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Lewis Brothers Bakeries, Inc. v. Bittle

November 15, 2006


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


This matter is before the Court on defendants' motion to dismiss (Doc. 13) and defendants' amended motion to dismiss and supporting brief (Doc. 25), to which plaintiff has responded (Docs. 19, 31). For the reasons set forth below, defendants' motions to dismiss will be DENIED.


Lewis Brothers Bakeries, Inc. (Lewis Bros) brought this action against Richard and Pamela Bittle to collect on a promissory note. The Illinois Hotel Group (IHG) issued the note at issue in this case on July 19, 1988, to the Old National Bank (ONB) in the amount of $2,056,000.00 (the Note). That day, the Bittles*fn1 issued an unconditional guaranty (the Guaranty), guaranteeing payment of the Note. On August 5, 2002, IHG, ONB, Lewis Bros and others entered into a debt recasting agreement with Hospitality Joint Venture (HJV), under which HJV assumed IHG's indebtedness and agreed to pay the amounts left owing on the Note to ONB. On September 20, 2004, ONB assigned its rights in the Note to Lewis Bros.

HJV is now in default under the Note and, pursuant to its terms, Lewis Bros (as assignee of ONB) seeks immediate payment from the Bittles of the remaining amount due, $864,429.28, plus interest. The Bittles assert four grounds supporting their requested dismissal: they claim Lewis Bros failed to join all necessary parties to this action, that Lewis Bros attached an altered document to its complaint, that Lewis Bros and others have violated the Equal Credit Opportunity Act (ECOA), and that enforcing the Guaranty against Mrs. Bittle would be unconstitutional.


After reviewing their briefs, the Court believes defendants have moved for dismissal pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(7).

I. Failure to Join Necessary Parties

The Court construes the Bittles' first argument as one under Federal Rule of Civil Procedure 12(b)(7), which recognizes as a ground for dismissal the failure to join parties in accordance with Federal Rule of Civil Procedure 19. The Bittles made this claim in their first motion to dismiss, which was one page long and unaccompanied by a supporting brief. The Court granted the Bittles' motion for leave to file a brief in support of their motion (Doc. 20) and they filed an amended motion (incorporating their first motion) accompanied by the supporting brief on September 12, 2006. In their brief, the Bittles focus on the legality of the unconditional guaranty and do not discuss the instant claim.

The party urging dismissal pursuant to Federal Rule of Civil Procedure 12(b)(7) bears the burden of showing that an absent party should be joined under Rule 19. West Peninsular Title Co. v. Palm Beach County, 41 F.3d 1490, 1492 (11th Cir. 1995); see generally 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 1235 (3d ed. 1997). As the Bittles are proceeding pro se in this action, the Court must construe their pleadings liberally. See McCready v. EBay, Inc., 453 F.3d 882, 890 (7th Cir. 2006). Their pro se status does not, however, relieve them of their burden of showing that they are entitled to the relief they request. See Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994) ("[P]ro se litigants are not entitled to a general dispensation from the rules of procedure"). As they have failed to make any arguments whatsoever on this claim and have failed to even name the party or parties they believe to be indispensable they have failed to meet their burden.

II. The Alteration of the Guaranty

The remaining grounds for relief appear to fall within the ambit of Federal Rule of Civil Procedure 12(b)(6). When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts all allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiffs. Moranski v. General Motors Corp., 433 F.3d 537, 539 (7th Cir. 2005); Holman v. Indiana, 211 F.3d 399, 402 (7th Cir. 2000). The Court should not grant a motion to dismiss unless it appears beyond doubt that plaintiffs cannot prove their claims under any set of facts consistent with the complaint. McDonald v. Household Intern., Inc., 425 F.3d 424, 428 (7th Cir. 2005).

Defendants claim that an alteration visible on the face of the Guaranty makes it unenforceable. Like their first argument, defendants failed to develop this argument in any meaningful way in their memorandum of law. The only indication as to the basis of this claim is in defendants' citation to Rule 9(b). Presumably, defendants have attempted to invoke Federal Rule of Civil Procedure 9(b) for the proposition that this case must be dismissed because the alteration was fraudulent. Rule 9(b) provides for no such relief; it simply requires litigants to plead the circumstances constituting fraud with particularity. Again, defendants have failed to articulate any basis for why this alteration entitles them to the relief they request.

Upon review, the alteration in the Guaranty appears to have corrected a scrivener's error. But even if the alteration were material, that, in itself, does not necessarily entitle the Bittles to the relief they request. See Wisniewski v. Shimashus, 176 N.E.2d 781, 787 (Ill. 1961) ("While in many instances a material alteration made in an instrument after delivery will render such instrument as altered totally void . . . there may be facts connected with some alterations ...

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