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Draper v. Pickus

March 15, 2007

LEWIS F. DRAPER, A CITIZEN AND RESIDENT OF THE STATE OF FLORIDA, PLAINTIFF,
v.
EDWARD I. PICKUS, A CITIZEN AND RESIDENT OF THE STATE OF ILLINOIS, ALLAN M. PICKUS, A CITIZEN AND RESIDENT OF THE STATE OF ILLINOIS, NATHAN W. PICKUS, A CITIZEN AND RESIDENT OF THE STATE OF ILLINOIS, JEFFREY PICKUS, A CITIZEN AND RESIDENT OF THE STATE OF ILLINOIS, JAMES PICKUS, A CITIZEN AND RESIDENT OF THE JUDGE JOAN H. LEFKOW STATE OF ILLINOIS, JOEL PICKUS, A CITIZEN AND RESIDENT OF THE STATE OF ILLINOIS, AND THEODORE PICKUS, A CITIZEN AND RESIDENT OF THE STATE OF ILLINOIS, EACH INDIVIDUALLY AND DOING BUSINESS AS EAN CORPORATION, AN ILLINOIS CORPORATION AND/OR BASE 4, INC., AN ILLINOIS CORPORATION, AND EVOY, KAMSCHULTE, JACOBS AND CO., LLP, AN ILLINOIS PUBLIC ACCOUNTING ) FIRM FORMERLY DOING BUSINESS AS EVOY, KAMSCHULTE, JACOBS & CO., DEFENDANTS.



The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge

Magistrate Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

This is the fourth attempt by plaintiff Lewis F. Draper ("Draper") to plead his breach of fiduciary duty claims against defendants Edward I. Pickus ("Edward"), Allan M. Pickus ("Allan"), and Nathan W. Pickus ("Nathan"), individually and doing business as EAN Corporation ("EAN"); Jeffrey Pickus ("Jeffrey"), James Pickus ("James"), Joel Pickus ("Joel"), and Theodore Pickus ("Theodore"), individually and doing business as Base 4, Inc. ("Base 4"); and the accounting firm of Evoy, Kamschulte, Jacobs & Co., LLP ("EKJ") (collectively, "defendants"). Draper's original complaint was filed on December 17, 2004. The court dismissed Draper's first amended complaint, which alleged state law claims for breach of contract and breach of fiduciary duty as well as a violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et. seq, on June 29, 2005. Mem. Op. and Order, Dkt. No. 43 (June 29, 2005). Draper's second amended complaint, alleging breach of contract and breach of fiduciary duty based on an underlying fraud, was dismissed on March 9, 2006. Minute Order, Dkt. No. 58 (March 9, 2006). The court warned Draper that he would have only one final attempt to file an amended complaint. Id.

Draper's third amended complaint (the "Complaint") has only one count: breach of fiduciary duty against all of the defendants. He asks for compensatory and punitive damages, interest, attorney's fees, and costs. The court has jurisdiction under 28 U.S.C. § 1332 because Draper is a citizen of Florida, all defendants are citizens of Illinois or Illinois companies, and the amount in controversy exceeds $75,000.00. Defendants have again moved to dismiss. Dkt. No. 60 (April 26, 2006); Dkt. No. 62 (April 26, 2006); Dkt. No. 65 (May 2, 2006). For the following reasons, their motions are granted and this case is dismissed with prejudice.*fn1

I. Motion to Dismiss Standard

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the complaint for failure to state a claim upon which relief may be granted. In ruling on a motion to dismiss, the court accepts all well-pleaded facts alleged in the complaint as true, and draws all reasonable inferences from those facts in the plaintiff's favor. McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006).*fn2 The court is not required, however, to "ignore any facts set forth in the complaint that undermine the plaintiff's claim [nor does it] assign any weight to unsupported conclusions of law." LeBlang Motors, Ltd. v. Subaru of Am., Inc., 148 F.3d 680, 690 (7th Cir. 1998) (internal citations and quotations omitted); Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006); Lekas v. Briley, 405 F.3d 602, 613-14 (7th Cir. 2005). Dismissal is appropriate only if it appears beyond a 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, 45-46, 78 S.Ct. 99, 102, 2 L.Ed. 2d 80 (1957); McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006).

II. Facts

Draper, EAN, and Base 4 entered into the Highwood Lakes Venture General Partnership Agreement ("the Agreement") in February of 1991.*fn3 Complaint, at ¶ 3. The purpose of the Partnership was to "acquire, own, maintain, operate, sell, lease, develop, finance, dispose of and otherwise invest in" a property known as Highwood Lakes Estates. Complaint, at ¶ 4; Complaint, Ex. A, at ¶ 2.13. At the time, Draper was a land developer, who located and identified parcels of real estate suitable for development in northern Illinois and then arranged for financing, zoning, sewer, set aside and annexation agreements. Complaint, at ¶ 1. Edward, Allan, and Nathan did business as EAN, and their sons, Jeffrey, Joel, James, and Theodore, did business as Base 4. Complaint, at ¶ 3.*fn4 EAN and Base 4 signed the Agreement using an address for Pickus Construction. Complaint, Ex. A. EKJ was a public accounting firm engaged by EAN to work for the Partnership. Complaint, at ¶ 19.

The net income and loss were to be allocated among the partners as follows: 40% to Draper, 40% to EAN, and 20% to Base 4. Complaint, Ex. A, at ¶ 7.1. The Agreement provided that the partners would be equals. Complaint, Ex. A, at ¶ 9.5.*fn5 Regarding accounting books and reports, the Agreement said the following:

Accurate books and accounts shall be kept by the Partnership showing all of its assets, liabilities, operations, transactions and financial condition. As soon as practicable after the end of each Fiscal Year, accounting statements shall be prepared with respect to the assets, properties, liabilities and net worth of the Partnership, its transactions and operations during the preceding Fiscal Year, and all other matters and items customarily included in such statements, and complete copies of such statements shall be furnished to all Partners. All Partners shall have the right and power to examine and inspect in person or by agent, at reasonable times, the books, records, and accounts of the Partnership, at the principal place of business of the Partnership [a location that was also the principal place of business of EAN and an office of Base 4].

Complaint, Ex. A, at ¶ 8.1.

Finally, the Agreement included a provision for dissolution: "The Partnership shall be dissolved upon the happening of any one of the following events: The disposition of the Partnership of all of its assets and the cessation by it of all business...." Complaint, at ¶ 11.1. The Partnership existed through the 1998 calendar year. Draper has not alleged that it engaged in any activities after 1998.*fn6 According to the Final K-1 tax form for 1998 filed on behalf of the Partnership,*fn7 Draper's capital account had $20,241.00 in it at the beginning of 1998. EAN's Reply, Ex. 2. Over the course of the year, it earned $35.00 in interest and the total amount of $20,276.00 was withdrawn, leaving a balance of $0 at the end of the year. EAN's Reply, Ex. 2.

Draper alleges that EAN, Base 4, and the individual defendants directed, authorized, knew of and/or received the following transfers of Partnership funds and assets without his knowledge and to the detriment of the Partnership:

* In 1991, Base 4 failed to make its capital contribution, causing an imbalance in the Partnership equity accounts from 1991 to ...


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