same sheet of paper as the signature block. That Mr. Madero may have failed to read paragraph 18 before signing the Customer Agreement cannot relieve him from being bound by that paragraph. See State Bank of Geneva v. Sorenson, 167 Ill. App. 3d 674, 521 N.E.2d 587, 592, 118 Ill. Dec. 305 (2nd Dist. 1988) (stating that party who has opportunity to read contract before signing, but signs before reading, is bound by contract).
Mr. Madero argues that even if defendants gave him a copy of the Customer Agreement at the time he signed it, but he failed to read it, he still would not be bound by the one-year limitations period. He bases this argument on his contention that the Customer Agreement was a form contract and the limitations provision was boilerplate. The three cases that Mr. Madero cites, however, do not indicate that the limitations provision would not be enforceable against him even if it were boilerplate in a form contract. The courts in two of the cases mentioned the issue of form contracts with forum selection clauses. Neither court, however, held that such a clause cannot be enforceable. See Karlberg European Tanspa, Inc. v. JK-Josef Kratz, 618 F. Supp. 344, 348 (N.D. Ill. 1985) (noting in dicta that other courts have recognized "a qualitative difference between form contracts and freely negotiated contracts specifically tailored by the parties to address their concerns"); G.H. Miller & Co. v. Hanes, 566 F. Supp. 305, 308 (N.D. Ill. 1983) (stating that clauses that "purported to be forum selection provisions" were boilerplate and therefore one of a number of factors to be considered in deciding a motion for a change of venue). In the third case, the court held that a party was not bound by a forum selection clause constituting "obscure and tardy boilerplate." Purac, Inc. v. Trafpak Services, 694 F. Supp. 476, 477 (N.D. Ill. 1988). There is no indication that the limitations clause in the Customer Agreement was either "obscure" or "tardy."
Mr. Madero argues that as fiduciaries, defendants owed him "a duty of good faith, loyalty, and honesty)" in regard to any "modifications" to the contract that he signed in March, 1993. However, defendants did not conceal that the March, 1993 Customer Agreement contained a limitations clause -- Mr. Madero had the opportunity to read paragraph 18 before signing that Customer Agreement but chose not to do so.
Mr. Madero additionally argues that the purported addition of paragraph 18 to the second Customer Agreement that he signed constituted a contract modification. Mr. Madero maintains that because he "did not accept the contract modification and did not receive any additional consideration for such modification[,] ... the modification cannot be enforced against him." Nevertheless, "the Illinois Supreme Court has stated that a contract modification that has been executed by the parties will not be disturbed by the court, even in the absence of consideration." Robson v. Robson, 514 F. Supp. 99, 104 (N.D. Ill. 1981), affirmed, 681 F.2d 820 (7th Cir. 1982). See also Corrugated Metals, Inc. v. Industrial Commission, 184 Ill. App. 3d 549, 540 N.E.2d 479, 484, 132 Ill. Dec. 739 (1st Dist. 1989). By signing the second Customer Agreement containing paragraph 18, Mr. Madero executed any modification embodied in that agreement.
Mr. Madero next argues that defendants are equitably estopped from asserting the contractual limitations period as a defense. He maintains that defendants withheld its customer agreement from him and misled him as to the transactions that took place in his account. Mr. Madero does not explain, and I cannot discern, how these actions constitute the equivalent of promises to pay a claim, such as the ones that have served as grounds for finding that the defendant induced the plaintiff to forbear suit within the applicable limitations period in the cases he cites. See Cange I, 826 F.2d at 587-588; Cange v. Stotler and Company, 913 F.2d 1204, 1208 (7th Cir. 1990) ("Cange II").
Mr. Madero additionally argues that the doctrine of equitable tolling permits him to avoid the effect of the one-year statute of limitations. Mr. Madero, however, fails to provide reasons justifying the application of this doctrine. He seems to imply that equitable tolling applies because defendants withheld information that he needed in order to determine if they committed any wrongdoing. Mr. Madero has failed to present any evidence demonstrating that after the limitations period began to run, see infra, defendants ignored his requests for documents or information. Accordingly, this argument does not advance his position.
Whether the Contractual Limitations Period Bars Mr. Madero's Illinois Claims
Mr. Madero's causes of action under Illinois law accrued when he possessed "sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct [was] involved." Knox College v. Celotex Corporation, 88 Ill. 2d 407, 430 N.E.2d 976, 980-81, 58 Ill. Dec. 725 (1981). It is undisputed that by the time Mr. Madero's account closed in May, 1994, the debit balance in the account was nearly $ 4 million. In paragraph 5 of their Local Rule 12(M) Statement, defendants assert that "at a minimum, plaintiff received [the daily and monthly activity statements, which confirmed the transactions in plaintiff's account,] more than a year before he filed this suit." In paragraph 9, they state that "on August 1, 1994, plaintiff's counsel wrote Refco's counsel delineating many of the claims plaintiff is pursuing in the present lawsuit... A true and correct copy of the letter that Refco received is provided at Appendix 7." Mr. Madero controverted neither of these statements and therefore is deemed to have admitted them. LOCAL RULE 12(N). In the letter found in Appendix 7, Mr. Madero's counsel asked Refco's counsel for information regarding what appeared to be "an inordinate number of cancellations" in Mr. Madero's account from January through May of 1994. Mr. Madero's attorney also stated that he was concerned about Refco's apparent violation of the New York Cotton Exchange margin rules with respect to Mr. Madero's account; excessive commissions generated by the account; unauthorized trades; and orders that were not filled. Certainly as of August 1, 1994, therefore, Mr. Madero had enough information to put him on inquiry notice of his claims. Thus the one-year contractual limitations period began to run at that time and expired one year later, which was before plaintiff filed his original complaint on August 4, 1995. Accordingly, because Mr. Madero has not carried his burden of showing that he filed his Illinois law claims within the one-year contractual limitations period, defendants are entitled to summary judgment on those claims.
For the reasons set forth above, defendants' motion for summary judgment is granted as to Mr. Madero's claims under Illinois law and denied as to Mr. Madero's claims under the CEA.
ELAINE E. BUCKLO
United States District Judge
Dated: July 23, 1996.