John Robert Blakey, United States District Judge.
This matter concerns an employment dispute between Plaintiff Melissa Cohn, her former employer Guaranteed Rate, Inc. ("GRI"), and the President of GRI Victor Ciardelli. Plaintiff's general claim is that she was wrongfully forced out of her position as Executive Vice President of Guaranteed Rate. To that end, Plaintiff alleges four causes of action: (1) declaratory judgment against GRI under 28 U.S.C. § 2201(a); (2) breach of contract against GRI; (3) breach of the implied covenant of good faith and fair dealing against GRI; and (4) fraud against Ciardelli. On March 26, 2015, Defendants filed a motion to dismiss Plaintiff's First Amended Complaint ("FAC") in its entirety [20]. That motion is granted in part and denied in part as explained below.
Prior to October 2012, Melissa Cohn ("Cohn") was the President and sole shareholder of Manhattan Mortgage Co., Inc. ("Manhattan Mortgage"). [19] FAC at ¶ 5. In 2012, GRI expressed interest in purchasing Manhattan Mortgage so as to expand its presence in New York and increase its related mortgage business. Id. at ¶ 6. To that end, Cohn and Ciardelli conducted negotiations and eventually reached an agreement for GRI to acquire the assets of Manhattan Mortgage and Cohn to work for GRI. Id. The relevant agreements were memorialized in two documents: (1) the August 20, 2012 Asset Purchase Agreement ("APA"); and (2) the October 1, 2012 Branch Manager Agreement ("BMA"). Id. at ¶ 7.
The APA is the contract by which GRI acquired Manhattan Mortgage's assets. Id. at Ex. B. It sets out the terms for the asset purchase, including the payment terms and a number of related terms and conditions. The contract is between only GRI and Manhattan Mortgage. Id. While several of the contract's clauses contain language relating to Cohn, Cohn is not a party to the contract. Id. Despite this,
The BMA is an agreement between Cohn and GRI that sets out the details of Cohn's employment with GRI. Id. at Ex. A. It provides for various types of compensation for Cohn's services and explains the scope of her employment duties. Id. at Ex. A, § 2-3. The term of the BMA is indefinite, but it may be terminated by either party in accordance with its terms. Id. at Ex. A, § 2. In Section 3, which sets out the scope of Cohn's employment duties, the BMA reads as follows:
Id. at Ex. A, § 3. Section 3 then lists 14 different duties expected of Cohn. Id. The BMA is signed by Ciardelli on behalf of GRI, and there is a signature line for Cohn. Id. While the version of the contract in the record lacks Cohn's signature, the parties do not dispute that the contract was validly executed. Id.
After the BMA and APA were executed, the parties' business relationship deteriorated. Id. at ¶ 12. According to Cohn, this included Defendants preventing her from earning all of the money she was entitled to, undermining her position and authority, constructively discharging her, and later threatening to seek post-employment restrictions. Id. In October 2013, Cohn began questioning the computation of her financial package and the lack of information supporting that calculation. Id. at ¶ 13.
Around that same time, Ciardelli began a deliberate pattern of making false statements to Cohn about her job performance and reputation. Id. at ¶ 16. This included blaming Cohn for the departure of GRI's vice presidents and, on November 21, 2013, telling Cohn that he was disappointed in her performance, that she was responsible for the loss of key employees, and that she was not liked by the mortgage market or her staff. Id. at ¶ 17. During this time, the issue of Cohn's responsibilities remained a contested issue — with Cohn seeking to clarify her role within the company. Id. at ¶ 20. Cohn maintains that her request for clarification did not receive a response. Id. at ¶ 22. Also, from the fall of 2013 until the spring of 2014, Cohn continued to seek information related to the payment she felt she was owed by GRI. Id. at ¶ 23-24.
As a result of Cohn's efforts, GRI informed her in March 2014 that she could receive a portion of the bonus available under the APA known as the "Annual Guaranty." Id. at ¶ 27. According to Cohn, however, GRI required her to sign a Confidential Agreement and General Release (the "Release") in order to receive that bonus money. Id. The Release Cohn signed was between herself and GRI. Id.
