Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


November 14, 2002


The opinion of the court was delivered by: James A. Alesia, United States District Judge


Before the court is plaintiff's motion to dismiss defendant's counterclaim, pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). For the following reasons, the court denies plaintiff's motion.


The following facts are taken from defendant's counterclaim and are assumed to be true for purposes of plaintiff's motion to dismiss the counterclaim. Plaintiff The Allant Group, Incorporated ("Allant") entered into an agreement with defendant Ascendes Corporation, d/b/a MarketTouch ("MarketTouch"). Under the terms of that agreement, Allant provided data processing services to customers of MarketTouch. However, Allant has not been paid in full for those services,

Throughout the business relationship between Allant and MarketTouch, MarketTouch's customer for Allant's services was Financial Marketing, Incorporated ("FMI"). During that time, FMI was acting as a broker for WorldCom Wireless ("WorldCom"), which was the end user for Allant's services. Allant was aware of the relationship between MarketTouch, FMI, and WorldCom.

Allant and MarketTouch agreed that FMI would be solely responsible for paying Allant for its services, and that MarketTouch would not be liable for those payments. Allant knew that, because of the business relationship between MarketTouch, FMI, and WorldCom, WorldCom would pay FMI, which, in turn would pay MarketTouch for Allant's services. Allant understood that MarketTouch would then retain its commission from FMI's payments and then pay the appropriate amount to Allant.

Allant understood that, due to WorldCom's payment practices, it would receive payment within ninety days of submitting an invoice to WorldCom. Allant informed MarketTouch that WorldCom's payment practices could cause accounting problems for Allant if those accounts receivable went out past ninety days. Therefore, at Allant's request, MarketTouch agreed, on occasion, to cover certain invoices that went out past ninety days. However, MarketTouch agreed to do so only as an accommodation to Allant.

Consequently, MarketTouch advanced $160,123.13 to Allant as an accommodation. MarketTouch did so despite the fact that it had not been paid by FMI and that FMI had not been paid by WorldCom. Allant understood that this advance was an accommodation and that it would have to repay MarketTouch if MarketTouch did not receive payment from FMI. FMI has not paid MarketTouch and, therefore, MarketTouch is seeking to recover the $160,123.13 that it advanced Allant.

Allant brings this case, seeking payment of outstanding amounts that it is owed for its services that it provided to WorldCom. Because complete diversity exists between the parties and the amount in controversy exceeds $75,000.00, the court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332(a). MarketTouch has filed a counterclaim, alleging that Allant is being unjustly enriched by the money that MarketTouch advanced to Allant. Allant has filed the instant motion to dismiss MarketTouch's counterclaim.


A. Standard for Deciding a Rule 12(b)(6) Motion to Dismiss

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court must accept all factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Szumny v. Am. Gen. Fin., Inc., 246 F.3d 1065, 1067 (7th Cir. 2001). The purpose of a motion to dismiss is not to decide the merits of the challenged claims but to test the sufficiency of the allegations. Weiler v. Household Fin. Corp., 101 F.3d 519, 524 n. 1 (7th Cir. 1996). A court will grant a motion to dismiss only if it is impossible for the non-moving party to prevail under any set of facts that could be proven consistent with the allegations. Forseth v. Vill. of Sussex, 199 F.3d 363, 368 (7th Cir. 2000).

Also, according to Federal Rule of Civil Procedure 10(c), "A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes." FED. R. CIV. P. 10(c). The Seventh Circuit has interpreted "written instrument" as including contracts. N. Ind. Gun & Outdoor Shows v. City of South Bend, 163 F.3d 449, 453 (7th Cir. 1998). Accordingly, in ruling on Allant's motion to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.