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Calabrese v. Pastorello

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

April 22, 2015

FRANK L. CALABRESE, Plaintiff,
v.
JOHN PASTORELLO, Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS M. DURKIN, District Judge.

Frank L. Calabrese, an attorney representing himself and a resident of Illinois, alleges that John Pastorello ("Pastorello"), a resident of California, tortiously interfered with Calabrese's attorney-client contract and business relationships with two former clients in violation of Illinois law. See R. 1-2. Pastorello removed this case from state court based on diversity jurisdiction because Calabrese alleges $50, 000 in damages for each count of his three count complaint. See R. 1. Pastorello has filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See R. 23. For the following reasons, Pastorello's motion is granted.

Legal Standard

A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with "fair notice" of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "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.'" Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.

Background

Since 2008 and 2006 respectively, Calabrese provided legal advice to Mariano Pastorello ("Mariano")[1] and to Mariano's business Milano Flor Mount Square, Inc., ("Milano"), both pursuant to verbal agreements. R. 1-2 at 2 (¶¶ 3-4). Calabrese also served on Milano's board of directors since January 2009. Id. at 6 (¶ 30).

Mariano became ill in May 2013, and passed away on June 21, 2013. Id. at 2-3 ¶¶ 4-6. When Mariano became ill he gave power of attorney over his personal and business affairs to Pastorello. See R. 24-2.[2] This gave Pastorello control of Milano since Mariano was the company's sole shareholder. See R. 24-1. On June 7, 2013, two weeks before Mariano died, Pastorello signed-on behalf of Mariano and Milano-an "Engagement Agreement" with Calabrese to provide legal advice to Mariano and Milano. See R. 1-2 at 8-9. After Mariano died, Pastorello was named executor of Mariano's estate. See R. 24-3.[3] Pastorello continued to give legal work to Calabrese through at least June 26, 2014. See R. 27-1.

On July 8, 2014, Pastorello was served with a complaint Calabrese filed against Pastorello as executor of Mariano's estate in Los Angeles Superior Court on June 17, 2014, see R. 27-1 at 2, titled "Complaint of Breach of Oral Contract to Make a Will." See R. 1-2 at 3 (¶ 11); R. 24-5. On September 27, 2014, Pastorello sent Calabrese a letter stating that Calabrese had been "removed from the Board of Directors of Milano... by the duly adopted resolution of the sole Shareholder, and... removed as an Officer of the corporation by resolutions duly adopted by the newly constituted Board of Directors." R. 1-2 at 12. Pastorello, who signed the letter as Milano's "President, " also stated, "I hereby remove you as the corporation's attorney." Id.

Calabrese alleges that Pastorello (1) tortiously interfered with Calabrese's engagement agreement with Milano when Pastorello terminated that agreement (Count I); tortiously interfered with Calabrese's advantageous business relationship with Milano when Pastorello terminated that agreement (Count II); and (3) tortiously interfered with Calabrese's advantageous business relationship with Milano when Pastorello removed him as an officer and director (Count III).[4] Calabrese alleges that "Pastorello's interference was intentional and unjustified, " R. 1-2 at 5 (¶ 28), and "willful, wanton, [and] knowing and in response to... [the] lawsuit [Calabrese] filed against... Pastorello." Id. at 4 (¶ 17). Calabrese also alleges that he "has suffered damages in that he no longer is allowed to represent Milano, " id. at 5 (¶ 27), and "he no longer is allowed to participate in decisions affecting the business of Milano." Id. at 4 (¶ 37). In his brief, Calabrese also contends that he "has suffered damages in that he is not allowed to participate in the Medical Health Reimbursement Plan he drafted." R. 27 at 10 (¶ 42).

Analysis

Pastorello makes the following arguments in support of his motion to dismiss: (1) Calabrese's agreements with Milano were at-will, and their cancellation is not a sufficient basis to state a claim for tortious interference with contract; (2) Pastorello did not act with "actual malice" in cancelling Calabrese's engagement agreement; and (3) Calabrese did not suffer damages by being removed as a Milano director.

Count I: Tortious Interference with Contract

Calabrese "does not dispute" that the "relationship between an attorney and client is terminable at will." R. 27 at 3. He contends instead that "Pastorello is not the client, and has never been [Calabrese's] client, " id., apparently in an effort to argue that Pastorello did not have the authority to terminate Calabrese's engagement agreement with Milano. But the question of who had the authority to terminate Calabrese's engagement agreement with Milano is beside the point. Calabrese cannot allege a breach of his engagement agreement because it was terminable at will. See Cody v. Harris, 409 F.3d 853, 859 (7th Cir. 2005) ("A major deficiency in Cody's complaint is that he cannot plead facts to show a breach of... contract, because the [agreements at issue] were terminable at will. Under Illinois law, a defendant's inducement of the cancellation of an at-will contract constitutes at most interference with a prospective economic advantage, not interference with contractual relations."). Since the agreement could be terminated at will, Calabrese did not have an enforceable contractual right for the agreement to continue. Without a continuing contractual right, causing the agreement to end cannot constitute interference with the contract. See Prudential Ins. Co. of Am. v. Sipula, 776 F.2d 157, 162 (7th Cir. 1985) ("An extended discussion of [tortious interference with contractual relations] is unnecessary, however, because an essential element, i.e., [the defendant's] inducement of a ...


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