UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION

INDIANA RECYCLING & RENEWABLE FUELS, 

LLC d/b/a ILLINOIS RECYCLYING & 

RENEWABLE FUELS, 

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Plaintiff, 

v. 

Case No. 2:16-cv-272

EARTH MANAGEMENT SERVICES OF ILLINOIS, 

INC.; CHICAGO HEIGHTS LAND MANAGEMENT, 

INC.; and ROBERT FOX,

Judge Joseph S. Van Bokkelen 

Defendants. 

Magistrate Judge Paul Cherry 

 

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF 

DEFENDANTS’ MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)

TABLE OF CONTENTS 

Legal Standard For Motion to Dismiss....................................................... pp. 1-2 

Applicable Law................................................................................... pp. 2-3 

I. Count I Should Be Dismissed Because The Complaint Establishes......... pp. 3-8 

That There Is No Contract That Can Be Enforced................................. pp. 3-8 

Factual Background................................................................... pp. 3-5 

 Legal Standards............................................................................................... pp. 5-8 

II. Count II Should Be Dismissed In Its Entirety For Failure To State A 

Claim Upon Which Relief Can Be Granted............................................ pp. 9-16 

A. Count II fails to state a claim for fraud or perjury....................... pp. 9-13 

B. Count II fails to state a claim for tortious interference.................... pp. 13-16 

III. The Prayer For Equitable Relief In Count II Should Be Dismissed........ pp. 16-21 

A. Illinois law would not permit the transfer at this time...................... pp. 16-17 

B. The Equitable Relief sought would require that the Illinois 

Environmental Protection Agency grant the permit and Plaintiff 

does not name it as a party................................................... pp. 17-18 

C. As a matter of public record, Defendant has no 

“Operating Permit” for the Property........................................ pp. 18-19 

 D. The EPA Certification for Operating a Waste Management Facility 

grants no protectable or transferable property rights or interests....... pp. 19-21 

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UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION

INDIANA RECYCLING & RENEWABLE 

FUELS, LLC d/b/a ILLINOIS RECYCLYING & 

RENEWABLE FUELS, 

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Plaintiff, 

v. 

Case No. 2:16-cv-272

EARTH MANAGEMENT SERVICES OF 

ILLINOIS, INC.; CHICAGO HEIGHTS LAND 

MANAGEMENT, INC.; and ROBERT FOX,

Judge Joseph S. Van Bokkelen 

Defendants. 

Magistrate Judge Paul Cherry 

 

MEMORANDUM OF LAW IN SUPPORT OF 

DEFENDANTS’ MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) 

 Defendants' Motion to Dismiss under Federal Rules of Civil Procedure Rule 12(b)(6) 

(Fed.R.Civ.Pro. Rule 12(b)(6)) seeks dismissal of both counts, Count I for breach of contract and 

Count II for fraud and tortious interference with a business interest. The motion also seeks 

dismissal, with prejudice, of the prayer for equitable relief asserted in Count II. 

 Legal Standards For A Motion To Dismiss. 

 Rule 12(b)(6) provides, “Every defense to a claim for relief in any pleading must be 

asserted in the responsive pleading if one is required. But a party may assert the following 

defenses by motion: (6) failure to state a claim upon which relief can be granted.” Fed.R.Civ.Pro 

Rule 12(b)(6). 

To survive a motion to dismiss, a complaint must contain sufficient factual matter 

accepted as true, to “state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 

claim has facial plausibility when the plaintiff pleads factual content that allows the court to 

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draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The 

plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer 

possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are 

“merely consistent with” a defendant’s liability, it “stops short of the line between possibility and 

plausibility of entitlement to relief.” Id. A complaint need not contain detailed factual 

allegations to meet that standard, but it must go beyond mere labels and conclusions, and must 

“be enough to raise a right to relief above the speculative level.” G & S Holdings LLC v. 

Continental Cas. Co., 697 F.3d 5344, 537-38 (7th Cir. 2012) (quoting Twombly, 550 U.S. at 

555). 

When the allegations are “not only compatible with, but indeed [are] more likely 

explained by lawful” conduct, the complaint fails to state a plausible claim for relief. Cohen v. 

Am. Sec. Ins. Co., 735 F.3d 601, 612 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 680). 

Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice. Iqbal, 556 U.S. at 678. A court is not bound to accept as true a legal 

conclusion couched as a factual allegation. Id. 

Whether a complaint states a plausible claim for relief, Iqbal-Twombly requires a twopronged approach in which a court: (1) first identifies the well-pleaded factual allegations by 

discarding the pleadings that are “no more than conclusions” and (2) then determines whether the 

remaining well-pleaded factual allegations “plausibly give rise to an entitlement to relief.” 

Rocha v. Rudd, 826 F.3d 905, 911 (7th Cir. 2016) (quoting Iqbal, 556 U.S. at 679). 

Applicable Law. 

As an initial matter, Defendants assert that Illinois law governs this dispute. The land at 

issue is located at 1301 State Street, Chicago Heights, Cook County, Illinois (“Real Estate”). 

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The purported agreements attached as Exhibit A and Exhibit D to the Complaint each contain 

Illinois choice of law clauses. (See Complaint Ex. A at p. 9 ¶ 15.07 and Ex. D at p. 8 ¶ 16.07). 

The transactions and occurrences alleged in the Complaint happened within the State of Illinois. 

