The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
Thursday, 23 August, 2012 11:21:33 AM
Clerk, U.S. District Court, ILCD
This cause is before the Court on the Motion to Strike Plaintiff's Request for Attorney Fees Pursuant to Federal Rule of Civil Procedure 12(f) (d/e 12) and Motion to Dismiss Count IV of the Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(6) (d/e 13) filed by Defendant American Guard Services, Inc. (AGS). For the reasons that follow, the Motion to Strike Request for Attorney Fees is DENIED and the Motion to Dismiss Count IV of the Complaint is GRANTED.
On March 30, 2012, Plaintiff Simplex, Inc. filed a four-count Complaint based on diversity jurisdiction against Defendants AGS and Global Source One International, Inc. (GSO). See Compl. (d/e 1). The Complaint contains claims arising from a contract to purchase "load banks" from Plaintiff and also alleges fraudulent inducement in the formation of the contract to purchase. See Compl. Specifically, the Complaint alleges that GSO purchased load banks from Plaintiff but failed to pay for them. According to Plaintiff, GSO and AGS are related entities who share common principals and, as part of the condition of sale of the load banks to GSO, AGS agreed to guarantee GSO's debt to Plaintiff. When Plaintiff demanded payment from AGS, AGS failed to pay. Plaintiff further alleges that GSO's and AGS's principals made statements assuring Plaintiff they (the principals) would be responsible for GSO's debt should GSO fail to pay.
Plaintiff brings two claims against AGS: (1) Breach of Contract/Guarantee (Count II); and (2) Fraudulent Inducement (Count IV). In the prayer for relief in Count II, Plaintiff requests attorney fees. Only AGS has been served. See Order of Default (d/e 7) (finding that service had not been perfected on GSO). Although an entry of default judgment was initially entered against AGS, this Court set the entry of default aside on July 17, 2012. See Opinion (d/e 11). AGS has now filed an Answer, Affirmative Defenses, and Cross Claim (d/e 14) and the two motions at issue herein.
A. Motion to Strike Pursuant to Rule 12(f)
AGS requests that the Court strike Plaintiff's request for attorney fees because the purported guarantee documents (Exhibits 4 and 5) do not provide for attorney fees. Plaintiff responds that AGS, by virtue of the guarantee, agreed to the terms and conditions of the transaction itself, including the terms in the two invoices (Exhibit 3) that provide that the purchaser is responsible for all collection costs.
The Cross Corporate Guarantee states that GSO is a subsidiary of AGS, that AGS "will cross guarantee GSO", and that the "account will be set up under GSO." See Exhibit 5. The invoices in question, which identify GSO as the purchaser, provide that "[t]he purchaser will be responsible for all collection costs if this invoice is not paid pursuant to its terms and conditions." See Exhibit 3.
Pursuant to the Federal Rules of Civil Procedure, the Court may "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "[M]otions to strike are not favored and will be denied unless the language in the pleading has no relation to the controversy and is unduly prejudicial." Circuit Sys., Inc. v. Mescalero Sales, Inc., 925 F. Supp. 546, 548 (N.D. Ill. 1996).
The Motion to Strike is denied. Plaintiff's request for attorney fees is not redundant, immaterial, impertinent, or scandalous. Moreover, whether Plaintiff is entitled to attorney fees based on the language in the guarantee and/or invoices is more appropriately decided on a motion for summary judgment. See, e.g., Negro Nest, LLC v. Mid-Northern Mgmt., Inc., 362 Ill. App. 3d 640, 651 (2005) (finding that contract that provided for "all costs of collections," where no evidence was presented on the parties' meaning of the phrase, did not include attorney fees); Cohen v. Continental Illinois Nat. Bank & Trust Co. of Chi., 248 Ill. App. 3d 188, 192 (1993) ("A guarantor is not liable for anything to which ...