UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LANDLOCK NATURAL PAVING, INC., 

Plaintiff

vs.

DESIN L.P., STILES PAINT MANUFACTURING INC.

d/b/a/ Tresco Paint Manufacturing, and TRESCO PAINT

MANUFACTURING INC., 

Defendants.

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12 C 2893

Judge Feinerman 

MEMORANDUM OPINION AND ORDER

Landlock Natural Paving, Inc., brings this diversity suit against three entities—Stiles

Paint Manufacturing Inc. d/b/a Tresco Paint Manufacturing (“Stiles”); Tresco Paint

Manufacturing Inc. (“Tresco”); and Desin, L.P. (“Desin”)—alleging claims under the Illinois

Consumer Fraud and Deceptive Practices Act (“ICFA”), 815 ILCS 505/1 et seq., and for

common law breach of contract, fraudulent misrepresentation, negligent misrepresentation, and

unjust enrichment. Doc. 23. Stiles answered. Doc. 27. A default judgment was entered against

Desin after it failed to appear. Doc. 43. Tresco has moved under Federal Rule of Civil

Procedure 12(b)(6) to dismiss the claims against it. Doc. 31. The motion is granted in part and

denied in part.

Background

In considering Tresco’s motion to dismiss, the court assumes the truth of the amended

complaint’s factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d

630, 632 (7th Cir. 2012). The court also must consider “documents attached to the complaint,

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documents that are critical to the complaint and referred to in it, and information that is subject

to proper judicial notice,” along with additional facts set forth in Landlock’s brief opposing

dismissal, so long as those facts “are consistent with the pleadings.” Geinosky v. City of

Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The following facts are set forth as favorably to

Landlock as these materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012).

Landlock is an international paving company and consultant that purchases, delivers, and

installs paving products. Doc. 23 at ¶ 4. Stiles and Tresco manufacture soil stabilization

products for use in the paving industry. Id. at ¶¶ 1-2. The complaint alleges that Stiles and

Tresco “are the same company, with the same principal place of business and same ownership,”

does not distinguish Stiles from Tresco, and refers to them together as “Tresco.” Id. at ¶¶ 1-2,

11-13, 24, 36. The court neither endorses nor rejects Landlock’s allegation that Stiles and

Tresco are the same company; however, whenever the complaint makes an allegation against

“Tresco,” the court assumes at this stage of the case that the reference is to Tresco, either alone

or together with Stiles. Desin purchases products from Tresco for distribution. Id. at ¶ 3.

In August 2009, Landlock entered into a contract with Tresco and Desin to purchase

2500 gallons of DB-700 Soil Stabilizer (“Product”) at a cost of $105,782.70. Id. at ¶¶ 5, 43, 49. 

Tresco and Desin represented to Landlock that the Product would function as a soil stabilizer. 

Id. at ¶¶ 6, 57. Tresco also represented that the Product was consistent with items it had

previously marketed to Landlock. Id. at ¶ 57. Landlock paid for the Product via wire transfer

into Desin’s account, and Desin took a commission as distributor and forwarded the rest of the

proceeds to Tresco. Id. at ¶ 7.

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Landlock received the Product in or about September 2009. Id. at ¶ 8. In October 2009,

Landlock shipped some of the Product to Thailand. Id. at ¶ 31. In March 2010, Landlock

shipped some of the Product to Ghana. Id. at ¶ 33. The Product failed in both countries to

perform its material function as a soil stabilizer. Id. at ¶¶ 32, 34. Landlock had the Product

independently tested in or about December 2009. Id. at ¶ 35. The testing revealed that the

Product was deficient, inconsistent, and lacking in viscosity. Id. at ¶ 36. Landlock was unable

to use any of the Product and suffered economic losses as a result, including the direct cost of the

Product, shipping costs, expenses incurred for various demonstrations in Ghana and Thailand,

laboratory testing expenses, and storage expenses. Id. at ¶ 38.

Discussion

As noted above, in addition to its ICFA claim, Landlock brings several common law

claims. The parties do not explicitly address choice of law, but because Illinois is the forum

State, and because the parties’ briefs focus on Illinois law, that is the law the court will apply. 

See Kochert v. Adagen Med. Int’l, Inc., 491 F.3d 674, 677 (7th Cir. 2007) (“Where the parties

have not identified a conflict in state law, we will generally apply the law of the forum state.”);

McFarland v. Gen. Am. Life Ins. Co., 149 F.3d 583, 586 (7th Cir. 1998).

