- 19 -
a litany of purported wrongdoing by defendant, but fails to allege
that any of it related to any of defendant’s contractual
obligations to plaintiff. Therefore, Count X is dismissed without
prejudice. If plaintiff wishes to replead Count X, counsel is

reminded that, like Count XI, discussed infra, this is a claim that

could only be brought by an individual, not a corporation.

L. Count XI (Intentional Infliction of Emotional Distress)

As noted supra, although the complaint is unclear as to
whether both Calderon and Airborne are plaintiffs, we will construe
this count in the only way that makes sense--as being brought by
Calderon, an individual. Count XI alleges that defendant
“seduc[ed] Plaintiff into expectations of profits and economic well
being, using the paradigm of an agency relationship that would
reward Plaintiff for his individual efforts in signing-up customers
for Defendants.” (Complaint, § 179.) Plaintiff does not specify
which of the dozens of purportedly wrongful actions caused his
distress, but claims that defendant has “reduced him to something
less than a human and fully enfranchised American citizen” and
caused post-traumatic stress disorder. (Complaint, G2 177, 180.)

Defendant argues that we must dismiss this claim because
plaintiff has failed to allege conduct that is extreme and
outrageous. The elements of an intentional infliction of emotional
distress claim under Illinois law are: (1) the defendant’s conduct

was extreme and outrageous, (2) the defendant either intended for



-13-

E. Count IV (Breach of Fiduciary Duty)

Defendant argues that plaintiff fails to state a claim for
breach of fiduciary duty for two reasons: (1) where a contract
exists between parties establishing a principal-agent relationship,
any fiduciary obligations are limited to the activities defined by
the contract; and (2) the claim is duplicative of the breach of
contract claim. The authority that defendant cites for the first

proposition, State Security Insurance Co. v. Frank B. Hall & Co.,

630 N.E.2d 940, 946 (Ill. App. Ct. 1994), is inapposite and does
not support defendant’s argument. However, we agree with defendant
that the claim is duplicative of plaintiff’s contract claim because
it relies only on the alleged failure to pay commissions and
residuals, which is one of the subjects of the contract claim.
Count Iv is not pled in the alternative and does not allege
anything that has not already been alleged in Count I. Therefore,
Count IV is dismissed without prejudice.

F. Count V_ (Unfair Competition)

Count V appears to be a common-law unfair competition claim.
It alleges that defendant unfairly competed with plaintiff by
“supplanting [itself] in business relationships established by
plaintiff,” allowing unauthorized dealers to operate close to
plaintiff, and “providing bad service, faulty equipment, incorrect

bills, and. . . not providing product” to plaintiff. (Complaint,


with the

-4-

same customers again, but fails to reinstate

commission and residuals.

the

Included in the complaint is a host of additional allegations

of wrongdoing by defendant:

“Unfairly and discriminately” providing inventory
of telephones to other agents before providing
telephones to plaintiff.

Providing poor-quality telephones to plaintiff,
causing customers to become frustrated and cancel
service.

Making customers who sign up for service through
plaintiff wait several months if they need phone
repair, while giving customers of other agents
better-quality phones and faster repair.

Not giving plaintiff a free phone, but giving them
to other agents.

Arbitrarily changing the method of paying
commissions to cash on delivery.

Approving plaintiff as an agent at a prospective
location while simultaneously approving another
agent for the same location.

Requiring plaintiff to submit supporting paperwork
in order to receive commissions and residuals.
Improperly billing customers who signed up through
plaintiff and being slow to respond to their
concerns.

Failing to “give credit” to plaintiff for customers
who sign new service contracts after their contract
expires.

Allowing “non-authorized retail outlets” to
directly compete with plaintiff.

Rejecting some customer agreements submitted by
plaintiff based on technicalities, such as
typographical errors.

Certain of defendant’s executives telling other
agents that plaintiff was a “trouble-maker,”
“causing Plaintiff’s life to be threatened.”
“Certain executives of Defendants directly
threaten[ing] Plaintiff with the loss of his
property rights under the Dealer Agreement, because
Plaintiff exercised his right to petition
Defendants to enforce the Dealer Agreement with the
other agents in the same manner as it was enforced
with him, and to act in good faith.”



-~ 20 -
his conduct to inflict severe emotional distress or knew that there
was a high probability that his conduct would do so, and (3) the
defendant’s conduct in fact caused severe emotional distress. See
Rekosh v. Parks, 735 N.E.2d 765, 772 (Ill. App. Ct. 2000).