Accordingly, this Court should apply Illinois law in accordance with the Rules of Decision Act 

(28 U.S.C. § 1652), Erie Doctrine and choice of law principles. 

I. Count I Should Be Dismissed Because The Complaint Establishes That There Is No 

Contract That Can Be Enforced.

 Factual Background. 

Plaintiff starts with the notion that it and Chicago Heights Land Management (“Land 

Management”) entered into a contract for the sale and purchase of 27 acres of vacant land 

located 1301 State Street, Chicago Heights, Illinois, on September 21, 2009. (Complaint at p. 2-

3 ¶¶ 17-20, Ex. A at p. 1). This contract is purportedly Exhibit A to the complaint. Yet, Exhibit 

A is not signed by the parties and contains a closing date of March 30, 2010. (Complaint Ex. A 

at p. 1 and 9). 

Next, Plaintiff alleges that Land Management refused to close but agreed to extend the 

closing date. (Complaint at p. 3 ¶¶ 19-20). Yet, Plaintiff cannot find this second purported 

agreement. (Complaint at p. 3 ¶ 21). Rather, Plaintiff at Exhibit C attaches a copy of a check 

dated August 8, 2010 in the amount of $50,000.00. (Complaint at p. 3 ¶ 21, Ex. C). The 

Complaint is silent regarding how long this purported extension would last or when the closing 

date for the Second Real Estate Contract would have occurred. 

According to Plaintiff, Land Management refused to close again on the missing Second 

Real Estate Contract, but, instead, extended the closing date, this time to December 31, 2015. 

(Complaint at p. 3 ¶¶ 22-23). Proof of this assertion is a contract identified as Exhibit D to the 

complaint that now covers approximately 55 acres of land, still known as 1301 State Street, 

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Chicago Heights, Illinois. (Complaint at p. 3 ¶ 24, Ex. D). Exhibit D is dated September 21, 

2015, six years after the first (unsigned) contract. (Complaint Ex. A and Ex. D). The purported 

purchaser in Exhibit D is Midwest Renewable Resources, LLC – not Plaintiff. (Complaint Ex. D 

at p. 1 and 9). Yet, Plaintiff alleges that Exhibit D created “additional terms and obligations on 

IRRF.” (Complaint at p. 3 ¶ 24.). Exhibit D contains no reference to Plaintiff, IRRF 

whatsoever. (Complaint Ex. D). 

Plaintiff alleges that a copy of a check, attached as Exhibit E, related to the “Second Real 

Estate Contract” (again, not provided). (Complaint p. 3 ¶ 25, Ex. E). The copy of the check 

contained in Exhibit E is dated August 20, 2015 in the amount of $50,000.00. Exhibit E also 

contains a company resolution of Midwest Renewable Resources, LLC authorizing the purchase 

of the Real Estate for that entity. (Complaint Ex. E). 

In Exhibit D, at paragraph 16.02, contains a merger clause, which represents that it is the 

final expression of the parties’ transaction regarding the real estate. (Complaint Ex. D at p. 7 

¶ 16.02). Specifically, that Exhibit D provides, “[t]his Agreement contains the entire agreement 

and understanding of the parties with respect to the subject matter hereof, and the same may not 

be amended, modified or discharged nor may any of its terms be waived except by an instrument 

in writing signed by the party to be bound thereby the final expression of the parties’ transaction 

regarding the real estate.” Ibid. Exhibit D also includes an Addendum, which, at paragraph 

7.04, provides that Plaintiff would not be entitled to ownership of the EPA waste permit 

described in the complaint until closing. (Complaint Ex. D at p. 11 ¶ 7.04). The Addendum also 

provides for a closing date of January 14, 2016. (Complaint Ex. D at p. 11). 

Next, Plaintiff alleges that Land Management agreed to extend the closing dealing of the 

Third Real Estate Contract “up to and including July 5, 2016.” (Complaint at p. 3 ¶ 27). Proof 

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of this assertion is an email, attached as Exhibit F, dated January 5, 2015 – more than 9 months 

before the alleged Third Real Estate Contract was signed. (Complaint Ex. F). Plaintiff further 

alleges this email is in fact a written agreement representing the Fourth Real Estate Contract. 

(Complaint at p. 3 ¶ 27). The January 5, 2015 email to Jim Ventura is from Thomas Planera, 

counsel for Defendants. (Complaint Ex. F). Exhibit F states that: 

I spoke with Bob. He instructed that when you deposit the $50,000 into my 

escrow account I will draft the option to buy. Alternatively, you can have your 

attorneys draft the option for me to review. 

The terms of the option should state that CHLM will sell you the land for 

$3,200,000 as a right of first refusal. Regardless of any offer CHLM revives to 

sells the land, IRRF will have the right to close on the land for more than the 

$3.2M (less the $50K). The term will be for 180 days. 

(Complaint Ex. F). 

The Court should note that 180 days after January 5, 2015 was Saturday, July 4, 2015. 

In exchange for this purported extension, Plaintiff alleges that it paid $50,000.00. 

(Complaint at p. 4 ¶ 28). Proof of this payment, attached as Exhibit G, are two deposit slips: (1) 

dated October 9, 2008 for check number 1011 in the amount of $10,000 and (2) dated August 17, 

2010 for check number 1012 in the amount of $50,000.00. (Complaint at p. 4 ¶ 28 Ex. G). 

Plaintiff further alleges that it demanded the Fourth Real Estate Contract – email – to close, but 

Land Management refused. (Complaint at p. 4 ¶ 29). No written demand letter is attached to the 

Complaint. 

