United States District Court, E.D. Wisconsin
ORDER DENYING MOTION FOR LEAVE TO FILE A SURREPLY
(DOC. 38), DENYING MOTION TO STRIKE SURREPLY (DOC. 39),
DENYING MOTION TO DISMISS (DOC. 16) AND RETURNING THIS CASE
TO THE CLERK FOR REASSIGNMENT
CLEVERT, JR. U.S. DISTRICT JUDGE.
International Corporation filed this lawsuit in the Circuit
Court of Cook County, Illinois, alleging three claims of
breach of contract and account-state and quantum-meruit
claims as alternatives for each of the contract claims.
Broan-Nu Tone LLC removed the case to the Northern District
of Illinois based on diversity jurisdiction. In addition to
answering the complaint, Broan filed a counterclaim. The case
was then transferred to this court.
has moved to dismiss Broan's counterclaim under
Fed.R.Civ.P. 12(b)(6) or in the alternative to require a more
definite statement under Fed.R.Civ.P. 12(e). Eastco contends
in its motion that Broan's counterclaim fails to specify
the basis for an alleged contract between the parties, what
specific acts breached such contract, and which contract
terms or acts gave rise to claimed damages. Eastco contends
in its motion that if Broan is basing its counterclaim on a
2008 Supply Agreement, that agreement by its terms terminated
reply brief on the motion to dismiss, Eastco raised a new
argument-that if Broan was basing its counterclaim on terms
from a URL/website, that those terms were rejected by Eastco
as shown in two documents-an email and an unsigned letter,
both of which Eastco attached to its brief. Broan has moved
for leave to file a surreply regarding this new argument.
After the time passed for responding to the motion for leave
to file a surreply, Eastco moved to strike that motion.
the motion for leave to file a surreply (or alternatively to
strike certain portions of the reply) and the motion to
strike the surreply will be denied. The documents attached to
the reply brief (and the corresponding argument) are excluded
by the court on its own under Fed.R.Civ.P. 12(d). The
documents are outside the pleadings and the court will not
convert the Rule 12(b)(6) motion into a summary judgment
motion. Because the court will not consider the documents and
related argument at all in deciding the Rule 12(b)(6) motion,
the surreply (and the alternative motion to strike portions
of the reply) is unnecessary. And the motion to strike the
surreply is moot.
the merits of the motion to dismiss, a motion to dismiss
under Rule 12(b)(6) challenges the sufficiency of the
complaint to state a claim upon which relief may be granted.
See Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) requires
a plaintiff to clear two hurdles. EEOC v. Concentra
Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007).
First, the complaint must describe the claim in sufficient
detail to give a defendant fair notice of the claim and the
grounds on which it rests. Id. Although specific
facts are not necessary, “at some point the factual
detail in a complaint may be so sketchy that the complaint
does not provide the type of notice of the claim to which the
defendant is entitled under Rule 8.” Airborne
Beepers & Video, Inc. v. AT&T Mobility LLC, 499
F.3d 663, 667 (7th Cir. 2007). Second, the complaint must set
forth a claim that is plausible on its face. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
1974 (2007); St. John's United Church of Christ v.
City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007). The
“allegations must plausibly suggest that the plaintiff
has a right to relief, raising that possibility above a
‘speculative level'; if they do not, the plaintiff
pleads itself out of court.” EEOC, 496 F.3d at
776 (citing Bell Atl. Corp., 550 U.S. at 555-56, 569
n.14 (2007)). When considering a Rule 12(b)(6) motion, the
court must construe the complaint in the light most favorable
to the plaintiff, accepting as true all well-pleaded facts
and drawing all possible inferences in the plaintiff's
favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081
(7th Cir. 2008).
Rule of Civil Procedure 12(e) allows a party to move for a
more definite statement before filing an answer if the
complaint "is so vague or ambiguous that the party
cannot reasonably prepare a response." The motion must
point out the defects complained of and the details desired.
Fed.R.Civ.P. 12(e). A Rule 12(e) motion is disfavored and is
not a substitute for discovery. Coleman v. Majestic Star
Casino, LLC, No. 2:11-CV-391-PPS-PRC, 2012 WL 1424396,
*1 (N.D. Ind. Apr. 24, 2012).
parties agree that a claim of breach of contract requires
allegations that (1) a contract existed between the parties,
(2) the plaintiff performed its obligations under the
contract, (3) the defendant breached its obligations under
the contract, and (4) the plaintiff suffered damages as a
result. (Doc. 17 at 3; Doc. 33 at 2-3.)
contends that the counterclaim fails to allege what contract
exists between the parties. However, Broan asserts that after
expiration of a Supply Agreement between the parties, Eastco
continued to supply products to Broan based on purchase
orders from Broan. Those purchase orders were either the same
form as used while the Supply Agreement was in effect or a
different form beginning in November 2014 that incorporated
terms from Broan's website. And through Eastco's
acceptance of the purchase orders and the parties' normal
and customary practice Eastco agreed to supply products to
the specifications and in the quantities ordered by Broan.
Broan's allegations are sufficient under Rule 12(b)(6)
and (e) to put Eastco on notice of an alleged contract based
on the purchase orders. Details of the terms of the purchase
orders and whether those terms constitute the actual terms of
the agreement are not necessary for notice pleading.
also contends that the counterclaim fails to specify what
acts breached the contract and gave rise to damages.
Broan's allegations include representations that the
parties had a contract by which Eastco would supply Broan
with ordered products or else pay damages if Broan had to
procure substitute goods. They further assert that Eastco had
accepted at least eighteen purchase orders from Broan for
over 300, 000 units of products around the time Eastco
notified Broan that Eastco experienced vandalism problems at
its facility in Tijuana, Mexico. Broan indicated it required
assessment of the damage and recovery time. The counterclaim
contends that Eastco failed to deliver product in the
quantities ordered within the required specified time,
forcing Broan to find alternate suppliers of product, incur
additional costs, and suffer lost profits because it was
unable to maintain production of its products without the
components purchased from Eastco. These allegations are
sufficient for both Rule 12(b)(6) and (e) purposes.
court has reviewed the parties' briefs and agrees with
Broan's arguments in opposition. To the extent this order
does not address specific arguments by Eastco, those
arguments are rejected and the court adopts Broan's
IT IS ORDERED that Broan's motion for leave to file a
surreply or to strike portions of the reply (Doc. 38) and
Eastco's motion to strike the surreply (Doc. 39) are
denied as moot.
FURTHER ORDERED that Eastco's motion to dismiss the
counterclaim or for a more definite statement (Doc. 16) is
FURTHER ORDERED that this case is returned to the clerk of