Discussion
A motion to dismiss pursuant to Rule 12(b)(6) does not test whether the plaintiff will
prevail on the merits, but instead whether the plaintiff has properly stated a claim for which
relief may be granted, and the court likewise accepts as true all of plaintiff's well-pleaded
factual allegations, and draws all reasonable inferences in the plaintiff’s favor. Pickrel v. City
of Springfield, 45 F.3d 1115 (7th Cir. 1995). A complaint should be dismissed where it
appears beyond a doubt that plaintiff can prove no set of facts that would entitle it to relief.

Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Mattice v. Mem. Hosp. of South Bend, Inc., 249

F.3d 682, 684 (7th Cir. 2001).

National Paintball moves to dismiss the complaint arguing that, executing the 959 Lease
was not a condition contained within the four corners of the Termination Agreement and that it
has fulfilled its obligations to terminate the 956 and 960 Leases; therefore, Rothbart has failed to
state a claim upon which relief can be granted. Rothbart urges this Court to deny the motion to
dismiss, arguing that the Termination Agreement was executed in the context of negotiations
between Rothbart and National Paintball, it does not contain an integration clause, and that the
959 Lease was the pivotal document and a material part of the consideration for the Termination
Agreement. Rothbart argues in the alternative that National Paintball is equitably estopped from
asserting the Termination Agreement as a defense.

This Court finds that, at this stage of the proceedings, it does not appear beyond doubt
that Rothbart cannot prove any facts that would support his claim for relief. On April 4, 2002,
the parties negotiated two agreements--the Termination Agreement, which both parties signed,

and the 959 Lease, which, for some reason, National Paintball did not sign. Because it is unclear

-4.


2. As consideration for LANDLORD’S agreement to release ASSIGNEE
from its obligations under the REVISED LEASE as provided herein, ASSIGNEE
shall pay to LANDLORD a Forty Five Thousand ($45 ,000.000) [sic] Dollar Lease
Termination Fee (hereinafter referred to as Lease Termination Fee). This Lease
Termination Fee shall be paid to LANDLORD concurrent with the execution of
this Termination Agreement. As part of this Lease Termination Fee payment,
Assignee may deduct there from 50% of the aforementioned Security Deposit being
Five Thousand Eight Hundred and Seventy ($5870.00) Dollars leaving a net
amount due with the execution of this Termination Agreement of Thirty-Nine
Thousand One Hundred and Thirty ($39,130.00) Dollars. This Termination Fee
shall be used by LANDLORD to pay for any and all costs incurred by
LANDLORD in order to re-lease the premises covered by LEASE956 and
LEASE960 including, without limitation[,] brokerage and legal fees, rent credits,
utilities, advertising costs, tenant improvements (carpeting/painting, etc.) or tenant
alterations and any and all other customary charges incurred by LANDLORD for
the re-leasing of office/warehouse premises. LANDLORD shall pay for the cost
of closing the opening between premises 956 and 960. In the event
LANDLORD’S total costs for the releasing of the premises are less than Forty
Five Thousand ($45,000.00) Dollars, LANDLORD shall refund to Assignee, the
difference, if any. In the even LANDLORD’S total costs for the releasing of the
premises are in excess of Forty Five Thousand ($45,000.00) Dollars, no additional
sum shall be due and owing from ASSIGNEE.

3. ASSIGNEE shall surrender and vacate possession of the premises
covered by LEASE956 and LEASE960 to the LANDLORD in accordance with the
provisions of the REVISED LEASE, on or before the Effective Date (May 15,
2002), as if the Effective Date was the original termination date of the REVISED
LEASE. Upon termination, LANDLORD and ASSIGNEE shail be relieved of
their obligations under the REVISED LEASE except for (a) those accruing prior
to the EFFECTIVE DATE (b) those obligations which by their terms expressly
survive the Termination Date and (c) any obligations arising under this Lease
Termination Agreement. Within thirty (30) days after the EFFECTIVE DATE,
LANDLORD shall finalized [sic] any amounts estimated to be due pursuant to this
REVISED LEASE, and any additional amounts owed by ASSIGNEE to
LANDLORD shall be immediately be [sic] paid to LANDLORD, and any amounts
owed by LANDLORD to ASSIGNEE shall be immediately paid to ASSIGNEE.

The 959 Lease was signed by Landlord: 977 Northpoint Venture, L.L.C. (“Landlord

#2”), but National Paintball never executed the lease.

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whether and to what extent the 959 Lease played a role in the execution of the Termination
Agreement, this Court denies National Paintball’s motion to dismiss.
Conclusion
For the foregoing reasons, National Paintball’s motion to dismiss is DENIED.

