equipment guarantee. In Count III, plaintiffs allege that Hetran
breached the express equipment guarantee by manufacturing and
delivering a Cell that did not perform pursuant to the express
warranty contained in the sale contract. (Pls.Compl.Ex. 1, ¶ 19.)
Defendants argue that Count III should be dismissed because (1)
plaintiffs failed to allege their own full performance on the
sale contract; and (2) it is duplicative of plaintiffs' breach of
First, defendants argue that plaintiffs cannot state a claim
for breach of express warranty because plaintiffs have not
alleged full performance on the contract. However, a claim for
breach of express warranty does not require an allegation of
"full performance" to survive a motion to dismiss. To state a
claim for breach of express warranty, plaintiffs must allege that
(1) the seller made an affirmation of fact or promise; (2)
relating to the goods; (3) which was part of the basis for the
bargain; and (4) seller guaranteed that the goods would conform
to the affirmation or promise. International Bhd. of Teamsters
Local 734 Health & Welfare Trust Fund v. Phillip Morris, Inc.,
34 F. Supp.2d 656, 664 (N.D.Ill. 1998) (citing L.S. Heath & Son
v. AT&T Info. Sys., 9 F.3d 561, 570 (7th Cir. 1993)). To satisfy
these elements, it is sufficient for plaintiffs to attach the
express warranty to the complaint. Board of Educ. v. A, C & S,
Inc., 131 Ill.2d 428, 137 Ill.Dec. 635, 546 N.E.2d 580, 595
(1989). In the present case, plaintiffs have attached the express
warranty to the third amended complaint. (See Pls. Compl. Ex.
1, ¶ 19.) Further, plaintiffs allege that the warranty was
breached because the Cell failed to conform to the terms of the
express equipment guarantee and that plaintiffs suffered damages
as a result of the alleged breach. (See Pls. Compl. ¶¶ 47-53.)
The court finds this is sufficient to state a claim for breach of
Second, defendants argue that Count III should be dismissed
under Rule 12(f) because it is duplicative of Count I of the
third amended complaint, plaintiffs' breach of contract claim.
The court disagrees. The Federal Rules of Civil Procedure allow
for a flexible system of pleading, allowing plaintiffs to assert
more than one position. See FED. R. CIV. P. 8(e); Harbor Ins.
Co. v. Continental Bank Corp., 922 F.2d 357, 364 (7th Cir.
1990). Rule 8(e)(2) of the Federal Rules of Civil Procedure
allows a party to allege "two or more statements of a claim . . .
either in one count or defense or in separate counts or
defenses." FED. R. CIV. P. 8(e)(2). Although plaintiffs cannot
obtain double recovery, the court does not need to force
plaintiffs to elect one remedy over the other. See Tribune Co.
v. Geraghty & Miller, Inc., No. 97 C 1889, 1997 WL 438536, at *3
(N.D.Ill. July 25, 1997) (allowing plaintiffs to assert both a
breach of contract claim and a breach of express warranty claim
even though both claims were based on the same facts).
Accordingly, the court denies defendants' motion to dismiss Count
III of plaintiffs' third amended complaint.
F. Count IV — Breach of Contract — Global
Count IV of plaintiffs' third amended complaint is a claim for
breach of the surety contract entered into between Global and
IHC, in which Global agreed to act as surety for the completion
and delivery of the Cell. (Pls.Compl.Ex. 1, Sub-Ex.C.) Defendants
argue that Count IV should be dismissed for failure to state a
claim insofar as plaintiffs have failed to pray for relief
against Global. In their response memorandum, plaintiffs assert
that the prayer for relief against Hetran (instead of Global) was
simply a scrivener's error. (Pls. Resp. Br. at 13-14.) Given that
plaintiffs refer only to Global — and not to Hetran — in
paragraphs 57-60 of Count IV, the court finds that the reference
to Hetran in the prayer for relief was a scrivener's error.
However, plaintiffs must still properly state a prayer for
relief. Thus, the court grants defendants' motion to dismiss
Count IV, but will grant
plaintiffs leave to amend this claim in order to correct this
Defendants also argue that Count IV should be dismissed because
plaintiffs failed to allege their own full performance on the
contract for the sale of the Cell. The court rejects this
argument because the surety contract and the sale contract are
two separate agreements. See Vermont Marble Co. v. Bayne,
368 Ill. 618, 15 N.E.2d 510, 512-13 (1938) (holding that surety
agreement was separate from the underlying contract). To state a
claim for breach of surety contract, plaintiffs must allege that
Hetran defaulted and that Global received notice of the alleged
default and failed to correct it. Id. Plaintiffs have alleged
as much and, therefore, have sufficiently pled a claim for breach
of the surety contract. (See Pls. Compl. ¶¶ 54-60.) However,
for the reasons set forth above, Count IV is dismissed with leave
G. Count V — Breach of Implied Warranty of Merchantability
Count V of plaintiffs' third amended compliant is a claim for
breach of implied warranty of merchantability. In Count V,
plaintiffs allege that the Cell delivered by Hetran was
unmerchantable and not fit for its intended ordinary purpose.
However, defendants argue that this count should be dismissed
because plaintiffs have failed to allege what the Cell's
"ordinary purpose" is or how it is unfit. The court agrees.
To state a claim for breach of implied warranty of
merchantability, plaintiffs must allege that (1) the defendant
sold goods that were not merchantable at the time of sale; (2)
the plaintiff suffered damages as a result of the defective
goods; and (3) the plaintiff gave the defendant notice of the
defect. See 810 ILL. COMP. STAT. 5/2-314; see also JAMES J.
WRIGHT & ROBERT S. SUMMERS, UNIF. COMMERCIAL CODE 408 (3rd ed.
1988). To be merchantable, the goods must be, among other things,
fit for the ordinary purpose for which the goods are used. See
810 ILL. COMP. STAT. 5/2-314.
In their third amended complaint, plaintiffs allege that the
Cell was not merchantable and not fit for its ordinary purpose.
(Pls.Compl. ¶¶ 62-63.) However, plaintiffs have failed to allege
what the ordinary purpose of such a cell is.*fn6 While the
Federal Rules of Civil Procedure allow for liberal notice
pleading, conclusory allegations regarding the Cell's
merchantability and fitness are not sufficient to state a claim
for breach of implied warranty of merchantability absent some
factual support. See Strauss, 760 F.2d at 768 (holding that
bare legal conclusions will not suffice). Accordingly, the court
grants defendants' motion to dismiss Count V of plaintiffs' third
amended complaint. However, because it may be possible for
plaintiffs to amend the complaint to cure this deficiency, the
court grants plaintiffs leave to amend this claim.
For the foregoing reasons, the court grants in part and denies
in part defendants' motion to dismiss plaintiffs' third amended
complaint. The motion is granted as to Counts I, II, IV and V of
plaintiffs' third amended complaint. The motion is further
granted as to all counts brought by IHCLP and Bar. The motion is
denied as to all other claims.
Plaintiffs are given until September 13, 1999 to file a fourth
amended complaint consistent with this order. The fourth amended
complaint should only include additional allegations that will
cure the deficiencies
identified by the court. Defendants are given until September 23,
1999 to answer or otherwise plead to plaintiffs' fourth amended