Chief Judge Rubén Castillo
Plaintiff Bank of America, N.A. ("BOA") brings this action for breach of contract against Defendant Oberman, Tivoli & Pickert, Inc. ("OTP"). Presently before the Court is OTP's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, this motion is denied.
BOA is a national banking association organized in Delaware with its principal place of business in Charlotte, North Carolina. (R. 1, Compl. ¶ 1.) OTP is a California corporation with its principal place of business in Los Angeles, California. (Id. ¶ 4.) On or around May 6, 2003, Merrill Lynch Business Financial Services, Inc. ("MLBFS") and OTP entered into a WCMA
(R. 1-1, Ex. A, Loan Agreement at 11, § 3.7(d).) "Customer" is defined as OTP's predecessor, Oberman, Tivoli, Miller & Pickert, Inc. (R. 1-1, Ex. A, Loan Agreement at 1.) Following the October 1, 2010 merger between BOA and Merrill Lynch Commercial Finance Corp., BOA became the successor in interest to all of MLBFS's rights and remedies under the Loan Agreement. (R. 1, Compl. ¶¶ 2, 6.) The line of credit in the Loan Agreement was renewed after the first year and subsequently renewed again, with the new maturity date set to June 30, 2006. (Id. ¶ 11-12.) In June 2006, BOA decided not to renew the line of credit pursuant to a provision in the Loan Agreement giving BOA sole discretion to renew. (Id. ¶ 13-14.)
On or around December 31, 2007, OTP filed a complaint in California state court against BOA and Merrill Lynch Pierce Fenner & Smith, Inc. ("Merrill Lynch") asserting claims arising out of the Loan Agreement. (Id. ¶ 15.) BOA moved to dismiss the case based on the forum selection clause in the Loan Agreement; the California court granted the motion on March 2, 2009. (Id. ¶ 16-17.) Around August 15, 2009, OTP filed a substantially identical suit against BOA and Merrill Lynch in the Circuit Court of Cook County, Illinois asserting breach of contract, fraud, and breach of fiduciary duty. (Id.
Undeterred, OTP appealed the circuit court's dismissal of its third amended complaint, and the Illinois Court of Appeals for the First District affirmed the lower court's dismissal on December 31, 2012. (Id. ¶¶ 31-32.) BOA alleges that it incurred $125,322.73 in attorneys' fees and costs to defend against the California suit and $138,221.15 in attorneys' fees and costs to defend against the Illinois suit and subsequent appeal. (Id. ¶¶ 33-35.) On February 7, 2012, BOA sent a demand letter to OTP demanding reimbursement for the attorneys' fees pursuant to Section 3.7(d)(iii) of the Loan Agreement. (Id. ¶ 37.) On January 16, 2013, BOA sent a second demand letter. (Id. ¶ 38.) To date, OTP has failed to reimburse BOA the requested attorneys' fees and costs. (Id. ¶ 39.) BOA now seeks to recover the attorneys' fees and costs incurred in connection with the defense of the California and Illinois suits, which amount to a total of $263,543.88, and the ongoing fees incurred attempting to enforce its rights under the Loan Agreement. (Id. ¶¶ 45-46.)
BOA initiated the present action on February 12, 2013. (R. 1, Compl.) The one-count complaint alleges that OTP breached its obligations under the Loan Agreement by refusing to reimburse BOA for the attorneys' fees and costs BOA incurred defending against OTP's suits. (Id. ¶ 43.) On April 16, 2013, OTP moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that Section 3.7(d) of the Loan Agreement is unenforceable because it is ambiguous, unreasonable, and applicable only to third party claims. (R. 9, Def.'s Mot.) BOA filed its response to OTP's motion to dismiss on May 8, 2013, (R. 13, Pl.'s Resp.), and OTP replied to BOA's response on May 22, 2013. (R. 15, Def.'s Reply.)
A motion under Rule 12(b)(6) "challenges the sufficiency of the complaint to
A document that is attached to a pleading "is a part of the pleading for all purposes." Fed. R. Civ. P. 10(c). Thus, when ruling on a Rule 12(b)(6) motion to dismiss, a court must "consider documents attached to the complaint as part of the complaint itself." Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 764 (7th Cir.2010) (citing Int'l Mktg., Ltd. v. Archer-Daniels-Midland Co., 192 F.3d 724, 729 (7th Cir.1999)). "Such documents may permit the court to determine that the plaintiff is not entitled to judgment" in his favor. Id. (citing Hecker v. Deere & Co., 556 F.3d 575, 588 (7th Cir.2009)).
