### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

‐ 3075

F IRESTONE F INANCIAL C ORP

., Plaintiff

‐ Appellee

,

v.

J OHN R. M EYER

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:13

‐ cv

‐ 07241

— Milton I. Shadur

, Judge

.

____________________

S UBMITTED M AY 15, 2015 *

— D ECIDED A UGUST 10, 2015

____________________

Before W OOD

, Chief Judge

, and C UDAHY and R IPPLE

, Cir

‐

cuit Judges

.

R IPPLE

, Circuit Judge

. This case arises from a series of

loans made by Firestone Financial Corporation (“Firestone”)

* After examining the briefs and record, we have concluded that oral ar

‐

gument is unnecessary. The appeal is therefore submitted on the briefs

and record. See Fed. R. App. P. 34(a)(2)(C).2 No. 14

‐ 3075

to JHM Equipment Leasing Company (“JHM”). After JHM

defaulted on the loans, Firestone filed suit against JHM, John

R. Meyer (JHM’s owner), and two of Mr. Meyer’s other

companies to collect on the debt. The defendants filed an an

‐

swer denying the allegations of breach, asserting a counter

‐

claim of promissory estoppel, and raising various affirma

‐

tive defenses. Relying on Federal Rule of Civil Procedure

12(b)(6), the district court dismissed the defendants’ coun

‐

terclaim as implausible and later awarded summary judg

‐

ment to Firestone on its claim against Mr. Meyer. Mr. Meyer

now appeals both the district court’s dismissal of his coun

‐

terclaim as well as the court’s grant of summary judgment to

Firestone. For the reasons set forth in this opinion, we re

‐

verse both decisions and remand this case for further pro

‐ ceedings.

I

BACKGROUND

Firestone is a finance company incorporated under the

laws of Massachusetts with its principal place of business in

that state. JHM is an Illinois corporation that rents commer

‐

cial laundry machines to apartment building owners in Chi

‐

cago and its suburbs. Mr. Meyer owns and operates JHM

and two related companies, J H Meyer Enterprises, Inc.

(“Meyer Enterprises”) and Dolphin Laundry Services, Inc.

(“Dolphin”). Mr. Meyer is an Illinois citizen, residing in

Hinsdale, Illinois; his three companies are all incorporated in

Illinois and have their principal place of business in that

state.No. 14

‐ 3075 3

Between June 2012 and June 2013, Firestone made four

separate loans to JHM, totaling $254,114.99. Each loan was

secured by JHM’s laundry equipment and guaranteed by

Meyer Enterprises, Dolphin, and Mr. Meyer.

Between June and August of 2013, JHM defaulted on

each of its four loans. Shortly afterward, Firestone filed this

diversity action in the district court against Mr. Meyer and

his three companies, alleging claims for breach of contract,

breach of guaranty, replevin, and detinue.

The defendants filed an answer, denying the allegations

of breach and asserting a counterclaim of promissory estop

‐ pel. In this counterclaim, the defendants alleged that in No

‐

vember 2012, after Firestone’s first two loans to JHM, Fire

‐

stone vice president Dan McAllister had represented that his

company “wanted to expand [its] investment in the laundry

business,” and that it “would create a $500,000 line of credit”

to fund the defendants’ equipment purchases in 2013. 1 This

promise, according to the defendants, “induced JHM into

purchasing equipment” that it would not otherwise have

purchased. 2 Consequently, when Firestone later reneged on

this promise, JHM was left unable to pay for its newly pur

‐

chased equipment. As a result, JHM’s equipment supplier

(Maytag) refused to sell laundry equipment to any of Mr.

Meyer’s three companies, resulting in substantial losses to

the defendants.

The defendants’ answer also raised four affirmative de

‐

fenses, including that of promissory estoppel and prior

1 R.23 at 23.

2 Id. at 25.4 No. 14

‐ 3075

breach of contract. These latter two defenses were based on

the same factual allegations as the defendants’ counterclaim.

