alternative pleadings rule to artificially manufacture claims. For example, a plaintiff stating alternative claims remains subject to the obligations set forth in Rule 11. Hence, a plaintiff may only assert contradictory statements of fact when he "legitimately is in doubt about the fact in question." Great Lakes Higher Educ. Corp. v. Austin Bank, 837 F. Supp. 892, 894 (N.D. Ill. 1993); see also Fed. R. Civ. P. 11(b)(3) (stating that an attorney submitting a pleading certifies that the allegations and other factual contentions are likely to have evidentiary support). Neither Rule 8(e)(2) nor Rule 11 permits a plaintiff to intentionally ignore relevant evidence in order to assert unfounded claims. Great Lakes, 837 F. Supp. at 895. Since nothing submitted to the court to date indicates that Tibor's selective incorporation of paragraph 28 exceeds the limits of Rule 11, we conclude that the allegations in Count V and VI should be judged on their own terms.
FNGP's other argument -- that the true version of the SPTCD was marked "draft" and thus cannot constitute an offer -- raises another interesting procedural issue. Under Federal Rule of Civil Procedure 10(c),
a defendant may attach documents to a motion to dismiss if they are referred to in the plaintiff's complaint and are central to the plaintiff's claim. Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). Thus, although a plaintiff is not obligated to attach pertinent documents to his complaint, a defendant may introduce the documents if the plaintiff chooses not to do so. Id. In this case, it appears that FNGP is not simply attempting to round out the pleadings by submitting an unattached document that is relevant to Tibor's claim. Rather, the thrust of FNGP's argument seems to be that the copy of the SPTCD appended to Tibor's complaint is not the same document FNGP presented to Tibor on June 11, 1992. This is presumably an issue of fact, and normally we would be hesitant to resolve it on a motion to dismiss.
However, whether or not the SPTCD attached to Tibor's complaint is authentic can be determined without relying on FNGP's factual representations. FNGP cannot, of course, challenge the sufficiency of Tibor's claims simply by attaching documents that contain factual assertions contrary to those in the complaint. See Tibor II, 1996 WL 535338, at *2 n.2 (noting that consideration of a motion to dismiss is limited to the pleadings and that the complaint cannot be amended by the parties' briefs). Nevertheless, as discussed above, the court generally is not required to ignore facts in the complaint that undermine the plaintiff's claim. And, indeed, other documents attached to the complaint by the plaintiff reveal that Tibor has not submitted a copy of the SPTCD to which Count V refers. The parties agree that the "real" SPTCD was proffered by FNGP to Tibor on or about June 11, 1992. On or about June 23, 1992, Tibor sent a letter to FNGP recommending a number of changes to the SPTCD.
Inexplicably, however, the copy of the SPTCD attached to the complaint incorporates some of the changes suggested in the June 23 letter.
To state the obvious, the document the parties exchanged on June 11 could not possibly have incorporated changes that were not proposed until almost two weeks later. As a consequence, Tibor cannot be said to have attached a copy of the SPTCD upon which its breach of contract claim is based. The court will therefore consider the copy of the SPTCD attached to FNGP's brief without converting the motion into one for summary judgment.
All of this brings us to FNGP's argument that a "draft" notation prevents a document from being construed as an offer. FNGP asserts that Feldman v. Allegheny Int'l, Inc., 850 F.2d 1217 (7th Cir. 1988), requires the court to dismiss breach of contract claims based on "draft" documents, so a brief discussion of that decision is in order. In January 1982, the parties in Feldman signed a "letter of intent" through which they committed themselves to negotiate the purchase of a group of food-related companies. In June 1982, the parties met to discuss their most recent draft of a sale agreement. Id. at 1219. At the close of the meeting, the defendant's attorney stated that he believed the parties had a deal. Soon after, however, the discussions reached an impasse and the defendant eventually sold the companies to another buyer. Id. at 1220. Feldman sued, arguing that the letter of intent obligated the defendant to sign the June 1982 draft agreement. At the close of Feldman's presentation of evidence, the trial judge directed a verdict in favor of the defendant. The Seventh Circuit affirmed, and made the following observation:
Even if we were persuaded that a duty of good faith obligated [the defendant] to sign an agreement eventually, we could not seriously entertain the notion that it could be forced to sign the June  agreement as that agreement was fatally incomplete: on its face, the document not only leaves the purchase price blank, but also leaves blank the portion of the payment to be in cash and the amount to be carried as debt. . . . Having neither set a price, nor a mechanism to calculate a price, the draft cannot constitute a contract; there has been no meeting of the minds.
