United States District Court, N.D. Illinois, Eastern Division
Peter T. Dvorak, Plaintiff,
Granite Creek GP Flexcap I, LLC; Mark A. Radzik; and Peter Lehman, Defendants.
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin, United States District Judge.
Dvorak alleges that Defendants improperly sold and declared
to be forfeited Dvorak's partnership interest in Granite
Creek Flexcap I LP (the “Partnership”).
Previously, the Court dismissed five of the six counts in the
complaint as barred by the Illinois “one refiling rule,
” 735 ILCS 5/13-217. See R. 29 (Dvorak v.
Granite Creek, 2017 WL 714159 (N.D. Ill. Feb. 23,
2017)). The remaining Count V alleges negligence against Mark
Radzik, the managing partner of the LLC that is the general
partner of the Partnership. Radzik moves to dismiss Count V
as untimely. R. 31. For the following reasons, that motion is
became a limited partner in the Partnership on August 25,
2005. R. 11 ¶ 11. Pursuant to the Partnership agreement,
he contributed $1.05 million of capital beginning in about
June 2006 and continuing through September 2007. Id.
¶ 12. At the same time, on June 29, 2006, Dvorak
borrowed $558, 041.10 from Radzik, memorialized by two
promissory notes. Id. ¶¶ 70-71.
two years later, on July 29, 2008, Radzik sent Dvorak a
letter notifying him of an additional capital contribution
requirement by the Partnership of $750, 000 that was due by
August 19, 2008. Id. ¶ 74. About a week after
that on August 8, 2008, Dvorak executed promissory note,
amending and consolidating the promissory notes from 2006,
promising to pay Radzik personally $750, 000 three days later
on August 11, 2018. Id. ¶¶ 72-73.
also advised Dvorak that if he could only pay one of these
two $750, 000 obligations, he should pay on the note to
Radzik rather than the contribution required by the
Partnership. Id. ¶ 78. Dvorak alleges that this
advice was “negligent” because it “served
the best interest of Radzik, individually, and failed to
serve the best interest of Mr. Dvorak, as a limited partner
of [the Partnership].” Id. ¶ 80. Dvorak
alleges further that Radzik's advice violated his
“duty to act in good faith and in the best interest of
Mr. Dvorak.” Id. ¶ 76.
failure to pay the contribution to the Partnership caused him
to be in default under the Partnership agreement. Count V
also alleges that Dvorak's default led Radzik (as
Managing Partner of the Partnership) to take the following
• offering Dvorak's shares for sale to other limited
partners on December 19, 2008;
• distributing and re-allocating funds from Dvorak's
capital account to other limited partners on or about
February 24, 2009; August 19, 2010; and October 23, 2011;
• declaring forfeited Dvorak's partnership interest,
including his capital account on May 20, 2015; and
• thereafter removing Dvorak as a limited partner.
Id. ¶¶ 82-83.
filed this complaint on October 24, 2016, see R. 1,
with the following counts: Count I for breach of contract
against the LLC (that is the General Partner of the
Partnership) and Radzik; Count II for breach of fiduciary
duty against the LLC; Count III for a declaratory judgment
that any obligations Dvorak had to the Partnership were
discharged in bankruptcy; Count IV for a declaratory judgment
that Dvorak's partnership interest has not been
diminished or forfeited; Count V for negligence against
Radzik; and Count VI for negligent misrepresentation against
the LLC and Peter Lehman (another member of the LLC).
See R. 11. The Court dismissed Counts I, II, III,
IV, and VI as precluded by the Illinois “one filing
rule.” See R. 29 (Dvorak, 2017 WL
714159). In other words, because Dvorak had twice previously
filed and voluntarily dismissed those claims, he is now
barred from pursuing them in a third complaint. Specifically,
the Court held that the “one filing rule” worked
to bar Dvorak's claims for breaches of contractual and
fiduciary duties related to Dvorak's relationship with
the Partnership. See R. 29 at 12-14
(Dvorak, 2017 WL 714159, at *5-6). The Court also
held, however, that to the extent Dvorak's negligence
claim against Radzik (Count V) alleged ...