RICHARD MILLS, District Judge.
Pending before the Court is the Motion under Rule 12(b)(6) of Plaintiff Design Ideas, LTD., to Dismiss [d/e 18] Defendant Seville Classics Inc.'s Third Counterclaim.
Plaintiff Design Ideas, LTD. ("Design Ideas") moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for the dismissal of the Third Counterclaim of Defendant Seville Classic, Inc. ("Seville"). The text of the Third Counterclaim is as follows:
45. Seville realleges and incorporates by reference the allegations of paragraphs 1-44 of this Answer, Affirmative Defenses and Counterclaims.
46. During February and March of 2011, Seville and Design Ideas entered into settlement discussions regarding Seville's alleged infringement of U.S. Patent Nos. D501, 105, D632, 080 and 7, 428, 976.
47. Upon information and belief, Design Ideas was contemplating litigation against Seville relating to the 841 patent during February and March of 2011 and intentionally concealed this material fact with an intent to deceive Seville during the parties' settlement discussions. Design Ideas was under a duty to disclose this material fact to Seville.
48. As a result of Design Idea's fraudulent concealment, Seville and Design Ideas entered into a settlement agreement on or about March 2011, and designed, developed and sold the allegedly infringing Generation 2 product. Seville has suffered damages as a result of Design Idea's fraud, including but not limited to, litigation costs and development and manufacturing costs.
See Doc. No. 7, at 10-11. Thus, Seville's Third Counterclaim purports to allege a claim for fraudulent concealment.
Design Ideas is engaged in the business of designing, manufacturing, and distributing a range of unique, esthetically pleasing office and household goods made of metal mesh. According to the Complaint, Seville manufactures and imports consumer products to retailers like Defendant Bed, Bath & Beyond, Inc. ("BBB"). Seville admits that it has sold metal mesh baskets and frame products to BBB. Design Ideas' Complaint is based on the alleged infringement of its U.S. Patent No. D450, 481 ("the 481 patent") entitled "Mesh Baskets and Frames" by Seville and BBB.
Seville's Third Counterclaim is premised on a March 2011 Settlement Agreement between Seville and Design Ideas. Although the Settlement Agreement is not attached to Design Ideas' Complaint, it is attached to the Memorandum in support of the instant motion.
Paragraph 7 of the Settlement Agreement provides, "This agreement shall be governed by and construed in accordance with the substantive laws of the State of Illinois without regard to choice of law rules."
Paragraph 47 of Seville's Third Counterclaim alleges, on information and belief that during the parties' settlement discussions, Design Ideas was contemplating litigation against Seville pertaining to the 481 patent, which forms the basis of Design Ideas' claims in this case, and intentionally concealed this material fact with the intent to deceive. Paragraph 47 further provides that Design Ideas had a duty to disclose this material fact to Seville. Design Ideas disputes Seville's conclusion.
Design Ideas contends that Seville has pled no facts which create a duty of disclosure by Design Ideas. The patent numbers in the Third Counterclaim and in paragraph 1.2 of the Settlement Agreement are different from the 481 patent, which is the subject of ...