Id. at 1223-24 (citations omitted).
FNGP's assertions notwithstanding, Feldman does not require us to dismiss Count V of Tibor's complaint. First, the court in Feldman held that the draft agreement could not be construed as an enforceable contract because it omitted critical terms. The court did not, however, establish as a matter of law that a document marked "draft" can never give rise to contractual obligations. Because the possibility still remains that Tibor may be able to prove some set of facts that could entitle it to legal relief, a 12(b)(6) disposition of Tibor's claims based exclusively on the "draft" notation is unwarranted. Second, FNGP has not demonstrated that essential contract terms are missing from Tibor's amalgamation of the SPTCD, the 1992 quotation, and the 1992 letter. In fact, while Tibor acknowledges that the SPTCD did not specify a price, it also alleges that the 1992 quotation filled in the gap. See Plaintiff's Response at 10 ("The [SPTCD] contained no 'price' provision, but both Tibor's 1992 Quotation and FNGP's POs reflected identical pricing, i.e., $ 1.82 per ring and $ 2.48 per hub.").
FNGP also stresses the fact that Tibor has not cited any Illinois cases holding that "draft" documents can constitute offers. Defendant's Reply at 7; see also Plaintiff's Response at 5 (citing In re Windsor Plumbing Supply Co., 170 B.R. 503, 523 (E.D.N.Y. 1994) (Holland, Bankr. J.) for the proposition that documents marked "draft" can create enforceable contracts). FNGP's observation is accurate, but not particularly relevant given the procedural posture of the case. On a motion to dismiss, it is the defendant's responsibility to show that, assuming the truth of the allegations, the plaintiff is not entitled to any form of legal relief. Moreover, while there are cases in which claims based on "draft" contracts have ultimately proven unsuccessful, see, e.g., Lee v. John Labatt Ltd., 1992 U.S. Dist. LEXIS 297, No. 91 C 8352, 1992 WL 6697, at *1-*2 (N.D. Ill. Jan. 15, 1992) (holding that it was unlikely that a draft agreement constituted a binding contract because (1) the draft's failure to include important terms and the signature of one of the parties prevented it from being an "offer;" and (2) the plaintiff's "acceptance" letter was insufficient because it did not address "[the] purchase price, the identity of the proposed buyer, or the precise assets to be acquired"), the court is not aware of any decision dismissing a complaint under Rule 12(b)(6) because of the "draft" notation on of certain documents. We therefore decline FNGP's invitation to dismiss the complaint simply because the word "draft" appears on the SPTCD.
FNGP further contends that the 1992 quotation cannot be combined with the SPTCD to create a contractual agreement because the quotation was itself an independent offer for a separate contract. In addition, FNGP highlights the following differences between the 1992 quotation and the SPTCD: (1) the SPTCD envisioned a requirements contract, whereas the quotation specified yearly production volumes at particular prices; and (2) the SPTCD did not indicate the cost for tooling, whereas the quotation specified a price of $ 35,000.00. Defendant's Brief at 4-7. We find, however, that any inconsistencies between the 1992 quotation and the SPTCD are not so facially apparent that Counts V and VI must be dismissed as a matter of law. In response to the foregoing, Tibor makes the following points: (1) the quotation was mailed to FNGP within one day of Tibor's letter, which specifically referred to the SPTCD; (2) the quotation reflected the quantities of parts the parties estimated FNGP would need to meet its requirements under the SPTCD; and (3) the quotation was intended to fill the price "gap" in the SPTCD by providing per-unit prices for rings and hubs. Plaintiff's Response at 10. These arguments demonstrate that it is at least plausible that the 1992 quotation was part of a "bundle" of documents that collectively established the provisions of a contract. Furthermore, FNGP has cited no law that would preclude the existence of an offer based on the combined terms of the quotation and the SPTCD. While the general rule is that price quotations are merely invitations to submit offers, Outboard Marine Corp. v. Babcock Indus., Inc., 1994 U.S. Dist. LEXIS 11998, No. 91 C 7247, 1994 WL 468596, at *4 (N.D. Ill. Aug. 26, 1994), it is not impossible for a price quotation to serve as an offer. See Rush-Presbyterian St. Luke's Med. Ctr. v. Gould, Inc., 1993 U.S. Dist. LEXIS 13167, No. 93 C 1661, 1993 WL 376163, at *2 (N.D. Ill. Sept. 22, 1993) (noting that whether a price quotation is an offer "is a question of fact that depends on the parties' acts, their expressed intent, and the circumstances surrounding the transaction"); McCarty v. Verson Allsteel Press Co., 89 Ill. App. 3d 498, 411 N.E.2d 936, 942, 44 Ill. Dec. 570 (Ill. App. Ct. 1980) (observing that a price quotation, if sufficiently detailed, may constitute an offer). Dismissal of Tibor's claims based on potential inconsistencies between the 1992 quotation and the SPTCD would, therefore, be premature.
