The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
Defendants Oceanic Bank and Trust Limited ("Oceanic"), Kenneth
Clowes ("Clowes"), and Terah Rahming ("Rahming") (collectively
"the Oceanic Defendants") move to dismiss the Second Amended
Complaint ("SAC") in its entirety as pled against them. For the
reasons discussed below, the Court grants in part and denies in
part the Oceanic Defendants' motion.
On August 14, 2001, ZCM brought suit against Oceanic and
several other defendants. ZCM brought claims against Oceanic for
securities fraud under Section 10(b) of the Securities Exchange
Act of 1934 (the "Exchange Act") and several other state and
Bahamian law claims. That case was assigned to Judge Lindberg,
who on March 25, 2002, dismissed with prejudice, pursuant to Rule
12(b)(6), ZCM's Section 10(b) claim against Oceanic. Judge
Lindberg declined to exercise supplemental jurisdiction over
ZCM's state and Bahamian law claims against Oceanic and dismissed those claims without prejudice.
That action was eventually transferred to the Court, who entered
a notice of dismissal of all defendants on October 19, 2004.
ZCM filed suit against the Oceanic Defendants, as well as other
defendants, on November 7, 2003. ZCM brought claims against the
Oceanic Defendants for securities fraud under Section 20(a) of
the Exchange Act, the same state and Bahamian law claims that
Judge Lindberg had previously dismissed without prejudice, as
well as additional state and Bahamian law claims that it had not
asserted against Oceanic in the first action.
On August 2, 2004, the Court granted in part and denied in part
the Oceanic Defendants' motion to dismiss the Amended Complaint.
The Court gave ZCM leave to replead the claims it dismissed. On
November 22, 2004, ZCM filed the Second Amended Complaint in this
case, alleging the following claims against the Oceanic
Defendants: violation of Section 20(a) of the Exchange Act
against all Oceanic Defendants (Count III); violation of the
Illinois Securities Law of 1953, 815 Ill. Comp. Stat. 5/12-13
against Oceanic (Count VII); common law fraud under Illinois law
against all Oceanic Defendants (Count VIII); conspiracy to
defraud against all Oceanic Defendants (Count IX); unjust
enrichment against all Oceanic Defendants (Count X); conversion
against Oceanic (Count XI); breach of M.J. Select's Subscription
Agreement and Administration, Registrar & Transfer Agency
Agreement against Oceanic (Count XII); intentional interference
with contract against Oceanic and Rahming (Count XIII); breach of
fiduciary duty under the common law of Illinois against all
Oceanic Defendants (Count XIV); breach of contract against
Oceanic (Count XVI); violation of the Bahamian Mutual Funds Act,
1995 and regulations thereunder against all Oceanic Defendants
(Count XVII); and breach of common law duty of care under Bahamian law against all Oceanic
Defendants (Count XVIII).
The Court provided a detailed discussion of ZCM's pleadings in
the Amended Complaint in Zurich Capital Markets v. Coglianese et
al., 332 F.Supp.2d 1087 (N.D. Ill. 2004) and in Zurch Capital
Markets v. Coglianese et al., No. 03 C 7960, 2004 WL 2191596
(N.D. Ill. Sept. 23, 2004). To the extent ZCM's pleadings in the
Second Amended Complaint differ from the Amended Complaint, the
Court will address those differences in its Analysis below.
The Oceanic Defendants move to dismiss the Second Amended
Complaint pursuant to Rule 12(b)(6). In its motion, the Oceanic
Defendants request that the Court reconsider certain of its
rulings from its September 23, 2004 opinion granting in part and
denying in part the Oceanic Defendants' motion to dismiss ZCM's
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test the legal sufficiency of a complaint, not the merits of
the case. Triad. Assocs, Inc. v. Chicago Hous. Auth.,
892 F.2d 583, 586 (7th Cir. 1989). A court must accept as true all
well-plead allegations of a complaint. Thompson v. Illinois
Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). Courts construe ambiguities in favor of the plaintiff.
B. Motions For Reconsideration
A court may exercise its inherent authority to reconsider an
interlocutory order because such orders are "subject to revision
at any time before the entry of judgment adjudicating all the
claims." See Fed.R.Civ.P. 54(b); see also Moses H. Cone Mem.
Hosp. v. Mercury Const. Corp., 460 U.S. 1, 12 (1983) ("every order short of a final decree is
subject to reopening at the discretion of the district judge").
Accordingly, under Rule 54(b), a court may correct clear errors
of fact or law in an interlocutory order. See Young v. Murphy,
161 F.R.D. 61, 62 (N.D. Ill. 1995). The Seventh Circuit has
repeatedly cautioned that "motions for reconsideration serve a
limited function: to correct manifest errors of law or fact or to
present newly discovered evidence." Publishers Resource Inc. v.
Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir.
1985) (quotation omitted); see also In re Oil Spill by "Amoco
Cadiz" Off Coast of France on March 16, 1978, 794 F.Supp. 261,
267 (N.D. Ill. 1992) ("Motions to reconsider are not at the
disposal of parties who want to `rehash' old ...