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POPE v. SMITH-ROTHCHILD FINANCIAL COMPANY

August 20, 2003

GLENN L. POPE, PLAINTIFF,
v.
SMITH-ROTHCHILD FINANCIAL COMPANY, WD INVESTMENT COMPANY, LLC AND KEVIN WERNER, DEFENDANTS



The opinion of the court was delivered by: Amy J. St. Eve, District Judge

MEMORANDUM OPINION AND ORDER

Glenn Pope filed a four-count complaint against Smith-Rothchild Financial Company, WD Investment Company, LLC and Kevin Werner. Defendants move to dismiss each count pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated herein, Defendants' motion is granted.

BACKGROUND

I. Legal Standards

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a complaint, instead of the merits of the case. Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). The Court views all the facts alleged in the complaint, as well as any reasonable inferences drawn from those facts, in the light most favorable to the plaintiff. Stachon v. United Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir. 2000). Dismissal is appropriate only when "it is clear that no relief could be granted under any set of facts that could be proved consistent with [ Page 2]

the allegations" of the complaint. Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). While a complaint need not set out in detail the facts upon which a plaintiff bases his claim, Benson v. Cady, 761 F.2d 335, 338 (7th Cir 1985), it must "include either direct or inferential allegations with respect to all material elements of the claims asserted." Indus. Hard Chrome Ltd. v. Hetran, Inc., 64 F. Supp.2d 741, 744 (N.D. Ill. 1999) (citing Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991)). Attaching bare legal conclusions to narrated facts fails to satisfy federal pleading requirements. Strauss v. City of Chicago, 760 F.2d 765, 768 (7th Cir. 1985).

II. Allegations

Plaintiff and Defendants jointly invested in certain real property pursuant to a written contract. (R. 7-1, Am. Compl. ¶ 3.) In that contract, Pope promised to pay the cost to acquire the property. Werner agreed to arrange for all of the financing of the transaction. Once the parties sold the property, Pope would receive fifty percent of the profits from that sale. (Id. ¶ 4.)

Pursuant to the contract, Pope paid an initial investment of $15,000, Defendants used this money to purchase and sell certain property. (Id. ¶¶ 5-6.) Defendants, however, failed to keep up with their end of the bargain when they sold the property. Defendants opted not to sell the property to the highest qualified bidder, chose not inform Pope before selling the property and failed not give Pope half of the profits. (Id. ¶¶ 4-5.) In addition, Defendants made various false statements on the closing and accounting statements which resulted in a smaller profit for Pope. (Id. ¶¶ 7-9.) [ Page 3]

ANALYSIS

Plaintiff's Complaint is based on four state common law causes of action: (1) breach of fiduciary duty, (2) fraud, (3) breach of covenant of good faith and fair dealings, and (4) breach of contract. Defendant attacks each of these claims. Before addressing those arguments, the Court will analyze its basis for subject matter jurisdiction over this action.

I. Subject Matter Jurisdiction Is Dependent On Whether Punitive Damages Are Available To Defendants

Plaintiff alleges that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332, which requires a diversity of citizenship and an amount in controversy of at least $75,000. In order to satisfy the amount in controversy requirement for diversity jurisdiction, a plaintiff's claim of damages of more than $75,000 must be made in good faith. Neuma, Inc. v. AMP, Inc., 259 F.3d 864, 881 (7th Cir. 2001). Pope claims to have suffered $35,353.41 in compensatory damages. (R. 7-1, Am. Compl. at 9.) He also seeks $2,000,000 worth of punitive damages. (Id.) Therefore, to satisfy the jurisdictional prerequisite, Pope must sufficiently allege that he is entitled to punitive damages.

Under Illinois law, punitive damages are available to plaintiffs successfully pleading and eventually proving fraud. Additionally, Illinois law allows punitive damages with a fiduciary duty claim so long as the breach of duty is "accompanied by aggravating circumstances such as wilfulness, wantonness, malice or oppression so as to their warrant imposition as punishment," In re Estate of Wernick, 502 N.E.2d 1146, 1156-57 (Ill.App. Ct. 1986). If Pope's claims for fraud and breach of fiduciary duty fail, he cannot recover ...


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