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Blu Perspective, LLC v. D & D Tooling & Manufacturing, Inc.

United States District Court, N.D. Illinois, Eastern Division

February 28, 2014



JOHN F. GRADY, District Judge.

Before the court is defendant's motion to dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), which is granted for the reasons explained below.


Plaintiff, Blu Perspective L.L.C. ("Blu"), brings this action against defendant, D & D Tooling and Manufacturing, Inc. ("D & D"), for breach of contract and unjust enrichment. Blu describes itself as a "consulting and specialty services corporation" that provides a variety of services, including "sorting and containment project work." (First Am. Compl. ¶ 8.) It explains that "sorting' refers to the act of physically sorting, from a large volume of individual items or parts, those that are conforming to the customer specifications and those that are not, " and that "containment' refers to the act of physically separating conforming and non-conforming items or parts, in order to identify and separate commercially salable items from those that are problematic or defective." (First Am. Compl. ¶¶ 10-11.)

Plaintiff's allegations are generally as follows. "[A]t some point in time, " D & D entered into a contract to supply seat-belt brackets to Johnson Controls, Inc. ("Johnson"), an auto-parts maker that is not a party to this case. (First Am. Compl. ¶¶ 18.) In March 2012, Johnson told D & D that it had found a number of defects in the brackets, and it ordered "immediate inspection of all brackets supplied by D & D." Johnson then contacted Blu, "and with the knowledge and consent of D & D, instructed Blu to mobilize to [Johnson's] facilities to perform... a containment and sort' project." (First Am. Compl. ¶¶ 25, 27-28.) In April 2012, "Blu provided D & D with cost estimates for the seat belt containment project, and a PO was issued by D & D for that project." (First Am. Compl. ¶ 31.)

It is further alleged that Blu's "initial estimates about the scope of the project" were "ultimately super[s]eded by the project needs... thus expanding the initial scope of the project." (First Am. Compl. ¶ 40.) Blu inspected more than 200, 000 parts "with the knowledge, consent and participation of employees at both [Johnson] and D & D." (First Am. Compl. ¶¶ 44-45.) Although Blu performed "all services requested and necessitated by the project, " and D & D "voluntarily paid for several invoices" that Blu issued to D & D in mid-2012, D & D "has failed and refused to pay Blu" for several outstanding invoices. (First Am. Compl. ¶¶ 49, 53-54, 63.) Blu seeks compensatory damages in the amount of $103, 980.13.

Count I of the First Amended Complaint is a claim for breach of oral contract. Count II alleges breach of contract implied in fact. Count III is an unjust enrichment claim. D & D moves to dismiss the First Amended Complaint for failure to state a claim.


The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed. 2004). To survive such a motion, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.' 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." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 556 (2007)). Although we must accept as true all factual allegations in the complaint, we need not accept as true its legal conclusions. Iqbal , 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . (citing Twombly , 550 U.S. at 555).

The Court of Appeals for the Seventh Circuit has addressed the "plausibility" standard as follows:

The Court said in Iqbal that the "plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." This is a little unclear because plausibility, probability, and possibility overlap. Probability runs the gamut from a zero likelihood to a certainty. What is impossible has a zero likelihood of occurring and what is plausible has a moderately high likelihood of occurring. The fact that the allegations undergirding a claim could be true is no longer enough to save a complaint from being dismissed; the complaint must establish a nonnegligible probability that the claim is valid; but the probability need not be as great as such terms as "preponderance of the evidence" connote.

In re Text Messaging Antitrust Litig. , 630 F.3d 622, 629 (7th Cir. 2010) (citation omitted). In Swanson v. Citibank, N.A. , 614 F.3d 400, 404 (7th Cir. 2010), the Seventh Circuit provided this guidance: "[T]he plaintiff must give enough details about the subject-matter of the case to present a story that holds together."

A. Count I (Breach of Oral Contract)

Under Illinois law, [1] "a plaintiff looking to state a colorable breach of contract claim must allege four elements: (1) the existence of a valid and enforceable contract; (2) substantial performance by the plaintiff; (3) a breach by the defendant; and (4) resultant damages." Reger Dev., LLC v. Nat'l City Bank , 592 F.3d 759, 764 (7th Cir. 2010) (internal quotation marks omitted) (citing W.W. Vincent & Co. v. First Colony Life Ins. Co. , 814 N.E.2d 960, 967 (Ill.App.Ct. 2004)). "For an oral contract to exist, the parties must have had a meeting of the minds with respect to the terms of the agreement and must have intended to be bound to the oral agreement." Podolsky v. Alma Energy Corp. , 143 F.3d 364, 369 (7th Cir. 1998); see also Leavell v. Dep't of Natural Res. , 923 N.E.2d 829, 841 (Ill.App.Ct. 2010) ("Oral agreements are binding so long as there is an offer, an acceptance, and a ...

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