Count XI is yet another claim that fails to put defendant on
notice of its factual basis. In order to determine if the conduct
that allegedly caused plaintiff’s emotional distress was
sufficiently extreme and outrageous to state a claim, we have to
know what the conduct was. Given that plaintiff has alleged dozens
and dozens of purportedly wrongful acts by defendant, the reference
in Count XI to “the foregoing hardships caused by” defendant is
insufficient.

Count XI is dismissed without prejudice. If plaintiff wishes
to replead this claim, he must specify which of defendant’s actions
caused the alleged emotional distress.

CONCLUSION

For the foregoing reasons, defendant’s motion is granted, and
the complaint is dismissed. Counts I, III, IV, VII, VIII, X, and
XI are dismissed without prejudice, and Counts II, V, VI, and IX
are dismissed with prejudice. Plaintiff may file an amended
complaint by November 5, 2003, and is advised that any amended
complaint must comply with the pleading requirements outlined in

this opinion.


-17-
These sweeping and vague allegations are insufficient to state

a RICO claim. Moreover, plaintiff fails to plead the alleged mail

fraud with specificity. Civil RICO claims are subject to the
heightened pleading standard of Rule 9(b). See Slaney v.

International Amateur Athletic Fed’n, 244 F.3d 580, 597 (7th Cir.
2001). In so many words, plaintiff concedes in the response that
Count XIII is insufficient and requests leave to amend this count.
Count XIII is therefore dismissed without prejudice, and plaintiff
will be given leave to amend if it wishes. The amended claim
should specify which subsection of 18 U.S.C. § 1962 plaintiff
alleges was violated. In addition, plaintiff should avoid
generalities and provide sufficient detail for defendant to
understand the claim against it by stating the specific factual
bases and identifying the alleged pattern of racketeering activity.
J. Count IX (Tllegal Retaliation)

Count IX is labeled an “illegal retaliation” claim. It
appears to be the same breach of contract claim for failure to pay
commissions that plaintiff asserts over and over again in different
counts of the complaint. More importantly, plaintiff fails to
state any legal basis for this claim, either statutory or common-
law. The phrase “illegal retaliation” is normally used in Title
VII cases, but this is not an employment discrimination case.

Count IX is dismissed with prejudice.



~9-
8. As described supra, the complaint contains a laundry list of
claimed wrongdoing by the defendant, but it fails to specify which
acts were breaches of contract and which acts are the basis for
plaintiff’s other claims. Defendants are entitled to know which
actions plaintiff alleges were breaches of contract. Accordingly,
Count I is dismissed without prejudice. Plaintiff is given leave
to amend the complaint to specify exactly which alleged actions (in
addition to the three actions described supra) form the basis for
the breach of contract claim.

Cc. Count II (Accounting)

To state a claim for an accounting under Illinois law,
“plaintiff must allege the absence of an adequate remedy at law and
either a breach of a fiduciary relationship, a need for discovery,
fraud, or the existence of mutual accounts which are of a complex

“

nature.” 3Com Corp. v. Electronic Recovery Specialists, Inc., 104
F. Supp. 2d 932, 941 (N.D. Ill. 2000) (citing Mann v. Kemper Fin.
Cos., 618 N.E.2d 317, 327 (111. App. Ct. 1992)). Defendant
contends that plaintiff has not alleged the absence of an adequate
remedy at law, but has alleged breach of contract (which provides
a legal remedy).

Indeed, plaintiff has failed to allege that it is without an
adequate remedy at law. In its response, plaintiff argues that we

should not dismiss the claim because it needs to determine how much

defendant has “underpaid” commissions and residuals. All of the


-6-
fiduciary duty (Count IV); unfair competition (Count V); tortious
interference with business relationships (Count VI); unjust
enrichment (Count VII); violation of the Racketeer Influenced and
Corrupt Organizations (“RICO”) statute, 18 U.S.C. § 1961 et seq.
(Count VIII); “illegal retaliation” {Count IX); ‘unlawful
discrimination” (Count X); and intentional infliction of emotional
distress (Count XI). Additionally, in Count II, plaintiff seeks an
accounting.

Cingular now moves to dismiss plaintiff’s claims.