In February 2014, Firestone moved to dismiss the de

‐

fendants’ counterclaim under Rule 12(b)(6). The company

submitted that the claim was implausible because it was

premised on “the unheard of position that Firestone, a cor

‐ poration with nearly 50 years in business, [would make] a

handshake deal to loan half a million dollars to a start up

business to be secured after the fact.” 3

Shortly thereafter, defense counsel withdrew from the

case. In the following month, the defendants did not obtain

substitute counsel. As a result, Firestone moved for an entry

of default judgment against the three corporate defendants,

submitting that they were required to have legal counsel

under Illinois law. The court granted Firestone’s motion and

entered default judgment against the three corporate de

‐

fendants. The court’s judgment did not address the defend

‐

ants’ counterclaim.

The district court held a status hearing on the remaining

claims in April 2014. The court started the hearing by dis

‐ cussing the defendants’ efforts to obtain substitute counsel.

Mr. Meyer informed the court that he was working to obtain

counsel and that his corporate codefendants would have

representation within approximately one week. In response,

Firestone asserted that the defendants were taking too long

to obtain counsel and that the court should rule on its pend

‐ ing motion to dismiss. Having apparently forgotten about

this motion, the court replied, “Well, wait just a minute. Let

3 R.42 at 5.No. 14

‐ 3075 5

me get the chambers file. You are right, I have given Mr.

Meyer a lot of leeway.” 4 After reviewing the motion and

hearing argument from Mr. Meyer, the court granted Fire

‐

stone’s motion to dismiss, ruling that the defendants’ coun

‐

terclaim was facially implausible.

Shortly afterward, Firestone moved for summary judg

‐

ment on its remaining breach of guaranty claim against

Mr. Meyer. Regarding Mr. Meyer’s promissory estoppel and

prior

‐ breach

‐ of

‐ contract defenses, Firestone asserted that,

because those defenses were based on the same factual alle

‐ gations as Mr. Meyer’s counterclaim, they were barred by

the court’s earlier ruling dismissing his counterclaim as im

‐ plausible. The court later granted Firestone’s motion for

summary judgment. In doing so, it did not specifically dis

‐

cuss either of the above

‐ referenced affirmative defenses.

Mr. Meyer timely appealed. 5

II

DISCUSSION

Mr. Meyer now challenges both the district court’s dis

‐

missal of his counterclaim as well as the court’s order

awarding summary judgment to Firestone. We address these

issues in turn.

4 R.106 at 3.

5 The district court had jurisdiction over this case under 28 U.S.C. § 1332.

Our jurisdiction is premised on 28 U.S.C. § 1291.6 No. 14

‐ 3075

A.

Mr. Meyer first submits that the district court erred in

dismissing his counterclaim under Rule 12(b)(6). “A motion

to dismiss pursuant to [Rule] 12(b)(6) challenges the viability

of a complaint by arguing that it fails to state a claim upon

which relief may be granted.” Camasta v. Jos. A. Bank Clothi

‐

ers, Inc.

, 761 F.3d 732, 736 (7th Cir. 2014). “We review a dis

‐

trict court’s dismissal for failure to state a claim de novo .”

Bruce v. Guernsey

, 777 F.3d 872, 875 (7th Cir. 2015).

1.

As a threshold matter, Firestone contends that Mr. Meyer

waived his right to appeal this issue by failing to respond to

its motion to dismiss in the district court. We cannot accept

this view. Although a party generally forfeits an argument

or issue not raised in response to a motion to dismiss, “it is

well settled that [this] rule does not prevent a party from at

‐ tacking on appeal the legal theory upon which the district

court based its decision.” Sidney Hillman Health Ctr. of Roches

‐

ter v. Abbott Labs., Inc.

, 782 F.3d 922, 927 (7th Cir. 2015) (quot

‐ ing Hedge v. Cty. of Tippecanoe

, 890 F.2d 4, 8 (7th Cir. 1989)). 6

6 See also Allison v. Ticor Title Ins. Co.

, 979 F.2d 1187, 1194 (7th Cir. 1992)

(“While it is true that an argument cannot be raised for the first time on

appeal, it is also true that a party may attack the legal theory upon which

the district court based its decision.”); United States v. City of Chicago

, 869

F.2d 1033, 1036 (7th Cir. 1989) (“It is folly for [the appellee] to assert that

an appeals court on review of a district court judgment cannot consider

the merits of each and every theory the district judge relied upon in de

‐ ciding the case.”); Rosser v. Chrysler Corp.

, 864 F.2d 1299, 1306 n.7 (7th Cir.

