United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Robert Blakey United States District Judge.
case involves a complex telecommunications dispute between,
among others, Plaintiff Inteliquent and Defendants Free
Conferencing, HD Tandem, and Carrier X. Free Conferencing, HD
Tandem, and Carrier X filed a third amended counterclaim in
February 2018, asserting five counts against Inteliquent and
Matthew Carter, formerly Inteliquent's President and
Chief Executive Officer. . Inteliquent moved to dismiss
two of the counts. . For the reasons explained below,
this Court grants Inteliquent's motion.
Court presumes familiarity with, and incorporates by
reference, its prior opinion partially granting
Inteliquent's motion to dismiss the second amended
counterclaim. . Thus, this opinion omits a background
counterclaim must meet the same standard as a complaint to
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). See Cozzi Iron & Metal, Inc. v.
U.S. Office Equip., Inc., 250 F.3d 570, 574 (7th Cir.
2001). Thus, a counterclaim must provide a “short and
plain statement of the claim” showing that the pleader
merits relief, Fed.R.Civ.P. 8(a)(2), so the defendant has
“fair notice” of the claim “and the grounds
upon which it rests, ” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). A counterclaim must
also contain “sufficient factual matter” to state
a facially plausible claim-one that “allows the court
to draw the reasonable inference” that the defendant
committed the alleged misconduct. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). This plausibility standard “asks for more than
a sheer possibility that a defendant has acted
unlawfully.” Williamson v. Curran, 714 F.3d
432, 436 (7th Cir. 2013).
evaluating a counterclaim on a Rule 12(b)(6) motion, this
Court accepts all well-pleaded allegations as true and draws
all reasonable inferences in the counterclaimant's favor.
Iqbal, 556 U.S. at 678. This Court does not,
however, accept legal conclusions as true. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). On a motion to
dismiss, this Court may consider the counterclaim itself,
documents attached to the counterclaim, documents central to
the counterclaim and to which the counterclaim refers, and
information properly subject to judicial notice. See
Williamson, 714 F.3d at 436.
Count II: Unjust Enrichment
II claims that Inteliquent unjustly enriched itself by
accepting HD Tandem's voice termination services without
paying for them.  ¶¶ 141-46. Inteliquent
argues that this claim fails because an express contract
governed its relationship with HD Tandem.  at 4-5.
Illinois law, an unjust enrichment claim fails when
“the claim rests on the breach of an express
contract.” Shaw v. Hyatt Int'l Corp., 461
F.3d 899, 902 (7th Cir. 2006) (citing Guinn v. Hoskins
Chevrolet, 826 N.E.2d 681, 704 (Ill. 2005)). Even if the
claimant pleads unjust enrichment in the alternative, the
claim “necessarily fails” if the parties do not
dispute the existence and validity of a contract between
them. Hickman v. Wells Fargo Bank N.A., 683
F.Supp.2d 779, 797 (N.D. Ill. 2010) (applying Illinois law
and dismissing a similar claim with prejudice).
Inteliquent and HD Tandem agree that a valid, enforceable
contract- the Master Services Agreement (MSA)-governed how HD
Tandem provided voice termination services to Inteliquent.
See [315-1] at 412 (MSA attached to
Inteliquent's third amended complaint as an exhibit);
 ¶ 36 n.1 (the third amended counterclaim directs
this Court to Inteliquent's MSA exhibit). Because the
parties had a valid, enforceable contract, this Court
dismisses Count II with prejudice. See Hickman, 683
F.Supp.2d at 797.
Count V: Fraudulent Concealment
claims that, during a February 2016 meeting of senior
managers from Inteliquent and Free Conferencing, Inteliquent
concealed certain information about “fraudulent
routing” that it used to slow down Free
Conferencing's network.  ¶¶ 167-74.
Inteliquent allegedly concealed this information despite
knowing that Free Conferencing expected, pursuant to the
parties' Master Addendum, that Inteliquent would
cooperate to discover the source of the routing issues
plaguing Free Conferencing's network. Id.
Inteliquent argues that this claim fails because Inteliquent
had no duty to disclose that information, and the alleged
wrongdoing falls within the counterclaim for breach of
contract.  at 6-7.
state a claim for fraudulent concealment under Illinois law,
a claimant must allege, among other things, that a party
concealed a material fact while under a duty to disclose that
fact to the claimant. See Connick v. Suzuki Motor Co.,
Ltd., 675 N.E.2d 584, 593 (Ill. 1996). Ordinarily, such
a duty arises from a fiduciary or “special trust”
relationship between the parties. See Wigod v. Wells
Fargo Bank, N.A., 673 F.3d 547, 570 (7th Cir. 2012).
Illinois courts also recognize, however, that silence during
a business transaction-when accompanied by deceptive conduct
or suppression of material facts-creates a duty to disclose.
See Henderson Square Condo. Ass'n v. LAB Townhomes,
L.L.C., 1 ...