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Pilot v. Focus Retail Property I

July 19, 2010

SIDNEY I. AND RUTH L. PILOT, AS CO-TRUSTEES ON BEHALF OF THE SIDNEY I. AND RUTH L. PILOT TRUST PLAINTIFFS,
v.
FOCUS RETAIL PROPERTY I, LLC, ET. AL. DEFENDANTS.



The opinion of the court was delivered by: Wayne R. Andersen District Judge

MEMORANDUM, OPINION AND ORDER

This case is before the court on Defendants' motions to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motions are granted in part and denied in part.

BACKGROUND

Plaintiffs Sidney I. and Ruth L. Pilot ("Plaintiffs" or the "Pilots"), co-trustees on behalf of The Sidney I. and Ruth L. Pilot Family Trust, filed an eight count complaint against defendants Focused Retail Property I, LLC, David M. Drew, Focused Sanford, LLC, Focused Sanford Property II, LLC, Martin H. Graff, Martin J. Goldman, Graff-Goldman Interests, Inc., M.J. Goldman & Company, Ltd, GDG Management, LLC, M.H. Graff & Associates, Inc., Drew Holdings, Inc., and Austin Management Associates, Inc. (collectively, "Defendants").

The Pilots contend that they were misled in their decision to invest in certain defendants' shopping centers and were subsequently denied the proceeds of those investments. The complaint alleges that they relied upon the investment advice of defendant Drew, who, in conjunction with the other defendants, guaranteed the Pilots certain returns on the River Run, Cedartown, and South Side Plaza shopping centers for a set number of years. Ultimately, the Pilots claim, the returns were neither as lucrative nor as protracted as expected, and they include the following counts in their complaint: Accounting (Counts I and II), Breach of Fiduciary Duty (Counts III and IV), Conversion (Counts V and VI), Fraud (Count VII), and Professional Negligence (Count VIII).

Defendants filed two motions to dismiss on December 30, 2009.

STANDARD OF REVIEW

In order to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1940 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1940 (citing Twombly, 550 U.S. at 556). The complaint must be construed in a light favorable to the plaintiff and the court must accept all material facts alleged in the complaint as true. Jackson v. E.J. Branch Corp., 176 F.3d 971, 978 (7th Cir. 1999). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of a cause of action, supported by mere conclusory statements do not suffice." Iqbal, 129 S.Ct. at 1940 (citing Twombly, 550 U.S. at 555).

Additionally, a complaint must describe the claim with sufficient detail as to "give the defendants fair notice of what the...claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint does not need to set forth all relevant facts or recite the law. Rather, all that is required is "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a); see also Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996).

DISCUSSION

I. Counts I & II: Accounting

The Pilots claim that Defendants owe them an accounting due to a breach of fiduciary duty. As an equitable remedy, an action for accounting requires "the absence of an adequate remedy at law and one of the following: (1) a breach of a fiduciary relationship between the parties; (2) a need for discovery; (3) fraud; or (4) the existence of mutual accounts which are of a complex nature". People ex rel. Hartigan v. Candy Club, 149 Ill. App. 3d 498, 500 (Ill. App. Ct. 1st Dist. 1986).

It is not yet certain at this stage of the pleadings whether a remedy at law would be adequate. If the Pilots are indeed owed additional returns from the investments, and those funds have been dispersed or comingled with parallel entities as Plaintiffs may be suggesting, an accounting might be appropriate. See ABM Marking, Inc. v. Zanasi Fratelli, S.R.L., 353 F.3d 541 (7th Cir. Ill. 2003) (poor record-keeping of owed royalties was appropriate grounds to grant an accounting as evidence was lacking to provide a remedy at law).

Furthermore, the Pilots need not exhaust their remedies at law before turning to the equitable remedy of accounting. When the basis of the claim lies in a breach of fiduciary duty, as the Pilots here allege, courts have recognized exceptions to the traditional accounting requirement that equitable recovery is only permitted if there is no remedy at law. See People ex rel. Hartigan v. Candy Club, 149 Ill. App. 3d 498, 500 (Ill. App. Ct. 1st Dist. 1986); Mann v. Kemper Fin. Cos., 247 Ill. App. 3d 966 (Ill. App. Ct. 1st Dist. ...


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