The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Jim Cawley's ("J.
Cawley") and Defendant Diane Cawley's ("D. Cawley") (collectively
referred to as "the Cawleys") motion to dismiss. Additionally,
this matter is before the court on Defendant Savant Software,
Inc.'s ("Savant") motion to dismiss, motion to strike, and motion
for a more definite statement. Finally, this matter is also
before the court on Plaintiff/Counter-Defendant Elgin Dairy
Foods, Inc.'s ("Elgin") and Plaintiff/Counter-Defendant M&E
Distribution, LLC's ("M&E") motion to dismiss the fraud counter-claim (Count III). For the reasons stated
below, we deny the Cawleys' motion to dismiss. We also grant in
part and deny in part Savant's motion to dismiss, deny Savant's
motion to strike, deny Savant's motion for a more definite
statement, and deny Plaintiffs' motion to dismiss.
Plaintiffs allege that prior to September 2003, they operated a
warehouse distribution center in McCook, Illinois. Plaintiffs
allegedly desired to expand their operations at the McCook
facility and open an additional facility in Bolingbrook,
Illinois. Plaintiffs allege that they contracted with ePartners
Inc. to review the existing operating systems at the McCook
facility and recommend software systems "for accounting and
warehousing/logistics needs." (Compl. Par. 13). ePartners and
Plaintiffs allegedly decided to use Great Plains for their
accounting needs and Defendant Savant for their
warehousing/logistics software needs. Plaintiffs claim that
Savant represented "both on-line and in person" (Compl. Par. 15)
at the McCook, Illinois facility and at ePartners in Schaumburg,
Illinois that "the software provided by Savant would meet and
exceed all of their needs and expectations." (Compl. Par. 15).
Plaintiffs claim that during the discussions with Savant, the
parties specifically discussed certain things that the Savant
software would provide and that the Software needed to be
compatible with the Great Plains software. Furthermore,
Plaintiffs allege that Defendants represented that they were experienced in handling needs for third-party logistics
Plaintiffs contend that the software provided by Savant
("Software") did not meet the needs previously discussed by the
parties, and was not compatible with the Great Plains software.
Plaintiffs allege that they ultimately had to dispose of Savant's
Software and purchase a new system. Plaintiffs claim that Savant
had never implemented this system before and used plaintiffs as
"guinea pigs" (Compl. Par. 23). Plaintiffs also allege that
Savant placed on its website a testimonial provided by Robert L.
Martin ("Martin"), Controller of Elgin Dairy Foods, Inc., stating
that Savant had met all of the demands of its third-party
customers and had helped the company to operate efficiently.
Finally, Plaintiffs claim that neither Martin nor anyone working
for Plaintiffs had authorized the statement.
Plaintiffs brought the instant action and included in their
complaint a breach of warranty claim (Count I), a claim alleging
a violation of the Illinois Consumer Fraud and Deceptive Business
Practices Act ("Fraud Act"), 815 ILCS 505/12 et seq. (Count
II), a common law fraud claim (Count III), a claim alleging a
violation of the Right of Publicity Act ("Publicity Act"),
765 ILCS 1075/1 et seq. (Count IV), and a claim alleging violations
of the Lanham Act, 15 U.S.C. § 1051 et seq. (Count V). Savant
has filed three counter-claims, which include a breach of
contract claim (Count I), a claim alleging that an account stated
was created mandating certain payment, (Count II), and a common
law fraud claim (Count III).
The Cawleys have filed a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(2). Savant has filed a motion to dismiss Counts
II, III, and IV pursuant to Federal Rule of Civil Procedure
12(b)(1) and 12(b)(6). Savant has also filed a motion to strike
and a motion for a more definite statement.
Plaintiff/Counter-Defendants Elgin and M&B have filed a motion to
dismiss the fraud counter-claim (Count III).
Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)")
requires a court to dismiss an action when it lacks subject
matter jurisdiction. United Phosphorus, Ltd. v. Angus Chemical
Co., 322 F.3d 942, 946 (7th Cir. 2003). If the concern of the
court or party challenging subject matter jurisdiction is that
"subject matter jurisdiction is not evident on the face of the
complaint, the motion to dismiss pursuant to Rule 12(b)(1) would
be analyzed as any other motion to dismiss, by assuming for
purposes of the motion that the allegations in the complaint are
true." Id.; see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th
Cir. 1995) (stating that when reviewing a motion to dismiss
brought under Rule 12(b)(1), this court "must accept as true all
well-pleaded factual allegations, and draw reasonable inferences
in favor of the plaintiff"). However, if the complaint appears on
its face to indicate that the court has subject matter
jurisdiction, "but the contention is that there is in fact no
subject matter jurisdiction, the movant may use affidavits and
other material to support the motion." Id. For the purpose of
determining subject matter jurisdiction, this court "may properly look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject
matter jurisdiction exists." Ezekiel, 66 F.3d at 897 (quoting
Capitol Leasing Co. v. Federal Deposit Insurance Corp.,
999 F.2d 188, 191 (7th Cir. 1993)). The burden of proof in regard to
a Rule 12(b)(1) motion is "on the party asserting jurisdiction."
