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.
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
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).
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.
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