BOA avers that this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332, (R. 1, Compl. ¶ 7), which requires diversity of citizenship and an amount in controversy that exceeds $75,000. BOA is a Delaware corporation with its principal place of business located in North Carolina, (id. ¶ 1); OTP is a California corporation with its principal place of business located in California, (id. ¶ 4). The amount in controversy, for purposes of satisfying the jurisdictional requirement, must be "exclusive of interest and costs." 28 U.S.C. 1332(a). When attorneys' fees that have already been incurred are sought as part of the underlying claim, however, they are properly considered as part of the amount in controversy. Mo. State Life Ins. Co. v. Jones, 290 U.S. 199, 202, 54 S.Ct. 133, 78 L.Ed. 267 (1933). Here, BOA asserts a contractual right to attorneys' fees that it incurred before filing the instant suit. Thus, the attorneys' fees BOA seeks reimbursement for in this action — which exceed $75,000.00 — are properly considered as part of the amount in controversy, and this Court has subject matter jurisdiction to decide this case on the merits.
A federal court sitting in diversity applies state substantive law and federal procedural law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Erie doctrine extends to conflict of laws principles and
OTP first argues that Section 3.7(d) is unenforceable because it is ambiguous. (R. 9, Def.'s Mot. at 2.) To be enforceable, the terms of a contract "must be clear, certain and free from ambiguity and doubt." Morey v. Hoffman, 12 Ill.2d 125, 145 N.E.2d 644, 647 (1957). Whether a contract is ambiguous is a matter of law. Quake Constr., Inc. v. Am. Airlines, Inc., 141 Ill.2d 281, 152 Ill.Dec. 308, 565 N.E.2d 990, 994 (1990). If the language of the contract is susceptible to more than one meaning, it is ambiguous. Thompson v. Gordon, 241 Ill.2d 428, 349 Ill.Dec. 936, 948 N.E.2d 39, 47 (2011). If the words in the contract are clear and unambiguous, however, "they must be given their plain, ordinary and popular meaning." Id. OTP argues that the terms BOA relies on in Section 3.7(d) are not defined and are susceptible to more than one meaning. (R. 9, Def.'s Mot. at 3.) Specifically, OTP argues that the language "all fees and out of pocket expenses" in Section 3.7(d)(iii) allows BOA to "pick and choose what fees and out of pocket expenses" it requests payment for from OTP. (Id.)
Section 3.7(d) has three subsections, but all of them are introduced by the common language at the beginning of Section 3.7(d), which is entitled "Fees, Expenses and Taxes": "Customer shall pay or reimburse MLBFS for ...". The Court finds that language unambiguous and not susceptible to any interpretation other than OTP's agreement to pay MLBFS, now BOA. Subsection (iii) of Section 3.7(d), which is at issue here, continues the sentence:
(R. 1-1, Ex. A, Loan Agreement at 11, § 3.7(d)(iii).) The Court finds this section unambiguous as well, at least insofar as is it applies to the present dispute. The Court cannot find within the above language some interpretation that does not require OTP to reimburse BOA for the attorneys' fees and legal expenses it incurred in connection with enforcing the Loan Agreement, specifically by defending suits brought by OTP in court. OTP argues that Section 3.7(d)(iii) only entitles BOA to collect attorneys' fees in connection with the other documents that were filed and recorded. (R. 15, Def.'s Reply at
Alternatively, even if the Court were to find Section 3.7(d) to be ambiguous, the Court would not have grounds to dismiss the complaint. If a court determines that a contract is ambiguous, parol evidence is admitted to determine the parties' intent, and the interpretation of the language becomes a question of fact that the court cannot properly determine on a motion to dismiss. Quake Constr., 152 Ill.Dec. 308, 565 N.E.2d at 994. Thus, if OTP had prevailed in convincing this Court that the provision is ambiguous as a matter of the law, the next step would be to begin discovery and proceed before a fact finder to determine the meaning of Section 3.7(d) — not to dismiss the suit. Accordingly, the Court declines to dismiss the complaint on the grounds of ambiguity.
OTP next argues that the attorneys' fee provision in the Loan Agreement is unreasonable. (R. 9, Def.'s Mot. at 4.) OTP contends that the provision is unreasonably broad because it does not state that the attorneys' fees must be reasonable and because it does not limit BOA to collecting attorneys' fees only when it prevails. (Id. at 4-5.) In Illinois, the unsuccessful party in a lawsuit is not responsible for the prevailing party's attorneys' fees unless there is a contract provision altering the general rule. Powers v. Rockford Stop-N-Go, Inc., 326 Ill.App.3d 511, 260 Ill.Dec. 393, 761 N.E.2d 237, 240 (Ill.App.Ct.2d Dist.2001). Any contract provisions regarding attorneys' fees "should be strictly construed and enforced at the discretion of the trial court." Id. By "strictly construing" the contract, the Court must "construe[ ] it to mean nothing more — but also nothing less — than the letter of the text." Erlenbush v. Largent, 353 Ill.App.3d 949, 289 Ill.Dec. 386, 819 N.E.2d 1186, 1189 (Ill.App.Ct. 4th Dist. 2004). When attorneys' fees are specifically authorized by the contract, however, it is an "error for the trial court to fail to provide for them." Myers v. Popp Enterprises, Inc., 216 Ill.App.3d 830, 159 Ill.Dec. 783, 576 N.E.2d 452, 457 (Ill.App.Ct.2d Dist.1991). If parties have agreed to shift the obligation for attorneys' fees, the court should use its discretion to "award reasonable attorney fees according to the specific provisions of the contract." Brzozowski v. N. Trust Co., 248 Ill.App.3d 95, 187 Ill.Dec. 814, 618 N.E.2d 405, 411 (Ill.App.Ct. 1st Dist.1993).