DISCUSSION

A, Proper Plaintiff

Defendant argues that the identity of the plaintiff is unclear
from the complaint. The caption of the complaint refers to
“Gustavo R. Calderon, an individual, d/b/a Airborne Beepers &
Video, Inc., an Illinois corporation, Plaintiff.” Paragraph 1 of
the section entitled “The Parties” states that “[p]laintiff is an
individual.” However, paragraph 1 of the section titled
“Jurisdiction and Venue” states that “[pllaintiff at all relevant
times herein maintained its principal place of business in Cook
County, Illinois, and regularly conducts business in the City of
Chicago, County of Cook, State of Illinois,” and does not set forth
Calderon’s own citizenship. The complaint refers to “plaintiff” in
the singular, not in the plural. So who is the plaintiff--Calderon

or Airborne, or both? The breach of contract claim would have to


-5-

. Permitting other agents to operate locations very
close to that of plaintiff, and permitting those
agents to sell competitors’ products and services,
thus “cannibalizing” plaintiff’s business.

° Denying almost all of plaintiff’s requests to open
locations in “economically advantaged” areas.

. Failing to designate plaintiff as a “Sales and
Service Center.”

. Unilaterally modifying the terms of a customer
“pre-paid” program.

. Failing to list plaintiff's location in
advertising.

(Complaint, II 14-59.)

According to plaintiff, this “abuse” by defendant “is re-
experienced daily and results in recurrent and intrusive
recollections through dreams, nightmares, and disassociative

states.” (Id., 9 60.) Plaintiff “has difficulty in falling and

staying asleep,” and “has suffered a loss of pleasure in previously
enjoyed activities, has uncontrollable trembling, vomiting, and
abdominal distress, panic attacks, and has difficulty in
concentrating and completing even the simplest tasks.” “There is
a direct causal connection between Plaintiff’s current emotional
conditions and the conduct of Defendants toward Plaintiff.” (Id,
Gi 61-64.) Furthermore, plaintiff states that he believes
defendant’s actions are “motivated by [p]laintiff’s race” (Calderon
is Hispanic), and alleges that defendant is “forcing” him out of
business along with other minority dealers. (Id., {9 65-67.)
Plaintiff filed this action on December 17, 2002. The
complaint alleges the following claims: breach of contract (Count

I); “deceptive and fraudulent practices” (Count III); breach of


- 18 -

K. Count X (Unlawful Discrimination)

In Count X, plaintiff alleges that defendant’s conduct toward
him was motivated by “the fact that Plaintiff is a Mexican-
American.” (Complaint, 71 152.) According to plaintiff, defendant
treats agents who are “not Hispanic” differently from those who
are. As with Count IX, plaintiff fails to state any legal basis for
this claim. The only legal basis that we can conceive would be 42
U.S.C. § 1981, which provides that “[a]ll persons within the
jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts ...asis
enjoyed by white citizens.” 42 U.S.C. § 1981(a). “[T]he term
‘make and enforce contracts’ includes the making, performance,
modification, and termination of contracts, and the enjoyment of
all benefits, privileges, terms, and conditions of the contractual
relationship.” 42 U.S.C. § 1981(b).

To state a claim under § 1981, a plaintiff must allege that:
(1) plaintiff is a member of a racial minority; (2) the defendant
had an intent to discriminate on the basis of race; and (3) the
discrimination concerned one or more of the activities enumerated
in the statute (i.e., the making, performance, modification, and

termination of a contract). See Morris v. Office Max, Inc., 89

F.3d 411, 413 (7th Cir. 1996). Plaintiff satisfies the first two
elements, but fails to allege that there was any discrimination

that concerned an alleged contractual obligation. Count X includes


~8-
and Procedure § 1217 (2d ed. 1990). The primary purpose of these
provisions is rooted in fair notice; a “complaint must be presented
with intelligibility sufficient for a court or opposing party to
understand whether a valid claim is alleged and if so what it is.”
Wade _v. Hopper, 993 F.2d 1246, 1249 (7th Cir. 1993) (citation
omitted) .

Defendant contends that Count I fails to set forth specific
contractual rights and breaches and thus fails to put defendant on
notice of the bases for the claim. Count I does adequately
identify certain alleged breaches of contract--(1) the failure to
pay commissions and residuals; (2) the failure to extend credit and
provide inventory to plaintiff; and (3) the failure to provide
regular reports and financial statements.

