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SEAFREIGHT v. GLOBAL FREIGHT INC.

December 12, 2005.

APRILE SEAFREIGHT S.P.A Plaintiff,
v.
GLOBAL FREIGHT, INC. and SEBASTIANO UZIELLI DE MARI, Defendants.



The opinion of the court was delivered by: WILLIAM HIBBLER, District Judge

MEMORANDUM OPINION AND ORDER

Aprile Seafreight ("Aprile") filed a nine-count complaint against Global Freight ("Global") and Sebastiano Uzeilli De Mari ("Uzielli"), in his capacity of director of Global. According to Aprile, after entering into a contract to arrange transportation of Global's cargo, Global and Uzielli failed to comply with the terms of the contract, thus breaching the contract. Further, Aprile claims that Uzielli acted in a fraudulent manner with regard to management of Global's assets and its capitalization. Global and Uzielli have filed a motion to dismiss Counts I, III, IV, V, and IX against them pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated herein, Global's Motion to Dismiss is GRANTED in part and DENIED in part.

I. Factual Background

  In resolving the motion to dismiss, the Court takes as true the following facts from the Plaintiff's complaint. Aprile entered into an agreement with Global, in which Aprile transported or arranged transportation of cargo from foreign ports to various U.S. ports on behalf of Global. Pursuant to the agreement, Global shipped, or otherwise had title to, the cargo. Aprile arranged and prepaid the freight costs of Global's cargo and then billed Global for its services. Despite numerous requests for payment and acknowledgment of the debt, Global refused to remit payment for Aprile's services pursuant to the contract.

  According to Aprile, Defendant Uzielli, the sole shareholder of Global, maintained absolute control over Global's affairs. As director of Global, Uzielli operated Global with the intent to defraud Aprile and other creditors. Uzielli also undercapitalized Global in furtherance of his scheme to defraud Aprile*fn1 and utilized Global's assets for his personal benefit. Uzielli had a personal financial interest in the scheme to defraud Aprile. In short, Aprile alleges that Defendant Uzielli created and operated Global solely with the purpose of defrauding third parties and to escape personal liability.

  II. Standard of Review

  Motions to dismiss under Rule 12(b)(6) test the sufficiency of the complaint rather than the merits of the case. Midwest Gas. Serv. v. Indiana Gas Co., 317 F.3d 703, 714 (7th Cir. 2003). In reviewing a motion to dismiss, a court construes all allegations in the complaint in the light most favorable to the plaintiff, taking all well-pleaded facts and allegations within the complaint as true. Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 971 (7th Cir. 2002). The moving party bears the burden of showing beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). A complaint is not required to allege all or any of the facts logically entailed by the claim. Bennet v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998).

  III. Analysis

  A. Count I — Piercing the Corporate Veil

  Defendant argues that Aprile has not alleged sufficient facts to pierce Global's corporate veil. To pierce Global's veil, Aprile's complaint alleges that Uzielli exercised absolute control over Global's affairs and used Global as a cloak for illegality. Aprile further alleges that Global was an undercapitalized shell and Uzielli misappropriated Global and Aprile's funds. Finally, Aprile also alleges that it was an intended victim of Uzielli's fraudulent actions. Corporate veil claims are analyzed under the state law. Van Dorn Co. v. Future Chemical & Oil Corp., 753 F.2d 565, 570-71 (7th Cir. 1995). In order to pierce the corporate veil under Illinois law, a plaintiff must demonstrate a "unity of interest and ownership such that the separate personalities of the corporation and the individual no longer exist," and circumstances such that "adherence to the fiction of a separate corporate existence would sanction a fraud, promote injustice, or promote inequitable consequences." People of the State of Illinois v. V & M Indus., Inc., 298 Ill. App. 3d 733, 700 N.E.2d 746, 750-51, 233 Ill. Dec. 218 (Ill.App. 1998). Plaintiff's allegations, if taken as true, may indicate that Global was undercapitalized and simply functioned as a facade for the controlling shareholder, Uzielli. Plaintiffs are not required to allege the specific factual basis for their claim to pierce the corporate veil. See Liberty Mut. Fire Ins. Co. v. Reimer Exp. Enterprises, Ltd., 82 F. Supp. 2d 887, 891-92 (N.D. Ill. 2000) (noting that "the specificity sought by defendants" to justify piercing the corporate veil "is not required under the notice pleading standard"). Further discovery may ultimately support or disprove Plaintiffs' allegations, but for present purposes they include the requisite elements, and are sufficient to withstand Defendant's motion to dismiss.

  B. Count III — Unjust Enrichment

  Defendant argues that plaintiff's unjust enrichment claim is barred because an express contract governs their relationship. Aprile argues that Count III is pled in the alternative to the breach of contract count is allowed by Fed.R.Civ.P. Rule 8(e)(2). Aprile's argument is not persuasive. A claim for unjust enrichment is based upon an implied, rather than a specific, contract. Where a specific contract governs the relationship of the parties, "the doctrine of unjust enrichment has no application." People ex rel. Hartigan v. E&E Hauling, Inc., 153 Ill. 2d 473, 607 N.E.2d 165, 177, 180 Ill. Dec. 271 (Ill. 1992) (citations and quotations omitted). The Complaint does not comport with Aprile's alternative pleading theory argument because Aprile alleges that Global failed to pay Aprile for the services rendered in accordance with their agreement. While Plaintiff is entitled under Federal Rule of Civil Procedure 8(e)(2) to plead the alternative claims of breach of contract and unjust enrichment despite the inconsistency between those claims, Plaintiff's unjust enrichment claim must not include allegations of a specific contract governing the parties relationship. See Vanguard Fin. Serv. Corp. v. R W Prof'l Leasing Servs. Corp., 1998 U.S. Dist. LEXIS 17449, No. 98 C 1741, 1998 WL 774984, at *4 (N.D. Ill. 1998); Cynthia Cooper and Rapid Transit Products, Inc., v. Durhan School Services a/k/a Robinson Bus Services, 2003 U.S. Dist. LEXIS 25005, No. 03 C 2431 (N.D. Ill. 2003). Here, Plaintiff has alleged that the unjust enrichment is due to Defendant's failure to fulfill contractual terms. As such, Plaintiff's unjust enrichment claim must be dismissed without prejudice.

  C. Count IV — Fraud

  The Defendant argues that Aprile's pleadings fail to meet the level of specificity required under Fed.R.Civ.P. Rule 9(b). The Court disagrees. In order to meet the requirements of Rule 9(b), a plaintiff must plead the identity of the person making the misrepresentation and the time, place, and content of the misrepresentation and the method by which the misrepresentation was communicated. Uni*Quality, Inc. v. Infotronx, Inc. 974 F.2d 918, 923 (7th Cir. 1992). In other words, a plaintiff must plead with ...


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