The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Computron Display Systems, Inc. ("Computron") filed
an amended three-count Complaint against Defendants Medstone
International Inc. ("Medstone"), Global Star Medical Co.
("Global"), and Tony Asbille on April 12, 2004. Computron's
Complaint states that it entered into a contract with Medstone
under which Medstone manufactured pain management tables bearing
Plaintiff's "Imaging Technologies" name to be sold by Plaintiff
to third-party customers. Computron alleges that in 2002,
Defendants Global and Asbille entered into an agreement with
Medstone whereby Medstone would sell management tables bearing
the "Imaging Technologies" name to Global and Asbille, for sale
to third parties.
According to the Complaint, Global and Asbille successfully
negotiated for the sale of at least one Medstone pain management
table bearing the "Imaging Technologies" name to a third party.
Computron alleges that "numerous other tables" bearing its
nameplate were sold by the Defendants in 2002 and 2003.
Plaintiff's allegations include breach of contract by Defendant
Medstone, tortious interference with contract by Defendants
Global and Asbille, and a civil conspiracy by all three Defendants. Defendant Medstone now moves
to dismiss Plaintiff's third count of civil conspiracy pursuant
to Fed.R. Civ. P. 12(b)(6).
A Rule 12(b)(6) motion tests the sufficiency of a complaint,
not the merits of a case. See Autry v. Northwest Premium Servs.
Inc., 144 F.3d 1037, 1039 (7th Cir. 1998); and Collins v.
Snyder, No. 02 C 4493, 2002 U.S. Dist. LEXIS 25016, at *3 (N.D.
Ill. Dec. 2, 2002). Under Fed.R. Civ. P. 8(a), a complainant
must provide only "a short and plain statement of the claim
showing that the pleader is entitled to relief." I should grant
Medstone's motion to dismiss only if Computron cannot prove any
set of facts in support of its claim that would entitle it to
relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Furthermore, I must accept all well-pleaded factual allegations
in the Complaint as true, drawing all reasonable inferences from
those facts in the Plaintiff's favor. See Cleveland v. Rotman,
297 F.3d 569, 571 (7th Cir. 2002).
That said, the purpose of the "short and plain statement"
required by Rule 8 is to give defendants notice of the claims
alleged by plaintiffs and the grounds upon which those claims
rest. See Leatherman v. Tarrant County Narcotics Intelligence
and Coordination Unit, 507 U.S. 163, 168 (1993) (quoting
Conley, 355 U.S. at 47); and Thompson v. Ill. Dep't. Prof'l.
Regulation, 300 F.3d 750, 753 (7th Cir. 2002). The decisions of
this Circuit stress that a plaintiff is not required to plead
facts in order to provide a defendant with notice of the claim,
but may plead only conclusions. Jackson v. Marion County,
66 F.3d 151, 153 (7th Cir. 1995). However, a plaintiff who pleads
only conclusions "must provide the defendant with at least
minimal notice of the claim." Id. at 154; see also Kyle v.
Morton High Sch., 144 F.3d 448, 455 (7th Cir. 1998) (pleading
conclusions does not render a complaint insufficient, but
insufficiency may arise from conclusions that fail to give notice of the claim). Courts within
this Circuit often require that a complaint allege the "operative
facts" upon which a claim is based in order to survive a motion
to dismiss. See Collins, 2002 U.S. Dist. LEXIS 25016 at *3-4
(citations omitted). Complaints containing only "bald
assertion[s]" or "bare legal conclusions" that fail to provide
defendants with an understanding of the claim are disfavored.
Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992);
Collins, 2002 U.S. Dist. LEXIS 25016 at *4 (citation omitted).
Computron's Civil Conspiracy Claim
Count III of Computron's amended complaint begins by
incorporating by reference the first twelve paragraphs of Count
I. These paragraphs allege that Medstone breached its contract
with Computron by selling pain management tables inscribed with
Computron's "Imaging Technologies" name to co-Defendants Global
and Asbille, and kept the profits of one such table sold to a
physician in Clinton, Iowa. The only new allegations raised by
Count III state that:
13. In 2002 Asbille, on his own account as well as on
behalf of Global, and an unknown officer, employee or
agent of Medstone intentionally agreed to participate
in an unlawful act,
14. In 2002 and 2003 Asbille, Global and Medstone's
said officer, employee or agent committed unlawful
tortious acts in furtherance of the common scheme,
15. The conduct of Asbille, Global and Medstone was
in reckless disregard of the rights of Plaintiff,
16. As a proximate result of the said conduct of
Asbille, Global and Medstone, Plaintiff sustained
Pl.'s Am. Compl., Count III, ¶¶ 13-16.
Medstone argues that Count III fails to provide adequate notice
of the basis of the claim. Under the federal notice-pleading
regime, Computron is not required to plead all of the facts
supporting the alleged conspiracy. The Supreme Court's 2002
decision in Swierkiewicz v. Sorema, N.A. re-affirmed the
Court's commitment to the federal notice pleading, overturning a Second Circuit decision imposing a heightened pleading standard
on plaintiffs filing claims of employment discrimination.