On the first page of the Release, a recital explains, at least in part, the parties' motivation for entering into the agreement. Id. It reads: "The Company [GRI] strongly desires for Cohn's employment with the Company to continue and, has therefore, worked with Cohn to develop a management structure within the Branch to help Cohn succeed as an employee and a regional manager in the organization." Id. The Release also absolves GRI from liability for any improper conduct prior to that point in time, stating: "Cohn hereby fully, finally and unconditionally releases, compromises, waive[s] and forever discharge[s] Guaranteed Rate and the Released Parties from and for any and all claims, allegations, liabilities, lawsuits, personal injuries, demands, debts, liens, damages, costs, grievances, injuries, actions or rights of action of any nature whatsoever." Id. at Ex. H, pp. 3-4. The term "Released Parties" is defined to include GRI and its "officers, members, management, agents, attorneys, [and] employees ... in their individual, fiduciary and corporate capacities." Id. at Ex. H, p.4.
Cohn claims that the language in the Release, specifically the recital concerning her continued employment, was "hollow verbiage." Id. at ¶ 30. A few days after Cohn signed the Release, GRI said it would not sign the Release until Cohn signed another agreement — the Compensation and Branch Manager Addendum/Amendment (the "Addendum"). Id. The Addendum modified the Release by limiting Cohn's ability to earn future bonuses. Id. Cohn executed the Addendum on March 26, 2014, and GRI executed both the Release and the Addendum on March 27, 2014. Id. at 31.
In April 2014, GRI allegedly resumed its plan to force Cohn to leave the company by relieving her of all her responsibilities except to originate new business. Id. at ¶ 32. Cohn claims that this violated her rights under the BMA and was done without explanation or justification. Id. at ¶ 33-34. During this time, there were a series of communications between Cohn and GRI regarding her employment status. Id. at ¶ 35-39. Cohn claims that GRI was looking to replace her, and once the company found a suitable replacement it initiated a conference call in which Ciardelli asked Cohn to consider two options: (1) to remain at GRI but with reduced salary and responsibilities; or (2) to separate from GRI. Id. at ¶ 40. Cohn considered the proposal and, on July 17, 2014, there was another conference call. Id. at ¶ 41. During that call, Cohn told the Defendants she was amendable to pursuing the terms of a separation. Id. However, she claims that she did not then, or at any other time, agree to leave GRI voluntarily if no agreement could be reached. Id. Discussions between the parties continued throughout July 2014, but were ultimately unsuccessful. Id. at ¶ 42. While the discussions were ongoing, Defendants asked that Cohn not come to the office, and she consented as a sign of good faith. Id.
On July 28, 2014, GRI's legal counsel communicated to Cohn's counsel that the parties had to set a final date for Cohn's employment (whether by resignation or termination) because the situation had become disruptive to the company. Id. at ¶ 43. At that time, Cohn was also told not to return to the office because, if she tried to, GRI would bar her access. Id. While she did not agree that there was a basis for her exclusion, Cohn decided — on the advice of her counsel — not to press the issue. Id. at ¶ 44.
On July 29, 2014, Cohn's counsel sent a letter to GRI stating that GRI had effectively terminated Cohn without cause by
On August 15, 2014, Cohn's counsel sent a letter to GRI demanding payment for compensation Cohn was due as a result of being terminated without cause. Id. at ¶ 49. GRI refused, and threatened to enforce post-employment restrictions against Cohn. Id. at ¶ 50. Even after Cohn began new employment, GRI continued to allege that she was subject to ongoing restrictions and limitations in her new employment based on the BMA. Id. at ¶ 51. This included an October 9, 2014 letter from GRI to the President of Cohn's employer at the time — Guard Hill Financial Corporation ("Guard Hill"). Id. at ¶ 52. That letter concluded with the following statement: "Guard Hill is now exposed to serious liability as a result of the actions of Minardi, Cohn and others ... Guaranteed Rate will continue its investigation and should further instances of misconduct be discovered, will vigorously pursue all available remedies and may institute legal action without further notice." Id. at Ex. N.
After Cohn filed the instant lawsuit, she was terminated by Guard Hill. Id. at ¶ 54. Cohn claims that she was terminated by Guard Hill out of concern that she might be acting in contravention of the non-solicitation provisions invoked by GRI in its cease and desist letter. Id. at ¶ 54. Cohn claims that the validity or invalidity of that restriction is an actual controversy that requires determination by the Court. Id.