Legal Standards 

The elements of breach of contract under Illinois law are: (1) the existence of a valid and 

enforceable contract; (2) performance by the plaintiff; (3) defendant’s breach of contract; and (4) 

injury to the plaintiff. Gallagher Corp. v. Russ, 309 Ill.App.3d 192, 199, 721 N.E.2d 605, 611 

(1st Dist. 1999). The party seeking to enforce an agreement has the burden of establishing the 

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existence of the agreement. Reese v. Forsythe Mergers Group, Inc., 288 Ill.App.3d 972, 979, 

682 N.E.2d 208, 213 (2d Dist. 1997). In alleging breach of contract by a defendant, a plaintiff 

should also allege the factual circumstances surrounding the formation of the agreement, 

specifically, the offer, acceptance and existence of valuable consideration. Pollack v. Marathon 

Oil Co., 34 Ill.App.3d 861, 864, 341 N.E.2d 101 (1976). Price is an essential element of every 

contract for the transfer of property and must be sufficiently definite or capable of being 

ascertained from the parties’ contract. Crestview Builders, Inc. v. Noggle Family LP, 352 

Ill.App.3d 1182, 1185, 816 N.E.2d 1132, 1134 (2d Dist. 2004). 

Generally, only a party to a contract, or one in privity with a party, may sue for breach of 

contract. Sabath v. Mansfield, 60 Ill.App.3d 1008, 1016, 377 N.E.2d 161, 168 (1st Dist. 1978). 

The mere fact that a person was injured by a breach of contract or that he acted in reliance on it 

does not create a right to pursue a claim for breach of contract which he otherwise would not 

have had. Id. (citing 4 Corbin on Contracts § 779B (1951)). 

Interpretation of contractual language is a question of law for the court to decide. 

Radkiewicz v. Radkiewicz, 353 Ill.App.3d 251, 256, 818 N.E.2d 411, 415 (2d Dist. 2004). Where 

an exhibit contradicts the allegations in the complaint, the exhibit controls, even when 

considering a motion to dismiss. Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013); Forrest 

v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007) (“[w]here an exhibit and the 

complaint conflict, the exhibit typically controls.”). When an exhibit contradicts the allegations 

in the complaint, ruling against the non-moving party on a motion to dismiss is consistent with 

our obligation to review all facts in the light most favorable to the non-moving party. Bogie, 705 

F.3d at 609. Such an analysis is particularly pertinent in contract disputes in which a plaintiff 

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attaches a contract to the complaint and makes an allegation that the contract on its face clearly 

disputes. Id.

An action for specific performance of a land contract is sustained by allegations of 

ultimate facts showing refusal on the part of the seller to comply with the contract and a tender 

by the purchaser of the full amount required to entitle him to a deed pursuant to the contract. 

Arnold v. Leahy Home Bldg. Co., Inc., 95 Ill.App.3d 501, 507, 420 N.E.2d 699, 703 (2d Dist. 

1981). The rule is that before specific performance will be awarded all conditions of the contract 

must be met by the party seeking performance. Id. Purchasers have no right to impose 

conditions not contained in the contract of sale and if they do so, they fail to show they complied 

with the terms of the contract and are ready, able and willing to do the acts required in the 

contract. Id. A party is not entitled to specific performance if the circumstances of a course of 

conduct clearly show an abandonment of the contract by him. Id.

In this case, Plaintiff has failed to allege any valid and enforceable real estate contract 

between itself and any Defendant. The First Real Estate Contract is unsigned, not dated and 

ended on March 30, 2010. (Complaint Ex. A.). The Second Real Estate Contract is not attached 

to the Complaint by Plaintiff’s own admission. (Complaint at p. 3 ¶ 21). Nor for that matter are 

any of the terms of this purported agreement alleged in the Complaint. The Third Real Estate 

Contract is not an agreement between Plaintiff IRRF and any Defendant; but, rather, an 

agreement between Midwest Renewable Resources, LLC and Land Management. (Complaint 

Ex. D). The Fourth Real Estate Contract is not a contract at all, but, rather, an email discussing 

terms for an option dated nine months before the third agreement. (Complaint Ex. F). 

Even if this Court were to re-characterize these agreements by placing them in 

chronological and logically consistent order, the Plaintiff still fails to allege a valid and 

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enforceable contract. Exhibit D lapsed by its own terms on January 14, 2016. (Complaint Ex. D 

at p. 11). Nowhere in the Complaint is it alleged that Plaintiff was ready, willing and able to 

close at that time. Further, the $50,000.00 that Plaintiff seeks to recover, presumably represented 

by Exhibit E, was a non-refundable option that Plaintiff forfeited when it failed to close. Exhibit 

D provides: 

The sum of Fifty Thousand and No/100 Dollars ($50,000.00) which shall be 

delivered in certified funds concurrently with the execution of this Agreement. 

Purchaser acknowledges that the Deposit is non-refundable and is consideration 

for Seller granting the Purchaser an exclusive right to purchase the property 

pursuant to the terms herein during the term of this Contract. 

(Complaint Ex. D at p.1). 

That option, which counsel for Defendants and James Ventura reference in Exhibit F, 

could not possibly have extend the closing deadline to July 5, 2016 as alleged by Plaintiff. 

(Complaint at p. 3 ¶ 27). We know this is so because the Third Real Estate Contract – dated nine 

months later – contains a merger clause representing the final understanding of the parties. 

