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TIBOR MACH. PRODS. v. FREUDENBERG-NOK

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


May 27, 1997

TIBOR MACHINE PRODUCTS, INC., an Illinois Corporation, Plaintiff and Counter-Defendant,
v.
FREUDENBERG-NOK GENERAL PARTNERSHIP, a general partnership, Defendant and Counter-Plaintiff.

The opinion of the court was delivered by: GRADY

MEMORANDUM OPINION

 The following is an addendum to our March 24, 1997, opinion and order. On March 24 we denied in part and continued in part FNGP's motion to dismiss two of Tibor's claims under Federal Rule of Civil Procedure 12(b)(6). While we denied FNGP's motion to dismiss Tibor's breach of contract claim, we reserved judgment on the propriety of Tibor's claim for recoupment. After noting that cases in this circuit seemed to indicate that an agency relationship is a prerequisite to a viable claim for recoupment, we instructed the parties to submit additional materials discussing this issue. Rather than submitting a supplemental brief, Tibor instead requested leave to voluntarily dismiss its claim for recoupment. In a letter dated April 10, 1997, Tibor advised the court as follows:

 

On March 24, 1997, you issued a Memorandum Opinion . . . which, among other things, requested that the parties provide briefs concerning Defendant FNGP's argument that an agency relationship is a prerequisite to a viable claim for recoupment. As attorneys for Plaintiff Tibor, we have researched the issue, and have concluded that current precedent supports FNGP's argument. Accordingly, we hereby voluntarily withdraw Count VI of Plaintiff's Fourth Amended Complaint (recoupment), and would ask the Court to issue an Order reflecting Tibor's voluntary dismissal of that Count. We ask the Court to dismiss Count VI without prejudice, in the event new or additional authority comes to our attention which would suggest the viability of a recoupment claim in the circumstances presented by this case.

  FNGP does not oppose Tibor's request. Accordingly, the court grants Tibor's request to voluntarily dismiss Count VI of the complaint.

 This addendum is also designed to serve a second purpose: to clarify the scope of our decision in Tibor Machine Products, Inc. v. Freudenberg-NOK General Partnership, 942 F. Supp. 1165 (N.D. Ill. 1996) ("Tibor III "). In Tibor III, we stated that we did not believe that the existence of an agency relationship was a condition precedent to a claim for recoupment. Id. at 1175. We reconsidered that proposition at some length in our March 24 opinion, but we stopped short of reversing our decision in Tibor III. In light of the events surrounding our March 24 opinion, we now regard the necessity of an agency relationship to a viable claim for recoupment as an open question. We therefore vacate the last full paragraph of Tibor III, marked by WESTLAW headnote 19 and appearing on pages 1175 and 1176. The rest of our opinion in Tibor III is unaffected by today's order.

 DATED: May 27, 1997

 ENTER:

 John F. Grady, United States District Judge

19970527

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