Under Rule 12(b)(6), the Court must construe the complaint in the light most favorable to the Plaintiff, accept as true all well-pleaded facts and draw reasonable inferences in her favor. Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir.2013); Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999). Statements of law, however, need not be accepted as true. Yeftich, 722 F.3d at 915. Rule 12(b)(6) limits this Court's consideration to "allegations set forth in the complaint itself, documents that are attached to the complaint, documents that are central to the complaint and are referred to in it, and information that is properly subject to judicial notice." Williamson v. Curran, 714 F.3d 432, 436 (7th Cir.2013). To survive a motion under Rule 12(b)(6), the complaint must "state a claim to relief that is plausible on its face." Yeftich, 722 F.3d at 915. "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." Id.
Defendants' motion to dismiss is granted with regard to Count I because: (1) there is no actual controversy; and (2) Count I is redundant of the breach of contract claim set forth in Count II.
The Declaratory Judgment Act, 28 U.S.C. § 2201, "allows federal courts, in
Plaintiff's claim for declaratory judgment fails because she has not pled any facts substantiating the existence of an immediate and real lawsuit threatened against her. Instead, the attachments to the First Amended Complaint show that any alleged legal action was merely speculative.
In support of her claim for declaratory judgment, Plaintiff relies on the October 9, 2014 letter from GRI's general counsel to the President of Guard Hill, Cohn's former employer. [24] at 2. That letter reads, in pertinent part, "Guaranteed Rate will continue its investigation and
Even if Plaintiff had successfully alleged an "actual controversy," the Court would nonetheless dismiss Count I as duplicative of Count II. This Court has discretion to decline to hear a declaratory judgment action even if it considers the action justiciable. Tempco Elec. Heater Corp. v. Omega Eng'g, Inc., 819 F.2d 746, 747 (7th Cir.1987). In this district, courts commonly exercise that discretion where the claim for declaratory judgment substantially overlaps with Plaintiff's substantive claims. Vill. of Sugar Grove v. F.D.I.C., No. 10 C 3562, 2011 WL 3876935, at *9 (N.D.Ill. Sept. 1, 2011) (collecting cases); Amari v. Radio Spirits, Inc., 219 F.Supp.2d 942, 944 (N.D.Ill.2002). Where the "substantive suit would resolve the issues raised by the declaratory judgment action, the declaratory judgment action `serve[s] no useful purpose.'" Amari, 219 F.Supp.2d at 944.
The claim for declaratory judgment here is duplicative of Plaintiff's breach of contract claim in Count II. Count I seeks a declaration that "Cohn was constructively discharged without cause" and therefore Cohn is not subject to any limitation or restriction on her post-employment activities. [19] at ¶ 59. Similarly, in Count II, Cohn claims that the Defendants constructively discharged her without cause in breach of the contracts between the parties. Id. at ¶ 66; [24] at 9. Thus, the substantive legal issue, whether Plaintiff was wrongfully discharged, is the same in both Count I and Count II.
Further, the difference in relief requested here is immaterial, because the same relief is available under both Counts. In other words, if a claim for declaratory relief were proper here (i.e., there was an "actual controversy") that relief could still be requested as part of the breach of contract claim.
Defendants' motion to dismiss Count II is granted in part and denied in part. In the FAC, Plaintiff claims that Defendants breached two separate contracts: (1) the APA between GRI and Manhattan Mortgage; and (2) the BMA between GRI and Cohn. The motion to dismiss Count II is granted with regard to the APA, and denied with regard to the BMA.
