Name of Assigned Judge Judge Zagel Sitting Judge if Other or Magistrate Judge than Assigned Judge
Counter Defendant's motion to dismiss counterclaim  is granted.
Counter Defendant Stadheim & Grear, Ltd. now moves to dismiss the counterclaim filed against it by counter Plaintiff Premier Networks, Inc. ("PNI"). For the following reasons, PNI's counterclaim is dismissed.
On May 29, 2003, this court granted summary judgment against PNI in litigation over an alleged patent infringement. PNI appealed this decision, but the Federal Circuit affirmed on March 22, 2004.
PNI first filed an action for legal malpractice against the Firm in state court on May 27, 2005. The Firm filed a counterclaim for unpaid expenses. PNI voluntarily dismissed that case acknowledging that the state court lacked subject matter jurisdiction.
It was only on July 15, 2010 that PNI filed an action against the Firm in federal court. On December 13, 2010, Judge Bucklo dismissed PNI's complaint with prejudice because PNI's claims were time barred by the two-year statute of limitation. The Firm then, on January 27, 2011, filed a single count complaint for breach of contract against PNI and its principals for unpaid expenses incurred by the Firm in pursuing the underlying patent action infringement litigation on PNI's behalf. In response, PNI filed its Answer and the counterclaim which is the subject of this motion.
The gravamen of PNI's counterclaim alleges that summary judgment was entered against it because the Firm "simply failed to present to the trial court evidence" of the alleged infringement.
The Firm seeks dismissal on two grounds: (1) untimeliness pursuant to 735 ILCS 5/13-214.3( c) (2007), and (2) pursuant to Fed. R. Civ. P. 12(b)(6). Sections 5/13-214.3 (b) and (c) provide:
(b) An action for damages based on tort, contract or otherwise against an attorney arising out of an act or omission . . . must be commenced within two years .
(c) An action described in subsection (b) may not be commenced in any event more than 6 years after the date on ...