I. Breach of Contract (Count II)

Count II alleges that Tresco breached the August 2009 contract by supplying deficient

Product. Doc. 23 at ¶¶ 48-55. Under Illinois law, a plaintiff alleging breach of contract must

show: “(1) the existence of a valid and enforceable contract; (2) substantial performance by the

plaintiff; (3) a breach by the defendant; and (4) resultant damages.” Reger Dev., LLC, v. Nat’l

City Bank, 592 F.3d 759, 764 (7th Cir. 2010) (quoting W.W. Vincent & Co. v. First Colony Life

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Ins. Co., 814 N.E.2d 960, 967 (Ill. App. 2004)); see also Wigod v. Wells Fargo Bank, N.A., 673

F.3d 547, 560 (7th Cir. 2012); Roberts v. Adkins, 921 N.E.2d 802, 810 (Ill. App. 2010). The

amended complaint alleges that “Plaintiff, Landlock, and Defendants, Tresco and Desin, entered

into a contract” and that “Plaintiff fulfilled all of its obligations under the contract when it

tendered $105,782.70 to Defendants.” Doc. 23 at ¶¶ 49-50. The amended complaint further

alleges that “Tresco supplied the deficient product to Defendant Desin LP,” that “Tresco

received monies from Landlock in exchange for the deficient product,” and that Landlock

“suffered damages” resulting from Tresco’s failure to comply with the contract. Id. at ¶¶ 51-52,

55. Those allegations are sufficient to state a contract claim.

Tresco makes much of the fact that Landlock did not attach a copy of the contract to the

amended complaint. Doc. 31 at 4. That critique is misguided, as a plaintiff in federal court need

not attach evidence to its complaint. See Hurst v. Hantke, 634 F.3d 409, 411 (7th Cir. 2011)

(noting that the Federal Rules of Civil Procedure do not “require a plaintiff to attach evidence to

his complaint”); Arnold v. Janssen Pharmaceutica, Inc., 215 F. Supp. 2d 951, 962 (N.D. Ill.

2002) (“federal courts, unlike Illinois state courts, do not require that critical documents be

attached to the complaint”); Widman v. Sun Chem., 2012 WL 2192236, at *2 (N.D. Ill. June 14,

2012) (same). In any event, Landlock’s response brief attaches documentation—invoices on

Tresco letterhead indicating the shipment of soil stabilizer to Landlock’s corporate address and

billed to Desin’s corporate address—supporting its allegation that there was a three-way contract

between Landlock, Desin, and Tresco. Doc. 37-1.

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II. Fraudulent Misrepresentation (Count III)

Count III alleges that Tresco defrauded Landlock by intentionally misrepresenting that

the Product was capable of performing as a soil stabilizer. Doc. 23 at ¶¶ 56-59. Tresco argues

that this common law fraud claim is defeated by the economic loss doctrine, also known as the

Moorman doctrine, Doc. 31 at 4, which “bars recovery in tort for purely economic losses arising

out of a failure to perform contractual obligations.” Wigod, 673 F.3d at 567; see Moorman Mfg.

Co. v. Nat’l Tank Co., 435 N.E.2d 443, 450 (Ill. 1982). The doctrine does not, however, apply to

fraud claims. See Trans States Airlines v. Pratt & Whitney Canada, Inc., 682 N.E.2d 45, 48 (Ill.

1997) (recognizing an exception to the Moorman doctrine “where the plaintiff’s damages are

proximately caused by a defendant’s intentional, false representation”); 2314 Lincoln Park West

Condo. Ass’n v. Mann, Gin, Ebel & Frazier, Ltd., 555 N.E.2d 346, 352 (Ill. 1990); Moorman

Mfg. Co., 435 N.E.2d at 452; Waldinger Corp. v. CRS Grp. Eng’rs, Inc., Clark Dietz Div., 775

F.2d 781, 791-92 (7th Cir. 1985).

Although the Moorman doctrine does not defeat Landlock’s fraud claim, the claim fails

for another reason. “In order to state a cause of action for common law fraud [under Illinois

law], a complaint must allege (1) a false statement of material fact, (2) knowledge or belief of

the falsity by the party making it, (3) intention to induce the other party to act, (4) action by the

other party in reliance on the truth of the statements, and (5) damage to the other party resulting

from such reliance.” People ex rel. Hartigan v. E & E Hauling, Inc., 607 N.E.2d 165, 174 (Ill.

