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‘Minute Order Fon (06/57)

United States District Court, Northern District of Minois

jus Sitting Judge if Othe
wer Magtraeiudge |. _J0b F. Grady than Asigned Judge
CASE NUMBER 03 C 5662 DATE February 17, 2004
CASE Dennis M. Anderson v. Elmhurst Chevrolet and Western Div Sys Inc.
TITLE

[lin 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:
(09) Bo Filed motion of [ use listing in “Motion” box above.}
(2) Qo Brief in support of motion due
@) o Answer brief to motion due__._. Reply to answer briefdue___—.
(4) Oo Ruling/Hearing on__sset for _— sat
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mM oO Trial[set for/re-set forlon___——at
(8) im) (Bench/Jury trial] [Hearing] held/continued to___—at
(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QO FRCP4(m) O General Rule21 OO FRCP4i(a\(l) 0 FRCP41(a)(2).
ao) «ff (Other docket entry] Defendant Western Diversified Services, Inc.’s motion dismiss Count I of the

complaint [6-1 6-2] is granted in part. Accordingly, Count I of the complaint is dismissed as to defendant Western
Diversified Services, Inc. ENTER MEMORANDUM OPINION. «
Plaintiff may respond to the motion to dismiss Counts II, IV and V of the complaint by March 9, and defendant
may reply by March 19, 2004.

Western Diversified Services, Inc’s motion to compel arbitratt jo stay pending arbitration [5-1, 5-2} is denied
as moot.
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03-5662 "February 17, 2004

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

DENNIS M. ANDERSON,
Plaintiff,
v. No. 03 C 5662

ELMHURST CHEVROLET, INC. and
WESTERN DIVERSIFIED SERVICES, INC.

Defendants.

MEMORANDUM OPINION

The court has under advisement the motions of defendant
Western Diversified Services, Inc. to strike and dismiss certain
counts of the plaintiff’s complaint and to compel arbitration

Plaintiff’s claims against Western Diversified Services, Inc.,
are based upon a written service contract, the declaration page of
which is attached to the complaint. Defendant’s motion to compel
arbitration is based upon paragraph Q of the service contract,
which is an arbitration clause. It clearly requires all disputes
arising under the contract, including any dispute as to the
validity of the contract, to be submitted to arbitration.

Plaintiff responds to the defendant’s motion by denying, under
penalty of perjury, that he signed the service contract or
authorized anyone to sign the contract on his behalf. Plaintiff
demands a jury trial on the question of whether he signed the

contract and thus agreed to arbitrate.


~2-

Western Diversified argues in reply that the jury demand is
untimely (a question we need not reach) and that, moreover, since
plaintiff denies that he signed the contract he has no right to
seek relief for its breach. Count I of the complaint, therefore,
should be dismissed as against Western Diversified Services, Inc.
In an order of November 12, 2003, we asked plaintiff to file a
surreply by November 24, 2003. No surreply has been filed.

We do not see how plaintifé can sue on a contract he denies
executing. Accordingly, Count I of the complaint is dismissed as

against the defendant Western Diversified Services, Inc.!

* * * * *

Defendant Western Diversified Services, Inc. has also moved to
dismiss Counts II, IV and V of the complaint for failure to state
claims and for failure to allege fraud with the particularity
required by Fed. R. Crim. P. 9(b). Plaintiff may respond to that

motion by March 9, and defendant may reply by March 19, 2004.

Date: February 17, 2004

ENTER:

Jo! . Grady, United States _ Judge

¥ The defendant Elmhurst Chevrolet has not moved for dismissal of Count
I, but, should it file such a motion, it is likely to be granted.