Enter:

DasdL bs.

David H. Coar

United States District Judge

Dated: August 28, 2002


Minute Order Form (€8/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud i Sitting Judge if Other
or Magistrate udge David H. Coar thaw Assigned Judge
CASE NUMBER 02 C 3849 DATE August 28, 2002
CASE Rothbart Realty Co. v. National Paintball Supply, 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 nature

of the motion being presented.]

(1)

MOTION:
Defendant’s Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(b)(6)

DOCKET ENTRY:

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

(2) Oo Brief in support of motion due

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

(4) oO Ruling/Hearingon set for__att

(5) Oo 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 eset for__—ssat_

(7) o Trialfset for/re-set for] on___at

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

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) O General Rule21 CIFRCP41(a)(1) OO FRCP41(a)(2).

ao [Other docket entry] _ For the reasons stated in the attached Memorandum and Opinion Order, the

Defendant’s motion to dismiss [5-1] is DENIED.

“Daub

| [For further detail see attached memorandum and opinion order.]

x

No notices required, advised in open court.

No notices required.
aired number of notices

Document

Notices mailed by judge’s staff.

Notified counsel by telephione. Go ag atten

Docketing to mail notices.

Mail AO 450 form.

Stas, dockoting deputy iniiats
Copy to judge/magistrate judge. Pome
courtroom date mtiled notice
mds(lc) deputy’s
initials

Date/time received in
central Clerk’s Office maifing deputy initials



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

ROTHBART REALTY COMPANY, as

agent for the beneficiaries of Cole Taylor
Bank, as trustee under Trust No. 95-4069
No. 02 C 3849
Plaintiff, ne
HONORABLE DAVIDA: COAR
Vv.

NATIONAL PAINTBALL SUPPLY, INC., a
Delaware corporation, successor in interest
to Diablo Direct, L.L.C.,

)
)
)
)
)
)
)
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)
)
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)
)

Defendant.

MEMORANDUM OPINION AND ORDER

Rothbart Realty Company (“Rothbart”) sues National Paintball Supply, Inc. (“National
Paintball”) for breach of two commercial lease agreements. Rothbart alleges that, although the
parties executed a Termination of Lease Agreement for the two leases, National Paintball did not
perform all of the conditions of the agreement, thereby it did not effectuate termination of the
commercial leases. National Paintball moves to dismiss Rothbart’s complaint against it,
pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, this Court denies National
Paintball’s motion to dismiss.

Background

On November 18, 1998, Rothbart, as agent for the beneficiaries of Cole Taylor Bank

(trustee under Trust No. 95-4069) (“Landlord #1"), executed a lease for commercial space at

956 Northpoint Blvd. in Waukegan, Illinois (the “956 Lease”) with Diablo Direct, L.L.C.

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(“Diablo”) as lessee. On July 28, 1999, Rothbart, again on behalf of Landlord #1, executed a
second lease with Diablo for nearby commercial space at 960 Northpoint Blvd. (the “960
Lease”). Both leases initially provided for a termination date of January 31, 2002. On
October 12, 2001, however, Rothbart and Diablo executed an agreement that extended both
the 956 and 960 Leases until January 31, 2005 (the “Extension Agreement”).

National Paintball acquired Diablo and assumed all of Diablo’s obligations under the
956 and 960 Leases and the Extension Agreement (the “Lease Assignment”). National
Paintball notified Rothbart of its desire to relocate to a larger facility. Rothbart, a member of
the limited liability company that owned the premises at 959 Northpoint Blvd. in Waukegan,
Illinois (“959 Premises”), negotiated and approved a new lease for the 959 Premises with
National Paintball dated April 4, 2002. Also on April 4, 2002, Rothbart and National
Paintball executed an agreement to terminate the 956 and 960 Leases (the “Termination
Agreement”). According to the Complaint, Rothbart and National Paintball agreed to
terminate the 956 and 960 Leases upon the following conditions: (1) that Rothbart and
National Paintball execute the 959 Lease; (2) that National Paintball vacate the 956 and 960
premises; (3) that National Paintball pay a Lease Termination Fee; and (4) that Rothbart and
National Paintball execute a Lease Termination Agreement.

The actual Termination Agreement, however, does not expressly condition the
Termination Agreement on National Paintball’s execution of the 959 Lease. Rather, referring
to the 956 Lease, the 960 Lease, the Extension Agreement, the Lease Assignment, and the

Termination Agreement collectively as “REVISED LEASE,” it provides: