Name of Assigned Judge Judge Zagel Sitting Judge if Other or Magistrate Judge than Assigned Judge
Defendant's Motion to Dismiss Count I of the Second Amended Complaint  is GRANTED, with prejudice. The motion as to Count II is DENIED. The motion as to Count IV is GRANTED, without prejudice.
Before me is Plaintiff's Second Amended Complaint ("SAC"). The core allegation is, in essence, failure to pay for services rendered. The initial complaint alleged four specific counts: 1) breach of contract; 2) promissory estoppel; 3) quantum meruit; and 4) fraud. I dismissed that complaint in full, with leave to amend, in an order dated December 9, 2009. Plaintiffs then filed an amended complaint attempting to cure the deficiencies I noted in the first three counts. They have presently abandoned the fraud count. I dismissed the amended complaint in full as well on April 6, 2010, but again gave leave to amend.
In the SAC, Plaintiffs re-allege the same first three counts of breach of contract, promissory estoppel and quantum meruit, all in the alternative. Plaintiffs also add a new theory of unjust enrichment. Defendant moves to have Counts I, II, and IV dismissed with prejudice. I grant Defendant's motion as to Count I, deny it as to Count II, and grant it as to Count IV but give leave for Plaintiffs to attempt to cure that count.
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint, and not the underlying factual merits. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). I must take all facts alleged in Plaintiffs' complaint as true and draw all reasonable inferences from those facts in favor of Plaintiffs. Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). Plaintiffs need not plead particularized facts, but the factual allegations in the complaint must be enough to raise a right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007). Plaintiffs must plead their facts so that, when accepted as true, they show the plausibility of their claim for relief. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). In short, a complaint under Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id.
At the other end of the sufficiency spectrum, a complaint may say too much. That is, Plaintiffs may "plead themselves out of court by alleging facts that establish defendants' entitlement to prevail." Bennett v. Schmidt, 153 F.3d 516 (7th Cir. 1998).
A. Count I - Breach of Contract
Count I remains deficient because it fails to allege definite and certain terms as required by Illinois law. See Association Ben. Services, Inc. v. Caremark RX, Inc., 493 F.3d 841, 850 (7th Cir. 2007). ("No contract exists under Illinois law, and, indeed, under principles of general law, if the agreement lacks definite and certain terms; nor is a contract formed by an offer that itself lacks definite and certain material terms and does not require such terms to be supplied by an acceptance.") As I described in my last order dismissing this claim, the complaint baldly asserts that "Beginning April 2007, (the parties) entered into a contractual agreement." Even as alleged, the contract at issue is a verbal one, so I am left to examine the Plaintiffs' SAC for the terms. It is clear that the only term that was even hinted at at the time the contract was supposedly formed was an agreement "that Defendant would compensate Plaintiffs for their service in an amount consistent with the custom and practice in the industry for consulting and/or brokering services." The only description of Plaintiffs' responsibilities comes in the form of their recounting the actions they actually undertook in the period after April 2007. But recounting what Plaintiffs actually did after the contract was supposedly formed does not help in ...