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Burke v. 401 N. Wabash Venture

July 28, 2009

MICHAEL BURKE, PLAINTIFF,
v.
401 N. WABASH VENTURE, LLC, DEFENDANT.



The opinion of the court was delivered by: George M. Marovich United States District Judge

Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiff Michael Burke ("Burke") filed a purported class-action complaint against defendant 401 N. Wabash Venture, LLC. (the "developer"). Defendant has moved to dismiss. For the reasons set forth below, the Court grants defendant's motion.

I. Background

For purposes of this motion to dismiss, the Court takes as true the allegations in plaintiff's complaint. The Court also considers the documents plaintiff attached to his complaint. See Fed.R.Civ.P. 10(c).

Plaintiff Burke wants his deposit back for a condominium unit he agreed to purchase but on which he failed to close. Defendant 401 N. Wabash, LLC developed a building at 401 N. Wabash in Chicago. The building includes several hundred condominium units, which defendant ventured to sell.

In or about December 2006, plaintiff Burke entered a purchase agreement with defendant for the purchase of unit 31K and two parking spaces. Plaintiff paid an earnest money deposit of 25% of the more than $2,000,000.00 purchase price.

On or about August 5, 2008, defendant set a closing date of August 7, 2008. Defendant also provided Burke a copy of the condominium's Declaration and a copy of a Special Amendment to the Declaration. The Special Amendment stated that a sixth floor of parking had been added to the building. Plaintiff asserts that defendant had previously made a material misrepresentation with respect to the number of parking spaces that would be included in the building. Plaintiff asserts that the inclusion of an additional floor of parking reduced the value of his parking spaces and increased the amount of maintenance fees he would be required to pay.

Plaintiff refused to close on the unit. Defendant refused to return his earnest money deposit, based on a liquidated damages clause in the purchase agreement. Plaintiff filed three claims against defendant, and defendant moves to dismiss.

II. Standard on a Motion to Dismiss

The Court may dismiss a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. McCullah v. Gadert, 344 F.3d 655, 657 (7th Cir. 2003). Under the notice-pleading requirements of the Federal Rules of Civil Procedure, a complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not provide detailed factual allegations, but mere conclusions and a "formulaic recitation of the elements of a cause of action" will not suffice. Bell Atlantic, 127 S.Ct. at 1964-1965. A complaint must include enough factual allegations to "raise a right to relief above a speculative level." Bell Atlantic, 127 S.Ct. at 1965. "After Bell Atlantic, it is no longer sufficient for a complaint 'to avoid foreclosing possible bases for relief; it must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level.'" Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (quoting Equal Employment Opportunity Comm'n v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)).

III. Discussion

A federal court must always assure itself that it has jurisdiction over a claim before it. Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 381 (7th Cir. 2001). "The party invoking jurisdiction bears the burden of establishing [jurisdiction] . . . with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Life, 504 U.S. 555, 561 (1992). In their complaint, plaintiff asserts that this Court has jurisdiction pursuant to the Class Action Fairness Act.

Under the Class Action Fairness Act, this Court has jurisdiction over civil class actions where the amount in controversy is greater than $5,000,000.00 and "any member of a class of plaintiffs is . . . a citizen or subject of ...


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