The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Amalgamated Bank of Chicago, as land trustee, has
filed a seven-count first amended complaint against defendant UPS
Supply Chain Solutions, Inc. asserting state-law causes of action
arising from casualty damage caused by a contractor for defendant
to an industrial building owned by plaintiff: breach of lease
with respect to casualty damage (Count I); breach of lease with
respect to failure to return premises in good repair (Count II);
unjust enrichment (Count III); damages for holdover tenancy
(Count IV); negligence (Count V); promissory estoppel (Count VI);
and specific performance (Count VII). Defendant has moved to
dismiss Counts III, VI, and VII pursuant to Fed.R.Civ.P.
For the reasons stated below, defendant's motion is granted. FACTS*fn1
The following facts are relevant to the counts challenged by
defendant in its motion.
Plaintiff Amalgamated Bank of Chicago ("ABC"), an Illinois
corporation, brings this action as trustee of Illinois land trust
No. 2167, which serves as the landlord of the commercial improved
property located at 1905-45 Lunt Avenue, Elk Grove Village,
Illinois (the "Premises"). Defendant UPS Supply Chain Solutions,
Inc. ("UPS"), a Delaware corporation, was a tenant of the
Premises pursuant to an August 1997 lease agreement. In August
2003, an amendment to the lease extended the term through June
30, 2004. Copies of the lease and the amendment are attached to
the first amended complaint.
On or about June 25, 2004, defendant's sub-tenant or one of its
agents struck a structural column of the Premises with a
fork-lift, causing substantial damages. The municipal authority
of Elk Grove Village subsequently declared the Premises unsafe
for operations, and plaintiff has been unable to show the
Premises to, or sign a new lease with, any other prospective
tenant. Plaintiff alleges that defendant has failed to cooperate
in the repairs of the casualty damages, and thus plaintiff has
been forced to retain a number of engineering and related
professionals to make the necessary repairs. Plaintiff does not
challenge defendant's statement in its motion that the "vast
majority of the casualty damage has been repaired." Plaintiff
also alleges that after the damages occurred defendant agreed to
repay defendant for the cost of the repairs and to continue to
pay rent at the rate of the last month under the lease on a
month-to-month basis until the restoration is complete. According to plaintiff, defendant has
failed to make either type of payments in a full or timely
Plaintiff filed its complaint on September 27, 2004, but the
litigation was stayed until January 18, 2005, while the parties
engaged in settlement negotiations. Plaintiff filed its first
amended complaint on February 17, 2005.
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.
I. Unjust enrichment and promissory estoppel (Counts III and
Count III of plaintiff's first amended complaint alleges that
defendant has been unjustly enriched because defendant failed to
perform certain interior construction work on the Premises for which plaintiff paid defendant $56,800.*fn2 Count VI
asserts a promissory estoppel claim based on alleged promises
made by defendant and counsel for defendant regarding repair of
the damages to the Premises. Plaintiff also alleges that it is
owed hold-over rent each month while the Premises are repaired.
Counts III and VI each incorporate the preceding paragraphs of
the complaint, which include allegations of an express contract
between the parties. Defendant argues that the incorporation of
these allegations bars plaintiff's equitable claims.
A claim for unjust enrichment or promissory estoppel is based
on an implied, rather than a specific, contract. Plaintiff argues
that Counts III and VI are pled in the alternative to the breach
of contract claims, and thus do not rely on a contractual theory.
The first amended complaint, however, does not comport with
plaintiff's alternative pleading argument because plaintiff
specifically incorporates its breach of contract allegations into
its equitable claims, and neither claim states that it is pled in
the alternative. Plaintiff is correct that it is entitled under
Fed.R.Civ.P. 8(e)(2) to plead the alternative claims of breach
of contract and unjust enrichment or promissory estoppel despite
the inconsistency between those claims. Canadian Pacific Ry. Co.
v. Williams-Hayward Protective Coatings, Inc., 2003 WL 1907943,
at *5(N.D. Ill. Apr. 17, 2003). A plaintiff's equitable claims,
however, must not include allegations of a specific contract
governing the parties' relationship, and multiple courts in this
district have dismissed equitable claims that incorporated such
contract allegations. See, e.g., Sharrow Group v. Zausa
Development Corp, 2004 WL 2806193, at *3 (N.D. Ill. Dec. 3,
2004); Canadian Pac. Ry. Co., 2003 WL 1907943, at *5; Team Impressions, Inc. v. Chromas
Technologies Canada, Inc., 2003 WL 355647, at *4 (N.D. Ill. Feb.
Plaintiff attempts to amend its pleadings by arguing that
Counts III and VI are intended as alternative claims. Courts have
expressly rejected similar arguments attempting to cure a failure
to plead in the alternative. See, e.g., Sharrow, 2004 WL
2806193, at *3 (dismissing plaintiff's unjust enrichment and
promissory estoppel claims that incorporated allegations of an
express contract, despite plaintiff's argument that they ...