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 dismiss, the court
will consider the purchase order attached to MarketTouch's counterclaim
as Exhibit A.
B. Allant's Motion to Dismiss
Allant argues that MarketTouch fails to state a claim for unjust
enrichment. MarketTouch argues in response that it would be unjust for
Allant to retain the $160,123.13 because it advanced that money to Allant
solely as an accommodation.
In Illinois, a claim for unjust enrichment exists when a defendant: (1)
receives a benefit; (2) to the plaintiff's detriment; and (3) the
defendant's retention of that benefit would be unjust. TRW Title Ins.
Co. v. Sec. Union Title Ins. Co., 153 F.3d 822, 829 (7th Cir. 1998)
(citing HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc.,
545 N.E.2d 672, 679 (Ill. 1989)). Allant argues that MarketTouch has
failed to plead sufficiently all three of the elements of unjust
enrichment. The court will examine each of Allant's arguments in turn.
First, Allant argues that it did not receive a benefit when MarketTouch
advanced it the $160,123.13. Allant points to the fact that its balance
sheet assets remained the same upon receiving the payment because its
cash increased in that amount but its accounts receivable decreased by
the same amount. Although this may be true, the purpose of a motion to
dismiss under Rule 12(b)(6) is only to test the sufficiency of the
allegations. Szabo v. Bridgeport Mechs., Inc., 249 F.3d 672, 675 (7th
Cir. 2001). MarketTouch's counterclaim includes no allegations regarding
the accounting implications of this transaction, and therefore, the court
may not consider Allant's fact-based argument. Moreover, Illinois courts
have noted that saving another party from financial loss can constitute a
benefit, for purposes of unjust enrichment. People ex rel. Daley v.
Warren Motors, Inc., 483 N.E.2d 427, 432 (Ill.App. Ct. 1985) (citing
RESTATEMENT OF RESTITUTION § 1, Com. b (1937)). Therefore, the court
concludes that MarketTouch has alleged sufficiently that its payment
provided a benefit to Allant.
Second, Allant argues that MarketTouch suffered no detriment when it
advanced the $160,123.13 because MarketTouch's assets remained the same.
Again, this is not a proper argument for the court to consider in
reviewing this motion to dismiss, because the court is limited to
reviewing the sufficiency of MarketTouch's allegations. MarketTouch
alleges that it advanced the money to Allant before receiving payment
from FMI, thus incurring a detriment that it was not obliged to incur.
Therefore, the court finds that MarketTouch sufficiently has alleged that
it suffered a detriment in this case. See NPF WL, Inc. v. Sotka, No. 99 C
7966, 2000 WL 574527, at *10 (N.D. Ill. May 10, 2000) (holding that
unjust enrichment plaintiff sufficiently alleged detriment where
plaintiff alleged that it advanced money to defendant).
Third, Allant argues that it was not unjust for it to retain the
$160,123.13 because it had performed its services and, therefore, was
entitled to payment. MarketTouch argues in response that it would be
unjust for Allant to retain the money because, although Allant was
entitled to payment for the services, it was not entitled to payment from
MarketTouch. MarketTouch emphasizes its agreement with Allant that FMI
would be solely responsible for paying for the services that Allant
provided and that MarketTouch would assume no liability for those
payments. In support of its argument, MarketTouch points to the express
language of the purchase orders that it sent to Allant. The court must
determine whether MarketTouch sufficiently has alleged that allowing
Allant to keep the money would "violate the fundamental principles of
justice, equity, and good conscience." Stephen & Hayes Constr. Inc.
v. Meadowbrook Homes, Inc., 988 F. Supp. 1194, 1200 (N.D. Ill. 1998)
(citing HPI Health Care Servs., Inc., 545 N.E.2d at 679).
MarketTouch alleges that it was not obligated to pay Allant until FMI
paid MarketTouch. Language at the bottom of the purchase order that is
attached as Exhibit A to MarketTouch's counterclaim enumerates the terms
and conditions that govern the order. Particularly, the purchase order
[U]pon payment from the Customer, MarketTouch will
bill its Customer on your behalf and, upon payment
from the Customer, MarketTouch, will remit to you as
List Owner's or List Manager/ agent, less our standard
commission, the balance of the payment made by
Customer. MarketTouch acts only as Customer's limited
agent in this transaction. The Customer is solely
responsible for payment of this order and MarketTouch
assumes no liability for any payments beyond sums
collected from Customer, less its commission.
(Def.'s Ex. A.) The court finds that MarketTouch has alleged sufficiently
that MarketTouch was not obligated to pay Allant until MarketTouch
received payment from FMI. Furthermore, MarketTouch has alleged that
Allant knew that it would have to repay MarketTouch if MarketTouch did
not receive payment from FMI. Allant has cited no authority — nor
has the court's own research revealed any — to support a conclusion
that it would be just, as a matter of law, for it to retain the
$160,123.13 that MarketTouch advanced it as an accommodation, even though
MarketTouch was not obligated to make such an advance and Allant had
agreed to repay MarketTouch. The court finds that MarketTouch has
sufficiently alleged that it would violate the principles of justice,
equity, and good conscience for Allant to retain the $160,123.13 that
MarketTouch advanced to Allant as an accommodation with the expectation
Consequently, the court concludes that MarketTouch sufficiently pleaded
a claim for unjust enrichment. Therefore, the court denies Allant's
motion to dismiss MarketTouch's counterclaim.
For the foregoing reasons, the court denies plaintiff's motion to
dismiss defendant's counterclaim.
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