IV is denied.
5. Count V - “Future Lost Profits”

Plaintiffs claim that the illegal termination of the program prevented them from
continuing to operate their exclusive territories in a manner that permitted them to earn the
commissions they were entitled to earn under the program. The termination of the program, i.e.,
the breach of contract, prevented the Plaintiffs from earning lost profits.

Defendants argue that Count V should be dismissed because it seeks damages but does
not state a cause of action for such damages. A reading of Count V, as amended, shows that
Plaintiffs seek lost profits based on the alleged breach of contract. Accordingly, Count V
sufficiently puts the Defendants on notice of the claim against them; and Defendants’ Motion to
Dismiss Count V is denied.

VI. Count VI - Breach of Implied Contract

This Court previously found that Plaintiffs adequately pled Count VI. Defendants again
rehash their previously rejected arguments. Accordingly, Defendants’ Motion to Dismiss Count
VI is denied.

7. Count VII - Quantum Meruit Claim

This Court previously found that Plaintiffs adequately pled Count VII. Defendants again
rehash their previously rejected arguments. Accordingly, Defendants’ Motion to Dismiss Count
VII is denied.

8. Count VIII - Antitrust Claim
This Court previously found that Plaintiffs adequately pled Count VIII. Defendants again

rehash their previously rejected arguments. Accordingly, Defendants’ Motion to Dismiss Count



violation, H. Voortman, in concert with Voortman, caused the program to be terminated,
depriving and defrauding the Plaintiffs of income. The Defendants terminated the program as
part of a conspiracy to deprive the Plaintiffs of commissions and to enhance the appearance of
Voortman’s financial statements for purposes of having a more favorable financial picture to
potential buyers of Voortman.

To state a cause of action under RICO, Plaintiffs must allege with particularity (1)
conduct (2) of an enterprise (3) through a pattern of racketeering activity. Richards v. Combined
Ins. Co. of America, 55 F.3d 247, 249 (7th Cir. 1995); R.E. Davis Chemical Corp. v. Nalco
Chemical Co., 757 F.Supp. 1499, 1516 (N.D.II. 1990) (Davis).

Defendants argue that the RICO claim should be dismissed because the Plaintiffs failed to
allege a racketeering offense as enumerated in 18 U.S.C. § 1961(1).

Section 1961(1) identifies criminal conduct that constitutes “racketeering activity”. The
criminal conduct includes violations of the Hobbs Act, 18 U.S.C. § 1951(1)(B). In the instant
case, the Plaintiffs have pled that Defendants’ conduct constituted a violation of the Hobbs Act.
However, the alleged conduct of the Defendants fails to support the alleged violation of the
Hobbs Act. The court examines a complaint as a whole in analyzing a motion to dismiss and
need not ignore facts alleged in the complaint that undermine a plaintiffs claim. See Slaney v.
International Amateur Athletic Fed., 244 F.3d 580, 597 (7" Cir. 2001).

The Hobbs Act prohibits the interference with commerce by robbery or extortion or
attempts or conspiracy to interfere with commerce by robbery or extortion. 18 U.S.C. § 1951(a).
As used in the Hobbs Act, robbery is “the unlawful taking or obtaining of personal property from

a person or in the presence of another, against his will, by means of actual or threatened force, or



Here, Defendants simply rehash arguments already rejected by this Court; accordingly,
Defendants’ Motion to Dismiss Count I is denied.

2. Count II - Procuring Cause Claim

This Court previously found that Plaintiffs adequately pled Count II. Defendants again
rehash their previously rejected arguments. Accordingly, Defendants’ Motion to Dismiss Count
Il is denied.

3. Count III - “Maintaining/Expanding Territories” Claim

Plaintiffs allege that they refrained from selling products competing with Voortman
products, maintained facilities to promote the sale of Voortman products, and incurred expenses
to maintain and expand their territories. As a result of the termination of the program, Plaintiffs
will lose the monies expended by them to engage in these actions.

Count ITI was previously dismissed without prejudice because Plaintiffs did not identify
any specific cause of action under either federal or Iinois law upon which Count III was based.
In the Second Amended Complaint, Plaintiffs quote several cases in an attempt to address the
Court’s previous dismissal of the Count. However, while Plaintiffs allege that the quoted case
law sets forth a cause of action, Plaintiffs still fail to clearly set forth what cause of action form
the basis of Plaintiffs’ Amended Complaint. Nor can such an inference be made merely through
the citation of case law. Accordingly, the allegations in Count II fail to adequately place the
Defendants on notice of the claim against them and is dismissed without prejudice.