1992) (internal quotation marks omitted); see also Athey Prods. Corp. v. Harris Bank Roselle, 89

F.3d 430, 434 (7th Cir. 1996) (“Under Illinois law ... the elements of common law fraud are: (1)

a false statement of material fact; (2) by one who knows or believes it to be false; (3) made with

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the intent to induce action by another in reliance on the statement; (4) action by the other in

reliance on the truthfulness of the statement; and (5) injury to the other resulting from that

reliance.”). Moreover, a plaintiff alleging fraud in federal court must comply with Rule 9(b),

which provides that “[i]n alleging fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “The circumstances of fraud

or mistake 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.” Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin.

Servs., Inc., 536 F.3d 663, 668 (7th Cir. 2008) (internal quotation marks omitted); see also

Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 441-42

(7th Cir. 2011). “This ordinarily requires describing the ‘who, what, when, where, and how’ of

the fraud, although the exact level of particularity that is required will necessarily differ based on

the facts of the case.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir. 2011). Rule 9(b)

recognizes that “[m]alice, intent, knowledge, and other conditions of a person’s mind may be

alleged generally.” Fed. R. Civ. P. 9(b); see also Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir.

2009).

The amended complaint fails to comply with Rule 9(b). Its most particularized fraud

allegations are that “Tresco represented and warranted that the product manufactured by

Defendants Tresco was capable of performing its material use as a soil stabilizer” and that

“Tresco represented and warranted that the product sold to Plaintiff was consistent with the

product marketed by Defendant Tresco to Plaintiff prior to purchase.” Doc. 23 at ¶ 57. The

amended complaint refers to these representations as “deceptive statements and

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misrepresentations,” “concealments and suppressions of material facts,” and “intentional

misrepresentations, deceptions and fraudulent concealments.” Id. at ¶¶ 57-59. These allegations

lack the “who, what, when, where, and how” required by Rule 9(b). See AnchorBank, 649 F.3d

at 615; Goren v. New Vision Int’l, Inc., 156 F.3d 721, 730 (7th Cir. 1998) (“These conclusory

allegations fail to specify the time, place and content of any of the misrepresentations attributed

to these defendants and therefore fall short of the particularity demanded by Rule 9(b).”).

Because Count III fails to plead a viable fraud claim, it is dismissed. But because

Landlock has requested a chance to replead, the dismissal is without prejudice, and Landlock is

given one leave to file a second amended complaint that adequately pleads a fraud claim. See

Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013) (“When a complaint fails to state a claim

for relief, the plaintiff should ordinarily be given an opportunity, at least upon request, to amend

the complaint to correct the problem if possible.”); Bausch v. Stryker Corp., 630 F.3d 546, 562

(7th Cir. 2010) (“As a general matter, Rule 15 ordinarily requires that leave to amend be granted

at least once when there is a potentially curable problem with the complaint or other pleading.”).

III. Negligent Misrepresentation (Count IV)

Count IV alleges that Tresco negligently misrepresented to Landlock that the Product

was capable of performing as a soil stabilizer. Doc. 23 at ¶¶ 60-64. Tresco again invokes the

Moorman doctrine as a defense. The doctrine does apply to negligent misrepresentation claims,

see Wigod, 673 F.3d at 574, but there is an exception where “the plaintiff’s damages are

proximately caused by a negligent misrepresentation by a defendant in the business of supplying

information for the guidance of others in their business transactions.” Catalan v. GMAC Mortg.

Corp., 629 F.3d 676, 693 (7th Cir. 2011) (quoting First Midwest Bank, N.A. v. Stewart Title

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Guar. Co., 843 N.E.2d 327, 333-34 (Ill. 2006)). “An allegation that the defendant is in the

business of supplying information for the guidance of others is a legal conclusion that must be

supported with well-pleaded factual allegations.” Tyler v. Gibbons, 857 N.E.2d 885, 888 (Ill.

App. 2006). “[I]f the intended end result of the plaintiff-defendant relationship is for the

defendant to create a product, a tangible thing, then the defendant will not fit into the ‘business

of supplying information’ negligent misrepresentation exception.” Prime Leasing, Inc. v.

Kendig, 773 N.E.2d 84, 95 (Ill. App. 2002) (internal quotation marks omitted).

