The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
In this diversity action, plaintiff Ken-Pin, Inc. ("Ken-Pin"), an
Illinois corporation with its principal place of business in Richmond,
Illinois, is maintaining a four-count complaint against Vantage Bowling
Corp. ("Vantage"), a Colorado corporation with its principal place of
business in Denver, Colorado, against Mark Schmidt ("Schmidt" and,
collectively with Vantage, "the Vantage Defendants"), a Colorado resident
and Vantage's chief executive officer, and against Computer Score Pty.,
Ltd. ("Computer Score"), a foreign corporation organized under the laws
of Australia with its principal place of business in Tweed Heads South,
New South Wales, Australia. Before the Court are the Vantage Defendants'
and Computer Score's motions to dismiss Ken-Pin's complaint. For the
following reasons, the motions are granted in part and denied in part.
The dispute at hand relates to the sale and servicing of computerized
scoring equipment used at bowling centers. The following facts are taken
from Ken-Pin's complaint and are construed as true. Ken-Pin is a
corporation that markets, sells, installs, and services products and
equipment used at bowling centers. In the early 1990s, Computer Score
developed an automatic bowling scoring system (the "Scoring system"). The
Scoring System was a gift to less mathematically adept bowlers as it
allowed them to score their games automatically and to display the
results on monitors. In a letter dated June 21, 1993, Computer Score
offered Ken-Pin in writing the option of entering into an exclusive or
nonexclusive distributorship of the Scoring Systems in the United States.
The letter offered Ken-Pin the right to market, install and service, or
to manufacture Scoring System equipment. Ken-Pin purchased the
non-exclusive rights for $60,000 and paid the amount in full by June
From 1993 until 1998, Ken-Pin sold Scoring Systems that had been
manufactured and assembled in Australia and then shipped to the United
States for delivery and installation. Wishing to avoid the freight costs
involved in this process, in late 1997 Ken-Pin began to negotiate a
subcontract with Vantage, a corporation also involved in the development,
marketing, and sale of products and services for the bowling industry,
for the manufacture of Scoring
System hardware. On May 18, 1998, Ken-Pin also entered into
employment agreements with Art and Craig Lackenbach (the "Lackenbachs")
to install and service the Scoring Systems. As part of their employment
contracts, the Lackenbachs entered into covenants not to compete that
restricted them from engaging in certain commercial activities in the
bowling industry for two years after their employment with Ken-Pin ended.
One of the projects the Lackenbachs completed for Ken-Pin was a manual
for the installation, maintenance, and operation of the Scoring Systems.
The project cost Ken-Pin $28,000.
On March 14, 2000, the Lackenbachs resigned from Ken-Pin, effective
April 17, 2000 and subsequently went to work for Vantage. According to
Ken-Pin, despite its warning that the Lackenbachs had entered into
restrictive covenants, Schmidt and Vantage engaged the Lackenbachs in
prohibited commercial activities. Ken-Pin learned of the violations on
November 6, 2000. Six months later, on May 8, 2001, Ken-Pin received
further bad news when it learned from Computer Score that Vantage was to
be Computer Score's sole and exclusive distributor for the Scoring
Systems in the United States and that Computer Score would no longer be
selling the Scoring System's electronic and software components to
On November 5, 2002, Ken-Pin filed a three-count complaint in this
Court. In response, the Vantage Defendants and Computer Score filed
motions to dismiss. Ken-Pin requested and received several
enlargements of time in which to respond to the pending motions,
but on August 1, 2003, filed an amended complaint instead. In the amended
complaint, it asserted claims for breach of contract against Computer
Score (Count I), promissory estoppel against Computer Score (Count II),
tortious interference with Ken-Pin's contracts against Vantage and
Schmidt (Count III), and tortious interference with Ken-Pin's prospective
economic advantage against Vantage and Schmidt (Count IV). The Vantage
Defendants and Computer Score again responded by filing motions to
dismiss the amended complaint pursuant to Federal Rules of Civil
Procedure 12(b)(6) and 12(b)(2).
A motion to dismiss under Rule 12(b)(6) tests whether the plaintiff has
properly stated a claim upon which relief could be granted, not whether
the plaintiff will ultimately prevail on the merits. Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974). In ruling on a motion to dismiss,
a court must construe all well-pleaded allegations of the complaint as
true, and draw all reasonable inferences in favor of the plaintiff.
Id. A motion to dismiss will not be granted unless it "appears
beyond doubt that the plaintiff can prove no set of facts in support of
his claims which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). The parties agree that the applicable law is
that of Illinois.
In assessing the merits of a Rule 12(b)(6) motion, a court is usually
confined solely to the pleadings, which consist generally of the
complaint and any exhibits attached to it, and supporting briefs.
Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753
(7th Cir. 2002). If additional evidence is placed before the court and
not excluded, the court must typically convert the motion into a
Rule 56(c) motion for summary judgment. Id. Under a narrow exception
to this rule, however, a court may consider documents attached by a
defendant to the motion to dismiss if those documents are referred to in
the plaintiff's complaint and are central to his or her claim.
Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998);
see also Tierney v. Vahle, 304 F.3d 734, 738-39 (7th Cir. 2002)
(collecting cases). The Vantage Defendants attach several documents to
their motion to dismiss that Ken-Pin refers to in its amended complaint
and that the Court believes are central to Ken-Pin's claims. These are
the June 21, 1993 letter from Computer Score to Ken-Pin, in which
Computer Score offered Ken-Pin the United States distributorship for the
sale of the Scoring System, and the employment agreements between Ken-Pin
and the Lackenbachs. As the Seventh Circuit explained in Levenstein, it
is particularly appropriate to consider such pertinent documents in
contract interpretation cases. Levenstein, 164 F.3d at 327.
Accordingly, the Court will consider these documents in addressing the
Defendants' motion to dismiss without converting the motion to a
motion for summary judgment.
A. Computer Score's Motion to Dismiss
Computer Score brings its motion pursuant to Rule 12(b)(6) and argues
that Ken-Pin has failed to state a claim against Computer Score for
either breach of contract or promissory estoppel.
In Count I, Ken-Pin alleges that Computer Score breached its
distributorship agreement when it decided that it would no longer sell
Ken-Pin Scoring Systems or components of Scoring Systems. Under Illinois
law, to state a cause of action for breach of contract, a plaintiff must
allege sufficient facts to establish four elements: (1) the existence of
a valid and enforceable contract containing both definite and certain
terms; (2) performance by the plaintiff; (3) breach of the contract by
the defendant; and (4) injury to the plaintiff. Bensdorf &
Johnson, Inc. v. N. Telecom Ltd., 58 F. Supp.2d 874, 877 (N.D. Ill.
1999). In order to allege the existence of a contract, Ken-Pin must
present facts in its complaint indicating an offer, acceptance and
consideration. Id. In order for the contract to be binding and
enforceable, the terms must be "sufficiently definite and certain so that
a court can determine what the agreement was and what conduct constituted
a breach." Id. Computer Score contends that
the claim must be dismissed because: (1) the alleged agreement between
the parties lacked essential terms establishing mutuality of obligation
and therefore was unenforceable; (2) the alleged agreement lacked a
specific term of duration and was terminable at will; and (3) the ...