However, Count I is extremely vague in other respects.
Plaintiff states that “Defendants breached their agreements and
representations in that they did not fulfill the expressed and
reasonably implied obligations under the contract.” (Complaint, 4
72.) Plaintiff also alleges that defendant breached the Agreement
by “engaging in deceitful and fraudulent practices,” “violating
[its] fiduciary duty to Plaintiff,” “engaging in unfair competition
with Plaintiff,” “interfering with Plaintiff's customer contracts,”
and “unjustly enriching themselves.” (id., 9 75.) These
statements fail to put defendant on notice of exactly how it

allegedly breached the Agreement and therefore do not satisfy Rule


Minute Order Form (06/97)

United States District Court, Northern District of Minois

ssi Judg Sitting Judge if Othe
sane Magistrate age John F. Grady han Assigned Judge
CASE NUMBER 02 C 9134 DATE October 8, 2003
CASE Calderon v. Southwestern Bell Mobile
TITLE

[Un the following box (a) indicate the party filing the motion, .g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented. ]

MOTION:
DOCKET ENTRY:
qi) a Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) a Answer brief to motion due___. Reply to answer brief due___
(4) a Ruling/Hearing on___sset for __—__at
(5) a Status hearing{held/continued to] [set for/re-set for]on__setfor__—_ at
(6) a Pretrial conference[held/continued to] [set for/re-set for]}on__—ssetfor_— at.
(7) Qa Trial[set for/re-set for] on at
(8) ia) [Bench/Jury trial] [Hearing] held/continued to_ at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) O General Rule 21 OO FRCP41(a\(1) O FRCP41(a)(2).
(10) a [Other docketentry] Defendant’s motion to dismiss [9-1] is granted, and

the complaint is dismissed. Counts I, III, IV, VII, VIII, xX, and XI
are dismissed without prejudice, and Counts II, V, VI, and IX are
dismissed with prejudice. Plaintiff may file an amended complaint by
November 5, 2003, and is advised that any amended complaint must
comply with the pleading requirements outlined in this opinion. ENTER
MEMORANDUM OPINION.

ql) x (For further detail see order (on reverse side offattached to) the original minute order.}
No notices required, advised in open court. Document
‘ Number
No notices required number of notices:
X_ | Notices MAILED by judge's staff.

oct 10 2003

date docketed

>
docking dol ivas

Notified counsel by telephone.

Docketing to mail notices.
Hiega
Mail AO 450 form, LYngg

iv

Copy to__ __
mai hd G- 190 C9 date aed notice
courtroom
KAM. deputy’s t Lory ELEY] KAM
initials Date/time keeelvéd in 7
central Clerk's Office seiling deputy ins

(Reserved for use by the Court)


-i-
F.3d 467, 469 (7th Cir. 1999) (stating that the plaintiff must
plead the who, what, when, where, and how of the alleged fraud).

Plaintiff responds that Count III “is not styled as a fraud
claim, and this count is not a fraud claim within the meaning of
FRCP 9(b). It combines promissory fraud and negligent
misrepresentation, and is styled to reflect the hybrid nature of
the count.” (Memorandum in Support of Response at 6.) Promissory
fraud and negligent misrepresentation are two distinct claims that
must be pled in separate counts. In any event, Count III fails to
state either type of claim.

A promissory fraud claim must comply with Rule 9(b)’s
particularity requirements. See Zic v. Italian Gov’t Travel

Office, 130 F. Supp. 2d 991, 995 (N.D. Ill. 2001) (promissory fraud

must be pleaded with particularity). Count III does not set forth
the who, what, when, where, and how of the alleged promissory
fraud. Moreover, promises of future conduct are not actionable
under Illinois law unless they are “particularly egregious” or
“embedded in a larger pattern of deceptions or enticements that

reasonably induces reliance and against which the law ought to

provide a remedy.” See Properties Unlimited, Inc. Realtors v.

¥ Plaintiff argues that he should be excused from the requirements of Rule
9(b) because he “has suffered extreme psychological damage and partial memory
loss, making him presently unable to recite each and every instance of the
identity of each person who made a misrepresentation to Plaintiff, and the exact
time and place.” (Memorandum in Support of Response at 6.) We view this
purported memory loss with some skepticism (especially considering that it is not
alleged in the complaint), but in any event, plaintiff fails to cite any
authority for a “memory loss” exception to Rule 9(b).