Defendants' motion to dismiss is granted with regard to the APA because Plaintiff was neither a party to the contract nor a third party beneficiary. "Generally, only a party to a contract, or one in privity with a party, may enforce a contract, except that a third party beneficiary may sue for breach of a contract made for his benefit." Wilde v. First Fed. Sav. & Loan Ass'n of Wilmette, 134 Ill.App.3d 722, 89 Ill.Dec. 493, 480 N.E.2d 1236, 1242 (1985). A strong presumption exists that contracting parties intend "that the contract's provisions apply to only them and not third parties." Martis v. Grinnell Mutual Reinsurance Co., 388 Ill.App.3d 1017, 329 Ill.Dec. 82, 905 N.E.2d 920, 924 (2009). "A third party acquires no rights under a contract entered into by others unless the provision at issue was intentionally included for the direct benefit of the third party." Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp., 218 Ill.App.3d 383, 160 Ill.Dec. 773, 577 N.E.2d 1344, 1352 (1991) (emphasis added). That the contracting parties "know, expect, or even intend that others will benefit from their agreement is not enough to overcome the
Whether or not someone constitutes a third party beneficiary depends on the intent of the contracting parties, as evidenced by the contract language itself. See F.H. Paschen/S.N. Nielsen, Inc. v. Burnham Station, L.L.C., 372 Ill.App.3d 89, 309 Ill.Dec. 865, 865 N.E.2d 228, 235 (2007). It must appear from the relevant language that the contract provision at issue was made for the direct, not merely incidental, benefit of the third party. Gallagher Corp. v. Russ, 309 Ill.App.3d 192, 242 Ill.Dec. 326, 721 N.E.2d 605, 612 (1999). To satisfy this requirement, the "implication that the contract applies to third parties must be so strong as to be practically an express declaration." Ball Corp. v. Bohlin Bldg. Corp., 187 Ill.App.3d 175, 134 Ill.Dec. 823, 543 N.E.2d 106, 107 (1989). Liability to a third party must "affirmatively appear from the contract's language and from the circumstances surrounding the parties at the time of its execution, and cannot be expanded or enlarged simply because the situation and circumstances justify or demand further or other liability." Id. The plaintiff bears the burden of showing that the parties to the contract intended to confer a direct benefit on him. Martis, 329 Ill.Dec. 82, 905 N.E.2d at 924.
Plaintiff here was neither a party to the APA nor a third party beneficiary. The APA specifically states that it is "between Guaranteed Rate, Inc., ... and The Manhattan Mortgage Co., Inc.," and it has signature blocks for only those parties. [19] at Ex. B. It is apparent from the face of the APA that Cohn is not a party thereto. Recognizing this, Cohn argues that she was instead a "third party beneficiary" of the APA. [24] at 9. That argument is unavailing.
Cohn has not met her burden of showing that contracting parties intended to confer a direct benefit on her. It is settled law that the evidence required to show that the parties to a contract intended to create a third party beneficiary "must be so strong as to be practically an express declaration." Ball Corp. v. Bohlin Bldg. Corp., 187 Ill.App.3d 175, 134 Ill.Dec. 823, 543 N.E.2d 106, 107 (1989). There is no such express declaration in the APA, and the remaining evidence relied upon by the Plaintiff is insufficient to constitute "practically an express declaration." Cohn relies on two general arguments to claim status as a third party beneficiary: (1) that the contract contains specific provisions granting her certain express rights; and (2) that because she is the sole owner of Manhattan Mortgage, she was the intended beneficiary of the rights granted to Manhattan Mortgage under the APA. The Court will address each argument in turn.
In her response brief, Plaintiff points to three contractual provisions that purportedly grant her status as a third party beneficiary. The first two provisions highlighted by Plaintiff fail, because Plaintiff has misreads the contract. For example, the Plaintiff argues that "The $4 million purchase price identified in Section 1 A [of the APA] was for the benefit of Cohn," [24] at 10, but the $4 million purchase price identified in Section 1A was to be paid to Manhattan Mortgage, not Cohn. [19] at Ex. B, Section 1A. Likewise, the Plaintiff claims that the "additional bonus payments potentially available through the `Annual Guarantees' (potentially $3 million) to be earned under the Asset Purchase Agreement would have been enjoyed by Cohn and no one else," [24] at 10, however, the "Annual Guarantees" were payable to Manhattan Mortgage, not Cohn. [19] at Ex. B, Section 1A. Under the actual
The third provision, however, merits closer attention. Towards the end Section 1A of the APA, there is a paragraph that reads: "in the event that Ms. Cohn's employment is terminated due to Ms. Cohn's death or disability in accordance with the Branch Manager Agreement, all Annual Guarantee amounts due hereunder shall be payable to Ms. Cohn (or Ms. Cohn's legal representative) in accordance herewith." [19] at Ex. B, pg. 2. This provision does grant Cohn some rights under the BMA, and would entitle her to third party beneficiary status with regard to this specific provision. Cohn, however, is not suing under this provision, and she is obviously not claiming that she died or became disabled and was thereafter denied payments to which she was entitled. Simply being a third party beneficiary to one provision of an agreement does not allow Cohn to enforce other provisions to which she is not a third party beneficiary. See Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp., 218 Ill.App.3d 383, 160 Ill.Dec. 773, 577 N.E.2d 1344, 1352 (1991) ("A third party acquires no rights under a contract entered into by others unless the provision at issue was intentionally included for the direct benefit of the third party.") (emphasis added). Here, while Plaintiff stands as a third party beneficiary with respect to the provision set out above, that does not grant her the ability to enforce other rights or duties in the contract which are only between the parties to the contract. Id. As such, the presence of this disability clause does not grant Cohn a right to sue generally under all of the provisions of the APA that she seeks to enforce here.