(Complaint Ex. D at p. 7 ¶ 16.01). 

Moreover, Exhibit D terminated by its own terms on the closing date. In paragraph 16.03 

provides, “All representations, warranties, agreements, indemnifications and obligations of the 

parties shall expire as of the Closing.” (Complaint Ex. D at p. 8 ¶ 16.03). As previously noted, 

the closing date, pursuant to the Addendum, occurred on January 14, 2016. (Complaint Ex. D at 

p. 11). Therefore, after January 14, 2016, there existed no valid and enforceable agreement 

between Plaintiff and Land Management. Any purported agreement must be in writing pursuant 

to Illinois Statute of Frauds. (740 ILCS 80/2). Accordingly, on the face of the Complaint, 

Plaintiff fails to allege facts sufficient to demonstrate a breach of contract by any Defendants. 

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II. Count II Should Be Dismissed In Its Entirety For Failure To State A Claim Upon 

Which Relief Can Be Granted. 

In Count II, plaintiff purports to state causes of action for fraud, perjury and tortious 

interference with their business interest. Count II should be dismissed because the Complaint 

fails to sufficiently state claims for fraud, perjury or tortious interference. 

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint to 

state a claim on which relief may be granted. Fed.R.Civ.Pro. Rule 12(b)(6). See supra, at p. 1-2. 

A. Count II fails to state a claim for fraud or perjury. 

To state a claim under the federal notice pleading system, a complaint must provide a 

“short and plain statement of the claim showing that the pleader is entitled to relief.” 

Fed.R.Civ.P. 8(a)(2); Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010). The 

complaint “does not need detailed factual allegations,” but it must provide “more than an 

unadorned, the-defendant-unlawfully-harmed-me accusation.” Twombly, supra, 550 U.S. at 555-

57; Iqbal, supra, 556 U.S. at 678 (2009). It does not suffice if the complaint offers only “labels 

and conclusions,” “naked assertions,” or a “formulaic recitation of the elements of a cause of 

action. Iqbal, 556 U.S. at 678. 

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff’s complaint must “contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-57 (emphasis added)). “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.” Iqbal, 556 U.S. at 

678. When the plaintiff’s allegations “do not permit the court to infer more than the mere 

possibility of misconduct, the complaint does not satisfy the minimal pleading burden of Rule 8 

of the Federal Rules of Civil Procedure.” Id. at 679. 

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Under Fed.R.Civ.Pro. Rule 9, claims of fraud and misrepresentation are subject to 

heightened pleading standards. Rule 9 specifically provides that “in alleging fraud or mistake, a 

party must state with particularity the circumstances constituting fraud or mistake.” 

Fed.R.Civ.Pro. 9(b); Vicom, Inc. v. Harbridge Merchant Services, 20 F.3d 771, 777 (7th Cir. 

1993); Levine v. Prudential Bache Properties, 855 F.Supp. 924, 929 (N.D. Ill. 1994). Some 

claims – like fraud – may have a stigmatizing effect on defendants and their reputations. UniQuality Inc. v. Infotronx, Inc., 974 F.2d 918, 924 (7th Cir. 1992). Requiring that such claims be 

pleaded with particularity (1) ensures that the defendants have fair notice of plaintiff’s claim, (2) 

helps safeguard the defendants from spurious accusations and resulting reputational harm, (3) 

reduces the possibility that a meritless fraud claim can remain in a case, by ensuring that full and 

complete actual allegations is not postponed until discovery and (4) protects defendants against 

“strike” suits. Vicom, Inc, 20 F.3d at 777; Uni-Quality Inc., 974 F.2d at 924. 

A party must plead each of the elements of fraud with particularity. Fed.R.Civ.Pro. 9(b); 

Levine, 855 F.Supp. at 929; Vicom, Inc., 20 F.3d at 777. When pleading fraud, a claimant must 

allege more than mere conclusory allegations of fraud or the technical elements of fraud. The 

common law elements of fraud are: (1) false representation or admission of material fact; (2) 

knowledge of or belief in its falsity by person making it; (3) belief in the truth by receiver of the 

statement; (4) intent that a statement will be acted upon; and (5) a detrimental reliance by a 

person who was deceived. TLMS Motor Corp. v. Toyota Motor Distributors, Inc., 912 F.Supp. 

329, 334 (N.D. Ill. 1995). The “particularity” requirement of Rule 9(b) applies not only to 

claims expressly denominated as “fraud allegations,” but also in claims that “grounded in fraud” 

or that “sound in fraud.” See Uni-Quality, Inc., 974 F.2d at 923. 

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Here, Plaintiff’s Complaint allegations concerning fraud violate Rule 9’s heightened 

pleading requirements to allege fraud with specificity. Plaintiff alleges, for example, that: 

Earth Management and Robert Fox acted in concert to transfer the Certification 

for Operating a Waste Management Facility originally held by IRRF. (Complaint 

at p. 4 ¶ 31); 

Earth Management and Robert Fox made false statements purporting to act on 

behalf of IRRF to the Illinois Environmental Protection Agency.... (Complaint at 

p. 4 ¶ 35); 

Earth Management and Robert Fox additionally made false threats, knowing the 

statements to be false when made.... (Complaint at pp. 4-5 ¶ 36); 

Earth Management and Robert Fox’s intentional misrepresentation materially 

interfered with.... (Complaint at p. 5 ¶ 37); 

Earth Management and Robert Fox made false and misleading statements.... 

