United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. Gottschall, United States District Judge
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
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.
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.
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”).
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 ...