Plaintiff next relies on her status as sole owner of Manhattan Mortgage to claim that she was an intended third party beneficiary of the APA. She generally argues that because she, as sole owner, would enjoy all of the benefits conferred on Manhattan Mortgage by the APA, she is a third party beneficiary. According to Plaintiff, she "was the sole shareholder of Manhattan Mortgage and the only direct beneficiary of the Asset Purchase Agreement." [24] at 9. Status as sole owner of a contracting party, however, is insufficient to confer status as a third party beneficiary.
Courts commonly hold that an individual's sole ownership of one party to a contract is insufficient to confer on that individual status as a third party beneficiary. See Sharif v. Int'l Dev. Grp. Co., 399 F.3d 857, 861 (7th Cir.2005); Williams v. Bd. of Educ. of City of Chicago, 506 Fed.Appx. 517, 519 (7th Cir.2013). For instance, in Shreeji Krupa, Inc. v. Leonardi Enterprises, No. 04 C 7809, 2007 WL 178305, at *1 (N.D.Ill. Jan. 17, 2007), Plaintiffs Shreeji Krupa, Inc. ("SKI") and Shaurin B. Mehta sued the defendants for, among other things, breach of contract. SKI had a lease with the defendants for the use of certain real estate. Id. In 2000, that lease was extended for an additional five years and a clause was included allowing either party to cancel the lease with 60 days' notice. Id. Shaurin Mehta was the sole shareholder of SKI but he was not a contracting party to the lease at issue. Id.
In April 2005, defendants notified SKI that it would terminate the lease within 60 days unless SKI met certain conditions. When SKI did not meet those conditions, defendants terminated the lease. Id. at
As in Shreeji Krupa, the Plaintiff here was the sole owner of the contracting party and was also the individual who negotiated, performed and sought to enforce the contract. Similarly, Plaintiff here was the sole individual who would ultimately benefit from many terms of the contract. As in Shreeji Krupa, then, the Court here finds that to allow Plaintiff to maintain her claim "based on an alleged third-party beneficiary status would impermissibly allow [her] to create a contractual relationship contrary to the corporate form and the rules of agency." Id. at *3. Defendants' motion to dismiss Count II is therefore granted with regard to the APA.
With regard to the BMA, the Court finds that Plaintiff has adequately plead an action for breach of contract. The elements of a breach-of-contract action are: "(1) the existence of a valid and enforceable contract; (2) performance by the plaintiff; (3) breach of the contract by the defendant; and (4) resultant injury to the plaintiff." Mack Indus., Ltd. v. Vill. of Dolton, ___ Ill.App.3d ___, 391 Ill.Dec. 248, 30 N.E.3d 518, 528 (2015). Only the third element is at issue here.
Plaintiff alleges that Defendants breached the BMA by wrongfully reducing her responsibilities and constructively discharging her without cause. [19] at ¶¶ 6067. As an initial matter, the elimination of any single responsibility is not sufficient to state a breach of the BMA with regard to that specific responsibility. As set out in the BMA, and argued by Defendants, the responsibilities listed in Section 3 of the BMA are not rights to which Plaintiff is entitled, but requirements that Plaintiff must fulfill. Because the contract does not entitle Plaintiff to those responsibilities, or impose a duty on Defendants to provide those responsibilities, she cannot bring suit for breach of contract based on the elimination of any single responsibility. See Martusciello v. JDS Homes, Inc., 361 Ill.App.3d 568, 297 Ill.Dec. 522, 838 N.E.2d 9, 15 (2005) ("In stating a claim for breach of contract, only a duty imposed by the terms of the contract can give rise to the breach").