(Complaint at p. 6 ¶ 40); and 

Earth Management and Robert Fox’s perjured themselves to the Illinois 

Protection Agency with the intent to deceive.... (Complaint at p. 6 ¶ 41). 

These allegations amount to mere conclusory allegations of fraud. Rule 9(b) requires the 

pleader to fill in “the who, what, when, where and how” of the alleged scheming. Uni-Quality, 

Inc., 974 F.2d at 923; Vicom, Inc., 20 F.3d at 777. In the context of fraud claims, the pleader 

must allege (1) the time, place and content of the false representation or omission, and explain 

how they were fraudulent; (2) the identity of the person making the misrepresentations; (3) how 

the misrepresentations misled the plaintiff; and (4) what the speaker gained from the fraud. 

Vicom, Inc., 20 F.3d at 777; TLMS Motor Corp., 912 F.Supp. at 334. 

However, all of the fraud allegations in the Complaint lack any substance – alleging for 

example, that Earth Management and Robert Fox acted “in concert”, “made false statements 

purporting to act”, “made false threats”, “material misrepresentations”, “made false and 

misleading statements”, and “perjured themselves” “with intent to induce” and other parties 

reasonably “reasonably relied” (See Complaint at pp. 4-6 ¶¶ 31, 35, 36, 37, 40, 41). 

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Moreover, where the plaintiff alleges that multiple defendants committed a fraud, the 

complaint may not simply lump all the defendants together, but must specify which defendant 

committed which allegedly fraudulent act. Vicom, Inc., 20 F.3d at 778; see also Jepson, Inc. v. 

Makita Corp., 34 F.3d 1321, 1329 (7th Cir. 1994) (“[D]efendants are entitled to be apprised of 

the roles they each played in the alleged scheme, and absent a compelling reason, a plaintiff is 

normally not entitled to treat multiple corporate defendants as one entity.”). Once more, here, 

Plaintiff had made no attempt to allege with any specificity who in connection with Earth 

Management purportedly committed the fraudulent acts; the business entity Earth Management 

is lumped together with Robert Fox; no one from the Illinois EPA is personally identified; no 

specific dates or modes of communication are provided; no specific statements are identified; no 

effort is given to explain the “reasonable reliance”; and no effort is given to explain how the 

defendants purportedly gained from the alleged deception. 

Very simply, the Complaint allegations are woefully lacking and violate Rule 9. 

Defendants cannot possibly be expected to answer or defend against such a complaint. 

Therefore, Defendants request that this Court dismiss Complaint Count II. 

Moreover, this Court should reject and dismiss Plaintiff’s Count II allegations concerning 

perjury. For example, Plaintiff alleges that “Earth Management and Robert Fox perjured 

themselves to deceive the Illinois Protection Agency.” (Complaint at p. 6 ¶ 41). Defendants 

maintain that the allegation of perjury is utterly baseless and strenuously object to Plaintiff’s 

reckless assertion of perjury. However, for purposes of this Motion to Dismiss, there is simply 

no civil cause of action for perjury. Perjury is strictly a matter for criminal enforcement. See

Dean v. Kirkland, 301 Ill.App.495, 506, 23 N.E.2d 180, 186 (1st Dist. 1939) (no action lies at 

common law for damage sustained by reason of perjury); John Allen Co. v. Brandow, 59 

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Ill.App.2d 328, 336, 207 N.E.2d 339, 343 (3d Dist. 1965) (“Perjury if proven to be involved in 

legal proceedings, is punishable in prosecution under criminal procedures. Civil actions 

following such litigation have not be favored by the courts...”); Traveler v. CSX Transp., Inc., 

No. 1:06CV56, 2007 WL 1830807, at *2 (Mag. J. Roger B. Cosbey, N.D. Ind. June 22, 2007) 

(commenting that perjury in whatever form, falls within the sole province of the United States 

Attorney, and it is up to that office, not a private citizen, to prosecute (or not prosecute), such 

alleged conduct); Liddell v. Smith, 345 F.2d 491, 494 (7th Cir. 1965) (“The general rule, which is 

followed by both the Federal Courts and the courts of the State of Illinois, is that in the absence 

of statute, no action lies to recover damages caused by perjury or subornation of perjury, whether 

committed in the course of, or in connection with, a civil action or suit, a criminal prosecution, or 

other proceeding, and whether the perjurer was a party to or a witness in the action or 

proceeding.”). Accordingly, to the extent that Plaintiff may be attempting to plead an action for 

civil perjury in Count II, it should be dismissed with prejudice pursuant to Rule 12(b)(6) for 

failure to state a claim. 

B. Count II fails to state a claim for tortious interference. 

In Count II, Plaintiff also alleges an action against Defendants Earth Management and 

Fox that Plaintiff has labelled “Tortious Interference with Business Interest.” There is no such 

cause of action. The closest possible causes of action are intentional interference with 

contractual relationships or intentional interference with prospective economic advantage – 

neither of which Plaintiff has properly pleaded in the sparse allegations of the Complaint. 

Plaintiff’s only allegation on this issue is that “Earth Management and Robert Fox’s activity 

described in this Complaint for Damages prevented IRRF from successfully establishing a 

business relationship with those who have pledged business to IRRF at the Real Estate.” 

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(Complaint at p. 6 ¶ 41). The allegations are entirely insufficient and the claim lacks merit as a 

matter of law. 

