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Cheese Depot, Inc. v. Sirob Imports, Inc.

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

November 17, 2016

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

          MEMORANDUM AND ORDER

          Joan B. Gottschall United States District Judge

         In its second amended complaint, Cheese Depot. Inc. (“Cheese Depot”)[1] brings a breach-of-contract claim against Sirob Imports, Inc. under an agreement referred to here for identification purposes as the Chicago Agreement. (“Sirob”). The court summarized the parties' allegations and the procedural background of this case in its order entered October 18, 2016. (See ECF No. 57 at 1-3.)

         The court must resolve the balance of Sirob's third motion to dismiss under Federal Rule of Civil Procedure 12. Two questions raised by the motion remain outstanding: whether the second amended complaint fails to state a claim upon which relief can be granted in light of the declaration of Nick Boboris (“Boboris”) dated January 5, 2016, (ECF No. 48-3) and whether Sirob has carried its burden to show that Cheese Depot failed to join a party required by Federal Rule of Civil Procedure 19. For the reasons that follow, the court answers both questions in the negative and denies the outstanding requests for relief in the motion to dismiss.

         Failure to State a Claim

         Though Sirob renews its motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted, it points to no defect in the second amended complaint itself. (See Mem. Supp. 3d Mot. Dismiss 8-9.) Instead, Sirob rests its Rule 12(b)(6) motion on the proposition that “[t]he portion of the Agreement that Plaintiff is seeking to enforce-for the sale and purchase of [John] Lavaditis' 75% interest in the Romania [sic] company, which owns the business at issue-is between Boboris and Livaditis individually.” (Id. at 9.) Cheese Depot does not so plead, and the court has already addressed this argument based on the documents Cheese Depot attached to its complaints. In the motion presently before the court, Sirob goes beyond the documents attached to the complaint. It cites one piece of evidence to show that it is entitled to relief under Rule 12(b)(6): Boboris' declaration dated January 5, 2016, which is attached as Exhibit Two to its motion to dismiss. (Id.)

         The court declines to convert Sirob's Rule 12(b)(6) motion to a motion for summary judgment and therefore excludes Boboris' declaration. When a Rule 12(b)(6) motion is filed and “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56[, and] [a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). As Sirob notes, materials “to which the Complaint . . . refer[s]” may nevertheless be considered on a Rule 12(b)(6) motion, provided that the material is “concededly authentic and . . . central to the plaintiffs' claim.” Santana v. Cook Cty. Bd. of Review, 679 F.3d 614, 619 (7th Cir. 2012) (quoting Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir. 2009) (alteration omitted). Exhibits attached to a complaint may also be considered at the Rule 12(b)(6) stage without starting summary judgment proceedings because “[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.” Fed.R.Civ.P. 10(c); see, e.g., Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. and Nw. Ind., 786 F.3d 510, 529 (7th Cir. 2015) (quoting Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 556 (7th Cir.2012)); Knafel v. Chi. Sun-Times, Inc., 413 F.3d 637, 640 (7th Cir. 2005) (considering newspaper column attached to complaint pleading defamation claim).

         Cheese Depot did not attach Boboris' declaration dated January 5, 2016, to its second amended complaint. Nor does the second amended complaint reference that declaration. No discovery has occurred in this case, despite its age. So regardless of whether the instant motion is converted to a summary judgment motion, Cheese Depot will need an opportunity to conduct discovery on the issues raised by Boboris' declaration. See Fed. R. Civ. P. 12(d). Therefore, “allowing Defendants to proceed on a motion for summary judgment at this juncture is premature, as Plaintiff has not had the opportunity to engage fully in discovery, ” and the court declines to complicate these proceedings further by converting the instant motion. Baker v. Lakin, No. 3:15-CV-600-JPG-DGW, 2016 WL 1696804, at *3 (S.D. Ill. Apr. 5, 2016) (declining to convert Rule 12(b)(6) motion for this reason among others).

         Failure to Join a Necessary Party

         Sirob also contends that John Livaditis and S.C. Lacto Baneasa are necessary parties that must be joined under a Rule 19(a) and (b) analysis. Sirob's request for dismissal on this ground falls procedurally under Federal Rule of Civil Procedure 12(b)(7). As on a Rule 12(b)(6) motion, the court accepts the complaint's allegations as true when deciding a Rule 12(b)(7) motion. Rotec Indus., Inc. v. Aecon Grp., Inc., 436 F.Supp.2d 931, 933 (N.D. Ill. 2006) (citations omitted). Unlike on a Rule 12(b)(6) motion, however, “a court may consider matters outside of the pleadings to resolve factual questions pertaining to jurisdiction, process, or indispensable parties.” Deb v. SIRVA, Inc., 832 F.3d 800, 809 (7th Cir. 2016) (citing English v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993)). Nevertheless, the court must “resolve[] any ‘conflicts in the affidavits and depositions submitted by the parties . . . in favor of the plaintiff.'” Davis Cos. v. Emerald Casino, Inc., 268 F.3d 477, 483 (7th Cir. 2001) (quoting Deluxe Ice Cream Co. v. R.C.H. Tool Corp., 726 F.2d 1209, 1215 (7th Cir. 1984)) (ellipsis in original). Applying these standards to the instant motion, Sirob has not carried its burden to show that Cheese Depot failed to join a party required by Rule 19(a)(1).

         First, by conceding that S.C. Lacto Baneasa is not subject to service of process, Sirob fails to carry its burden as to that proposed party. Rule 19(a)(1) provides as follows:

(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in ...

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