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SOLON v. KAPLAN

March 31, 2004.

JAMES D. SOLON, Plaintiff, LARRY S. KAPLAN, FRED C. BEGY, III, ROBERT C, von OHLEN, individuals, and KAPLAN, BEGY & von OHLEN, a partnership, Defendants, FRED C. BEGY, III, Cross-Claimant,
v.
LARRY S. KAPLAN, ROBERT C, von OHLEN, JR., individuals, and KAPLAN, BEGY & von OHLEN, a partnership, Cross-Defendants



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on defendants Larry S. Kaplan and Robert von Ohlen, Jr., individually, and the law firm partnership of Kaplan, Begy & von Ohlen's (hereinafter collectively "Defendants") motion for summary judgment as to Plaintiff Page 2 James Solon's ("Solon") Second Amended Complaint, Additionally, before this court is cross-claim defendants' Larry S. Kaplan and Robert C, von Ohlen, Jr., individually, and the law firm partnership of Kaplan, Begy, & von Ohlen's (hereinafter collectively "Cross-Claim Defendants") motion for summary judgment as to Defendant/Cross-Claimant Fred C, Begy's Second Amended Cross-Claim and a motion to strike Defendant/Cross-Claimant Fred C. Begy's response in opposition to motion for summary judgment.

For the reasons below, we grant Defendants' motion for summary judgment on Counts 1 and IT of Solon's Second Amended Complaint and dismiss without prejudice Counts IV, V, VI for lack of jurisdiction. Additionally, this court also dismisses without prejudice Counts I, II, and HI of Defendant/Cross-Claimant Fred C. Begy's Second Amended Cross-Claim for lack of jurisdiction. As such, the court strikes as moot Cross-Claim Defendants' motion for summary judgment and motion to strike.

  BACKGROUND

  On September 1, 1989, Solon became an equity partner in the law firm of Adler, Kaplan, & Begy ("AKB"). On or about January 29, 1993, Solon signed an Amendment and Restatement of the AKB Partnership Agreement (hereinafter "Partnership Agreement") in his capacity as an equity partner of the AKB firm. The Partnership Agreement identified James Solon, John W. Adler, Fred C. Begy III, Larry S. Kaplan, James F. Murphy, Michael G. McQuillen, Terrill E. Pierce and Page 3 Robert von Ohlen as equity partners in the AKB firm. Solon contributed $50,000 as a capital contribution to the AKB firm.

  In 1994, three of the AKB equity partners — John W. Alder, Michael G. McQuillen, and James F. Murphy — left the AKB law firm. Thereafter, Solon drafted a Separation Agreement which manifested the withdrawal of the three equity partners from the firm effective December 31, 1994. The Separation Agreement stated the remaining equity partners of the AKB law firm — Fred C. Begy III, Larry S. Kaplan, Terrill E. Pierce, Robert von Ohlen, and James Solon — would continue the AKB partnership under the name Kaplan & Begy and would exist in accordance with the previously drafted Partnership Agreement. The Separation Agreement was then signed by all equity partners of the pre-existing AKB law firm, including Solon.

  As an equity partner in the Firm, Solon received semi-monthly draws, an allocated share of firm income, and copies of the firm's Daily Cash Reports. Solon also attended compensation meetings with the other partners and signed income distribution forms acknowledging his allocated share of the Firm's profits.

  In addition to being an equity partner, Solon also became Kaplan & Begy's managing partner. As Kaplan and Begy's managing partner, Solon signed documents over the title managing partner. In addition, Solon signed letters of credit with LaSalle Bank, held the title of trustee for the Firm's 401(k) plan, signed checks containing partnership income distribution; and prepared financial statements describing the Firm's financial condition. Page 4

  In 1997, Robert von Ohlen was added as a named partner to the firm, changing the firm name to Kaplan, Begy & von Ohlen (hereinafter "Firm"). Solon continued in his role as managing partner of the Firm through and until January 18, 1998,

  On October 15, 1998, partner Fred C. Begy informed Solon that the partners had decided that his partnership interest in the Firm would be terminated effective December 31, 1998.

  Solon contends that, Larry S. Kaplan ("Kaplan"), Fred C. Begy 111 ("Begy"), Robert von Ohlen ("von Ohlen") and the Firm forced him out of the Finn in violation of the Partnership Agreement based on his age and because of his investigation of two sexual harassment incidents. In addition, Solon asserts that Kaplan, Begy, and von Ohlen refused to give him fee-generating files and assigned him administrative matters so he could not accumulate billable hours and further develop his law practice. Finally, Solon claims that his compensation was inadequate and that he is entitled to the return of his initial $50,000 investment in the Finn.

  In his six count Second Amended Complaint, Solon claims that the Defendants violated federal claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended by the Civil Rights Act of 1964 (Count I) and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (Count II). In addition, Solon brought the following claims under the supplemental jurisdiction Page 5 of the court, pursuant to 28 U.S.C. § 1367, which include alleged violations of the Illinois Human Rights Act, 775 ILCS 5/1-101,et. seq., (Count III), including sections 5/1-102 and 5/6-101, claims for breach of the Partnership Agreement and the covenant of good faith and fair dealing (Count TV), and breach of the fiduciary duty of good faith and fair dealing of partners and joint ventures (Count V). Alternatively, Solon seeks an accounting and an order dissolving the partnership and distributing its assets under the Illinois Uniform Partnership Act, 205 ILCS § 205/1 et. seq. (Count VI).

  On February 9, 2001, in an Order addressing Defendants' Motion to Dismiss Scion's Second Amended Complaint, Judge Blanche Manning dismissed with prejudice the individual capacity claims alleged in Count I and Count II. In addition, Judge Manning dismissed in whole Count III for failure to exhaust administrative remedies. On August 8, 2003, Defendant/Cross-Claimant Begy filed a Second Amended Cross-Claim for Indemnification (Count I), Declaratory judgment (Count II), and Partner Indemnification (Count III). Begy brought the Second Amended Cross-Claim under the supplemental jurisdiction of the court pursuant to 28 U.S.C. § 1367,
LEGAL STANDARD
  Summary judgment is appropriate when the record reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as Page 6 a matter of law. Fed.R.Civ.P. 56(c). In seeking a grant of summary judgment the moving party must identify "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed, R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e), A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec, Indus. Co., ltd, v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material ...

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