In support of its position that Illinois public policy concerns do not allow for the enforcement of a provision that would allow the breaching party to collect attorneys' fees, OTP relies on an unpublished Illinois appellate court decision, Atlantis Products, Inc. v. Meridian Fence & Security, L.P., 2012 IL App (2d) 110521-U, at *9, 2012 WL 6968326 (Ill.App.Ct.2d Dist. Mar. 22, 2012). (R. 9, Def.'s Mot. at 4-5.) In Atlantis Products, however, the plaintiff sought to enforce the attorneys' fees provision even though it had breached the material terms of the contract. Id. The Illinois appellate court held that to allow a non-prevailing party to collect attorneys' fees would be contrary to public policy, and it distinguished its holding from cases in which the non-breaching parties were allowed to collect attorneys' fees. (Id. (citing Bright Horizons Children's Centers, LLC v. Riverway Midwest II, LLC, 403 Ill.App.3d 234, 341 Ill.Dec. 883, 931 N.E.2d 780, 798 (Ill.App.Ct. 1st Dist.2010); Peleton, Inc. v. McGivern's Inc., 375 Ill.App.3d 222,
OTP argues that the absence of language limiting BOA's ability to recover to situations in which it is the prevailing party in Section 3.7(d) would allow BOA to recover if it did not prevail and demonstrates the unreasonability of the provision. (R. 15, Def.'s Reply at 3-4.) OTP does not provide any caselaw indicating that an attorneys' fees provision must have "prevailing party" language to be enforceable. To the contrary, Illinois courts have enforced attorneys' fees provisions that do not contain this language. See, e.g., Daiwa Bank, Ltd. v. La Salle Nat. Trust, N.A., 229 Ill.App.3d 366, 170 Ill.Dec. 563, 593 N.E.2d 105, 110 (1992) (in a mortgage: "Mortgagor shall pay ... reasonable attorneys' fees ... incurred by Lender in connection with any of the following: (a) The preparation, execution, delivery and performance of the Loan Instruments; (b) The funding of the Loan; ... (d) Any court or administrative proceeding or other action undertaken by Lender to enforce any remedy..."); Wanderer v. Plainfield Carton Corp., 40 Ill.App.3d 552, 351 N.E.2d 630, 638 (1976) (in a lease agreement: "Lessee will pay and discharge all reasonable costs, attorneys fees and expenses that may be incurred by Lessor, in enforcing the covenants and agreements of this Lease, and all covenants and agreements herein contained."). An Illinois appellate court recently stated that because "attorney fees may only be awarded to a prevailing party," it is appropriate to infer that fee-shifting provisions only provide for an award of attorneys' fees to a prevailing party, regardless of whether the plain language of the provision expressly provides as much. City of Harvard v. Elvis J. Henson Trust, 2012 IL App (2d) 120091-U, at *21, 2012 WL 6969339 (Ill. App.Ct.2d Dist. Sept. 18, 2012) (quoting Powers, 260 Ill.Dec. 393, 761 N.E.2d at 241) (finding the following attorneys' fee provision valid but inapplicable because the City did not prevail: "In the event the City is required to incur legal expenses to enforce the terms of this Agreement against [defendants], [defendants] shall be responsible to reimburse the City for all reasonable attorneys fees incurred relative to such enforcement action.").
This Court is charged with using its discretion to award reasonable attorneys' fees. See Brzozowski, 187 Ill.Dec. 814, 618 N.E.2d at 411; LaHood v. Couri, 236 Ill.App.3d 641, 177 Ill.Dec. 791, 603 N.E.2d 1165, 1170 (1992). Accordingly, the Court is untroubled by the absence of language explicitly limiting BOA's recovery to "reasonable" attorneys' fees or to when it is the prevailing party. Although it would be unreasonable for the Court to award attorneys' fees to a non-prevailing party, see Atlantis Prods., 2012 IL App (2d) 110521-U, at *9, 2012 WL 6968326; Powers, 260 Ill.Dec. 393, 761 N.E.2d at 241, the failure of a fee-shifting provision to explicitly limit the award of attorneys' fees to a prevailing party does not render the provision unreasonable and unenforceable. OTP has failed to provide any grounds upon which the fee-shifting provision in Section 3.7(d) is unreasonable, and the Court declines to dismiss the complaint on the grounds that Section 3.7(d) is unreasonable.