1988) (“Where the district court’s decision was erroneous as a matter of

(continued...)No. 14

‐ 3075 7

Although an “appellant may not

... raise an issue which was

not considered by the court below,” this rule does not pre

‐

vent a party “from urging that the grounds given by the dis

‐

trict court for dismissing [his] complaint are wrong.” Walker

v. S. Cent. Bell Tel. Co.

, 904 F.2d 275, 276 n.1 (5th Cir. 1990)

(per curiam).

Here, Mr. Meyer does not challenge the district court’s

decision based on a newly raised argument or on an issue

(...continued)

law, we can reverse [its] decision despite the appellant’s failure to re

‐ spond to the motion to dismiss.”); Toney v. Burris

, 829 F.2d 622, 626 (7th

Cir. 1987) (“[T]he waiver rule does not apply to the law on which a deci

‐

sion is based.”); Charlton v. United States

, 743 F.2d 557, 561 n.5 (7th Cir.

1984) (per curiam) (“The district court decision was erroneous as a mat

‐

ter of law, and we can reverse the decision despite counsel’s failure to

respond to the motion to dismiss.”).

Firestone submits that our decisions in Alioto v. Town of Lisbon

, 651

F.3d 715 (7th Cir. 2011), and County of McHenry v. Insurance Company of

the West

, 438 F.3d 813 (7th Cir. 2006), require a finding of waiver any

time a nonmoving party fails to respond to a motion to dismiss. Neither

of those cases reject, or otherwise dispute, the well

‐ settled principle “that

the waiver rule does not prevent a party from attacking on appeal the

legal theory upon which the district court based its decision.” Sidney

Hillman Health Ctr. of Rochester v. Abbott Labs., Inc.

, 782 F.3d 922, 927 (7th

Cir. 2015). Rather, those decisions, when read in light of our existing case

law, merely stand for the proposition that a party cannot challenge a dis

‐

trict court’s decision based on an argument or issue not presented to, or

considered by, the district court. See Alioto

, 651 F.3d at 721 (relying on the

rule, “[l]ongstanding under our case law[,]

... that a person waives an

argument by failing to make it before the district court”); Cty. of McHen

‐

ry

, 438 F.3d at 819–20 (precluding a plaintiff from asserting “facts and

issues that were not raised in its response to [the defendant’s] motion to

dismiss” or otherwise considered by the district court).8 No. 14

‐ 3075

not considered by the district court; rather, he merely sub

‐

mits that the court’s reason for dismissing his counter

‐

claim—because its factual allegations were implausible—

was wrong. No principle of waiver precludes Mr. Meyer

from raising this limited argument on appeal. See Sidney

Hillman Health Ctr. of Rochester

, 782 F.3d at 927; Rosser v.

Chrysler Corp.

, 864 F.2d 1299, 1306 n.7 (7th Cir. 1989)

.

2.

We now turn to the merits of Mr. Meyer’s appeal. To

survive a motion to dismiss under Rule 12(b)(6), “a com

‐ plaint must allege ‘sufficient factual matter to state a claim to

relief that is plausible on its face.’” Gogos v. AMS Mech. Sys.,

Inc.

, 737 F.3d 1170, 1172 (7th Cir. 2013) (per curiam) (altera

‐

tions omitted) (quoting Ashcroft v. Iqbal

, 556 U.S. 662, 678

(2009)). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the rea

‐

sonable inference that the defendant is liable for the miscon

‐

duct alleged.” Iqbal

, 556 U.S. at 678. Applying this standard,

we first accept all well

‐ pleaded facts in the complaint as true

and then ask whether those facts state a plausible claim for

relief. See id. at 679; Santana v. Cook Cty. Bd. of Review

, 679

F.3d 614, 620 (7th Cir. 2012). Allegations that state “legal

conclusions” or “[t]hreadbare recitals of the elements of a

cause of action” are not entitled to the assumption of truth.

Iqbal

, 556 U.S. at 678. As this analysis suggests, the plausibil

‐ ity standard does not allow a court to question or otherwise

disregard nonconclusory factual allegations simply because

they seem unlikely. See id. (“The plausibility standard is notNo. 14

‐ 3075 9

akin to a ‘probability requirement’

... .”). 7 Rather, “a well

‐ pleaded complaint may proceed even if it strikes a savvy

judge that actual proof of those facts is improbable, and that

a recovery is very remote and unlikely.” Alam v. Miller Brew

‐ ing Co.