~ 10 -
accounting information, however, will be provided through discovery
on the breach of contract claim. The claim for an accounting is
superfluous. See Midwest Neoped Assocs., Ltd. v. Allmed Fin.
Corp., No. 98 C 6973, 1999 WL 674747, at *2 (N.D. Ill. Aug. 23,
1999) (dismissing accounting claim where “superfluous” and
accounting information would be revealed in discovery on contract
claim). Therefore, Count II will be dismissed with prejudice.

D. Count III (Deceptive and Fraudulent Practices

Count III appears to be a fraudulent inducement claim.
Plaintiff alleges that defendant made false representations “in an
effort to induce Plaintiff to execute the Dealer Agreement and
promote the products and services” of defendant. According to
plaintiff, he would not have entered into the Agreement and become
defendant’s agent were it not for the misrepresentations.
(Complaint, II 84, 86, 91, 93, 94.)

Defendant argues that Count III fails to meet Rule 9(b)'s
pleading requirements for a fraud claim. “To meet the
particularity requirements of Rule 9(b), a complaint must specify
the identity of the person making the misrepresentation, the time,
place, and content of the misrepresentation, and the method by
which the misrepresentation was communicated to the plaintiff.”
Sears _v. Likens, 912 F.2d 889, 893 (7th Cir. 1990) (citation

omitted); see also Ackerman v. Northwestern Mut, Life Ins. Co., 172



-7-
be brought by Airborne because Airborne was a party to the
Agreement, not Calderon.‘ The complaint contains an emotional
distress claim, which could not be brought by a corporation.

We will assume for purposes of the instant motion that both
Calderon and Airborne are plaintiffs, but we will refer to
“plaintiff” in the singular as the parties do, for convenience. As
discussed infra, the complaint is deficient in many respects and
will be dismissed in its entirety with leave to replead certain
claims. Therefore, if plaintiff chooses to file an amended
complaint, it must specify whether the plaintiff is Calderon, the
individual; Airborne, the corporation; or both. If both Calderon
and Airborne are asserting claims, then the amended complaint
should specify which plaintiff is asserting which claim.

B. Count I (Breach of Contract)

Defendant argues that Count I fails to meet the requirements
of Federal Rule of Civil Procedure 8. Pursuant to Rule 8(a) (2), a
complaint must set forth “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Rule 8(e) (1)
requires each averment of a pleading to be “simple, concise, and
direct.” Taken together, these two requirements “underscore the
emphasis placed on clarity and brevity by the federal pleading

“”

rules. 5 Charles Alan Wright & Arthur R. Miller, Federal Practice

+ Even though Calderon signed the Agreement, the Agreement indicates that
he did so as President of Airborne.



-21-

DATE: October 8, 2003

John F.| Grady, United States District Judge


-3-

The 1997 Agreement was scheduled to terminate on December 31,
2000. On September 9, 1999, the parties executed a new Authorized
Dealer Agreement (the “1999 Agreement”), which contained
substantially all the same terms and conditions as the 1997
Agreement. The 19939 Agreement had a termination date of December
31, 2002. For convenience, we will refer to the 1997 and 1999
Agreements collectively as the “Agreement.”

On January 1, 2002, defendant stopped paying plaintiff
commissions on activations for the preceding month and continued to
fail to pay plaintiff commissions and residuals. (Residuals,
according to plaintiff, are similar to royalty payments, calculated
on the basis of the monthly bill paid by a customer.) Defendant
has also failed to promptly pay commissions for sales of insurance
coverage offered by plaintiff as defendant’s agent, and when paid,
those commissions are not supported by documentation of their
calculation. Furthermore, when customers who signed up for service
through plaintiff have failed to pay their bills and have thus been
disconnected, defendant has “charged back” the respective

commissions to plaintiff. Defendant sometimes directly contracts

to the complaint. However, documents that defendants attach to a motion to
dismiss are considered part of the pleadings if they are referred to in the
plaintiff’s complaint and are central to its claim. See Venture Assocs. Corp.
v. Zenith Data Sys. Corp., 987 F.2d 429, 431-32 (7th Cir. 1993). Plaintiff
refers to both Agreements in the complaint, and they are central to its claims.
Therefore, we can consider the 1999 Agreement without converting defendant's
motion into a motion for summary judgment.



-~ 14 -
qi 105-106.) Defendant asserts that none of these alleged facts
can be a basis for an unfair competition claim.