The reduction of Plaintiff's responsibilities as a whole, however, can support her claim that she was constructively discharged in violation of the BMA.
For instance, in Trapkus, Plaintiff sought to rescind his employment contract based on an alleged breach of that contract by his employer. Id., 95 Ill.Dec. 119, 489 N.E.2d at 342. Under the employment contract, plaintiff was entitled to certain payments based on a share of fiscal year profits, but he was not given those payments, and in response, he requested corporate records to determine his exact share of the profits. Id. That request was denied, and the plaintiff was subsequently relieved of all his managerial responsibilities and ordered to perform menial tasks. Id. The plaintiff thereafter served notice of termination of employment and filed suit. Id. He argued that "he was constructively discharged from his employment" by the acts of the defendant. Id., 95 Ill.Dec. 119, 489 N.E.2d at 344.
The court in Trapkus found that when "an employee is engaged to fill a particular position in the service of his employment, any reduction of the rank or a material change in the duties of the employee is, in the absence of anything to justify the employer in so acting, a violation of the contract of employment and will form the basis of an action by the employee for breach of contract." Id. The court further explained that, if an "employee, a fortiori an executive employee, is engaged to fill a particular position, any material change in his duties, or significant reduction in rank, may constitute a breach of his employment agreement." Id. As such, the court held that "plaintiff was warranted in treating the employment contract as having been breached" by the defendant corporation. Id.
The facts in this case are analogous to the situation in Trapkus. Defendants here agreed to employ Plaintiff in a managerial position, certain duties and responsibilities were expected of Plaintiff in that position, and Plaintiff was entitled to certain payments for her work. [19] at Ex. A. A dispute arose over payment, and Plaintiff requested further information. Id. at ¶¶ 13-16. That information was not adequately provided and, over time, Defendants reduced Plaintiff's responsibilities to the point of barring her from the building and withholding a number of the facilities needed by Plaintiff to perform her job. Id. at ¶ 45. As such, Plaintiff eventually resigned. Given the court's finding in Trapkus that such actions could constitute constructive discharge, the Court finds that Plaintiff has adequately pled that she was constructively discharged in violation of her employment agreement. Defendants' motion to dismiss Count II is therefore denied with regard to the BMA.
Plaintiff alleges that GRI "breached the implied covenant of good faith and fair dealing," and as a result she was injured. [19] at ¶ 73. Illinois law, however, does not recognize an independent cause of action for breach of the implied covenant of good faith and fair dealing. Voyles v. Sandia Mortgage Corp., 196 Ill.2d 288, 256 Ill.Dec. 289, 751 N.E.2d 1126 (2001); McArdle v. Peoria Sch. Dist. No. 150, 705 F.3d 751, 755 (7th Cir.2013). The covenant is only an aid for contract interpretation, not an independent source of contractual duties or liability itself under Illinois law. McArdle, 705 F.3d at 755. As such, Count III is dismissed with prejudice.
Defendants' motion to dismiss Count IV is granted, because Plaintiff has failed to plead a false statement by Ciardelli. Notably, the claim of fraud in Count IV is alleged only against Ciardelli, not GRI. [19] at ¶ 98. To plead a claim for common law fraud in Illinois, a plaintiff must allege: (1) a false statement of material fact; (2) defendant's knowledge that the statement was false; (3) defendant's intent that the statement induce the plaintiff to act; (4) plaintiff's reliance upon the truth of the statement; and (5) plaintiff's damage resulting from reliance on the statement. See, e.g., Connick v. Suzuki Motor Co., Ltd., 174 Ill.2d 482, 496-97, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996); Tricontinental Indus. v. PricewaterhouseCoopers, LLP, 475 F.3d 824, 841 (7th Cir. 2007).
To plead fraud, Cohn must state "with particularity the circumstances constituting fraud." Fed.R.Civ.P. 9(b). The "circumstances constituting fraud" include "the identity of the person who made the misrepresentation, the time, place and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff." Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 777 (7th Cir.1994). There are two sets of misrepresentations at issue here: (1) statements made by Ciardelli prior to the March 18, 2014 release; and (2) statements made in the Release.