OTP next argues that, read within the context of the entire Loan
Section 3.5 of the Loan Agreement refers to "Events of Default," and Section 3.6 refers to "Remedies." (R. 1-1, Ex. A, Loan Agreement at 8-9, §§ 3.5, 3.6.) Consequently, OTP argues, Section 3.7, entitled "Miscellaneous," refers to "fees and expenses from third party claims," not from proceedings in connection with events of default. (R. 9, Def.'s Mot. at 5.) Sections 3.5 and 3.6 do pertain to the first-party relationship between BOA and OTP, but there is no reason to interpret these sections as encompassing the totality of the scope of the parties' mutual obligations. Neither Section 3.5 or Section 3.6 provide for the recovery of attorneys' fees, and Section 3.7(d)(iii) appears to be the only fee-shifting provision in the Loan Agreement. In addition, other portions of the contract outside Sections 3.5 and 3.6 clearly pertain to the BOA/OTP relationship. For example, Section 3.7(c) describes the methods by which BOA and OTP agreed to communicate. (R. 1-1, Ex. A, Loan Agreement at 11, § 3.7(c).) Thus, in the context of the contract as a whole, it is clear that Sections 3.5 and 3.6 do not alone define all the rights and obligations between BOA and OTP, and that Section 3.7 does not exclusively refer to rights and obligations as to third parties. OTP's conclusory argument to this effect is not well-developed, nor is it supported by caselaw.
In addition, OTP's contention that the Section 3.7(d)(iii) applies only to attorneys' fees incurred in third-party litigation is unsupported by the plain text of the provision itself. Section 3.7(d) begins: "Customer shall pay or reimburse ..." (R. 1-1, Ex. A, Loan Agreement at 11, § 3.7(d)) (emphasis added). "Customer" means OTP here, and thus the plain meaning of Section 3.7(d)(iii) is that it allows BOA to seek reimbursement for attorneys' fees directly from OTP. From both its express language and its context within the structure of the contract, the Court concludes that Section 3.7(d) does not apply to only third-party litigation and that it provides a basis upon which BOA may seek reimbursement from OTP.
Seeking to avoid this result, OTP argues that BOA should not be allowed to collect attorneys' fees because BOA did not initiate the underlying litigation. (R. 15, Def.'s Reply at 4-5). OTP relies on Housing Authority of Champaign County v. Lyles, 395 Ill.App.3d 1036, 335 Ill.Dec. 463, 918 N.E.2d 1276 (Ill.App.Ct. 4th Dist. 2009), to support its contention that BOA cannot recover attorneys' fees because Section 3.7(d) does not provide for the recovery of attorneys' fees "for defending the Loan Agreement." (Id. at 5.) The Illinois appellate court in Lyles held that the defendant was not entitled to an award of attorneys' fees pursuant to a contract provision providing that the prevailing party "may recover all costs and reasonable attorney fees incurred in enforcing
The key distinction between the Lyles and the present case is that the attorneys' fees provision in the Loan Agreement does not limit BOA's recovery to costs incurred in "enforcing" the contract. Instead, Section 3.7(d) specifically allows for the recovery of attorneys' fees and costs incurred "in connection with the preparation, execution, administration, collection, enforcement, protection, waiver or amendment" of the Loan Agreement. When a contract fails to explicitly define its terms, "the court must give the contractual language its common and generally accepted meaning." Dean Mgmt., 274 Ill.Dec. 161, 790 N.E.2d at 939. Black's Law Dictionary unhelpfully defines "protection" as "The act of protecting," without providing a definition for "protect" or "protecting." Black's Law Dictionary (9th Ed.2009). The Oxford English Dictionary defines "protect" as "To defend or guard from danger or injury; to support or assist against hostile or inimical action; to preserve from attack, persecution, harassment, etc." (OED 3d Ed.2007). The Court concludes that defending against OTP's suits constitutes protection of the Loan Agreement within the meaning of Section 3.7(d). Thus, the plain language of Section 3.7(d) does not preclude BOA's recovery of the attorneys' fees at issue here.
For the reasons set forth above, OTP's 12(b)(6) motion to dismiss for failure to state a claim (R. 9) is DENIED. The parties are directed to reevaluate their settlement positions in light of this opinion and to exhaust all efforts to settle this case. The parties shall appear for a status hearing on February 18, 2014 at 9:45 a.m.
