Ace v. Marn, No. 06 C 5335, 2007 WL 1541747 (N.D. Ill. Apr. 17, 2007) (St. Eve, J.).
Judge St. Eve granted in part and denied in part plaintiff/counterdefendant Ace Hardware Corp.’s ("Ace") Fed. R. Civ. P. 12(b)(6) motion to dismiss defendants/counter-plaintiffs’ (collectively "Marn") counterclaims. The Court denied the motion as to Marn’s breach of contract claim and dismissed Marn’s fraud and tortious interference claims. Ace and Marn entered an agreement (the "Agreement") allowing Marn the right to use certain Ace trademarks and to purchase product for resale from Ace. Marn alleged that Ace and its representatives breached the Agreement, made numerous misrepresentations leading up to the signing of the Agreement and failed to provide promised inventory. Ace argued that Marn’s breach of contract claim should be dismissed because it did not identify a specific provision of the Agreement that was breached, citing several Northern District cases. But noted that each of Marn’s cases came down before the Seventh Circuit’s decision in Kolupa v. Roselle Park Dist., 438 F.3d 713, (7th Cir. 2006). In Kolupa the Seventh Circuit explained the Rule 8(a)(2) requirements:
[i]t is enough to name the plaintiff and the defendant, state the nature of the grievance, and give a few tidbits (such as the date) that will let the defendant investigate. . . . Any district judge (for that matter, any defendant) tempted to write "this complaint is deficient because it does not contain …" should stop and think: What rule of law requires a complaint to contain that allegation? Any decision declaring "this complaint is deficient because it does not allege X" is a candidate for summary reversal, unless X is on the list in Fed. R. Civ. P. 9(b).
Kolupa at 714-15 (emphasis in original). Based upon the Kolupa decision the Court held that Marn was not required to cite a specific breached section of the Agreement.
The Court dismissed, with leave to amend, Marn’s fraud claim because it failed to identify the specific Ace individuals that allegedly made the material false statements or where the statements were made. The Court dismissed Marn’s tortious interference claim because Ace is a party to the Agreement and, therefore, cannot tortiously interfere with the Agreement.