United Phosphorus, Ltd., 322 F.3d at 946.
Federal Rule of Civil Procedure 12(b)(2) directs a court to
dismiss a claim for lack of personal jurisdiction.
Fed.R.Civ.P. 12(b)(2). For the purposes of such a motion to dismiss, the
"court accepts all well-pleaded allegations in the complaint as
true." Hyatt Intern. Corp. v. Coco, 302 F.3d 707, 712-13
(7th Cir. 2002). If a defendant moves to dismiss pursuant to
Rule 12(b)(2), "the court must decide whether any material facts
are in dispute" in regard to personal jurisdiction and "[i]f so,
it must hold an evidentiary hearing to resolve them, at which
point the party asserting personal jurisdiction must prove what
it alleged." Id. If the court finds that there are material
facts in dispute, "the party asserting personal jurisdiction need
only make out a prima facie case of personal jurisdiction," if
and until the court holds the necessary hearing. Id.
In ruling on a motion to dismiss brought pursuant to Federal
Rule of Civil Procedure 12(b)(6), the court must draw all
reasonable inferences that favor the plaintiff, construe the
allegations of the complaint in the light most favorable to the
plaintiff, and accept as true all well-pleaded facts and
allegations in the complaint. Thompson v. Illinois Dep't of Prof'l Regulation, 300 F.3d 750,
753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466
(7th Cir. 1991). The allegations of a complaint should not be
dismissed for a failure to state a claim, "unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957); see also Baker v.
Kingsley, 387 F.3d 649, 664 (7th Cir. 2004) (stating that
although the "plaintiffs' allegations provide[d] little detail . . .
[the court could not] say at [that] early stage in the
litigation that plaintiffs [could] prove no set of facts in
support of their claim that would entitle them to relief").
Nonetheless, in order to withstand a motion to dismiss, a
complaint must allege the "operative facts" upon which each claim
is based. Kyle v. Morton High School, 144 F.3d 448, 454-55 (7th
Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir.
1992). Under the current notice pleading standard in federal
courts, a plaintiff need not "plead facts that, if true,
establish each element of a `cause of action. . . .'" See
Sanjuan v. American Bd. of Psychiatry and Neurology, Inc.,
40 F.3d 247, 251 (7th Cir. 1994) (stating that a "[a]t this
stage the plaintiff receives the benefit of imagination, so long
as the hypotheses are consistent with the complaint" and that
"[m]atching facts against legal elements comes later"). The
plaintiff need not allege all of the facts involved in the claim
and can plead conclusions. Higgs v. Carter, 286 F.3d 437, 439
(7th Cir. 2002); Kyle, 144 F.3d at 455. However, any
conclusions pled must "provide the defendant with at least
minimal notice of the claim," Id., and a plaintiff cannot
satisfy federal pleading requirements merely "by attaching bare legal conclusions
to narrated facts which fail to outline the bases of [his]
claims." Perkins, 939 F.2d at 466-67. The Seventh Circuit has
explained that "[o]ne pleads a `claim for relief' by briefly
describing the events." Sanjuan, 40 F.3d at 251.
The Cawleys argue that the court lacks personal jurisdiction
over them. In a diversity action, the extent of the court's
personal jurisdiction is governed by state law regarding personal
jurisdiction. Dehmlow v. Austin Fireworks, 963 F.2d 941, 945
(7th Cir. 1992). The Illinois Long Arm Statute authorizes service
of process both on in-state defendants and out-of-state
defendants, stating that "[a]ny person, whether or not a citizen
or resident of this State, who in person or through an agent does
any of the acts hereinafter enumerated, thereby submits such
person, and, if an individual, his or her personal
representative, to the jurisdiction of the courts of this State
as to any cause of action arising from the doing of any of such
acts: . . . [t]he transaction of any business within this State;
. . . [t]he commission of a tortious act within this State; . . .
[and] [t]he making or performance of any contract or promise
substantially connected with this State;. . . ."
735 ILCS 5/2-209. The Illinois Long Arm statute also provides that "[a]
court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and
the Constitution of the United States." Id. Thus, in addition