The elements of the tort of intentional interference with contractual relations are (1) the 

existence of a valid and enforceable contract between the plaintiff and another party; (2) the 

defendant’s awareness of the contractual relationship; (3) the defendant’s intentional and 

unjustified inducement of a breach of the contract; (4) a subsequent breach by the other party, 

caused by the defendant’s wrongful conduct; and (5) damages. HPI Healthcare Services, Inc. v. 

Mt. Vernon Hospital, Inc., 131 Ill.2d 145, 154 (1989); Cromeens, Holloman, Sibert, Inc. v. AB 

Volvo, 349 F.3d 376, 398 (7th Cir.2003). A necessary prerequisite to the maintenance of an 

action for intentional interference with the contract is the defendant’s intentional and unjustified 

inducement of a breach of the contract. FutureVision, Inc. v. Dahl, 139 Ill.App.3d 61, 66 (1985). 

As stated, Plaintiff’s only allegation on this issue is that “Earth Management and Robert 

Fox’s activity described in this Complaint for Damages prevented IRRF from successfully 

establishing a business relationship with those who have pledged business to IRRF at the Real 

Estate.” (Complaint at p. 6 ¶ 41). Here, Plaintiff has failed to allege any of the necessary 

allegations of a claim tort of intentional interference with contractual relations. Specifically, 

Plaintiff has failed to identify with any level of detail the first element (the existence of a valid 

and enforceable contract with a third party party); failed to allege the second element 

(Defendant’s awareness of the any contractual relationship); failed to allege the third element 

(Defendant’s intentional and unjustified inducement of a breach of the contract); failed to allege 

the fourth element (a subsequent breach by the third party, caused by the defendant’s wrongful 

conduct) and failed to identify any actual damages, merely asserting a naked allegation that the 

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“tortious conduct caused damage to IRRF”. (Complaint at p. 7 ¶¶ 44-45). Very simply, Plaintiff 

has not alleged a valid claim for intentional interference with contractual relations. 

Similarly, Plaintiff has failed properly allege a claim for intentional interference with 

prospective economic advantage. To state a claim of intentional interference with prospective 

economic advantage, a plaintiff must allege (1) a reasonable expectancy of entering into a valid 

business relationship; (2) the defendant's knowledge of the expectancy; (3) the defendant's 

intentional and unjustified interference that prevents the realization of the business expectancy; 

and (4) damages resulting from the interference. Fellhauer v. City of Geneva, 142 Ill.2d 495, 

568 N.E.2d 870, 878 (1991); Ali v. Shaw, 481 F.3d 942, 944 (7th Cir. 2007). 

Again, Plaintiff’s allegations (i.e., Defendants Earth Management and Robert Fox 

“prevented IRRF from successfully establishing a business relationship with those who have 

pledged business to IRRF at the Real Estate”) are legally insufficient to state a claim for 

intentional interference with prospective economic advantage. First, Plaintiff’s allegations are 

vague at best and mostly limited to ill-defined pronouns such as unidentified potential “business 

relationships” and “those who have pledged business.” Plaintiff must plead more than bare 

conclusions about unspecified business opportunities with phantom business partners. A 

plaintiff must allege a business expectancy with a specific third party. Ali, 481 F.3d at 946 

(citing Schuler v. Abbott Labs, 265 Ill.App.3d 991, 994, 639 N.E.2d 144, 147 (1st Dist. 1993). 

Second, Plaintiff has failed to allege the second element of the cause of action that 

Defendants had knowledge of these business relationships. Plaintiff fails to even identify those 

relationships in the Complaint. 

Third, Plaintiff has failed to allege that Defendants’ intentionally and unjustifiably 

interfered with the “business relationships” of “those who have pledged business” that prevents 

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the realization of the business expectancy. For example, Plaintiff broadly alleges intentional 

misconduct “to deceive the Illinois Environmental Protective Agency.” (Complaint at p. 6 ¶ 41). 

However, such broad allegations of purported misconduct are insufficient to plead the necessary 

element that Defendants acted with specific intent to directly interfere with Plaintiff’s 

unidentified “business relationships.” Plaintiff must allege more than as an incidental 

consequence of some alleged wrongdoing it supposedly lost potential business. See Menasha 

Corp. v. News America Marketing In-Store, Inc., 238 F.Supp.2d 1024, 1035 (N.D. Ill. 2003) (the 

plaintiff has the burden to allege facts establishing how the defendant acted with intent to 

interference in the prospective economic relationship). 

Fourth, Plaintiff has failed to identify any actual damages. It insufficiently alleges in 

conclusory fashion that “tortious conduct caused damage to IRRF.” (Complaint at p. 7 ¶¶ 44-

45). 

Finally, Defendants submit that for the same reasons that Plaintiff’s fraud allegations 

should be dismissed due to lack of specificity, so too should Plaintiff’s intentional interference 

allegations be dismissed. Since Plaintiff seeks to allege fraudulent activity as a basis for an 

intentional interference claim, it too is subject to the requirements of Fed.R.Civ.Pro. Rule 9 (“a 

party must state with particularity the circumstances constituting fraud...”). 

III. The Prayer For Equitable Relief In Count II Should Be Dismissed. 

A. Illinois law would not permit the transfer at this time. 

Plaintiff seeks an Order compelling Defendants to transfer what they call a "Certification 

for Operating a Waste Management Facility." Plaintiff suggests in Count II that the certification 

is an operating permit. In point of fact, it is not. The certification form allows a background 

check of an applicant seeking a permit. (See Section D, infra, at pp. 19-21). However, Illinois 

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law is clear that there can be no "Operating Permit" issued to anyone but the owner or operator 

of a waste treatment facility. As such, Plaintiff does not qualify. 