Section 2-206(1) of Uniform Commercial Code states that, unless otherwise unambiguously indicated, "an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances." 810 ILCS 5/2-206(1)(a) (1993). FNGP challenges Tibor's allegation that FNGP accepted the terms of the putative contract through the 1992 POs.
First, FNGP avers that it could not have accepted the alleged offer through the POs because those orders were independent offers with no relation to the SPTCD. For example, FNGP notes that the "Terms and Conditions" provisions of the orders expressly characterize the POs as "offers" that could be accepted by signature or performance.
Second, FNGP contends that there are material differences between the POs and the SPTCD, including the following: (1) the POs were for tooling and certain quantities of sample rings and hubs, whereas the SPTCD represented a requirements contract for production quality rings and hubs; (2) the POs set the price for tooling at $ 17,500.00, whereas the SPTCD contained no price provision for the rings and hubs; and (3) the POs stated that the rings and hubs were to be produced by November 1, 1992, whereas the SPTCD pertained a multi-year agreement commencing in August 1993.
FNGP's argument that the purchase orders were necessarily "offers" and not "acceptances" of a separate offer is unavailing. It is true that purchase orders usually "are offers to buy and are construed as inviting acceptance." Echo, Inc. v. The Whitson Co., 1994 U.S. Dist. LEXIS 10169, No. 93 C 4349, 1994 WL 395004, at *1 (N.D. Ill. July 26, 1994); see also Beard Implement Co. v. Krusa, 208 Ill. App. 3d 953, 567 N.E.2d 345, 348, 153 Ill. Dec. 387 (Ill. App. Ct. 1991) (holding that a purchase order for farm equipment "constituted an offer made by defendant to plaintiff"). However, this is simply rule of thumb, not ironclad doctrine. Under certain circumstances, a purchase order can signify a party's acceptance of a previous offer. See Michigan Ave. Nat'l Bank v. Evans, Inc., 176 Ill. App. 3d 1047, 531 N.E.2d 872, 877, 126 Ill. Dec. 245 (Ill. App. Ct. 1988) (finding that purchase orders for furs probably constituted acceptances of an external contract rather than independent offers); see also Taft-Peirce Mfg. Co. v. Seagate Tech., Inc., 789 F. Supp. 1220 (D.R.I. 1992) (holding that the defendant, through a purchase order, accepted the plaintiff's offer to sell a specialized machine).
Of course, that a purchase order can constitute an acceptance of an offer does not mean that FNGP did, in fact, accede to the terms of the alleged offer by issuing the 1992 POs. In this case, it appears that FNGP has compiled an impressive list of discrepancies between its POs and the SPTCD. Nonetheless, we conclude that these discrepancies are insufficient to justify dismissal at this juncture. Three points bear emphasis. First, in addition to alleging that FNGP accepted the "offer" through the POs, Tibor has also alleged that FNGP orally accepted the combined terms of the SPTCD, the 1992 quotation, and the 1992 letter. See Second Amended Counts V & VI PP 60, 63 (alleging that FNGP assured Tibor in a telephone call "that the material terms of the parties' agreement were established"). The U.C.C. recognizes "any manner of expression of agreement, oral, written or otherwise." 810 ILCS 5/2-204(1) cmt. (1993).
Thus, it is not beyond the realm of possibility that FNGP's oral assurances, by themselves, sufficiently demonstrated FNGP's acceptance of the SPTCD. Although FNGP disputes Tibor's assertion that FNGP orally assented to the terms of the SPTCD, on a motion to dismiss the court must assume the truth of Tibor's allegations and draw all reasonable inferences in Tibor's favor.
Second, the Uniform Commercial Code "tolerates a good deal of incompleteness and even contradiction in offer and acceptance." Architectural Metal, 58 F.3d at 1230. Under § 2-207(1), an acceptance which contains terms different from those in the offer does not convert the acceptance into a counter-offer or otherwise make it ineffective as an acceptance. 810 ILCS 5/2-207(1) (1993);
see generally Northrop Corp. v. Litronic Indus., 29 F.3d 1173, 1178 (7th Cir. 1994) (reasoning that Illinois courts would likely adopt the majority view that under § 2-207 "the discrepant terms fall out and are replaced by a suitable U.C.C. gap-filler"). The Code also provides that even if the documents exchanged by the parties do not create a binding agreement, the parties' conduct may be sufficient to establish a contract. 810 ILCS 5/2-207(3) (1993);
see also Quaker State Mushroom Co. v. Dominick's Finer Foods, Inc., 635 F. Supp. 1281, 1285 (N.D. Ill. 1986) (noting that the parties' conduct can create a contract even though the writings of the parties do not otherwise establish one); Gord Indus. Plastics, Inc. v. Aubrey Mfg., Inc., 103 Ill. App. 3d 380, 431 N.E.2d 445, 449, 59 Ill. Dec. 160 (Ill. App. Ct. 1982) (same). Admittedly, the situation here is not a typical "battle of the forms" scenario, and the contract alleged by Tibor pushes the envelope even under the liberal provisions of the U.C.C. But the presumption is clearly against dismissal at the pleading stage, and we are unwilling to say that no set of facts could exist under which the POs could have functioned as acceptances of the alleged offer. For example, Tibor argues in its brief that the July 1992 POs for sample parts were merely "starters" in a series of orders for rings and hubs, see Plaintiff's Response at 10, and we cannot reject that claim out-of-hand before the factual record has been developed. Additionally, it is undisputed that Tibor has adequately alleged that it accepted the terms of the "offer" by delivering the rings and hubs. Since FNGP's receipt of these parts (or other conduct) may have indicated that FNGP assented to the terms of the SPTCD, the possibility remains that a contract could have been formed under § 2-207(3).
Third, we note that many of these themes were recently discussed in Architectural Metal, a breach of contract case in which the Seventh Circuit reversed a district court's entry of summary judgment for the defendant. The Seventh Circuit's comments are worth quoting at some length:
Equally premature is the [district] judge's conclusion that if the price quotations were offers, [the plaintiff] did not accept them because its acceptance, which the judge deemed to be the purchase order of April 28, contained discrepant terms. . . . [The defendant's] brief contains an imposing list of discrepancies, which it describes as "radical," but admits that there is not a shred of evidence that they were potential dealbusters. . . . The Uniform Commercial Code, moreover, does not make even "radical" differences between offer and acceptance a ground for concluding there is no contract. If there is an offer and an acceptance, then however discrepant (within reason) their terms are, there is a contract, and the question is merely what the terms are. . . . Nor is it even clear that the purchase order here, with its discrepant terms, was the acceptance. The acceptance may have been oral.
58 F.3d at 1230 (citations omitted). With this commentary in mind, we hold that Tibor has adequately alleged the requisites of a contract.
B. The Statute of Frauds
Under § 2-201(1) of the Uniform Commercial Code, an agreement for the sale of goods for $ 500.00 or more is not enforceable without a writing indicating that a contract between the parties has been made. 810 ILCS 5/2-201(1) (1993);
see also A-Abart Elec. Supply, Inc. v. Emerson Elec. Co., 956 F.2d 1399, 1403 (7th Cir. 1992) (finding that an unsigned purchase order was insufficient to render enforceable an oral agreement for the sale of ceiling fans); Lee v. Voyles, 898 F.2d 76, 78-79 (7th Cir. 1990) (holding that an oral contract for the sale of an automobile was unenforceable because the defendant never signed letters summarizing the alleged agreement). The writing or memorandum must satisfy three criteria: "First, it must evidence a contract for the sale of goods; second, it must be 'signed', a word which includes any authentication which identifies the party to be charged; and third, it must specify a quantity." 810 ILCS 5/2-201(1) cmt.; Zayre Corp. v. S.M. & R. Co., 882 F.2d 1145, 1154 (7th Cir. 1989).
FNGP contends that the alleged contract is invalid under the Statute of Frauds for two reasons. First, FNGP argues that it did not authenticate the requirements contract contemplated by the SPTCD. FNGP maintains that neither the initials accompanying the "draft" notation nor the mere mention of the parties in the SPTCD constitutes a "signature." Second, FNGP argues that the 1992 quotation and the 1992 POs -- documents which were conceivably "signed" by FNGP -- do not contain statements betokening a requirements contract. According to FNGP, the quotation "gives no indication that the quantity mentioned on the face of the quote references FNGP's requirements." Defendant's Brief at 9. FNGP also avers that the POs fail to provide the needed quantity term because the orders were only for several hundred sample rings and hubs.
