three years, Mr. Hirtzer may have earned three to five million
dollars in commissions.

In Illinois, the statute of frauds has been determined to mean
that “[an oral] contract is unenforceable only if it is impossible
to perform the contract within one year.” Hartbarger v. SCA
Servs., Inc., 558 N.E.2d 596, 606 (Ill. App. Ct. 1990). Thus, if
it appears from a reasonable interpretation of the alleged
agreement that it is capable of performance within one year, the
statute of frauds is inapplicable. Id. (holding that while a
$200,000 payment to be made as part of an alleged oral agreement
was scheduled to be made in three transactions over a course of
four or five years, the payment could have been made within one
year, and statute of frauds therefore did not apply). See also
Indus. Specialty Chems., Inc. v. Cummins Engine Co., 902 F. Supp.
805, 810 n.5 (N.D. T1l. 1995) (Aspen, J.) (citing Hartbarger and
holding that although alleged oral agreement for sale of chemicals
did not specify duration, performance could have occurred within
one year so Illinois statute of frauds did not apply).

The agreement alleged here was that Mr. Hirtzer was to act as
sales agent for Avery while Avery supplied labels to P&G for
Project Rudolph. The full performance contemplated by this
agreement would therefore have been rendered upon completion by P&G
of Project Rudolph (and payment of all commissions by Avery). Mr.

Hirtzer’s complaint does not state one way or the other whether


to apply such a [blanket adoption] rule in the case of letters
written by the opposition for what could be self-serving purposes.”
163 F.3d at 455. “To require district courts to accept unilateral
statements in documents written by a defendant as true simply
because they were attached as exhibits to a plaintiff’s complaint
would be contrary to the concept of notice pleading.” Id. at 456.
I therefore do not read the statements pointed to by Avery in the
letters attached to Mr. Hirtzer’s complaint as establishing a five-
year timeline for Project Rudolph (and consequently that full
performance of the alleged agreement between Mr. Hirtzer and Avery
was impossible within one year). These letters may certainly make
it difficult for Mr. Hirtzer to overcome the statute of frauds
problem at some later stage in the litigation, but for now, he has
not pleaded himself out of court by attaching them to his
complaint.

Defendant’s motion to dismiss is DENIED.

ENTER an : 9
LOL, ZL Buhl
Elaine E. Bucklo
United States District Judge

Dated: May 30, 2003



exhibits, and supporting briefs. Thompson v. Ill. Dept. of Prof’l
Regulation, 300 F.3d 750, 753 (7th Cir. 2002). While Fed. R. Civ.
P. 8(a) requires only a short and plain statement showing that the
plaintiff is entitled to relief, if the plaintiff chooses to
provide facts beyond a short and plain statement, he may not then
prevent the defense from suggesting that those same facts
demonstrate that he is not entitled to relief. Id. A plaintiff
can “plead himself out of court.” Jackson v. Marion County, 66
F.3d 151, 153 (7th Cir. 1995). Avery points to three parts of Mr.
Hirtzer’s pleadings that it claims indicate that the alleged
agreement could not be completed in one year.

First, Avery points to paragraph seven of Mr. Hirtzer’s
complaint, which states that “the Defendant agreed to pay to the
Plaintiff seven percent (7%) commissions of all billings relating
to said Project Rudolph, which could amount to between THREE MILLION
Dontars ($3,000,000.00) and Five MILLION DottaRS ($5,000,000.00) over
a three (3) year period; and greater amounts in the event the
Project was extended to five (5) years.” (Compl. @ 7.) Contrary
to Avery’s assertions, this paragraph does not allege that Project
Rudolph was to last at least three, and possibly five, years.
Giving Mr. Hirtzer the benefit of the doubt, see Kelley v.
Crosfield Catalysts, 135 F.3d 1202, 1205 (7th Cir. 1998), and
construing all inferences in his favor, see Thompson, 300 F.3d at

753, this paragraph states only that if Project Rudoiph lasted



this circumstance (completion of Project Rudolph) could have
occurred within one year. The fact that Mr. Hirtzer alleges that
he could have received three to five million dollars had the
project lasted three years says nothing about whether the project
{and consequently the alleged agreement between Mr. Hirtzer and
Avery) could have been completed within a year. It is completely
plausible, consistent with Mr. Hirtzer’s complaint, that while it
was likely that Project Rudolph would last at least three years, it
could have been completed in one year, thus making the alleged
agreement between Mr. Hirtzer and Avery capable of performance
within one year. Paragraph seven of Mr. Hirtzer’s complaint does
not mandate application of the statute of frauds.

Avery also points to two exhibits attached to Mr. Hirtzer’s
complaint to support its assertion that the alleged agreement could
not be performed within a year. First, Avery points to a letter
attached to the complaint from Jayne Sutton, a manager at Avery, to
Mr. Hirtzer. In that letter, Ms. Sutton indicates that “[w]le are
in the process of finalizing our contract negotiations with both
P&G and Liquid Container for a five-year agreement.” (Compl. Ex.
Cc.) Second, Avery points to another letter attached to the
complaint, this one from Taras Szmagala, counsel to Avery, to
Ernest Gowen, Mr. Hirtzer’s counsel. That letter refers to an
April 4, 2002 discussion between Mr. Hirtzer and Avery in which Mr,

Hirtzer “agreed to accept the following commissions (based on a


Minute Order Form (06197)

