill. 1994) (dismissing separate count for breach of implied duty of good faith because claim was subsumed within breach of contract count). Accordingly, Count is dismissed and plaintiff is given leave to reallege this claim in Count I.
C. Count IV (Consumer Fraud)
Fleetguard and Cummins next challenge Count IV, brought under the Illinois Consumer Fraud and Deceptive Business Practices Act ("Consumer Fraud Act"), 815 ILCS 505/1-505/12, arguing that ISC has failed to (1) allege the commission of a deceptive act in the conduct of trade or commerce contemplated by the Act, (2) file the action within the three-year statute of limitations, or (3) allege trade practices effecting the market or implicating consumer concerns generally. Because we agree with defendants' last argument, we need only discuss that issue.
Section 2 of the Consumer Fraud Act provides, in relevant part:
Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use of any deception, fraud, false pretense, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the "Uniform Deceptive Trade Practices Act," approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.