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Cheese Depot Inc. v. Sirob Imports Inc.

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

October 18, 2016

CHEESE DEPOT, INC., Plaintiff,
v.
SIROB IMPORTS, INC. Defendant.

          MEMORANDUM OPINION AND ORDER

          Joan B. Gottschall, United States District Judge

         In its second amended complaint, Plaintiff Cheese Depot, Inc. (“Cheese Depot”) brings a claim for breach of an alleged contract dated July 24, 2007. Defendant Sirob Imports, Inc. (“Sirob”) moves to dismiss under Federal Rules of Civil Procedure 12(b)(3) and (6) for improper venue and failure to state a claim upon which relief can be granted. For the following reasons, the court denies the motion in part, finding that Sirob has waived its newly raised factual argument for Rule 12(b)(3) purposes. Because there are questions about Cheese Depot's corporate status with the Illinois Secretary of State, the court does not reach the balance of the motion and sets this case for a status conference.

         I. Background

         The instant motion marks Sirob's third request to dismiss under Rules 12(b)(3) and (6). The previous two motions attacked Cheese Depot's original and first amended complaints respectively. The court denied the first motion (ECF No. 23 at 11), and after the parties agreed to a motion for more definite statement, Cheese Depot amended its complaint. The court granted the second motion to dismiss in part and denied it in part; the court gave Cheese Depot an opportunity to amend its complaint “only to correct issues regarding the correct plaintiff.” (ECF No. 44.) After Cheese Depot again amended its complaint, Sirob filed the instant motion.

         As only Cheese Depot's contentions about the identity of a party to the Chicago Agreement have changed, the court briefly recounts the allegations in the complaint in the light most favorable to Cheese Depot. See Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013). Cheese Depot and Sirob manufacture and distribute cheese. Cheese Depot alleges that Sirob breached an agreement dated July 24, 2007, for the sale of certain property and equipment located in Romania (“the Chicago Agreement”). That agreement, which is attached to and incorporated in Cheese Depot's Second Amended Complaint, reads in its entirety:

This agreement, made in Chicago, Illinois, July 24, 2007[, ] is between Nick Boboris and John Livaditis. In this agreement Nick Boboris, President, DBA Sirob Imports, 21 Gear Avenue, Lindenhurst, NY 11757[, ] is referred to as NB. John Livaditis, Director, DBA Lacto Baneasa, Cheese Factory, 16 E. Old Willow Road, Prospect Heights, IL, 60070, who has the power to enter into contracts on behalf of Cheese Factory, [is] referred to as JL.
JL agrees to sell to NB 75% of the Lacto Baneasa building and equipment for $810, 000.00 with a $10, 000.00 down payment on signing of the contract. The balance is to be paid within 8 years with 7% interest. Interest only payments will start on January 1, 2008. The principal balance will be reduced by $30, 000.00 annually by December 31st each year with the balance due on September 1, 2015[, ] or sooner.
INVENTORY:
NB will buy the inventory of the 2007 season; estimated amount is 85, 000 kg of Feta and 5, 000 kg of Hard Cheese. After he checks the quality at the factory, he will make a commitment to buy it or not to buy. Also all the new plastic containers ordered for the season 2008 will pay cost. The price of the Feta will be $3.85 per kg. plus shipping costs. The price of the Hard Cheese will be $4.85 per kg. plus shipping costs. The terms for the inventory will be 120 days, paying weekly, as he collects money for sales.
SIROB IMPORTS, INC. CHEESE FACTORY
Accepted by: Accepted by:
Nick Boboris, President John Livaditis

(ECF No. 45 Ex. A.) The Chicago Agreement apparently bears ink signatures of John Livaditis (“Livaditis”) and Nick Boboris (“Boboris”).

         In its Second Amended Complaint, Cheese Depot alleges that the Chicago Agreement mistakenly identified it as “Cheese Factory.” (ECF No. 45 ¶ 8.) According to the complaint, the parties exchanged correspondence related to the Chicago Agreement on “Cheese Depot, Inc.” letterhead; Sirob made all of its payments under the Chicago Agreement to Cheese Depot; and Livaditis has ...


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