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