, 709 F.3d 662, 666 (7th Cir. 2013) (quoting Bell Atl.

Corp. v. Twombly

, 550 U.S. 544, 556 (2007)).

Here, Mr. Meyer’s counterclaim alleged (1) that Firestone

vice president Dan McAllister had represented that Firestone

“wanted to expand [its] investment in the laundry business,”

and that it “would create a $500,000 line of credit” to fund

the defendants’ equipment purchases in 2013, and (2) that

after “establishment of the line of credit was delayed, McAl

‐

lister represented to JHM that if JHM purchased the equip

‐

ment necessary to expand its business, Firestone would fi

‐

nance equipment packages in 2013 on the same terms and

conditions as the First and Second Loans.” 8 These allegations

are neither legal assertions nor conclusory statements recit

‐ ing the elements of a cause of action. As such, they are enti

‐

tled to a presumption of truth. See Iqbal

, 556 U.S. at 678.

7 See also Ashcroft v. Iqbal

, 556 U.S. 662, 681 (2009) (“To be clear, we do not

reject these bald allegations on the ground that they are unrealistic or

nonsensical.

... It is the conclusory nature of respondent’s allegations,

rather than their extravagantly fanciful nature, that disentitles them to

the presumption of truth.”); Ocasio

‐ Hernández v. Fortuño

‐ Burset

, 640 F.3d

1, 12 (1st Cir. 2011) (“Non

‐ conclusory factual allegations in the complaint

must then be treated as true, even if seemingly incredible.”); Bryson v.

Gonzales

, 534 F.3d 1282, 1286 (10th Cir. 2008) (noting that well

‐ pleaded

“factual allegations [need not] themselves be plausible” given that “they

are assumed to be true”).

8 R.23 at 23, 26.10 No. 14

‐ 3075

The district court, however, did not treat these well

‐ pleaded factual allegations as true. Rather, the court deter

‐

mined that it was “implausible to allege that somehow Fire

‐

stone committed orally to provide a half million dollars un

‐

secured to what was essentially a comparative start

‐ up busi

‐

ness.” 9 This analysis constitutes an erroneous application of

Twombly and Iqbal

. The relevant question under these cases

is not whether a complaint’s factual allegations are true, but

rather whether the complaint “contain[s] sufficient factual

matter, accepted as true

, to ‘state a claim to relief that is plau

‐

sible on its face.’” Id. at 678 (emphasis added) (quoting

Twombly

, 550 U.S. at 570).

Once Mr. Meyer’s well

‐ pleaded factual allegations are

accepted as true, we have no difficulty concluding that they

are sufficient to state a plausible claim of promissory estop

‐ pel. “To establish [such] a claim, the plaintiff must prove

that (1) defendant made an unambiguous promise to plain

‐

tiff, (2) plaintiff relied on such promise, (3) plaintiff’s reliance

was expected and foreseeable by defendants, and (4) plain

‐

tiff relied on the promise to its detriment.” Newton Tractor

Sales, Inc. v. Kubota Tractor Corp.

, 906 N.E.2d 520, 523–24 (Ill.

2009).

Here, Mr. Meyer alleges that Firestone, through McAllis

‐

ter, told him that it would fund JHM’s equipment purchases

in 2013 under the same terms as its previous two loans. He

asserts that JHM purchased equipment based on this repre

‐

sentation and that Firestone knew that JHM would do so

based on their earlier course of dealing. Finally, he alleges

9 R.106 at 4.No. 14

‐ 3075 11

that Firestone later reneged on this commitment and that, as

a result, JHM defaulted on its equipment purchases from

Maytag, causing Maytag to blacklist Mr. Meyer’s companies.

These allegations are enough to state a plausible claim of

promissory estoppel. See Wigod v. Wells Fargo Bank, N.A.

, 673

F.3d 547, 566 (7th Cir. 2012) (concluding that a complaint,

which “alleged a sufficiently clear promise, evidence of [the

plaintiff’s] own reliance [on that promise], and an explana

‐

tion of the injury that resulted[,]

... was enough to present a

facially plausible claim of promissory estoppel”). The district

court, therefore, erred in dismissing Mr. Meyer’s counter

‐

claim.