The Illinois Environment Protection Agency ("Ill. E.PA.") has exclusive jurisdiction for 

administering permits. (415 ILCS 5/4). Under the Act only an "owner" or an "operator" may 

qualify for a waste disposal permit at a facility. (415 ILCS 5/39(a) and (c)). Under the 

regulations an "owner" is one who holds an interest in land and includes a leasehold interest. (35 

Ill. Admin. Code § 807.104). An "operator' is one who is conducting a waste treatment or waste 

disposal operation. Id. 

Here, in Count I Plaintiff admits that Land Management is an owner. However, Plaintiff 

does not allege that it ever lawfully owned or leased the real estate. Nor does Plaintiff allege that 

it is conducting a waste facility. Nor does Plaintiff allege that it is an "operator' under the Act. 

Therefore, Plaintiff is not eligible under Illinois law to have a permit in its name. This Court, 

therefore, is not able to grant relief by ordering Defendants to transfer the permit because 

Plaintiff does not allege sufficient facts to establish its eligibility to hold the permit under Illinois 

law. The Illinois EPA would necessarily deny any application for a transfer of the permit to 

Plaintiff. 

B. The equitable relief sought would require that the Illinois Environmental 

Protection Agency grant the permit and Plaintiff does not name it is as a 

party. 

Plaintiff has failed to name the Ill. EPA as a party and, therefore, cannot obtain the 

equitable relief it seeks. Under the procedure for transferring the operator's permit that Plaintiff 

seeks, the transfer must be approved by the Ill. EPA. (Ill. Admin. Code § 807.221). Since the 

permit cannot be transferred without the approval of the Ill. EPA, the agency will have to be a 

party to this action so that Plaintiff can obtain the equitable relief it seeks. 

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Therefore, the Plaintiff's claim for equitable relief in Count II should be dismissed. 

C. As a matter of public record, Defendant has no "Operating Permit" for the 

property. 

In a 12(b)(6) motion this Court can take judicial notice of matters on the public records. 

Henson v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1994) (district court may take judicial

notice of matters of public record without converting a Rule 12(b)(6) motion to a motion for 

summary judgment.); Cali v. East Coast Aviation Serv., Ltd., 178 F.Supp.2d 276 (E.D.N.Y. 

2001) (taking judicial notice of state and federal agency documents); see also Fed.R.Evid. 

201(b). Here, Plaintiff has failed to attach the “operating” permit to its Complaint. It also failed 

to attach the documents by which the construction permit was transferred. However, those 

documents are public record, and are referenced as Defendants Exhibits 7-14 to this 

Memorandum of Law in Support of Motion to Dismiss, consisting of: (i) the original permit for 

construction, (ii) the transfer application, (iii) the March 19, 2014 EPA transfer notice to Land 

Management, and (iv) other related documents submitted to the Illinois EPA. This Court may 

take judicial notice of Exhibits 7-14 because they are public records. (See Henson, supra., 29 

F.3d at 284). 

As a matter of public record, the Defendant does not have an "operating permit" for the 

property. Rather, it once had a permit for construction and development of a municipal waste 

facility. The permit in question, at page 2, paragraph A.1., states: 

This permit is for construction and development only. No waste may be received 

at the site until an operating permit is issued by the Illinois EPA, Bureau of Land, 

Permit Section. After completion of development, the permittee shall submit an 

application for an operating permit to the Illinois EPA containing all applicable 

construction test results and reports. 

(Exhibit 7 at p. 2 ¶ A.1). 

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The EPA permit was issued on October 7, 2011 to Plaintiff for construction, not 

operation, of a waste management facility under Permit No. 2011-149 DE. (Exhibit 7 at p. 1). It 

expressly provides that it is not an operating permit. (“This permit is for construction and 

development only.”) (Exhibit 7 at p. 2, ¶ A.1.). In November 2013, Defendant, Land 

Management, not Fox or Earth Management, applied for a transfer of the construction permit. 

The application for the transfer expressly refers to the construction permit (Permit No. 2011-149 

DE issued October 7, 2011), nothing else. (See Exhibit 8). The transfer form (Application for 

the Transfer of a Solid Waste Permit (LPC-PA7)) was signed by M. L. Smith, a vice president of 

Plaintiff. (See Exhibit 9, at p. 2, Letter dated October 4, 2013 from M. L. Smith to T. Dragovich 

of Ill. EPA). Along with the transfer form, Plaintiff submitted the Certification of Authenticity 

of Official Forms, signed by M. L. Smith, as manager, on November 25, 2013. (See Exhibit 10). 

The transfer steps were taken by Plaintiff because on October 7, 2013, the Illinois EPA issued a 

Notice of Incompleteness to Plaintiff. (See Exhibit 11, Ill. EPA Notice of Incompleteness dated 

October 7, 2011 by R. Bernoteit, at p. 1 ¶ 3(a)). This Notice informed Plaintiff that since no 

construction had commenced on the site, the construction permit “shall expire two years after the 

date of issuance unless development has begun within that period”. (Exhibit 11 at p. 1 ¶ 3(a)) 

Plaintiff transferred the permit to Land Management, which timely started the construction, 

thereby saving the permit from extinction. (See Exhibit 12, Illinois EPA letter dated March 19, 

2014, to Land Management). 