4. Count IV - Interference with Prospective Economic Advantage
This Court previously found that Plaintiffs adequately pled Count IV. Defendants again

tehash their previously rejected arguments. Accordingly, Defendants’ Motion to Dismiss Count


VIII is denied.
9. Count IX - Restraint on Alienation

This Court previously found that Plaintiffs adequately pled Count IX. Defendants again
rehash their previously rejected arguments. Accordingly, Defendants’ Motion to Dismiss
Count IX is denied.

10. Count X - Piercing the Corporate Veil - Interference with Prospective Economic Advantage

Plaintiffs allege that H. Voortman’s conduct interfered with the Plaintiffs’ economic
advantage. The alleged conduct set forth in Count X is duplicative of the alleged conduct set
forth in the general facts of the Second Amended Complaint and Count IV of the Second
Amended Complaint, which names both Defendants. Therefore, Count X appears to be
duplicative and is dismissed without prejudice.

11. Count XI - “Tort of Outrage”

In Count XI, Plaintiffs allege that Defendants’ conduct left the Plaintiffs “personally and
emotionally devastated” and, through such misconduct, inflicted the “tort of outrage”.
Defendants argue that Illinois does not recognize the tort of outrage.

In Illinois, the tort of outrage is otherwise commonly known as the tort of intentional
infliction of emotional distress. See Smith v. Metropolitan Life Ins. Co., 550 F. Supp. 896, 900
(N.D. Ill. 1982). In order to sustain a claim of intentional infliction of emotional distress, a
plaintiff must establish: (1) the defendant’s conduct was extreme and outrageous; (2) the
defendant either intended that his conduct would cause severe emotional distress or knew that
high probability existed that his conduct would cause severe emotional distress; and (3) the

defendant’s conduct actually caused severe emotional distress to the plaintiff. See Doe v.


violence, or fear of injury ....” 18 U.S.C. § 1951(b)(1). Extortion under the Hobbs Act means
“the obtaining of property from another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(6)(2);
United States v. Granados, 142 F.3d 1016, 1019 (7" Cir. 1998).

The Plaintiffs do not allege a “robbery” in their Amended Complaint, and an inference of
such an allegation cannot reasonably be drawn as there are no allegations of the taking of
property by actual or threatened force or violence or fear of injury as required by the Hobbs Act.
See 18 U.S.C. § 1951(b)(1). The Plaintiffs do not allege extortion. However, the Plaintiffs
repeatedly pled that the program and the subsequent commissions not received from the
termination of the program were taken without the consent of the Plaintiffs and against the
Plaintiffs’ opposition to the termination of the program. Accordingly, the property was not taken
with the Plaintiffs’ consent, as required by the Hobbs Act; and the Amended Complaint fails to
allege an extortion under the Hobbs Act. Because the Plaintiffs fail to adequately plead a
racketeering activity, the RICO claim is dismissed without prejudice.

For the foregoing reasons, the Defendants’ Motion to Dismiss is granted in part and
denied in part. Counts III and X are dismissed without prejudice. Count XIII is dismissed with

prejudice. Defendants’ Motion to Strike is denied.

Dated: 7 2007 QY

United States District Judge



©
Minute Order Ror (06/97)

United States District Court, Northern District of Illinois

(5)

Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 02 C 681 DATE 1/7/2003
CASE Catheen M. Rowell et al. Vs. Voortman Cookies, etc. et al.
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
Memorandum Opinion and Order
DOCKET ENTRY:
@ o Filed motion of [ use listing in “Motion” box above.]
(2) gq Brief in support of motion due
(3) a Answer brief to motion due, . Reply to answer brief due. .
(4) iat Ruling/Hearing on set for at
(5) | Status hearing held and continued to 1/28/2003 at 9:00 A.M..
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at .
() QO Trial[set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OlLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).
go [Other docket entry) Enter Memorandum Opinion and Order. For the foregoing reasons, the
defendants’ motion to dismiss is granted in part and denied in part, Counts II] and X are dismissed without
prejudice. Count XIII is dismissed with prejudice. Defendants’ motion to strike is denied.
ad) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber of notices
Notices mailed by judge’s staff.
Notified counsel by telephone. NAN 88 7003
V | Docketing to mait notices. ‘q N
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Calumet City, 161 Ill.2d 374, 392, 641 N.E.2d 498, 506 (1994).

