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Julin v. Advanced Equities, Inc.

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

April 17, 2015

LISA JULIN, Plaintiff,


JAMES F. HOLDERMAN, District Judge.

On December 19, 2013, plaintiff Lisa Julin ("Julin") filed a form "Complaint for Employment Discrimination" against her former employer, Advanced Equities, Inc. ("AEI"), and its parent company, Advanced Equities Financial Corporation ("AEFC"), alleging that AEI and AEFC discriminated against her based on her sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (Dkt. No. 1.) After numerous delays by Julin and her counsel, the details of which are summarized in this court's November 4, 2014 and December 5, 2014 Memorandum Opinions and Orders (Dkt. Nos. 39, 42), Julin filed a first amended complaint ("Amended Complaint") (Dkt. No. 26 ("Am. Compl.")) naming additional defendants, Jeffery Alan Binkert and Does 1-15, and broadening the Title VII claim from her form complaint into 15 "causes of action": (1) fraud in the inducement; (2) breach of contract - written, oral and implied; (3) intentional interference with contractual rights; (4) interference with prospective economic advantage; (5) violation of the Illinois Wage Payment & Collection Act, 820 ILCS § 115/14 ("IWPCA"); (6) conversion; (7) unjust enrichment; (8) accounting; (9) sex discrimination; (10) violation of the Fair Labor Standards Act and Title VII; (11) sexual harassment; (12) defamation per se; (13) retaliatory discharge; (14) failure to supervise; and (15) respondeat superior.[1]

On November 4, 2014, the court granted AEFC's Rule 12(b)(6) motion to dismiss because Julin failed to allege facts establishing that AEFC was her employer, and granted AEI's Rule 12(b)(5) motion to dismiss because Julin failed to perfect service on an agent or officer of AEI. (Dkt. No. 39.) The court, in an exercise of discretion, extended the deadline for service on AEI until December 31, 2014, which was also the deadline for Julin to serve the additional defendants she named in her Amended Complaint. ( Id. )

On January 12, 2015, seeing no proof of service on any defendant, the court dismissed the case pursuant to Rule 4(m). (Dkt. No. 44.) Approximately five minutes before the clerk docketed the court's order, however, Julin filed a "waiver of the service of summons" executed by AEI on December 15, 2014. (Dkt. No. 43.) Julin provided no explanation for her failure to comply with the court's deadline, as has been her custom throughout this litigation. The court nevertheless reinstated Julin's case against AEI in light of AEI's waiver and ordered AEI to respond to the Amended Complaint by February 3, 2015. (Dkt. No. 45.) Binkert and Does 1-15 remain dismissed from the case and have never been served as far as the court can tell. ( Id. )

On February 3, 2015, AEI moved to dismiss (Dkt. No. 47) the second, fifth through eighth, and eleventh through fifteenth causes of action pursuant to Rule 12(b)(6). AEI's motion does not address Julin's fraud, Title VII, or FLSA claims. For the reasons explained below, AEI's motion to dismiss is granted in part and denied in part.


This matter arises out of Julin's employment and eventual termination by AEI, a venture capital firm specializing in late-stage private equity placements with a focus on the technology sector. (Am. Compl. ¶ 13.) In early 2009, Julin interviewed for a position as an investment advisor on Jeffery Binkert's investment team at AEI. ( Id. ¶ 14.) During four separate interviews, Binkert and other AEI employees told Julin that upon generating $10, 000, 000 in investment revenue, she would: (1) be made equity partner in Binkert's investment team; (2) receive a promotion in title; (3) share in revenues from over 200 team accounts; and (4) receive inherited accounts from departed brokers (collectively, the "Oral Agreement"). ( Id. ¶ 16.) Binkert's assertions during the interviews were "the critical determining factor[s]" in Julin's decision to accept AEI's offer of employment. ( Id. )

On January 23, 2009, following the series of interviews, Julin entered into a written employment contract ("Employment Contract") with AEI. ( Id. ¶ 17.) The Employment Contract entitled Julin to (1) a minimum of 3% commission for investments she generated of $1 million or more; (2) a minimum of 8% commission for investments she generated "in an LLC formed by AEI which invested in any company for which AEI served as a placement agent"; (3) warrants to purchase shares in investee companies; and (4) a share of the "back-end" fees AEI received from investors. ( Id. ¶ 18.) Julin signed the Employment Contract and started work at AEI on February 2, 2009. ( Id. ¶ 19.)

In September 2009, Julin entered into another (presumably written) agreement with AEI specifying the terms of her compensation for investments related to her Fisker Automotive, Inc. account (the "Fisker Contract"). ( Id. ¶ 25.) The Fisker Contract provided that Julin would receive 5% commission for all direct sales of Fisker Series A-1 Convertible Preferred Stock and 10% of all indirect sales of other Fisker securities offered through alternative investment vehicles. ( Id. ¶ 26.)

By April 2012, the relationship between Julin and AEI had soured because of disputes concerning Julin's compensation and a pattern of "discriminatory and unethical conduct" towards her because of her sex. ( Id. ¶¶ 22-51.) The court need not recite the details of Julin's sex discrimination claims here because the pending motion does not seek dismissal of those claims. With regard to her compensation, although Julin generated in excess of $10, 000, 000 in investment revenue for AEI early in tenure at the firm, she never received any of the benefits Binkert and others promised her as part of the Oral Agreement. ( Id. ¶ 92.) AEI also failed to pay Julin a portion of her commissions and expenses in accordance with the terms of her Employment Contract and the Fisker Contract.

On November 15, 2012, AEI terminated Julin's employment as part of a larger layoff. ( Id. ¶¶ 80-81.) On July 11, 2013, Julin filed a charge of discrimination against AEI with the EEOC and received a "right to sue" letter on September 20, 2013. ( Id. ¶¶ 84-85.) On December 19, 2013, exactly 90 days after receiving her right to sue letter, Julin filed this lawsuit. (Dkt. No. 1.)


Before turning to the merits of AEI's motion to dismiss, the court must address the form of Julin's Amended Complaint. The Amended Complaint begins with 85 numbered paragraphs and then states 15 "causes of action, " each of which incorporates the preceding paragraphs and states a single reason why AEI's conduct was wrongful. As the Seventh Circuit stated more than twenty years ago, "[p]utting each legal theory in a separate count is a throwback to code pleading, perhaps all the way back to the forms of action; in both, legal theory and facts together created a cause of action.' The [Federal] Rules of Civil Procedure divorced the factual from legal aspects of the claim and replaced the cause of action' with claim for relief' to signify the difference." N.A.A.C.P. v. American Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir. 1992) (citing Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992)). Here, Julin has not even bothered to follow Rule 10(b)'s instruction to plead using "counts"; instead she styles her Amended Complaint using the "causes of action" that truly have no place in a federal pleading.

To avoid further delaying a case that has already languished for far too long-Julin filed her original complaint in December of 2013-the court will address the pending motion to dismiss without requiring Julin to bring her Amended Complaint into compliance with the Federal Rules of Civil Procedure. The court will not, however, waste its resources addressing each additional legal theory seeking the same recovery sought in earlier "causes of action": "[o]ne set of facts producing one ...

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