The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Citicorp. Vendor Finance, Inc., as Successor-in-Interest by
Acquisition and Merger to Copelco. Capital, Inc. ("Citicorp"), filed suit
against Defendants, ISA Pharmacy, Inc. ("ISA Inc."), Daniel Zurawski
("Zurawski"), and Frank Rosenbaum ("Rosenbaum"), alleging breach of
lease, breach of Guaranty I (breach by Zurawski) and breach of Guaranty
II (breach by Rosenbaum).
Defendant/Third-Party Plaintiffs Zurawski and Rosenbaum filed
Third-Party Complaints against Third-Party Defendant, ISA Pharmacy LLC
("ISA LLC"). Zurawski demanded judgment against ISA LLC for any or all
amounts for which he might be found liable to Plaintiff, plus any other
or further damages or losses he may suffer or incur, including costs and
counsel fees. Rosenbaum also demanded judgment against ISA LLC for
contribution and indemnification for any and all liability of Rosenbaum
to the Plaintiff, including attorney's fees, costs of suit and interest,
and any other appropriate relief.
Presently before the Court is ISA Pharmacy, LLC's Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). ISA LLC seeks
dismissal of Zurawski's and Rosenbaum's Third-Party Complaints. Zurawski
and Rosenbaum did not file a response to the Motion to Dismiss.
In reviewing a motion to dismiss, the court reviews all facts alleged
in the complaint and any reasonable inferences drawn therefrom in the
light most favorable to the plaintiff. See Marshall-Mosby v.
Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). A
plaintiff is not required to plead the facts or the elements of a claim,
with the exceptions found in Federal Rules of Civil Procedure 9. See
Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002); Walker v.
Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002) (Walker).
Dismissal is warranted only if "it appears beyond a doubt that the
plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46
(1957). The "suit should not be dismissed if it is possible to
hypothesize facts, consistent with the complaint, that would make out a
claim." Graehling v. Vill. of Lombard, III., 58 F.3d 295, 297
(7th Cir. 1995).
When reviewing a motion to dismiss, the Court may consider exhibits
attached to the complaint as part of the pleadings. Beam v. IPCO
Corp., 838 F.2d 242, 244 (7th Cir. 1988) (Beam).
Furthermore, "[W]here the allegations of a pleading are inconsistent with
the terms of a written contract attached as an exhibit, the terms of the
latter, fairly construed, must prevail over the averments differing
therefrom." Foshee v. Daoust Constr. Co., 185 F.2d 23, 25 (7th
Cir. 1950); see also Bell v. Lane, 657 F. Supp. 815, 817
(N.D.Ill.1987) (where exhibits attached to complaint negate its
allegations, a court is not required to credit unsupported allegations).
Graue Mill Dev. Corp. v. Colonial Bank & Trust Co.,
927 F.2d 988, 991 (7th Cir. 1991).
A reading of the Complaint and the Third-Party Complaints, including
the exhibits attached to the Third-Party Complaints, support the
following summary of the alleged operative conduct of the parties.
On or about December 16, 1999, ISA Inc. and Copelco. Capital, Inc.
("Copelco") entered into a commercial Master Lease Agreement (the
"Lease"), which provided for the lease and hire of certain items of
equipment (the "Equipment"). In order to induce Copelco. to enter into
the Lease, Zurawski and Rosenbaum each made, executed and delivered a
Personal Guaranty (respectively, "Guaranty I" and "Guaranty II") to
Copelco. wherein Zurawski and Rosenbaum each individually agreed to
personally guaranty to Copelco, its successors and assigns, all payments
and other obligations owed to Copelco. under the Lease. The Lease
required Zurawski and Rosenbaum to make forty-eight (48) consecutive
monthly payments in the amount of $3,781.47 each, plus applicable taxes,
until the entire obligation was paid in full. In July 2001, ISA breached
the Lease; Zurawski breached Guaranty I, and Rosenbaum breached Guaranty
II and became in default through
failure to make the monthly payment as required by the Lease for
July 2001 and all payments due thereafter.
Citicorp. is the Successor-In-Interest to Copelco. and currently holds
all of Copelco's rights, title and interest in and to the Lease, Guaranty
I, Guaranty II, and the Equipment, including the right to institute legal
proceedings to exercise the rights and remedies of Lessor pursuant to the
Lease, Guaranty I and Guaranty II. ISA Inc., Zurawski and Rosenbaum have
failed and refused to pay the full balance due and owing to Citicorp
under the Lease, Guaranty I and Guaranty II, That balance is in the
amount of $120,962.70. To date, Citicorp. has also incurred attorney's
fees and expenses under the Lease in the amount of $632.50, thereby
increasing the total amount due Citicorp. to $121,595.20. Citicorp. filed
suit against ISA Inc. and the Defendants/Third-Party Plaintiffs for
breach of the Lease, Guaranty I and Guaranty II in New Jersey state
court. That action was removed to the District Court of New Jersey and
subsequently transferred to this Court.
On or about March 28, 2002, ISA Inc. filed a Chapter 11 proceeding in
the United States Bankruptcy Court for the Northern District of Illinois
which was converted to a Chapter 7 proceeding on November 25, 2002. On
June 11, 2002, Horizon Pharmaceuticals, LLC and ISA Pharmacy, Inc.
entered into an Asset Purchase Agreement. On July 23, 2002, as a result
of the bankruptcy proceeding, a Sale Order was entered approving an asset
sale of ISA Inc. to Horizon Pharmaceuticals, LLC, which is the parent
corporation for Horizon/ISA Merger Sub, LLC, which renamed ISA Inc. to
On June 10, 2003, Zurawski filed his Third-Party Complaint against ISA
LLC, alleging that ISA LLC assumed liability for the Citicorp. debt and
that ISA LLC failed to satisfy that assumed obligation. Therefore, as a
direct and proximate result of such breach, failure and refusal to
by ISA LLC, Zurawski alleges that he incurred expense to defend the
Plaintiff's suit against him and will continue to incur such expense and,
therefore, demanded contribution and indemnification for any liability
that might be found by the Court and any costs or expenses incurred by
him as a result of the action.
On May 19, 2003, Rosenbaum filed his Third-Party Complaint against ISA
LLC, alleging that ISA LLC acquired all leases and liabilities, including
the Lease, via the Asset Purchase Agreement and the Bill of Sale.
Therefore, as a result of that alleged breach, Rosenbaum demands judgment
against ISA LLC for contribution and indemnification for any and all
liability of Rosenbaum to ...