Opinion
No. 04 C 1996.
September 8, 2004
MEMORANDUM OPINION AND ORDER
Plaintiff Lawrence Friedman, P.C., alleges in its Amended Complaint that it contracted with defendant Inter-Tel Technologies, Inc. to provide Least Cost Routing ("LCR") for plaintiff's telephone system. There is complete diversity of citizenship and the amount in controversy is alleged to be in excess of $75,000. Plaintiff alleges that the LCR system was supposed to route plaintiff's telephone calls to the least expensive provider. Plaintiff alleges the parties' contract was breached because the LCR system that was installed resulted in plaintiff's telephone calls being routed to providers that were more expensive than those providers that had previously been used by plaintiff. Defendant's LCR system was used from September 1, 2001 until April 1, 2003. Defendant Inter-Tel counterclaims that plaintiff failed to return the software when use of the LCR system was discontinued and therefore owes a $700 per year licensing fee for an additional two years.
The Amended Complaint also includes allegations as to defendant Matrix Telecom, Inc. On September 1, 2004, Matrix was dismissed with prejudice based on the parties' agreed motion.
Inter-Tel has moved for judgment on the pleadings, both as to dismissing the Amended Complaint and granting judgment on its counterclaim. The same standards apply to both a Rule 12(b)(6) motion to dismiss and a Rule 12(c) motion for judgment on the pleadings. Gutierrez v. Peters, 111 F.3d 1364, 1368 (7th Cir. 1997); Anderson v. Cornejo, 199 F.R.D. 228, 246 (N.D. Ill. 2000); Madsen v. Park City, 6 F. Supp. 2d 938, 941 (N.D. Ill. 1998). A plaintiff's well-pleaded allegations of fact are taken as true and all reasonable inferences are drawn in the plaintiff's favor. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 164-65 (1993); Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992). A complaint need not set forth all relevant facts or recite the law; all that is required is a short and plain statement showing that the party is entitled to relief. Fed.R.Civ.P. 8(a);Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). A plaintiff in a suit in federal court need not plead facts; conclusions may be pleaded as long as the defendant has at least minimal notice of the claim. Fed.R.Civ.P. 8(a)(2); Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995); Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997). It is unnecessary to specifically identify the legal basis for a claim.Albiero, 122 F.3d at 419; Bartholet v. Reishauer A.G. (Zürich), 953 F.2d 1073, 1078 (7th Cir. 1992). It is also true, however, that a party can plead him or herself out of court by alleging facts showing he or she has no viable claim. Jackson, 66 F.3d at 153-54; Tregenza v. Great American Communications Co., 12 F.3d 717, 718 (7th Cir. 1993), cert. denied, 511 U.S. 1085 (1994); Early v. Bankers Life Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992). Further, as long as they are consistent with the allegations of the complaint, a plaintiff may assert additional facts in his or her response to a motion to dismiss.Albiero, 122 F.3d at 419; Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996);Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439-40 (7th Cir. 1994); Hrubec v. National Railroad Passenger Corp., 981 F.2d 962, 963-64 (7th Cir. 1992).
Inter-Tel primarily focuses on plaintiff's reply to ¶ 5 of Inter-Tel's Limitation on Liability affirmative defense. In that paragraph, Inter-Tel alleges "During all times when the LCR License Agreement was in effect, Defendant Inter-Tel dutifully provided the updates requested by Plaintiff." Plaintiff replied: "The Plaintiff admits that it received certain updates but has no knowledge as to whether said updates were all that should have been provided or that said updates did not violate the terms and conditions of the contract between the parties." Inter-Tel contends this is an admission that the updates required by the parties' contract were provided and an admission that plaintiff did not adequately investigate prior to filing suit.
Inter-Tel reads too much into the cited pleading. The contract itself indicates that defendant was to provide quarterly updates other than those specifically requested by plaintiff. Thus, the fact that Inter-Tel provided those that were actually requested by plaintiff does not show that Inter-Tel did not breach any of its duties under the contract. Also, plaintiff's reply to the affirmative defense need not be read as an admission that plaintiff did not investigate its case before filing suit. Plaintiff alleges that the LCR system did not result in lower cost telephone costs as was allegedly promised. Plaintiff can reasonably believe that such a promise was violated based on the alleged increase in costs even if plaintiff does not yet know the details of how the software itself functions.
It is true that plaintiff does not contest that it has not yet returned the software. Plaintiff contends it has retained the software for purposes of pursuing its possible remedies and discovery in this case. In light of allegations that defendant breached the parties' contract, it cannot be held that plaintiff would be liable for an additional two years of licensing fees even if it is able to prove its allegations of a breach of contract.
On the limited arguments before the court, it cannot be held that Inter-Tel is entitled to judgment on the pleadings. Inter-Tel's motion will be denied without prejudice.
IT IS THEREFORE ORDERED that defendant Inter-Tel Technologies, Inc.'s motion for judgment on the pleadings [19] is denied without prejudice. Defendant Inter-Tel Technologies, Inc. shall answer the Amended Complaint within two weeks.