United States District Court, N.D. Illinois, Eastern Division
August 11, 2004.
THOMAS A. SLAMECKA, d/b/a T. Slamecka Inc., Plaintiff,
EMPIRE KOSHER POULTRY, INC., J.W. CHILDS ASSOCIATES, L.P., and J.W. CHILDS ASSOCIATES, INC., Defendants. EMPIRE KOSHER POULTRY, INC., J.W. CHILDS, ASSOCIATES, L.P., and J.W. CHILDS ASSOCIATES, INC., Counterplaintiffs, v. THOMAS A. SLAMECKA, d/b/a T. Slamecka, Inc., Counterdefendant.
The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge
MEMORANDUM OPINION AND ORDER
In their first amended counterclaim, counterplaintiffs Empire
Kosher Poultry, Inc. ("Empire"), J.W. Childs Associates, L.P.
("Childs"), and J.W. Childs Associates, Inc., seek damages
against counterdefendant Thomas A. Slamecka ("Slamecka") for his
alleged failure to act in the interest of Empire as their
exclusive investment banking representative.*fn1
Specifically, Empire asserts the following claims: (1) breach of fiduciary duty
(Count I); (2) unjust enrichment (Count II); and (3) tortious
interference with prospective business advantage (Count III).
Slamecka has moved to dismiss all counts pursuant to Fed.R. Civ.
P. 12(b)(6). For the reasons stated below, Slamecka's motion to
dismiss is granted with respect to Counts II and III, and denied
with respect to Count I.
Childs owns all of the shares of Empire. In 2002 Empire was
experiencing financial difficulties and many of its secured
lenders, who were owed tens of millions of dollars by Empire,
advocated change in Empire's operations and/or a sale of the
company. The lenders proposed a review of the company's
operations by an outside third party. Empire contacted Slamecka,
after which he informed them that any business would need to be
done with T. Slamecka Inc. (the "Corporation"), that the
Corporation had a number of associates working for it, and that
he would involve those associates in working on consulting or
investment banking assignments. Slamecka also made a commitment
to Empire, via its agent Childs, that he would not become a
member of any group that would seek to purchase Empire or its
assets and/or stock or take part or attempt to take part in any
effort to buy Empire or be an officer of or run the company
The Corporation was represented by Slamecka to be an Illinois
corporation of which he was the sole shareholder. Slamecka,
however, has never filed corporation papers with the Illinois Secretary of State to formally create the Corporation. On October
11, 2002, the Corporation and Childs entered into an agreement
(the "Agreement") naming the Corporation as Empire's "exclusive
Investment Banking representative" for the purpose of assisting
Empire with respect to, (1) any sale of stock in, or
substantially all of the assets of Empire, (2) any merger, or (3)
any other divestiture transaction with Empire.
According to the Agreement, the Corporation would implement a
divestiture strategy consistent with the objective, needs and
preferences of Empire owners and debt holders "as communicated by
J.W. Childs, or its appointed agent." Additionally, the Agreement
provided that the Corporation would provide ongoing oversight and
management services and oversee negotiations with outside
contractors, including labor negotiations.
In consideration of these services, the Agreement provided that
Empire would pay the Corporation a non-refundable cash retainer
fee (the "retainer fee") of $12,000 each full calendar month
during the term of the Agreement. The Agreement also provided
that "[i]f [Empire] or an affiliate controlled by [Empire]
enter[ed] into a transaction" during the term of the Agreement,
Empire would pay the Corporation a cash transaction fee (the
"transaction fee") equal to two percent of the transaction (in
certain circumstances, the percentage was to be reduced to 1.5
percent). Any retainer fee received by the Corporation during the
twelve months prior to the closing of any transaction was to be
credited to the transaction fee. Slamecka received a $78,000
retainer fee for his six and a half months of work on Empire's
Empire alleges that Slamecka's representations and promises set
forth above were false when made because: the Corporation did not
exist and was never created; the Corporation never accepted or
ratified the Agreement; almost every expression of interest in
acquiring Empire was obtained by Empire; and, Slamecka attempted to affiliate himself
with one or more of the parties who expressed interest in
acquiring Empire. Further, Slamecka consistently put his own
personal interests ahead of Empire, including: refusing and/or
ignoring interested parties which had their own broker, with whom
he would have to share any brokerage and/or transaction fee;
attempting to become a member of various buyers' groups; advising
prospective parties on how to pressure Empire and the various
lenders into acquiescing to the prospective purchasers' demands
and conditions; advising one prospective purchaser, which was a
major customer of Empire, to threaten to take its business
elsewhere; and causing buyers' groups to insert conditions in any
offer that would benefit Slamecka and the Corporation but not
According to Empire, this behavior by Slamecka was a breach of
his fiduciary duty arising from his position as Empire's agent,
resulting in damages of at least $78,000. Empire also alleges
that it would violate the principles of justice, equity, and good
conscience to allow Slamecka to retain the $78,000 retainer fee
that equitably belongs to Empire. Lastly, Empire contends that
Slamecka intentionally and unjustifiably interfered with Empire's
reasonable expectation that a business relationship would arise
between Empire and prospective purchasers.
The purpose of a motion to dismiss under Fed.R. Civ. P.
