United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
L. ELLIS, UNITED STATES DISTRICT JUDGE
performing legal work for Lupin Pharmaceuticals, Inc.
(“Lupin USA”) and Lupin, Ltd. (“Lupin
India”) in 2009 and not getting paid for the entirety
of its work, Plaintiff Blanchard & Associates
(“Blanchard”) filed suit in 2016 against Lupin
USA and Lupin India for breach of contract and unjust
enrichment. Lupin USA moves to dismiss the amended complaint.
Because both the breach of contract and unjust enrichment
claims accrued in 2009 and are subject to a five-year statute
of limitations, the Court dismisses the amended complaint as
USA and Lupin India, related pharmaceutical companies
headquartered in Maryland and India respectively, sought
approval from the Food and Drug Administration
(“FDA”) for a generic birth control drug to be
sold in the United States. For help with the approval process,
they turned to Blanchard, a law firm that formerly operated
in Cook County, Illinois. Blanchard communicated directly
with Sofia Mumtaz, who held herself out as an authorized
agent of both Lupin USA and Lupin India. Blanchard provided
Mumtaz with an engagement letter in March 2009, which set out
the terms of the parties' agreement. The letter is
addressed to Mumtaz at “Lupin Research Park” in
India and refers only to Lupin without differentiating
between Lupin USA and Lupin India. Doc. 8 at 7. In exchange
for payment on an hourly basis, Blanchard agreed to provide
legal services in connection with patent reviews and validity
for the generic birth control drug.
Mumtaz did not sign the engagement letter, Blanchard
proceeded to provide legal work as directed by Mumtaz and
submitted invoices for those services directly to her.
Blanchard received $29, 475 for its initial work and $60, 522
for additional work it performed under the agreement. But
$120, 835 in fees from invoices dated October 31, 2009,
remain outstanding. The engagement letter provides that
payments are due within thirty days of the issuance of an
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, not its merits. Fed.R.Civ.P.
12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion
to dismiss, the Court accepts as true all well-pleaded facts
in the plaintiff's complaint and draws all reasonable
inferences from those facts in the plaintiff's favor.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint
must not only provide the defendant with fair notice of a
claim's basis but must also be facially plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). “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.” Iqbal, 556 U.S.
Breach of Contract (Count I)
USA first argues that Blanchard has improperly named it as a
party to the lawsuit because Lupin USA has never entered into
an agreement or done business with Blanchard. For support,
Lupin USA relies on the affidavit of its Vice President of
Legal Affairs, Sean Moriarty, but the Court cannot consider
this affidavit because it falls outside the pleadings and the
Court refuses to convert the motion to dismiss to a motion
for summary judgment. See Fed. R. Civ. P. 12(d);
Hecker, 556 F.3d at 582-83. Additionally, Lupin USA
asks that the Court ignore Blanchard's allegations that
Mumtaz held herself out as an authorized agent of both Lupin
USA and Lupin India, arguing that this allegation is merely a
legal conclusion. The Court cannot ignore this allegation at
this stage, however, particularly where the agreement is
addressed to Mumtaz at “Lupin Research Park” and
only generally refers to “Lupin” without
differentiating between Lupin USA and Lupin India. Doc. 8 at
7. Blanchard also alleges that Lupin USA and Lupin India
operated as a joint enterprise at the time to obtain FDA
approval for a generic birth control drug and engaged
Blanchard to provide legal services to help them do so, which
suggested to Blanchard that its client was both Lupin USA and
Lupin India. At this stage, the Court must accept
Blanchard's allegations as true and draw all inferences
in its favor. AnchorBank, FSB, 649 F.3d at 614.
Doing so means that Lupin USA must stay in the case until
further development of the facts establish the party or
parties with whom Blanchard contracted.
Lupin USA argues that the Court must dismiss the breach of
contract claim because Blanchard has not alleged the
existence of a valid and enforceable contract. To establish
the existence of a contract, Blanchard must demonstrate an
offer, acceptance, and consideration. Trapani Constr. Co.