We need not resolve these issues, however, because the alleged contract appears to be saved by a statutory exception to § 2-201(1). Although requirements contracts are not generally exempt from the Statute of Frauds, see Medline Indus., Inc. v. Keilei Int'l, Inc., 1992 U.S. Dist. LEXIS 7509, No. 89 C 4822, 1992 WL 133012, at *5-*6 (N.D. Ill. May 29, 1992) (stating, for example, that "like any other sales contract, a requirements contract must contain a quantity term"); Ray Dancer, Inc. v. DMC Corp., 175 Ill. App. 3d 997, 530 N.E.2d 605, 610, 125 Ill. Dec. 447 (Ill. App. Ct. 1988) (same, citing Eastern Dental Corp. v. Isaac Masel Co., 502 F. Supp. 1354, 1364 (E.D. Pa. 1980)), the U.C.C. provides that a contract that would otherwise be invalid under § 2-201(1) is enforceable if (1) the goods are specially manufactured for the buyer and (2) the seller has made a "substantial beginning" in procuring the goods. 810 ILCS 5/2-201(3) (1993);
see also GSI Distribs., Inc. v. Carson, Pirie, Scott & Co., 1986 U.S. Dist. LEXIS 25095, No. 85 C 8076, 1986 WL 6235, at *3 (N.D. Ill. May 23, 1986) (refusing to dismiss a breach of contract claim under the Statute of Frauds because the plaintiff had made a substantial commitment to procure specialized silverware sets for the defendant). Tibor argues that the rings and hubs it machined for Nissan's VG-30, Six Cylinder engine project were not suitable for sale to others in the ordinary course of business, and that Tibor had taken significant steps toward the manufacture of the parts before FNGP allegedly breached the contract. FNGP has made no attempt to refute these arguments. We therefore deny FNGP's request to dismiss the complaint based on § 2-201(1).
II. Count VI: Recoupment
The doctrine of recoupment is designed to remedy the inequity that arises when a contractor, after requiring the other party to make sizeable investments, unjustly terminates the agreement and leaves the other party with substantial unrecovered expenditures. Cox v. Doctor's Assocs., Inc., 245 Ill. App. 3d 186, 613 N.E.2d 1306, 1316, 184 Ill. Dec. 714 (Ill. App. Ct. 1993). Thus, when a contractor terminates an agreement without just cause, the terminated party can, under certain circumstances, recoup investments made in furtherance of the contract. Nichols Motorcycle Supply, Inc. v. Dunlop Tire Corp., 913 F. Supp. 1088, 1142 (N.D. Ill. 1995).
FNGP contends that Tibor's recoupment claim must fail as a matter of law for two reasons. First, FNGP argues that a party may only recoup expenses that were "within the reasonable contemplation of the parties at the time the contract was entered into." Defendant's Brief at 10. According to FNGP, both Tibor and FNGP assumed that tooling purchased via the 1992 POs would be sufficient to produce the rings and hubs under the alleged contract.
FNGP further asserts that the SPTCD and the 1992 quotation make no mention of $ 1 million in capital outlays. Second, FNGP argues that a claim for recoupment is available only when a party to an at-will agency relationship has been terminated without cause and has made investments at the behest of the other party to the contract. FNGP then notes that Tibor has not alleged the existence of an agency relationship.
FNGP's initial argument is unpersuasive. First, although the case law on recoupment is concededly sparse, see Cox, 613 N.E.2d at 1316 (lamenting "the lack of Illinois authority on recoupment"), no opinion cited by FNGP demonstrates that a party asserting a recoupment claim can only recover "start up" expenses. The Nichols decision -- the sole case cited by FNGP for this proposition -- certainly contains no such language. After commenting that the doctrine of recoupment applies when a contract is terminated before one party has had an opportunity to recover its losses, the court in Nichols held that the plaintiff's claim failed because there was no evidence that the defendant had "required" the investments at issue. 913 F. Supp. at 1142-43. At no time did the court state that Illinois law requires allegations of "expenses within the reasonable contemplation of the parties at the onset of the [agreement]." Defendant's Brief at 10, 12. Second, while some recoupment cases have indeed addressed the issue of "start up" costs, see, e.g., Skinner v. Shirley of Hollywood, 723 F. Supp. 50, 55 (N.D. Ill. 1989) (granting a motion to dismiss because the plaintiff had over ten years to recoup its initial expenses), a requirement that an aggrieved party is entitled to recover only those investments made at the onset of the relationship would make little sense. When the terminated party incurred expenses in furtherance of the contract is, by itself, neither here nor there; the critical question is whether or not the aggrieved party had a sufficient opportunity to recoup any investments made at the request of the other party. Here, the complaint alleges that (1) Tibor relied on FNGP's representations and promises when it decided to purchase the Robotic Cell, Second Amended Counts V & VI PP 81-82; (2) FNGP called Tibor to confirm that Tibor had purchased the Robotic Cell, id. P 70; and (3) FNGP wrongfully terminated the contract before Tibor could recoup its expenditures related to the Robotic Cell. Id. P 83. These allegations appear to be sufficient to state a claim for recoupment.