The only pre-Release false statements specifically alleged in Plaintiff's First Amended Complaint occurred on November 7, 2013, November 21, 2013 and January 15, 2014.[19] at ¶ 17-23. On November 7, 2013, Plaintiff claims that Ciardelli wrongly blamed her for the departure of GRI's vice presidents. On November 21, 2013, Ciardelli allegedly lied by saying that he was disappointed in Cohn's performance, that Cohn was responsible for the loss of key employees, and that Cohn was not liked by the market or her staff. On January 15, 2014, Charles Bachtell of GRI allegedly made a number of false statements in an email to Cohn. Id. at ¶ 24. Those statements are not specifically spelled out, but are referenced in letter attached to the FAC. Id. at Ex. F. All of the misrepresentations noted above, however, are insufficient to state a cause of action for fraud because Plaintiff released GRI and Ciardelli for any and all claims preceding the March 18, 2014 release date.
Indeed, courts routinely enforce such releases, including those barring claims for fraud. See, e.g., Rakowski v. Lucente, 104 Ill.2d 317, 323-24, 84 Ill.Dec. 654, 472 N.E.2d 791 (1984) (affirming dismissal based on release); Hurd v. Wildman, Harrold, Allen and Dixon, 303 Ill.App.3d 84, 93-95, 236 Ill.Dec. 482, 707 N.E.2d 609 (1st Dist.1999) (same); Bank of Am. v. First Mut. Bancorp of Ill. Inc., No. 09 C 5108, 2010 WL 2653339, at *12 (N.D.Ill. July 1, 2010) (fraud claim barred by release). In this case, the Release includes the following language: "Cohn hereby fully, finally and unconditionally releases, compromises, waive[s] and forever discharge[s] Guaranteed Rate and the Released Parties from and for any and all claims, allegations, liabilities, lawsuits, personal injuries, demands, debts, liens, damages, costs, grievances, injuries, actions or rights of action of any nature whatsoever." [19] at Ex. H, pp. 3-4. The term "Released Parties" was defined to include Guaranteed Rate and its "officers, members, management, agents, attorneys, [and] employees ... in their individual, fiduciary and corporate capacities." Id. at Ex. H, p.4. As such, no claim for fraud
The only other statement at issue, and the only statement Plaintiff identified as an actionable false statement in her response brief, is from the Release itself. In paragraph 4 of the Release section entitled "Cohn's Employment," the contract states: "The Company strongly desires for Cohn's employment with the Company to continue and, has therefore, worked with Cohn to develop a management structure within the Branch to help Cohn succeed as an employee and a regional manager in the organization." [19] at Ex. H.
This statement from the Release, without more, cannot serve as the basis for Plaintiff's fraud claim against Ciardelli because Plaintiff has not pled that Ciardelli made that statement. In her response brief, Plaintiff argues:
The only potentially relevant false statement presented by Plaintiff in her response brief, and indeed the only false statement alleged in the FAC to have occurred after the Release, was the statement made by GRI in the Release concerning its "desire for Cohn's employment with the Company to continue." Id. at Ex. H. There is nothing in that statement, or in the totality of the Release, that would indicate that the statement was made by Ciardelli. The Release was between Cohn, Manhattan Mortgage and GRI. Id. It was signed by Cohn, and there is an unsigned signature block for GRI in the version of the Release attached to the FAC. Id. The FAC alleges that GRI later signed the Release, but does not state who from GRI actually signed. Id. at ¶ 31. Nowhere in the FAC or the attached documents is there any allegation that Ciardelli signed the release or made the statement at issue. As such, that allegedly false statement cannot be the basis for a fraud claim against Ciardelli.
Because Plaintiff has failed to specifically plead any actionable false statement by Ciardelli, the Court need not consider any of the other factors, and Count IV is dismissed
Defendants' motion to dismiss is granted with prejudice as to Counts I and III. The motion to dismiss Count II is granted with prejudice with regard to the APA, but denied with regard to the BMA. Finally, the motion is granted without prejudice as to Count IV.
IT IS SO ORDERED.
