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Thompson v. Fajerstein

September 17, 2008

RICHARD THOMPSON, TRUSTEE OF THE THOMPSON FAMILY TRUST, PLAINTIFF,
v.
RONALD M. FAJERSTEIN, FAJERSTEIN DIAMOND IMPORTERS & CUTTERS, INC., AND ANTWERP DIAMOND IMPORTERS & CUTTERS, INC., DEFENDANTS.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

This matter comes before the Court on the motion of Defendants Ronald M. Fajerstein, Fajerstein Diamond Importers & Cutters, Inc. ("FDIC"), and Antwerp Diamond Importers & Cutters, Inc. ("Antwerp") to dismiss the complaint of Plaintiff Richard Thompson pursuant to Federal Rule of Civil Procedure 12(b)(1), (b)(3), (b)(6), and (b)(7). For the reasons set forth below, Defendants' motion is denied in part and entered and continued in part.

BACKGROUND

According to the complaint, Thompson is a trustee of the Thompson Family Trust; his principal place of residence is in Atherton, California.*fn1 Fajerstein is alleged to be a resident of Illinois. FDIC and Antwerp are Illinois corporations with their principal places of business in Illinois.

Thompson and Fajerstein first met in late 2007 in San Francisco. Thompson expressed interest in purchasing a diamond, and Fajerstein told Thompson that he had significant experience in buying diamonds and had previously done so from a diamond exchange in Antwerp, Belgium. He further told Thompson that he did not usually search for specific diamonds for others but would make an exception in Thompson's case.

In late January 2008, Thompson called Fajerstein in Illinois and expressed interest in purchasing an investment-quality diamond weighing 7-8 carats as a Valentine's Day gift for his wife Rhona. He expected the stone to cost around $300,000. Thompson indicated that the diamond purchased could not have a strong blue fluorescence because the color of the jewel was very important to his wife. He informed Fajerstein that the stone found and its actual price were subject to his approval and that the transaction had to be completed before February 14.

Fajerstein responded that he could locate a diamond that conformed to Thompson's specifications within the stated time frame. He informed Thompson that he would need to wire half of the expected purchase price to Fajerstein to commence the search. The next day Thompson wired $150,000 to the account of "Fajerstein Diamond Importers."

A few days into February, Fajerstein called Thompson to inform him that he had found a stone that fit the stated specifications except that it weighed 11, rather than 7 or 8, carats. Fajerstein stated that the total purchase price for the stone was $450,000 and that he would purchase it on Thompson's behalf if he paid the additional $300,000. When Thompson indicated that he would purchase the diamond, Fajerstein instructed him to immediately wire the balance to Fajerstein. Thompson requested that Fajerstein first provide him with a certification of the jewel's properties from the Gemological Institute of America.

When he received the certification, Thompson found that it indicated that the stone had a strong blue fluorescence despite his instructions to Fajerstein that he did not want a diamond with that characteristic. He immediately informed Fajerstein that he would not purchase the diamond. Thompson then took the certification to a jeweler in California, who informed him that the stone described was worth $300,000-$350,000, not $450,000 as Fajerstein had told him.

Thompson then requested that Fajerstein return the $150,000 that had been wired. At first, Fajerstein attempted to convince Thompson that the blue fluorescence could not be seen, so he should purchase the diamond despite its presence. When Thompson persisted in his refusal to purchase the diamond, Fajerstein told him that he had already purchased the diamond and therefore could not return the money that had been wired but said he would look for another stone that would meet the previously stated specifications.

On February 20, Fajerstein agreed to return the $150,000. Fajerstein stated that if Thompson wanted him to wire $50,000 that day, he would do so, but he would charge a "restocking fee" of $15,000. About a week later, Fajerstein agreed to pay the full amount in three monthly installments of $50,000 beginning March 5, 2008. Thompson agreed to the payment plan but had not received any money from Fajerstein as of June 4, when the instant complaint was filed.

Thompson's lawsuit asserts jurisdiction based on diversity and alleges violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of contract, fraud, conversion, money had and received, and unjust enrichment. Defendants now move to dismiss based on jurisdiction, failure to join a necessary party, improper venue, and failure to state cognizable claims.

LEGAL STANDARDS

A. Motion to Dismiss for Lack of Subject ...


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