534 U.S. 506 (2002). The Seventh Circuit subsequently held that
allegations of civil conspiracy cannot be held to a heightened
pleading standard. Hoskins v. Poelstra at 764 ("[i]t is enough
in pleading a conspiracy merely to indicate the parties, general
purpose, and approximate date, so that the defendant has notice
of what he is charged with") (quoting Walker v. Thompson,
288 F.3d 1005 (7th Cir. 2002)).
Unfortunately, Computron did not endeavor even to hint at the
general purpose or scope of the purported conspiracy among
Defendants, and therefore failed to meet Walker's minimal
standard. Computron alleges only that Asbille and an "unknown
officer, employee or agent of Medstone" agreed to participate in
an unlawful act and then committed an unlawful tortious act or
acts in furtherance of an unidentified common scheme. Computron's
failure to allege the general nature of this scheme is fatal to
its claim; it is unclear whether Plaintiff intended to plead a
conspiracy regarding the breach of contract or a conspiracy to
harm Plaintiff in some other way. Offering only vague
conclusions, the count lacks any information that would give
Defendants a sense of the scope and nature of the claim. See
Lucien, 967 F.2d at 1168 (plaintiff sought § 1983 damages and
requested declaratory and injunctive relief on the basis that a
letter sent by the defendant to the Prisoner Review Board
contained lies; complaint must contain more than "bald assertion"
that defendant lied); and Kyle, 144 F.3d at 454-55 (plaintiff
alleged a conspiracy to deprive him of his position and hinder
and harass him in violation of the First Amendment; yet
complaint's conclusions failed to give notice of his claim). Cf.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (complaint
"detailed the events leading to [plaintiff's] termination," and
"provided relevant dates"); and McCormick v. City of Chicago,
230 F.3d 319, 325 (7th Cir. 2000) (noting that unlike cases in which the plaintiff's pleading
"left out facts necessary to give the defendants a complete
understanding of the claims," the "factual cause" of this
plaintiff's claim is "clear").
Computron's complaint lacks the element of notice that allowed
both the Seventh Circuit and the Supreme Court to find the
notice-pleading standard of Rule 8 satisfied in Hoskins and
Swierkiewicz, repsectively. See Hoskins at 764-65 (plaintiff
alleged the general roles of the parties, suggesting that one
Defendant "set the events in motion" with the purpose of using
"contacts and influence" to acquire property); and Swierkiewicz
at 514 (plaintiff identified events, relevant dates and alleged
other actions which gave the defendant fair notice of the claims
and the grounds upon which they rested). Cf. Shields v. Property
Mgt. One Ltd., No. 02 C 3712, 2003 U.S. Dist. LEXIS 13498 (N.D.
Ill. Aug. 5, 2003) (finding notwithstanding the decisions in
Swierkiewicz and Walker that plaintiff failed to adequately
allege conspiracy; while plaintiff identified the purpose of the
conspiracy, he failed to "provide? facts regarding the
identities of the parties involved"). Notice pleading requires,
at the very least, notice of the scope and nature of the harm
alleged. See Ryan v. Mary Immaculate Queen Ctr., 188 F.3d 857,
860 (7th Cir. 1999) (upholding dismissal of conspiracy claim when
"[t]he form and scope of the conspiracy are thus almost entirely
unknown"). As noted above, Plaintiff fails to meet even this
In Hoskins, Judge Easterbrook stated that the Ryan decision
"was exceptional because the complaint `did not so much as hint
at what role' the defendant had played in the supposed joint
undertaking." 320 F.3d at 764. I believe that Computron's
allegation of civil conspiracy is similarly exceptional. The
Complaint does not attempt to outline the nature of the agreement
or "common scheme" into which the Defendants purportedly entered,
nor does it allege which Medstone employee or employees may have
been involved in the conspiracy. Computron simply makes the bald
assertion that Medstone conspired with Asbille and Global. That
allegation is insufficient to state a cause of action for civil
conspiracy. See Ryan, 188 F.3d at 860 ("[t]his is a case of a
bare allegation of conspiracy, and such an allegation does not
satisfy Rule 8"); and Buckner v. Atlantic Plant Maint. Inc.,
182 Ill. 2d 12, 24 (1998) (upholding dismissal of conspiracy
claim as conclusory allegations were insufficient to state cause
Medstone also argues that the civil conspiracy count cannot
survive the Motion to Dismiss because the count fails to allege a
specific tortious act in furtherance of the alleged conspiracy.
Under Illinois law, a civil conspiracy requires a "combination of
two or more persons for the purpose of accomplishing by concerted
action either an unlawful purpose or a lawful purpose by unlawful
means." Buckner, 182 Ill. 2d at 23-24 (citing Adcock v.
Brakegate, Ltd., 164 Ill. 2d 54, 62 (1994)). A plaintiff
alleging civil conspiracy must allege not only an agreement but
also a tortious or unlawful act committed in furtherance of that
agreement. Adcock, 164 Ill. 2d at 63.
In the instant case, Computron duly alleged "unlawful tortious
acts" in furtherance of Medstone, Asbille and Global's "common
scheme," but did so without giving any indication of what those
unlawful, tortious acts might be. Pl.'s Am. Compl., Count III,
¶ 14. Computron has alleged tortious interference with contract
against Asbille and Global; however, those allegations are
legally insufficient to form the basis of a conspiracy claim
against Medstone, as Medstone cannot tortiously interfere with
its own contract. See Olympia Hotels Corp. v. Johnson Wax Dev.
Corp., 908 F.2d 1363, 1374-75 (7th Cir. 1990); and Quist v. ...