12(b)(6) is to test the sufficiency of the complaint, not to rule
on its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520
(7th Cir. 1990). When considering the motion, the court accepts
the factual allegations as true and draws all reasonable
inferences favorable to the plaintiff. Travel All Over the
World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th
Cir. 1996). The consideration of a Rule 12(b)(6) motion is generally
restricted to the pleadings, which include the complaint, any
exhibits attached thereto, and supporting briefs. Thompson v.
Illinois Department of Professional Regulation, 300 F.3d 750,
753 (7th Cir. 2002). Nonetheless, "documents that a defendant
attaches to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff's complaint
and are central to [the] claim." Venture Associates Corp. v.
Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993).
The pleading requirements under Fed.R. Civ. P. 8(a)(2)
necessitate only "a short and plain statement showing the
plaintiff is entitled to relief, the purpose of which is to give
the defendant notice of the claims and the grounds they rest
upon." Thompson, 300 F.3d at 753.
1. Breach of Fiduciary Duty:
Under Illinois law, a plaintiff may recover for breach of
fiduciary duty where: "(1) a fiduciary duty exists on defendant's
part; (2) the defendant breached that fiduciary duty; and (3)
damages proximately resulted from the breach." Pope v.
Smith-Rothchild Financial Co., 03 C 3335, 2003 WL 21994023 (N.D.
Ill. Aug. 21, 2003) (citation omitted).
Slamecka moves to dismiss Count I, arguing that there is no
fiduciary duty arising out of the Agreement. Specifically,
Slamecka argues that there is no "true" agency relationship
because he did not have the authority to bind Empire. See
Chemtool, Inc. v. Lubrication Technologies, Inc., 148 F.3d 742,
745-47 (7th Cir. 1998). Chemtool, however, was an appeal from a
bench trial, and stated in relevant part, "The existence and
scope of an agency relationship are questions of fact, to be
decided by the trier of fact." Id. at 746 (internal quotation
omitted). Thus, although both parties argue at length whether Slamecka is a true
"agent,"*fn3 the court concludes that this is an issue of
fact that is more appropriately resolved in a motion for summary
judgment or at trial.
Having said that, the Agreement refers to Slamecka as an
"agent" and appears to assign duties to him, such as the power to
broker, "structure, negotiate, and close on a sale," among
others, that would tend to create a fiduciary relationship. For
the purposes of this motion, the court concludes that these
allegations are sufficient, and thus denies Slamecka's motion to
dismiss Count I.
2. Unjust Enrichment:
Slamecka moves to dismiss Count II, arguing that under Illinois
law a claim for unjust enrichment is not available where there is
an express contract between the parties. Cromeens, Holloman,
Sibert, Inc. v. AB Volvo, 349 F.3d 376, 397 (7th Cir. 2003).
As the court discussed in Slamecka I, 290 F.Supp. 2d at 939,
and Slamecka II, 2004 WL 1470026, at *4, Empire conceded in its
first motion to dismiss the complaint that an express contract
exists between the parties. The Agreement is an express contract
between the two parties, which precludes a claim for unjust
enrichment. Indeed, Empire does not respond to Slamecka's motion
to dismiss Count II, which the court hereby grants.
3. Tortious Interference with Prospective Business Advantage:
Under Illinois law, tortious interference with prospective
business advantage must include the following allegations: "(1)
the plaintiff had a reasonable expectancy of a valid business relationship with a third party; (2) the defendant knew of the
prospective business relationship; (3) the defendant
intentionally interfered with the prospective business
relationship such that the relationship never materialized; and
(4) the interference caused damage." Conseco Risk Group Mgmt.
Co. v. Ahrens Fin. Sys., Inc., 00 C 5467, 2000 WL 1889637, at *5
(N.D.Ill. Dec. 27, 2000). In addition, "defendant's interference
must be directed toward a third party." Douglas Theater Corp. v.
Chicago Title & Trust Co., 288 Ill. App. 3d 880, 887-88 (Ill.
App. 1st Dist. 1997) (citation omitted).
Slamecka moves to dismiss Count III, arguing that as a party to
the subject contract, he may not be sued as a tortfeasor. Since a
party may not properly be sued for tortiously interfering with
his own contract, Slamecka argues a party may not properly be
sued for tortiously interfering with the business expectancy
allegedly created by that contract. Bass v. SMG, Inc.,
328 Ill. App. 3d 492, 503 (Ill.App. 1st Dist. 2002). "Such an action is
not a tort but a breach of contract. The tortfeasor must be a
third party to the contractual or expectancy relationship." Id.
at 504 (citation omitted). The counterclaim merely alleges that a
reasonable expectancy arose out of the Agreement, which provides
that Slamecka was to seek out prospective purchasers. Even if
hiring a sales agent created an expectancy of a sale, the amended
counterclaim does not allege that any purchase was imminent or
that Slamecka's subsequent actions prevented that purchase. In
any event, such conduct would merely be a breach of contract. To
suggest otherwise would convert any breach of service or agent
contract into a claim for tortious interference with prospective
business advantage, circumventing damages limitations in those
contracts. The court grants Slamecka's motion to dismiss Count
For the reasons stated herein, Slamecka's motion to dismiss is
granted with respect to Counts II and III, and denied with
respect to Count I.