“While the (Illinois Uniform Deceptive Trade Practices Act]
has codified the law of unfair competition generally, certain
causes of action for unfair competition may still be found outside

the statute.” Logan Graphic Prods., Inc. v. Textus USA, Inc., No.

02 C 1823, 2002 WL 31507174, at *7 (N.D. Ill. Nov. 8, 2002). To
the extent that non-statutory claims for unfair competition exist,
they are either in the nature of tortious interference or
“misappropriation” claims. See id. Plaintiff attempts to allege
a tortious interference with business relationships claim in Count
VI, based on the defendant purportedly “supplanting” itself in
plaintiff’s business relationships; thus, to the extent that this
conduct forms the basis for Count V, it is duplicative of Count VI.

Plaintiff also alleges that defendant allowed dealers to open
locations close to that of plaintiff and provided defendant with
inadequate inventory of equipment. These allegations do not fit
within either the misappropriation or the tortious interference
framework; rather, they are covered by the contract. The former
allegation could be the basis for a breach of contract claim if the
contract prohibited this conduct, but the 1999 Agreement
specifically states: “CELLULAR ONE reserves the right without
obligation or liability to AGENT to market the Authorized Services

and [equipment] in the same geographical areas served by AGENT,



-16-

H. Count VII (Unjust Enrichment)

Defendant argues that plaintiff’s unjust enrichment claim must
be dismissed because plaintiff also asserts a breach of contract
claim. “To state a cause of action based upon a theory of unjust
enrichment, a plaintiff must allege that the defendant unjustly
retained a benefit to the plaintiff’s detriment and that the
defendant’s retention of that benefit violates fundamental
principles of justice, equity, and good conscience. Because the
theory is based upon an implied contract, it has no application
when an express contract governs the relationship between the
parties.” B & B Land Acquisition, Inc. v. Mandell, 714 N.E.2d 58,
63 (Ill. App. Ct. 1999) (citation omitted).

Here, plaintiff has alleged in Count I that an express
contract existed and that defendant breached it. Count VII is not
pled in the alternative to Count I. Accordingly, it is dismissed
without prejudice.

I. Count VIIT (RICO)

Count VIII of the complaint is a civil RICO claim. Plaintiff
fails to specify which subsection(s) of 18 U.S.C. § 1962 it is
alleging that defendant violated. It alleges that defendant
“engaged in a pattern of racketeering activity” that “included
multiple acts of mail fraud, threats and intimidation.”
(Complaint, IZ 130-131.) The complaint does not provide any more

specifics about these purported predicate acts.


-2-
December 1, 1997, Airborne entered into an “Authorized Dealer
Agreement” (the “1997 Agreement”), and certain amendments to the
1997 Agreement, with Southwestern Bell Mobile Systems, Inc. d/b/a
Cellular One-Chicago. (The complaint characterizes the defendant,
Cingular, as being “formerly known as” Southwestern Bell Mobile
Systems, Inc. d/b/a Cellular One-Chicago. In the memorandum in
support of its motion, defendant explains that Cingular is the
successor-in-interest to Southwestern Bell Mobile Systems, Inc.
d/b/a Cellular One-Chicago.)! The 1997 Agreement provided that
Airborne would be a non-exclusive, authorized agent “to solicit and
contract, on behalf of CELLULAR ONE, with Subscribers” for wireless
cellular service, paging, and landline long distance service.?
Pursuant to the 1997 Agreement, defendant would pay plaintiff

commissions based on total activations per month.?

¥ For convenience, we will simply refer to “defendant” or “Cingular.” We
also note that it is puzzling that plaintiff uses the term “defendants.”
Plaintiff states in its response to the motion that “(pJlaintiff is unclear as
to whether there is one, or more Defendants.” (Response at 1n.1.) Regardless
of how one characterizes the relationship of Cingular to Cellular One-Chicago (as
“successor-in-interest” or “formerly known as”), there appears to be only one
proper defendant according to the allegations of the complaint.

Defendant points out that plaintiff filed both a “response” to the motion
and a “memorandum of law in support of plaintiff's response.” We have reviewed
and considered both documents, but plaintiff's counsel is advised that only one
responsive brief should be submitted in opposition to a motion to dismiss, and
it is limited to 15 pages by Local Rule 7.1.