Our conclusion that Tibor has adequately alleged a claim for recoupment is, however, a qualified one. Upon further reflection, it is apparent that FNGP's second argument -- that a claim for recoupment is available only in the context of an agency relationship -- deserves more attention than we gave it in our previous opinion. In Tibor III, we stated that we doubted that an agency relationship was a condition precedent to a claim for recoupment. 942 F. Supp. at 1175. For two reasons, we are prepared to revisit the issue. First, in Tibor III we attached some significance to the fact that Tibor was not attempting to assert a breach of contract claim under the theory of recoupment. Id. Given our holding that Tibor has sufficiently stated a claim for breach of contract, our earlier statement may no longer be accurate. If, for example, Tibor were to prevail on its breach of contract claim, it is unclear whether Tibor would be entitled to recover its expenses in connection with the Robotic Cell. If Tibor's expenditures would be recoverable as normal contract damages, then the recoupment claim would be superfluous. Second, it appears that all of the prior recoupment decisions in this circuit have involved some sort of an agency relationship. See, e.g., Fox Valley Harvestore, Inc. v. A.O. Smith Harvestore Prods., Inc., 545 F.2d 1096, 1097 (7th Cir. 1976) (involving the premature termination of a distributorship agreement); Burton v. Hitachi Am., Ltd., 504 F.2d 721, 722-24 (7th Cir. 1974) (involving a distributorship agreement for automobiles); P.S. & E., Inc. v. Selastomer Detroit, Inc., 470 F.2d 125, 126-27 (7th Cir. 1972) (involving a distributorship agreement for packing seals and rings); Fargo Glass & Paint Co. v. Globe Am. Corp., 161 F.2d 811, 812-13 (7th Cir. 1947) (involving a distributorship agreement for gas ranges); Nichols, 913 F. Supp. at 1096-97 (involving a distributorship agreement for tires); Dupage Fork Lift Serv., Inc. v. Machinery Distribution, Inc., 1995 U.S. Dist. LEXIS 3290, No. 94 C 7357 (95 C 114), 1995 WL 125774 (N.D. Ill. Mar. 15, 1995) (involving a distributorship agreement for automobiles); Fields v. Feldmann Eng'g & Mfg. Co., No. 92 C 1952, 1994 U.S. Dist. LEXIS 11396 (N.D. Ill. Aug. 11, 1994) (Pallmeyer, Mag. J.) (involving the employment contract of a sales representative); Skinner, 723 F. Supp. at 55 (involving an employment contract for the promotion of women's apparel); Cox, 613 N.E.2d at 1316 (involving franchise agreements for the operation of sandwich shops); see also Mechanical Rubber & Supply Co. v. American Saw & Mfg. Co., 810 F. Supp. 986, 994-95 (C.D. Ill. 1990) (dismissing a recoupment claim based on a sales contract that did not create an agency relationship). There may, of course, be a way to reconcile these decisions with the claim asserted by Tibor in the case at hand. Reasonably relying on our comments in Tibor III, Tibor did not discuss the relevance of an agency relationship to its recoupment claim in its Response to FNGP's motion to dismiss. Since this is a potentially dispositive issue, we will reserve judgment until both sides have had an opportunity to submit briefs on the matter.
For the foregoing reasons, the FNGP's motion to dismiss Tibor's claim for breach of contract (Count V) is denied. FNGP's motion to dismiss Tibor's claim for recoupment (Count VI) is continued pending resolution of the legal issues discussed in this opinion. Tibor is granted until April 14, 1997, to file a brief responding to FNGP's argument that an agency relationship is a prerequisite to a viable claim for recoupment. FNGP will have until May 2, 1997, to reply to Tibor's response.
DATED: March 24, 1997
John F. Grady, United States District Judge