The opinion of the court was delivered by: George W. Lindberg Senior U.S. District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Donald Glazer, Kevin McClellan, Daniel Mosley and Evan Stein, individually and on behalf of a putative class, filed an eight-count Fourth Amended Complaint ("amended complaint") against four named defendants, Abercrombie & Kent, Inc. ("A&K"), Geoffrey Kent ("Kent"), Andrew Harper ("Harper"), and Andrew Harper Travel, Inc. ("Harper, Inc."). Plaintiffs also included a fifth defendant identified as "John Doe a/k/a/ Andrew Harper."
Defendants A&K, Kent, Harper and Harper, Inc. (collectively "defendants") move this Court to dismiss the new allegations in the amended complaint. Specifically, defendants move to dismiss plaintiffs' estoppel claim (Count VI), their claim for a breach of a guaranty based on joint venture and third-party beneficiary theories of liability, and plaintiffs' negligent failure to monitor claim. For the reasons set forth more fully below, the defendants' motions to dismiss are granted.
The allegations in the amended complaint stem from plaintiffs' memberships in a destination club known as "Andrew Harper's Distinctive Retreats, a Destination Club by Abercrombie & Kent" ("club"). Each of the plaintiffs paid $392,000 or more for a membership in the club. Plaintiffs claim that their memberships constituted securities, namely bonds, and were purchased in reliance upon a combination of non-disclosures and materially false and misleading statements by defendants. As a result of those non-disclosures and materially false and misleading statements, plaintiffs claim that they erroneously believed that the club was owned and operated by A&K, instead of the actual owner, Tanner & Haley. Further, plaintiffs claim that the false and misleading statements caused their club memberships to be significantly overvalued at the time of purchase, ultimately causing plaintiffs significant monetary losses when Tanner & Haley filed for bankruptcy in 2006.
Three of plaintiffs' new theories of liability in the amended complaint relate to a trademark licensing agreement*fn1 ("licensing agreement") between A&K and the club. The purpose of the licensing agreement was to set terms for the club's use of A&K's name and trademark. The licensing agreement is a standard contract that outlines parameters for the club's use of A&K's name and mark and provides A&K with certain rights that it can exercise to preserve and protect its name and mark and certain goodwill associated therewith.
A. Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) permits motions to dismiss a complaint for "failure to state a claim upon which relief can be granted. . ." FED. R. CIV. P. 12(b)(6). To survive a Rule 12(b)(6) motion, "the complaint need only contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Equal Employment Opportunity Comm'n v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)(citation omitted). The language in Rule 12(b)(6) "impose[s] two easy to clear hurdles. First, the complaint must describe the claim in sufficient detail to give the defendant 'fair notice of what the ... claim is and the grounds upon which it rests.' Second, its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'; if they do not, the plaintiff pleads itself out of court." Id. (citations omitted). In determining whether plaintiffs have cleared these hurdles, the Court assumes "that all the allegations in the complaint are true." Jennings v. Auto Meter Prods., Inc., 495 F.3d 466 (7th Cir. 2007) (citations omitted).
Defendants assert that Illinois law governs the state law claims at issue in the pending motions to dismiss. Plaintiffs do not take a position on what laws govern their state law claims, but cite only to Illinois law in their response brief to defendants' motions to dismiss. Because no party suggests that the law of a state other than Illinois should apply, Illinois law applies by default. See ECHO, Inc. v. Whitson Co., 52 F.3d 702, 707 (7th Cir. 1995).
C. Specific Counts in the Amended ...