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ISB Development Corp. v. Kopko

July 1, 2010


The opinion of the court was delivered by: David H. Coar United States District Judge



Plaintiff ISB Development Corporation ("ISB" or "Plaintiff") brings an action against Defendants Edward Kopko and Frederick Kopko (collectively "the Kopkos" or "Defendants") for breach of contract and a declaratory judgment on Defendants' obligation to authorize a loan repayment. Before the Court is Defendants' motion to dismiss. For the reasons stated below, the motion is DENIED.

I. Background

ISB alleges the following facts. The Kopkos were President and Chief Executive Officer of Butler International, Inc. ("Butler") until March 2009. In 2006, Butler required additional capital to fund its operations. In November of 2006, ISB and the Kopkos formed a partnership by the name of SFE Partners ("the Partnership") for the purpose of providing capital to Butler.

ISB loaned $4,000,000 to the Partnership for the purchase of 4,000 shares of Series A Preferred Stock in Butler, in addition to warrants to purchase 1,000,000 shares of Butler common stock. The terms of the ISB loan were memorialized in a Partnership Agreement and a promissory note, both executed in Illinois and attached as exhibits to the complaint. Under both documents, ISB is entitled to demand repayment of the loan on 60 days notice at any time after September 30, 2008.

The Partnership has made three payments on the ISB loan, for a total of $288,438.36. Pursuant to the express terms of the promissory note, this sum was applied to accrued and unpaid interest. On October 1, 2008, ISB sent the Kopkos written notice demanding full repayment of the loan within 60 days. The Kopkos did not take any action in response to the demand letter. ISB followed up with two written notices of default, which went unanswered. Currently, ISB is owed $4,000,000 in principal plus interest, which continues to accrue at a rate of 10% per annum.

II. Standard of Review

A complaint's factual allegations must suggest a plausible, rather than merely speculative, entitlement to relief. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, (2007). When ruling on a motion to dismiss, the court generally considers only the well-pleaded allegations of a complaint, construed in the light most favorable to the plaintiff. Tamayo, 526 F.3d at 1081. However, contracts attached as exhibits may also be considered when ruling on a motion to dismiss. See INEOS Polymers, Inc. v. BASF Catalysts, 553 F.3d 491, 498 (7th Cir. 2009); Centers v. Centennial Mortg., Inc., 398 F.3d 930, 933 (7th Cir. 2005);Fed. R. Civ. P. 10(c). Where the terms of an attached contract conflict with the plaintiff's allegations, the contract controls. See Rosenblum v. Ltd., 299 F.3d 657, 661 (7th Cir. 2002) ("The court is not bound to accept the pleader's allegations as to the effect of the exhibit, but can independently examine the document and form its own conclusions as to the proper construction and meaning to be given the material.") (quoting 5 Wright & Miller, Federal Practice & Procedure: Civil 2d § 1327 at 766 (1990)); Ogden Martin Sys. of Indianapolis, Inc. v. Whiting Corp., 179 F.3d 523, 529 (7th Cir. 1999) ("[A] plaintiff may plead himself out of court by attaching documents to the complaint that indicate that he or she is not entitled to judgment.") (internal citations omitted).

III. Analysis

ISB sues the Kopkos individually for breach of the Partnership Agreement and a declaratory judgment affirming Defendants' obligation to authorize repayment of the loan. ISB prays for the following relief: (i) a finding that the Kopkos breached the Agreement, causing damages equal to the Partnership's indebted amount (allegedly $4,532,602.74); (ii) an order directing the Kopkos to sell the preferred shares and warrants or make capital contributions to the Partnership for repayment of the loan and its accrued interest, and (iii) a declaration that the Kopkos have a duty to cause the Partnership to repay the outstanding balance on the ISB loan.

A. Indispensable Party

At issue is whether the Partnership, whose joinder would destroy diversity jurisdiction, is an indispensable party to this lawsuit. An unincorporated association is considered a citizen of every state where any of its partners or members is a citizen. See Meyerson v. Harrah's East Chicago Casino, 299 F.3d 616, 617 (citing Carden v. Arkoma Associates, 494 U.S. 185 (1990)).

For the purposes of diversity, the Partnership shares identity of citizenship with ISB and the Kopkos. Its inclusion would compel the Court to ...

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