The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before the court on the motion of Defendants PC Products & Services ("PC Products"), Patrick Boghra ("CEO Boghra"), Victor Boghra ("Boghra"), and Amar Nagealle ("Nagealle") to dismiss Plaintiff Vijay Ratilai Patel ("Patel")'s Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, Defendants' motion to dismiss pursuant to 12(b)(1) is denied and Defendants' motion to dismiss pursuant Rule 12(b)(6) is granted.
In 2000, Software System Inc. sponsored Patel's nonimmigrant H-1B visa ("Visa") and later hired him as a program analyst. Patel, an Indian citizen, was set to make $44,000 a year at Software Systems Inc.
It is alleged in the Complaint that in May 2001, CEO Boghra, an Illinois resident, CEO and part owner of PC Products*fn1 offered to employ Patel as a program analyst with PC Products. Patel was offered an annual salary of $44,000 as well as overtime and holiday benefits. According to Patel, PC Products also offered to pay the attorney's fees he incurred to amend his Visa so that it reflected his employment with PC Products.
We are obligated to assume the truth of the factual allegations for purposes of consideration of the motion. Sometime after PC Products hired Patel, the company informed him that it could no longer afford to pay him $44,000 per year, overtime, or holiday benefits. It also told Patel that it would no longer pay the attorney's fees ($14,355) he incurred in processing his Visa. According to Patel, PC Products further explained that if he did not agree to a lesser salary and did not forego his overtime and holiday benefits, his Visa would expire and he would have to leave the United States. To avoid this situation, PC Products explained that it would continue to pay Patel $44,000 per year but that he would be required to pay the company back $1,000 each month. PC Products allegedly informed Patel that if he rejected its offer, it would refuse to give him back his Visa and thus prevent him from obtaining employment elsewhere.
Patel agreed to PC Products's offer and paid it an average monthly amount of $1,000 from March 2003 to May 2006. Patel also made lump sum payments to PC Products during that time. Patel estimates that the difference between his original salary and benefits and the altered salary and benefits he ended up receiving total $56,000.
In June 2006, PC Products terminated Patel after he informed it that he could no longer afford to pay it $1,000 per month. According to Patel, the sole reason for his termination was due to his refusal to pay PC Products $1,000 a month; it was not because he failed to perform his employment duties in a minimally satisfactory way. PC Products thereafter denied Patel's requests for his Visa. As a result, Patel allegedly now faces deportation to India.
Patel alleges that PC Products's actions cost him $100,000 in wages, benefits, and attorneys fees. Specifically, Patel alleges that Defendants were to employ Patel until March 2008. Patel alleges that the lost wages he suffered from June 2006 to March 2008 total $46,000.
In November 2007, Patel filed suit against Defendants. Five days later, he amended his complaint. On February 14, 2008, Defendants filed a motion to dismiss Patel's First Amended Complaint. This motion to dismiss was mooted by Patel's March 5, 2008, request to amend his complaint for a second time. Patel's Second Amended Complaint alleged the following five counts against Defendants: Count I: Breach of Contract; Count II: Wrongful Termination; Count III: Breach of Fiduciary Duties; Count IV: Equitable Estoppel; and Count V: Constructive Trust. The sole basis alleged for federal jurisdiction in this case is diversity, pursuant to 28 U.S.C. § 1332; Patel maintains that he is a citizen of India and that Defendants are citizens of Illinois.
Defendants filed a motion to dismiss Patel's Second Amended Complaint on April 15, 2008. On May 1, 2008, two new attorneys for Patel filed appearances and requested that Patel be given an extension of time to respond to Defendants' motion. We granted Patel's attorneys' request; Patel was given two more weeks to respond to Defendants' motion.
Included in Patel's response to Defendants' motion to dismiss was a request for leave to amend his complaint for a third time. Patel requests that we grant him leave to amend his complaint so as to include the following five counts: 1) Hobbs Act; 2) Unjust Enrichment; 3) Conversion; 4) Violation of Immigration Regulations; and 5) Fraud. The request to amend, coming as part of Patel's answer, is denied as improperly presented.
I. Defendants' Motion to Dismiss Pursuant to Rule 12(b)(1)
We must first consider Defendants' Rule 12(b)(1) challenge to our jurisdiction before we consider their Rule 12(b)(6) arguments because if we do not have jurisdiction, the additional dismissal grounds become moot and need not be adjudicated. See Steel ...