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Custom Blending and Packaging of St. Louis, LLC v. Moser

April 15, 2009

CUSTOM BLENDING AND PACKAGING OF ST. LOUIS, LLC, PLAINTIFF,
v.
STEVEN MOSER, JR., STEVEN MOSER, SR., DAC INDUSTRIES, INC., AND DAC AEROSOL & LIQUID FILL, INC., DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM and ORDER

I. Introduction and Background

Pending before the Court are three motions to dismiss filed by Defendants (Docs. 14, 19 & 21). Plaintiff filed a joint response to all of the motions (Doc. 29). Based on the following, the Court grants in part and denies in part Defendants DAC Industries, Inc. and DAC Aerosol & Liquid Fill, Inc.'s motion to dismiss (Doc. 14); the Court denies Defendant Steven Moser, Jr.'s motion to dismiss (Doc. 19); and the Court grants in part and denies in part Defendant Steven Moser, Sr.'s motion to dismiss (Doc. 21).

On August 18, 2009, Custom Blending and Packaging of St. Louis, LLC ("Custom Blending") filed suit against Steven Moser, Jr., Steven Moser, Sr., DAC Industries, Inc. ("DAC, Inc.") and DAC Aerosol & Liquid Fill, Inc. ("DAC Aerosol") (Doc. 1). On August 28, 2008, the Court dismissed without prejudice Custom Blending's complaint with leave to amend to address/cure the deficiencies the Court found when it conducted its routine jurisdictional review (Doc. 3). Thereafter, on September 5, 2008, Custom Blending filed its Amended Complaint (Doc. 4). The Amended Complaint contains seven counts: Count I - breach of fiduciary duty; Count II - defamation; Count III - tortious interference with business expectancy; Count IV -tortious interference with contract; Count V - violation of the Illinois Trade Secrets Act ("ITSA"); Count VI - Conspiracy - Civil; and Count VII - injunctive relief.

II. Motion to Dismiss Standard

When ruling on a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court must look to the complaint to determine whether it satisfies the threshold pleading requirements under Federal Rule of Civil Procedure 8. Rule 8 states that a complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief. " FED. R.CIV.P.8(a)(2). In 2007, the Supreme Court held that Rule 8 requires that a complaint allege "enough facts to state a claim to relief that is plausible on its face" to survive a Rule 12(b)(6) motion. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). In other words, the Supreme Court explained it was "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief'" by providing "more than labels and conclusions," because "a formulaic recitation of the elements of a cause of action will not do...." Id. at 1964-65 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). The Seventh Circuit has read the Bell Atlanticdecision to impose "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.

E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citations omitted).

In Tamayo v. Blagojevich, the Seventh Circuit emphasized that even though Bell Atlantic"retooled federal pleading standards" and "retired the oft-quoted Conley formulation," notice pleading is still all that is required. 526 F.3d 1074, 1083 (7th Cir. 2008). "A plaintiff still must provide only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief." Id.; Accord Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008)( "surviving a Rule 12(b)(6) motion requires more than labels and conclusions"; the allegations "must be enough to raise a right to relief above the speculative level").

In making this assessment, the District Court accepts as true all well- pled factual allegations and draws all reasonable inferences in plaintiff's favor. Tricontinental Industries, Inc., Ltd. v. Price WaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.), cert. denied, --- U.S. ----, 128 S.Ct. 357, 169 L.Ed.2d 34 (2007); Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006); Corcoran v. Chicago Park District, 875 F.2d 609, 611 (7th Cir. 1989).

III. Analysis

Count I -- Breach of Fiduciary Duty

Under Illinois law a cause of action for breach of fiduciary duty "must allege that (1) a fiduciary duty exists; (2) the fiduciary duty was breached; and (3) such breach proximately caused the injury of which the plaintiff complains." Cwikla v. Sheir, 801 N.E.2d 1103, 1111 (Ill. App. 2003); Prime Leasing, Inc. v. Kendig, 773 N.E.2d 84, 96 (Ill. App. 2002).

Defendants DAC, Inc., DAC Aerosol, and Moser, Sr. all move to dismiss this Count. First, Defendants DAC, Inc. and DAC Aerosol argue that the pleadings do not contain allegations of breach of fiduciary duty by them. In response Custom Blending acknowledges that it has not stated claims of breach of fiduciary duty against these Defendants. Thus, the Court grants ...


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