United States District Court, Northern District of Illinois

Name of Assigned Judge Elaine E. Bucklo Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 C 627 DATE 5/30/2003
CASE Hirtzer vs, Avery Dennison Corp.
TITLE

[In 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]

als,

Date/time received in - .
conttal Clerk’s Office nating deputy inials

MOTION:
DOCKET ENTRY:
(i) a) Filed motion of [ use listing in “Motion” box above.]
(2) Q Brief in support of motion due
(3) Qa Answer brief to motion due_ . Reply to answer brief due.
(4) o Ruling/Hearingon_ set fora.
(5) im Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) ob Trial[set for/re-set for] on ___ at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OOFRCP4(m) COC) Local Rule 41.1. OO FRCP41(a)(1) 0 FRCP41(a)(2).
(io) ml [Other docket entry} | Enter Memorandum Opinion and Order denying defendant’s motion to
dismiss.

(11) a (For further detail see order attached to the original minute order.]

No notices required, advised in open court, ‘Document

” a Number

No notices required. swmnber of not Ss
VY | Notices mailed by judge’s staf. MW eva

Notified counsel by telephone. due dock

Docketing to mail notices.

Mail AO 450 form. dopkeriny ity initials

Copy to judge/magistrate judge.

sinffa003
date nailed natice
courtroom
MPI depuly’s we

eo 9



five-year relationship with Procter & Gamble): $150,000 in year
one, $125,000 in year two, $125,000 in year three, and $50,000 in
years four and five.” (Compl. Ex. D.) While these statements
offer strong evidence that the relationship between Avery and P&G
(and consequently the agreement between Avery and Mr. Hirtzer) was
to last five years, the Seventh Circuit has cautioned against
reading letters authored by a defendant as conclusively
establishing the truth of a matter when they are attached to a
complaint for unrelated reasons. N. Ind. Gun & Outdoor Shows, Inc.
v. City of South Bend, 163 F.3d 449, 455-57 (7th Cir. 1998)
(hereinafter NIGOS). The court in NIGOS indicated that before
accepting every word in a unilateral writing by a defendant
attached to a complaint as true, “it is necessary to consider why
a plaintiff attached the documents, who authored the documents, and
the reliability of the documents.” Id. at 455. Here, Mr. Hirtzer
attached the Sutton and Szmagala letters simply as evidence that
Avery had notified him that it would not perform the alleged
agreement. (Compl. © 9.) These letters are not “the subject of
the claim” and Mr. Hirtzer is therefore “not require[d] ... to
adopt every word within the exhibits as true.” NIGOS, 163 F.3d at
455. Cf. Thompson, 300 F.3d at 754-55 (distinguishing NIGOS while
holding that a job description attached to a complaint was part of
the “subject of the claim” in a case alleging retaliatory

demotion). The court in NIGOS indicated that it was “not inclined


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

JOSEPH W. HIRTZER, individually and
d/b/a GLOBAL PACKAGING,

Plaintiff,

No. -03 C 627

DOCKETED

YON 0 2 2093

v.
AVERY DENNISON CORPORATION,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Joseph W. Hirtzer, individually and d/b/a Global
Packaging, sued defendant Avery Dennison Corporation (“Avery”) in
Illinois state court for breach of contract. Avery removed the
action on the basis of diversity jurisdiction, and now moves to
dismiss for failure to state a claim on which relief can be
granted. I deny the motion.

On a motion to dismiss, I take all allegations in the
complaint as true. Wilczynski v. Lumbermens Mut. Cas. Co., 93 F.3d
397, 401 (7th Cir. 1996). The facts as alleged by Mr. Hirtzer are
as follows. Sometime in the fall of 2001, Mr. Hirtzer contacted
Avery to determine whether Avery would be interested in serving as
a supplier of labels on a project for Liquid Container Corporation
and Procter & Gamble Corporation (“P&G”). Negotiations led to an
oral agreement whereby Mr. Hirtzer would be appointed “Sales Agent”

of the project (“Project Rudolph”), and would serve as the primary


contact between Avery and P&G. Avery agreed to pay Mr. Hirtzer 7%
commissions on all billings related to Project Rudolph. Based in
large part on the efforts of Mr. Hirtzer, Avery entered into an
agreement with P&G. Avery later notified Mr. Hirtzer that it would
not perform its part of the agreement, and would pay Mr. Hirtzer
reduced commissions. Mr. Hirtzer then brought suit seeking 7%
commissions on Project Rudolph.

Avery moves to dismiss this suit based on the Illinois statute
of frauds.+ 740 ILCS § 80/1. (“No action shall be brought
upon any agreement that is not to be performed within the space of
one year from the making thereof, unless the promise or agreement
upon which such action shall be brought, or some memorandum or note
thereof, shall be in writing, and signed by the party to be charged
therewith, or some other person thereunto by him lawfully
authorized.”). The Illinois statute of frauds precludes
enforcement of an oral services contract that cannot be performed
within a year. Fischer v. First Chicago Capital Mkts., Inc., 195
F.3d 279, 283 (7th Cir. 1999). Avery argues that the oral
agreement alleged here, that Mr. Hirtzer would act as sales agent
in return for 7% commissions on Project Rudolph, could not be
performed within a year.

Consideration of a 12(b) (6) motion to dismiss is limited to

the pleadings, which consist of the complaint, any attached

3 Neither party claims that anything other than Illinois
substantive law applies to this case.

2