D. The EPA Certification for Operating a Waste Management Facility grants 

no protectable or transferable property rights or interests. 

In Count II, Plaintiff refers to a phantom Certification for Operating a Waste 

Management Facility, yet attaches nothing to the Complaint. However, Defendants present 

copies. (See Exhibit 13, Ill. EPA 39(i) Certification (for a Person) For Operating a Waste 

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Management Facility; and Exhibit 14 Ill. EPA 39(i) Certification (for a Legal Entity) For a 

Waste Management Facility.). The 39(i) Certifications are nothing more than ministerial release 

forms authorizing a background check of an applicant. The plain language of the 39(i) 

Certification requires pertinent information of the applicant sufficient to identify the transferee, 

site location and existing permit number. (Exhibits 13 and 14). This form does not request any 

relief from the Illinois EPA. It is ancillary to the transfer application. As is apparent from the 

39(i) Certifications, the site name, Indiana Recycling, was necessary for the Illinois EPA to 

identify the project and permit. At the time, Fox was manager of Earth Management, which had 

prior experience in waste management per the 39(i) Certification: “This form is for prior 

experience in operating a waste storage site”. (Exhibit 13 at p. 1 and Exhibit 14 at p. 1). Fox’s 

signature was required on the form. (Ill. EPA, 415 ILCS 5/39; 35 Ill. Admin. Code 

§ 807.205(d)). The 39(i) Certifications simply authorize Ill. EPA to obtain information from the 

Illinois State Police. (Exhibit 13 at p. 2 and Exhibit 14 at p. 2). It is obvious from the text of the 

39(i) Certifications that Plaintiff gains no right or interest in an EPA permit. Thus, an order from 

this Court directing Defendants to transfer the 39(i) Certifications or fully cooperate in 

transferring the 39(i) Certifications would be a useless act. Courts should not engage in issuing 

orders that offer no relief. Deveraux v. City of Chicago, 14 F.3d 328, 330 (7th Cir. 1994) (in 

essence the justiciability requirement “keeps federal courts in the business of resolving existing 

legal disputes and out of the business of offering advice on the legality of a proposed course of 

action.”). 

Plaintiff is not entitled to any equitable relief ordering Defendants, Fox and Earth 

Management, to cooperate or transfer an operating permit because there is no operating permit, 

and Plaintiff knows this full well. Further, had the sale closed under the September 21, 2015 real 

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estate agreement (Complaint Ex. D), the construction permit, as opposed to an operating permit, 

would have been transferred pursuant to paragraph 7.04 of the addendum to the contract. 

(Complaint Ex. D at p. 11 ¶ 7.04). Moreover, the 39(i) Certifications are not transferable to 

Plaintiff. It is simply nonsensical for Plaintiff to asset a claim of any kind or nature regarding the 

39(i) Certifications. Hence, no equitable relief, injunctive or otherwise, is feasible on Count II 

and the same should be dismissed with prejudice as to such relief. 

Rule 12 (b)(6) allows dismissal of a claim with prejudice when the plaintiff cannot assert 

any viable cause of action. Brown v. Wabash Nat’l Corp., 293 F.Supp.2d 903, 904 (N.D. Ind. 

2003). Here, there is no viable claim based on the Certification for Operating a Waste 

Management Facility. Consequently, Plaintiff’s demand for equitable relief should be dismissed 

with prejudice. 

 Respectfully submitted, 

 By: /s/ Parker E. Lawton 

 One of the Attorneys for Defendants 

 

Daniel V. Kinsella (ARDC No. 1468472) 

David M. Giangrossi (ARDC No. 3124350) 

Parker E. Lawton (ARDC No. 6315513) 

Schuyler, Roche & Crisham, P.C. 

Attorneys for Defendants 

180 North Stetson Avenue 

Suite 3700 

Chicago, IL 60601 

Tel: (312) 565-2400 

Fax: (312) 565-8300 

Email: dkinsella@srcattorneys.com 

dgiangrossi@srcattorneys.com 

plawton@srcattorneys.com 

908900_2 

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CERTIFICATE OF SERVICE 

The undersigned attorney hereby certifies that he caused a true and accurate copy of the 

foregoing Memorandum of Law In Support of Motion to Dismiss to be served via email 

through the court’s CM/ECF system and U.S. Mail on September 14, 2016, upon the following 

counsel of record: 

Kirk A. Pinkerton 

John R. Terpstra 

Hinshaw & Culbertson, LLP 

Attorneys for Plaintiff 

322 Indianapolis Boulevard, Suite 201 

Schereville, IN 46375 

Tel (219) 864-5051 

Fax (219) 864-5052 

Email: kpinkerton@hinshawlaw.com 

 jterpstra@hinshawlaw.com 

By: /s/ Parker E. Lawton 

 One of Defendants’ Attorneys 

Daniel V. Kinsella 

David M. Giangrossi 

Parker E. Lawton 

Schuyler, Roche & Crisham, P.C. 

Attorneys for Defendants 

Two Prudential Plaza 

180 N. Stetson Avenue, Suite 3700 

Chicago, IL 60601 

Tel: (312) 565-2400 

Fax: (312) 565-8300 

Email: dkinsella@srcattorneys.com 

dgiangrossi@srcattorneys.com 

plawton@srcattorneys.com

 

 

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