United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT W. GETTLEMAN, District Judge.
Plaintiff National Painting, Inc. filed a two-count first amended complaint against defendants PPG Architectural Finishes, Inc. and PPG Industries, Inc., alleging breach of contract (Count I) and common law fraud and misrepresentation (Count II). On January 20, 2015, defendants filed the instant motion to dismiss Count II and to strike plaintiff's request for attorney's fees. For the reasons discussed below, the court grants defendants' motion.
In June 2009, plaintiff, a painting contractor, contracted to perform interior painting and finishing services for a residential building (the "Building") in the City of Chicago. In December 2009, plaintiff inquired with defendants, which manufacturer and sell paint, about buying a "flat interior paint with superior touch up and durability" for the project. Plaintiff claims that one of defendants' sales representatives recommended a new, more expensive product ("GLB Paint") than the paint it had originally requested, stating that the new paint "had outstanding touch up and durability." On December 28, 2009, defendants communicated to plaintiff and Building representatives that "all of its materials conform to the standards specified regarding performance and utility in painting the Building." Thereafter, in January 2010, plaintiff purchased GLB Paint from defendants.
Plaintiff alleges that "[a]fter using the GLB Paint on multiple floors" in the Building, it "learned that the outstanding touch up and durability' of the GLB Paint was an issue." According to plaintiff, the "GLB paint was not touching up as was represented to and as required by [plaintiff]." Plaintiff claims that defendants' sales representative "acknowledged that there was an issue with the appearance of the walls [in the Building] after using GLB paint and [the paint] not touching up at the Building." Plaintiff alleges that "[o]n multiple occasions in February of 2010, " it met with defendants' sales representative and the sales representative's supervisor "regarding the use of GLB Paint." Plaintiff claims that "[i]n their conversations at the Building, and in subsequent meetings thereafter, [the sales representative and supervisor] implored that [plaintiff] continue to use GLB Paint and other products manufactured by Defendants at the Building and, in exchange, promised and agreed to pay all costs incurred by [plaintiff], including labor and materials, to repaint all rooms previously painted with GLB Paint."
Plaintiff alleges that based on these "mutually exchanged promises, " it "continued using Defendants' products, including new batches of GLB Paint in the Building... and repainted all rooms previously painted and incurred substantial costs as a result." On June 6, 2010, plaintiff presented defendants with an invoice for $82, 450.77 for the materials and labor incurred in repainting numerous rooms in the Building. Plaintiff alleges that in violation of their oral agreement, defendants refused to pay the bill.
I. Legal Standard
When ruling on a motion to dismiss for failure to state a claim, the court accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor. Sprint Spectrum L.P. v. City of Carmel, Indiana, 361 F.3d 998, 1001 (7th Cir. 2004). The pleading must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds on which the claim rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations must plausibly suggest that the plaintiff has a right to relief, raising the possibility above the "speculative level." Id.
This standard demands that a complaint allege more than legal conclusions or "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "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." Id.
A. Motion to Dismiss
Defendants argue that Count II of plaintiff's first amended complaint should be dismissed pursuant to Rule 12(b)(6) because the two statements that are the basis for the claim are not actionable as fraud under Illinois law. "Fraud has been said to comprise anything calculated to deceive" and "may consist of a single act or combination of circumstances, suppression of truth or suggestion of what is false, direct falsehood or innuendo, speech or silence, look or gesture." Russow v. Bobola, 2 Ill.App.3d 837, 841 (Ill.App.2d Dist. 1972). The elements of common law fraud are: (1) a false statement of material fact; (2) defendant's knowledge that the statement was false; (3) defendant's intent that the statement induce the plaintiff to act; (4) plaintiff's reliance on the statement; and (5) plaintiff's damages resulting from reliance on the statement. Connick v. Suzuki Motor Co., 174 Ill.2d 482, 496 (1996).
Defendants contend that the allegedly fraudulent statement - that the GLB Paint "had outstanding touch up and durability, " made by defendants' sales representative - is a subjective statement of opinion relating to the quality of a product. According to defendants, "[t]he Illinois Supreme Court has concluded that a seller's statement as to the degree of quality of its product, the truth or falsity of which cannot be precisely determined, is not actionable as fraud." Defendants argue that the sales representative's statement "is ...