The amended complaint does not adequately allege that Tresco is in the business of

supplying information for the guidance of others. To the contrary, the amended complaint

alleges that Tresco is a “manufacture[r],” “suppl[ier],” and “seller” of soil stabilization products. 

Doc. 23 at ¶¶ 2, 6, 24, 51, 67. Accordingly, the exception to the Moorman doctrine does not

apply here and the negligent misrepresentation claim is dismissed. See R.J. O’Brien & Assocs.,

Inc. v. Forman, 298 F.3d 653, 656 (7th Cir. 2002); Budnick Converting, Inc. v. Nebula Glass

Int’l, Inc., 866 F. Supp. 2d 976, 996 (S.D. Ill. 2012) (finding the exception to the Moorman

doctrine inapplicable where the defendant was “a manufacturer and supplier of insulated glass

products,” even though the defendant supplied the plaintiff with information about its products);

Reis Robotics USA, Inc. v. Concept Indus., Inc., 462 F. Supp. 2d 897, 912 (N.D. Ill. 2006) (same

where the defendant was “in the business of manufacturing and supplying robotic equipment”). 

Although it is unlikely that Landlock will be able to cure this defect, the court will err on the side

of caution and give Landlock one opportunity to replead the negligent misrepresentation claim.

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IV. ICFA (Count V)

Count V alleges that Tresco violated the ICFA by intentionally misrepresenting that the

Product was capable of performing as a soil stabilizer. Doc. 23 at ¶¶ 65-72. “When a plaintiff in

federal court alleges fraud under the ICFA, the heightened pleading standard of Federal Rule of

Civil Procedure 9(b) applies.” Pirelli Armstrong, 631 F.3d at 441; see also Davis v. G.N. Mortg.

Corp., 396 F.3d 869, 883 (7th Cir. 2005) (“a complaint made pursuant to the ICFA must be pled

with the same specificity as that required under common law fraud”) (internal quotation marks

omitted). As discussed above, Landlock’s fraud allegations do not satisfy Rule 9(b). 

Accordingly, like the common law fraud claim, the ICFA claim is dismissed without prejudice.

V. Unjust Enrichment (Count VI)

Count VI alleges that Tresco was unjustly enriched when Landlock paid Tresco for

Product that was substandard. Doc. 23 at ¶¶ 73-77. “In Illinois, to state a cause of action based

on a theory of unjust enrichment, a plaintiff must allege that the defendant has unjustly retained a

benefit to the plaintiff’s detriment, and that defendant’s retention of the benefit violates the

fundamental principles of justice, equity, and good conscience.” Cleary v. Philip Morris Inc.,

656 F.3d 511, 516 (7th Cir. 2011) (alterations and internal quotation marks omitted). That said,

“if an unjust enrichment claim rests on the same improper conduct alleged in another claim, then

the unjust enrichment claim will be tied to this related claim—and, of course, unjust enrichment

will stand or fall with the related claim.” Id. at 517; see also Siegel v. Shell Oil Co., 612 F.3d

932, 937 (7th Cir. 2010) (“Here, Siegel’s theory of unjust enrichment is based on the defendants’

conduct which he deemed unfair under ICFA. We rejected his ICFA claim. And absent that the

defendants engaged in an unfair practice, Siegel’s unjust enrichment claim is not viable.”).

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Landlock’s response brief admits that its unjust enrichment claim rests on the same

predicate as its statutory and common law fraud claims. Doc. 37 at 5. Accordingly, the unjust

enrichment claim is dismissed without prejudice for the same reason as the fraud claims. Assoc.

Benefits Servs., Inc. v. Caremark RX, Inc., 493 F.3d 841, 855 (7th Cir. 2007) (“where the

plaintiff’s claim of unjust enrichment is predicated on the same allegations of fraudulent conduct

that support an independent claim of fraud, resolution of the fraud claim against the plaintiff is

dispositive of the unjust enrichment claim as well”) (emphasis omitted). 

Conclusion

For the foregoing reasons, Tresco’s motion to dismiss is granted with respect to Counts

III, IV, V, and VI, and denied with respect to Count II. The dismissal of Counts III, IV, V, and

VI is without prejudice. Landlock has until October 2, 2013, to file a second amended complaint

that seeks to replead Counts III, IV, V, and VI. 

September 11, 2013 

United States District Judge

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