B.

Mr. Meyer also challenges the district court’s award of

summary judgment to Firestone. Specifically, he submits

that the “court erred in disregarding [two of his] affirmative

defenses because they were based on the same facts as [his]

counterclaim, which the district court concluded was im

‐ plausible.” 10 We review a district court’s grant of summary

judgment de novo. Carman v. Tinkes

, 762 F.3d 565, 566 (7th

Cir. 2014).

As we noted earlier, Mr. Meyer raised several affirmative

defenses in his answer, two of which—a promissory estop

‐ pel defense and prior

‐ breach

‐ of

‐ contract defense—were

based on the same factual allegations as his counterclaim. In

moving for summary judgment, Firestone submitted that

10 Appellant’s Br. 15.12 No. 14

‐ 3075

these two defenses were barred by the district court’s earlier

ruling dismissing Mr. Meyer’s counterclaim as implausible.

Firestone offered no other ground for rejecting these defens

‐

es.

In awarding summary judgment, the district court did

not specifically discuss either of these defenses. Rather, at

the hearing on Firestone’s motion, the court simply stated

that none of the arguments “advanced by Mr. Meyer really

undercut the entitlement of Firestone to summary judg

‐

ment” and that the court did not “see any need

... to expend

time and effort for purposes of knocking out the arguments

advanced by Mr. Meyer.” 11 Likewise, the court’s subsequent

judgment order simply stated that the court had “reviewed

all memoranda and related documents filed by the parties

and [had] orally expressed its conclusion that Meyer [had]

not met his burden of proving his affirmative defenses.” 12

These conclusory remarks do not explain clearly why the

district court thought that Mr. Meyer’s promissory estoppel

and prior

‐ breach

‐ of

‐ contract defenses were insufficient to

preclude summary judgment. Although both parties appear

to agree that the court rejected these defenses for the same

reason that it dismissed Mr. Meyer’s counterclaim (i.e., be

‐

cause they were premised on implausible factual allega

‐

tions), nowhere does the court expressly adopt this rationale.

Ordinarily, when faced with an ambiguity such as this,

we would remand the case to the district court for clarifica

‐

11 R.108 at 2–3.

12 R.90 at 1.No. 14

‐ 3075 13

tion of its reasoning pursuant to Circuit Rule 50. 13 See W.

States Ins. Co. v. Wis. Wholesale Tire, Inc.

, 148 F.3d 756, 759–60

(7th Cir. 1998) (per curiam). Here, however, another course

is more economical in terms of judicial resources. Firestone’s

only argument for rejecting these defenses was that they

were barred by the court’s earlier decision dismissing

Mr. Meyer’s counterclaim as implausible, and “[w]e have

often explained that district courts may not grant summary

judgment on grounds not argued by the moving party, at

least not without giving notice so that the non

‐ moving party

has a full opportunity to present relevant evidence and ar

‐ gument.” Williams v. City of Chicago

, 733 F.3d 749, 755 (7th

Cir. 2013). Here, the district court did not give Mr. Meyer

any such advance notice. Consequently, the only possible

basis for the district court’s decision was Firestone’s conten

‐

tion that the defenses at issue were barred by the court’s ear

‐

lier dismissal of Mr. Meyer’s counterclaim. See id. Because, as

we have explained earlier, the district court erred in dismiss

‐ ing Mr. Meyer’s counterclaim, we must conclude that the

court also erred in rejecting Mr. Meyer’s promissory estop

‐ pel and prior

‐ breach

‐ of

‐ contract defenses on summary

judgment.

13 Circuit Rule 50 reads, in relevant part, as follows:

Whenever a district court resolves any claim or

counterclaim on the merits, terminates the litigation in

its court (as by remanding or transferring the case, or

denying leave to proceed in forma pauperis with or

without prejudice), or enters an interlocutory order that

may be appealed to the court of appeals, the judge shall

give his or her reasons, either orally on the record or by

written statement.14 No. 14

‐ 3075

Conclusion

For the foregoing reasons, the judgment of the district

court is reversed, and the case is remanded to the district

court for proceedings consistent with this opinion.

REVERSED AND REMANDED