In Count XI, Plaintiffs allege that all of the afore-described misconduct caused great
upheavals in the Plaintiffs’ lives and left the Plaintiffs personally and emotionally devastated.
The Plaintiffs allege that the afore-mentioned misconduct was extreme and outrageous and that
the Defendants either intended to cause severe emotional distress or knew that a high probability
existed that their conduct would cause severe emotional distress. Accordingly, at this stage of
litigation, Plaintiffs have sufficiently pled Count XI; and Defendants’ Motion to Dismiss Count
XI is denied.

12. Count XII - Promissory Estoppel

This Court previously found that Plaintiffs adequately pled Count XII. Defendants again
tehash their previously rejected arguments. Accordingly, Defendants’ Motion to Dismiss Count
XII is denied.

13. Count XIII - Breach of Covenant of Good Faith and Fair Dealing

Plaintiffs allege that the Defendants’ conduct breached the covenant of good faith and fair
dealing. Under Illinois law, "the covenant of good faith and fair dealing is not an independent
source of duties for the parties to a contract." Baxter Healthcare Corp. v. O.R. Concepts, Inc., 69
F.3d 785, 792 (7th Cir.1995) (interpreting Ilinois law). A party cannot bring a separate cause of
action on the basis of a breach of covenant of good faith and fair dealing. See Brooklyn Bagel
Boys, Inc. v. Earthgrains Refrigerated Dough Products, Inc., 212 F.3d 373, 381 (7th Cir. 2000).
Accordingly, Count XIII is dismissed with prejudice.

14. Count XIV - Racketeer Influence and Corrupt Organization Act (“RICO”) Violation

Plaintiffs allege that the Defendants’ conduct constituted a RICO, 18 U.S.C. § 1962,



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISI
RN DIVISION ce gZ
. % }
CATHLEEN M. ROWELL, et al., ) we 73)
) % ‘oO
Plaintiffs, )
) No. 02 C 0681
v. )
) Judge John W. Darrah
VOORTMAN COOKIES, LIMITED, a Canadian )
Corporation; and HARRY VOORTMAN, )
Individually, )
)
Defendants. y

MEMORANDUM OPINION AND ORDER

Plaintiffs, on behalf of themselves and a class of similarly situated individuals, filed a
fourteen-count complaint against Defendants, Voortman Cookies, Limited (“Voortman”) and
Harry Voortman (“H. Voortman”), alleging that the Defendants breached an exclusive
distributorship agreement. In August 2002, this Court dismissed Counts III, V, X, XI, and XIV
without prejudice and dismissed Count XII with prejudice. Plaintiffs filed a fourteen-count
Second Amended Complaint; and Defendants, once again, move to strike and dismiss this
amended complaint.

In reviewing a motion to dismiss, the court reviews all facts alleged in the complaint and
any inferences reasonably drawn therefrom in the light most favorable to the plaintiff. See
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir.2000). Dismissal is
warranted only if the plaintiff can prove no set of facts in support of its claims that would entitle
it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A plaintiff generally need not

plead facts or the elements of a claim. Instead, a plaintiff need only plead the bare minimum

0



facts necessary to put a defendant on notice of the claim so that the defendant can file an answer.
See Swierkiewicz v. Sorema, 122 S.Ct. 992, 996 (2002) (Sorema); Higgs v. Carver, 286 F.3d 437,
439 (7" Cir. 2002) (Higgs).

The alleged conduct of the parties is set forth in the previous Order and need not be
repeated here.
1, Count I - Violation of the Illinois Sales Representative Act

This Court previously found that Plaintiffs adequately plead Count I. Defendants seek to
have Count I dismissed for the same reasons previously rejected by this Court. In essence,
Defendants seek to have the Court reconsider its previous ruling.

Motions for reconsideration serve a limited function of correcting manifest errors of law or
fact or presenting newly discovered evidence or an intervening change in the law. Cosgrove v.
Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998). Reconsideration is appropriate when “the Court
has patently misunderstood a party, or has made a decision outside the adversarial issues
presented to the Court by the parties, or has made an error not of reasoning but of apprehension.”
Spearman Indus., Inc. v. St. Paul Fire & Marine Ins. Co., 139 F. Supp. 2d 943, 945 (N.D. Ill.
2001), quoting Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.
1990). A motion for reconsideration cannot be used to introduce new legal theories for the first
time, to raise legal arguments that could have been heard during the pendency of the previous
motion, or to present evidence that could have been adduced during the pendency of the original
motion. Publishers Res., Inc. v. Walker-Davis Publ’ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985).
Movants should not use a motion for reconsideration to rehash arguments previously rejected by

the court. Sikora v. AFD Indus., Inc., 18 F. Supp. 2d 841, 844 (N.D. Ill. 1998).