v. Elliot Grp., Inc., 64 N.E.3d 132, 143, 2016 IL App
(1st) 143734, 407 Ill.Dec. 754 (2016). Lupin USA contends
that because the agreement attached to the amended complaint
has no signature by someone representing Lupin USA or Lupin
India, Blanchard cannot establish that Lupin USA or Lupin
India assented to the contract. A contract, however, can be
written or implied in fact, with acceptance in an implied in
fact contract “proven by circumstances demonstrating
that the parties intended to contract and by the general
course of dealing between the parties.” Id.;
see also Landmark Props., Inc. v. Architects
Int'l-Chicago, 526 N.E.2d 603, 606, 172 Ill.App.3d
379, 122 Ill.Dec. 344 (1988) (“It is well settled that
a party named in a contract may, by his acts and conduct,
indicate his assent to its terms and become bound by its
provisions even though he has not signed it.”). Here,
Blanchard has alleged sufficient facts to suggest that the
parties' conduct created a binding contract. Blanchard
alleges that it performed legal services pursuant to the
agreement and submitted invoices for those services directly
to Mumtaz, who acted as an agent for both Lupin USA and Lupin
India. The invoices include notations of correspondence with
Mumtaz, indicating that Mumtaz knew of and accepted
Blanchard's work. Moreover, Blanchard alleges that two of
its invoices were paid, again suggesting that Lupin USA and
Lupin India intended to be bound by the agreement, despite
the fact that it was never signed. See Trapani Constr.
Co., 64 N.E.3d at 143 (evidence that defendant paid
plaintiff for work on other project under unsigned draft
contracts suggested a course of dealing and mutual intent to
contract). At this stage, Blanchard has sufficiently alleged
the existence of a contract.
Lupin USA argues that should the Court find that Blanchard
has sufficiently alleged a contract, it should be deemed an
oral contract subject to a five-year statute of limitations.
The statute of limitations is an affirmative defense that
need not be anticipated in the complaint in order to survive
a motion to dismiss. United States v. Lewis, 411
F.3d 838, 842 (7th Cir. 2005). But that is not the case where
“the allegations of the complaint itself set forth
everything necessary to satisfy the affirmative defense, such
as when a complaint plainly reveals that an action is
untimely under the governing statute of limitations.”
Id.; see also Brooks v. Ross, 578 F.3d 574,
579 (7th Cir. 2009) (considering statute of limitations
defense on motion to dismiss where relevant dates were set
forth in the complaint). Blanchard acknowledges in its
amended complaint and response to the motion to dismiss that
Lupin USA and Lupin India indicated their assent to the
contract by their conduct, subjecting its breach of contract
claim to a five-year statute of limitations. See 735
Ill. Comp. stat. 5/13-205 (five-year statute of limitations
applies to “actions on unwritten contracts, expressed
or implied”); see also Ramirez v. AP Account
Servs., LLC, No. 16-cv-2772, 2017 WL 25179, at *3 (N.D.
Ill. Jan. 3, 2017) (a contract is considered an oral contract
for statute of limitations purposes where parol evidence is
necessary to determine the essential terms of the contract or
the parties to it); Dawson v. W. & H. Voortman,
Ltd., 853 F.Supp. 1038, 1046 (N.D. Ill. 1994) (applying
five-year statute of limitations to implied in fact breach of
contract claim). The statute of limitations begins to run on
the date of the breach. Dawson, 853 F.Supp. at 1046.
Here, Blanchard seeks to collect on invoices dated October
31, 2009 for which payment was due within thirty days (by
November 30, 2009). This means the statute began to run on
December 1, 2009. This action, filed on August 4, 2016, falls
outside the five-year statute of limitations and so the Court
must dismiss the breach of contract claim.
Unjust Enrichment (Count II)
the breach of contract claim, Lupin USA argues that the
statute of limitations has run on Blanchard's unjust
enrichment claim. Unjust enrichment claims in Illinois are
also governed by a five-year statute of limitations.
See 735 Ill. Comp. Stat. 5/13-205; Mann v.
Thomas Place, L.P., 976 N.E.2d 554, 557, 2012 IL App
(1st) 110625, 364 Ill.Dec. 276 (2012). Blanchard pleads that
the claim accrued on October 11, 2011, when Lupin USA and
Lupin India launched the generic drug for which Blanchard did
the related legal work. But Blanchard's unjust enrichment
claim accrued earlier, at the time Blanchard completed its
legal work for Lupin USA and Lupin India at the end of
October 2009 and Blanchard did not receive payment. See
Rubin & Norris, LLC v. Panzarella, 51 N.E.3d 879,
893, 2016 IL App (1st) 141315, 402 Ill.Dec. 127 (2016) (cause
of action accrues on “the date the services have been
completed”). It was at that time that Lupin USA and
Lupin India unjustly retained the benefit of Blanchard's
services, not later when they ultimately launched the generic
drug. Additionally, the fact that Blanchard may have had
ongoing communications with Lupin USA or Lupin India since
November 2009 concerning payment does not affect the accrual
date where Blanchard seeks to recover the amounts reflected
in its October 31, 2009 invoices. See Schmidt v.
Desser, 401 N.E.2d 1299, ...