2 On December 29, 1997, the parties executed an addendum to the 1997
Agreement, pursuant to which plaintiff was also authorized to offer debit card
services to defendant’s subscribers

¥ Pursuant to the Authorized Dealer Agreement dated September 9, 1999 (the
“1999 Agreement”), which is attached to defendant’s motion, an “activation”
consists of “[t]he act of initiating an Authorized Service in or to a
Subscriber’s [equipment, such as a cellular phone} by CELLULAR ONE.”
(Defendant's Memorandum, Ex, A, § 1.)

Plaintiff did not attach a copy of either the 1997 or the 1999 Agreement



02-9134.031-J5CD October 8, 2003

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION OCT 1 U 2003

GUSTAVO R. CALDERON, an individual,
d/b/a AIRBORNE BEEPERS & VIDEO,
INC., an Illinois corporation,

Plaintiff,

v. No. 02 C 9134
SOUTHWESTERN BELL MOBILE SYSTEMS,
LLC, d/b/a CINGULAR WIRELESS,
£/k/a SOUTHWESTERN BELL MOBILE
SYSTEMS, INC. d/b/a CELLULAR
ONE-CHICAGO,

Defendant.

MEMORANDUM OPINION
Before the court is defendant’s motion to dismiss the
complaint. For the following reasons, the motion is granted.

BACKGROUND

This is an action brought by plaintiff “Gustavo R. Calderon,

doing business as Airborne Beepers & Video, Inc.” against defendant
Southwestern Bell Mobile Systems, LLC, doing business as Cingular
Wireless (“Cingular”). Plaintiff’s claims relate to his role as a
sales agent for Cingular, a provider of wireless communications
services.

The following relevant facts, drawn from the complaint, are

taken as true for purposes of this motion. Gustavo Calderon owns

and operates Airborne Beepers & Video, Inc. (“Airborne”). “a

|



-12-

Cendant Mobility Servs., No. 01 C 8375, 2002 WL 1147460, at *2

(N.D. Ill. May 28, 2002) (quoting Desnick v. American Broad. Cos.,

44 F.3d 1345, 1354 (7th Cir. 1995)). Plaintiff has not alleged
these types of promises or a larger pattern of deception.
Plaintiff also fails to state a claim for negligent
misrepresentation. A necessary element of a negligent
misrepresentation claim under Illinois law is that the defendant
must be “in the business of supplying information for the guidance

of others in their business dealings.” Tolan & Son, Inc. v. KLLM

Architects, Inc., 719 N.E.2d 288, 296 (Ill. App. Ct. 1999). Where
a defendant supplies information that is merely ancillary to a
service or the sale of a product, it is not considered to be in the
business of supplying information for the guidance of others in
their business dealings. See id. Plaintiff has not alleged that
defendant is in the business of supplying information for the
guidance of others in their business dealings, and the
circumstances presented in the complaint--where plaintiff was
acting as defendant’s agent in soliciting customers for wireless
communications services--are inconsistent with such a theory.
Count III is dismissed without prejudice. Plaintiff is given
leave to file an amended complaint adequately alleging a promissory

fraud claim (but not a negligent misrepresentation claim).



-1i5-
whether through CELLULAR ONE’s own representatives or through
others including, but not limited to other authorized agents,
retailers, resellers and distributors.” (Defendant’s Memorandum,
Ex. A, § 3.) The allegations that defendant provided bad service,
incorrect bills, and faulty equipment to subscribers likewise do
not fall within the misappropriation or tortious interference
framework. Count V is therefore dismissed with prejudice.
G. Count VI_(Tortious Interference with Business Relationships)
Count VI alleges that defendant wrongfully interfered with the
relationships that plaintiff established with subscribers by
inducing those subscribers to breach their original contracts and
then to re-activate the contract directly with defendant, in order
to deny plaintiff his commissions. Defendant contends that the
contracts and relationships at issue were between subscribers and
the defendant, not plaintiff, because plaintiff was merely acting
as defendant’s agent. Plaintiff concedes that this “may be
ultimately true,” but contends that “there is a cost that
Defendants are to pay to Plaintiff for developing that ‘contractual
relationship’ Defendants ultimately enjoy.” (Memorandum in Support
of Response at 11.) This argument illustrates that Count VI is
simply the same breach of contract claim for failure to pay
commissions that is asserted in Count I, dressed up as a tortious
interference claim. Accordingly, Count VI is dismissed with

prejudice.