Health Care Servs. Inc., v. Mt. Vernon Hosp., Inc., 131 Ili. 2d 145, 137 Ul.Dec 19, 545 N.E.2d
672,679 (1989). In order to allege a promissory estoppel claim 4 party must allege that (1) the
defendant made an unambiguous promise to that party; (2) the party relied on such a promise; (3)
reliance by the party was expected and foreseeable by the defendant; (4) the party relied on the
promise to it detriment. Doyle v. Holy Cross Hospital, 186 Il1.2d 104, 120, 708 N.E.2d 1140,
1148 (1999). Under Illinois law, a plaintiff may not recover on a theory of quasi-contract when a
real contract governs the parties’ relations. Murray v. Abt Associates Inc., 18 F.3d 1376, 1379
(7 Cir. 1994).

Impact argues that Prime should be barred from seeking relief under the equitable theories
set forth in Counts II and III because “[a]t all relevant times, a written contract governed the
parties relationship.” However, although Prime may not recover under both contract and quasi-
contract theories, it is not barred from pleading these theories in the alternative. See Fed.R.Civ.P.
8(e)(2) (“A party may also state as many separate claims or defenses as the party has regardless of
consistency and whether based on legal [or] equitable ... grounds.”). Hence, Impact’s motion to
dismiss is denied.

CONCLUSION

For the reasons set forth above Defendant’s motion to dismiss Counts II and III is denied

(#7-1).
SO ORDERED ENTERED: 4/13/01
Lach OL

HON. RONALD A. GUZMA!
United States Judge


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Z
Namcot swig eee | Ronald A. Guzman | Ste Oe
CASE NUMBER 00 C 7388 . DATE 4/13/2001
CASE PRIME STEEL CORPORATION vs. IMPACT STEEL, INC.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

MoTION: nature of the motion being presented.]

DOCKET ENTRY:

(1) QO Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) a Answer brief to motion due. . Reply to answer brief due___.

(4) ia Ruling/Hearing onset for____att

(5) im Status hearing[held/continued to] [set for/re-set for]on____ set for__at

(6) im) Pretrial conference{held/continued to] [set for/re-set for]on__——ssetfor_ at,

(7) Oo Trial[set for/re-set for]on___—_at_-

(8) aq [Bench/Jury trial] [Hearing] held/continued to__at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CUFRCP4(m) (General Rule21 OFRCP41(a)(1)  FRCP41(a)(2).

(0) «off [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Defendant’s motion
to dismiss Counts II and II [7-1] is denied. Status hearing set for 5/4/01 at 9:30 a.m.

dl {For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
a number of notices:

Notices mailed by judge's staff. APR 4 8 2001
Notified counsel by telephone. date
v Docketing to mail notices. CM) =
. ai
Mail AO 450 form. ® ener docketing deputy initials
Copy to judge/magistrate judge. . GRD i c
i OR OG
.orsp aria date maited notice
courtroom Gi APR? PHL 1S
CG deputy’s
initials

Date/time received in 7 7
central Clerk's Office mailing deputy initials



TMin Bene

IN THE UNITED STATES DISTRICT COURT 7
FOR THE NORTHERN DISTRICT OF ILLINOIS og 1.8 2001
EASTERN DIVISION A

PRIME STEEL CORPORATION, an
Illinois Corporation,

Plaintiff,
No. 00 C 7388
Judge Ronald A. Guzman

IMPACT STEEL, INC., a Michigan
Corporation,

wee wre we were SS SD

Defendant.
MEMORANDUM OPINION AND ORDER

Pending is Defendant Impact Steel, Inc.’s motion to dismiss Counts II and III of Plaintiff
Prime Steel Corporations’ complaint pursuant to Fed. R. Civ. Proc. 12(b)(6). For the reasons set
forth below this motion is denied (#7-1).

FACTUAL BACKGROUND

In Count I of its Complaint at Law, Plaintiff Prime Steel Corporation (“Prime”) has
alleged the existence of a contract between itself and Defendant Impact Steel, Inc., (“Impact”).
As part of its contract claim, Prime has alleged that the “parties, for good and valuable
consideration, entered into a binding contract...[and that] “[t]he contract clearly and
unambiguously provided that Prime would supply the steel ordered by Impact and that Impact

would pay Prime for the steel it ordered.” The heart of Prime’s allegations in Count I are:
»


Impact unjustly retained the benefits of some of the steel delivered to it. To its detriment,
Prime delivered to Impact steel, which Impact to this day has retained. Impact’s retention of
Prime’s steel without paying Prime monies that Impact is legally obligated to pay violates
fundamental principles of justice, equity, and good conscience. Impact has unreasonably and
vexatiously delayed complying with the contract or paying Prime monies despite its obligation to
do so. Prime further alleges that it performed all conditions precedent under the contract, that
Impact breached the contract by wrongfully rejected the goods tendered by Prime and by failing
to pay Prime the money it believes to be due under the parties’ contract. In Counts II and III,
Prime has asserted claims for unjust enrichment and promissory estoppel, respectively. Impact
moves to dismiss Counts II and III arguing that these Count, for unjust enrichment and
promissory estoppel, cannot be asserted because the contract for sale of goods set forth in Count I
covers the same subject matter.

DISCUSSION

In ruling on a motion to dismiss, the court considers “wether relief is possible under any
set of facts that could be established consistent with the allegations.” Pokuta v. Trans World
Airlines, Inc., 191 F.3d 834, 839 (7" Cir. 1999) (citing Conley v. Gibson, 355 U.S. 41, 45-46
(1957)). A claim may be dismissed only if there is no set of facts that would entitle the plaintiff to
relief based on the allegations in the complaint. Vonderohe v. B & S of Fort Wayne, Inc., 36
F.Supp.2d 1079, 1081 (7 Cir. 1999). A motion to dismiss tests the sufficiency of the complaint,
not its merits, Gibson v. City of Chicago, 910 F.2d 1510,1520 (7" Cir 1990).

A claim for unjust enrichment exists when a defendant (1) receives a benefit, (2) to the

plaintiff's detriment, and (3) the defendant’s retention of that benefit would be unjust. HPI