they failed to comprehend the nature of the allegations in count I, they have not provided any reason to dismiss the count.
C. Count II - Fraud/Misrepresentation
Count II is premised on fraud. Defendants offer a one-sentence argument that the count fails to allege fraud with the required specificity under FED. R. CIV. P. 9(b).
The Court disagrees.
Defendants failed to cite any authority in support of their argument, nor have they offered any reasoning as to why the count is inadequately pleaded. The count is adequately pleaded.
D. Count III- Tortious Interference with Contract
Count III is apparently premised on Lo, Chan, and Tam's alleged tortious interference with Plaintiff's employment contract with IBK.
Under Illinois law, such a claim requires: (1) a legally enforceable contract; (2) the defendants' knowledge of such a contract; (3) the defendants' intentional interference inducing a breach by a party to the contract; and (4) damages. Stafford v. Puro, 63 F.3d 1436, 1441 (7th Cir. 1995).
The Court is confused by Defendants' attack on this count. First, Defendants argue that there was no legally enforceable contract based on IBK's operating agreement. Whether the operating agreement creates the contract is irrelevant, there may have been an oral contract between Plaintiff and IBK -- maybe even an oral at-will contract. Such a contract can form the basis of a tortious interference with contract claim. Williams v. Shell Oil Co., 18 F.3d 396, 402 (7th Cir. 1994) ("An oral at-will contract can be a valid contract in an action of tortious interference.").
Next, it appears Defendants believe that if an employment contract existed the contract would not go into effect until IBK opened for business; because Plaintiff resigned before the opening date, Defendants believe there was no contract for them to interfere with. One, however, can interfere with an existing contract as well as a future contract. See Europlast Ltd. v. Oak Switch Sys., Inc., 10 F.3d 1266, 1274 (7th Cir. 1993).
The contract -- existing or future -- was apparently between Plaintiff and IBK. Because a "party to a contract cannot be held liable for tortiously inducing himself to breach the contract," Rao v. Rao, 718 F.2d 219, 225 (7th Cir. 1983), IBK cannot logically be a defendant to this count. Whether corporate managers/officers can be held liable for inducing the corporation to breach a contract is another issue. See George A. Fuller Co. v. Chicago College of Osteopathic Medicine, 719 F.2d 1326 (7th Cir. 1983). Because Defendants failed to address this issue, the Court will not address it -- perhaps Defendants will address it when attacking Plaintiff's amended complaint.
E. Count IV - Violation of Limited Liability Company Act
Defendants sole attack on this count is that it can only be brought against the corporation -- IBK -- not the individuals. The Court agrees. Plaintiff theorizes as to how the individuals could be liable, but the factual support for such theories is nowhere to be found in the complaint.
Defendants' Motion to Dismiss is granted in part and denied in part. Plaintiff is ordered to file an amended complaint within ten (10) days clarifying the basis for his legal theories. Once filed, Defendants may file a motion to dismiss.
Date: JUL 07 1997
JAMES H. ALESIA
United States District Judge