In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2753

GLEN HEFFERMAN,

Plaintiff-Appellant,

v.

YALE P. BASS,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 5748—Paul E. Plunkett, Judge.

____________

ARGUED JANUARY 10, 2006—DECIDED OCTOBER 19, 2006

____________

Before BAUER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge. This lawsuit arose out of a business partnership that went sour. Glen Hefferman, John St.

Pierre, and attorney Yale P. Bass were all involved in an illfated car wash venture. Hefferman contended that St.

Pierre stole $50,000 that Hefferman had invested in the car

wash and deprived him of the value of his legal interest in

the business; he also claimed that St. Pierre breached his

fiduciary duty, committed fraud, and breached a contract.

Bass, Hefferman charged, committed legal malpractice and

aided, abetted, or otherwise participated in St. Pierre’s

fraud and breach of fiduciary duty. The district court

entered a default judgment in Hefferman’s favor against St.

Pierre for $54,000. The court found, however, that

Hefferman had failed to state a claim against Bass.
2 No. 05-2753

Hefferman appeals the dismissal of his complaint against

Bass; St. Pierre is nowhere to be found and thus has not

challenged the default judgment against him. We reverse

and remand for further proceedings consistent with this

opinion.

I

When reviewing a dismissal under Rule 12(b)(6), we

present the facts in the light most favorable to Hefferman.

See County of McHenry v. Ins. Co. of the West, 438 F.3d 813,

817 (7th Cir. 2006). Hefferman is a former Illinois public

schoolteacher who has since relocated to California. In

2003, St. Pierre, one of his longtime acquaintances, approached him with a plan to become partners in a car wash

in Skokie, Illinois. At St. Pierre’s request, Hefferman

supplied about $25,000 for start-up costs, such as equipment and a lease. Later on, Hefferman provided another

$25,000; Hefferman also worked at the car wash several

hours a day during the summer of 2003 without being paid.

In July 2003, St. Pierre took Hefferman to Bass’s office

and told Hefferman “that Bass would take care of the

legal paperwork.” At St. Pierre’s request, Hefferman paid

Bass’s legal fees, which came to more than a thousand

dollars. Hefferman “understood from what St. Pierre told

him that Bass was to represent both him and St. Pierre

in rendering these services.” Bass assured Hefferman,

“I’m your guy. I’ll make sure you’re protected and you get

what’s been agreed.” Hefferman contends that Bass did

no such thing. Not only did he fail to deliver on his promises, but he also prepared a release used to trick Hefferman

into relinquishing his interest in the business. St. Pierre

showed up at Hefferman’s house in the middle of the night

with that release and convinced Hefferman to sign it by

showing him only the second page, which stated that St.

Pierre indemnified and held Hefferman “harmless from any

liability” under the lease of the car wash building. But the

first page of the release, which Hefferman did not see when
No. 05-2753 3

he signed, indicated that Hefferman “had resigned as officer

and stockholder” of the car wash. In the summer of 2004,

not having received any profit on his investment nor a

salary for working in the business, Hefferman visited St.

Pierre and sought an accounting or the return of his

investment. St. Pierre refused, telling Hefferman that he

was not entitled to anything.

Hefferman sued St. Pierre and Bass under federal

diversity jurisdiction. (Although Hefferman recovered only

$54,000 in the default judgment, his original claim also

sought damages for the value of his interest in the business

and punitive damages; there is thus no reason to think that

it did not exceed $75,000.) St. Pierre defaulted, and Bass

moved to dismiss the claims against him under Federal

Rule of Civil Procedure 12(b)(6). The district court found

that Hefferman had failed to state any claim against Bass

and dismissed the case. Hefferman appeals.

II

A

The only issue before us is whether Hefferman’s second

amended complaint states a claim or claims against Bass.

We begin our analysis with a reminder about the standards

for evaluating a motion under Rule 12(b)(6). As we noted

earlier, we review the facts in the light most favorable to

Hefferman. No claim should be dismissed unless “it is clear

that no relief could be granted under any set of facts that

could be proved consistent with the allegations.” Hishon v.

King & Spalding, 467 U.S. 69, 73 (1984). See also McCready

v. EBay, Inc., 2006 WL 1881142, at *3 (7th Cir. July 10,

2006).

Rule 12(b)(6) does not stand alone. In Swierkiewicz v.

Sorema N.A., 534 U.S. 506 (2002), the Supreme Court

stated: “Rule 8(a)’s simplified pleading standard applies to

all civil actions, with limited exceptions. Rule 9(b), for

example, provides for greater particularity in all averments
4 No. 05-2753

of fraud or mistake. This Court, however, has declined to

extend such exceptions to other contexts.” Id. at 513. The

Court also underscored the fact that “[o]ther provisions of

the Federal Rules of Civil Procedure are inextricably linked

to Rule 8(a)’s simplified notice pleading standard.” Id. See

McDonald v. Household Int’l, Inc., 425 F.3d 424, 427 (7th

Cir. 2005). See also Bell Atlantic Corp. v. Twombly, 425

F.3d 99 (2d Cir. 2005), cert. granted, 126 S.Ct. 2965 (2006)

(presenting the question whether a claim under the

Sherman Act § 1, 15 U.S.C. § 1, requires heightened

pleading).

Rule 8(a) requires only “(1) a short and plain statement of

the grounds upon which the court’s jurisdiction depends . . .

, (2) a short and plain statement of the claim showing that

the pleader is entitled to relief, and (3) a demand for

judgment for the relief the pleader seeks.” As the Supreme

Court pointed out in Swierkiewicz, 534 U.S. at 511-14, and

as we reiterated in McDonald, “This is a notice pleading

standard, not a fact pleading standard.” 425 F.3d at 427.

The point of a notice pleading standard is that the plaintiff

is not required to plead either facts or legal theories. See

Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006);

Bartholet v. Reishauer A.G. (Zürich), 953 F.2d 1073, 1078

(7th Cir. 1992) (complaints do not need to match facts to

“elements” of a legal theory). See also Cler v. Ill. Educ.

Ass’n, 423 F.3d 726, 729 (7th Cir. 2005) (“In this regard, the

Supreme Court has cautioned that ‘[t]he Federal Rules

reject the approach that pleading is a game of skill in which

one misstep by counsel may be decisive to the outcome and

accept the principle that the purpose of pleading is to

facilitate a proper decision on the merits.’ ”) (quoting Conley

v. Gibson, 355 U.S. 41, 48 (1957)).

This notice pleading regime stands in contrast to the

fact pleading Illinois has adopted. “While the plaintiff is not

required to set forth evidence in the complaint, the plaintiff

must allege facts sufficient to bring a claim within a legally

recognized cause of action, not simply conclusions.” See

Marshall v. Burger King Corp., 2006 WL 1703488 (Ill. June
No. 05-2753 5

22, 2006) (Analysis section, ¶ 1) (internal citations omitted).

In Illinois, the plaintiff must set forth sufficient facts to

satisfy each element of a claim. See id. ¶ 2.

In this case, whether they meant to or not, both the

parties and the district court took an approach that resembled the Illinois fact pleading rules far more than notice

pleading of Rule 8. The district court criticized Hefferman’s

pleadings under his legal malpractice claim for failing to

allege facts supporting each of the elements of the claim.

The court took the same approach with respect to

Hefferman’s theory that Bass had aided and abetted St.

Pierre’s swindling. But Rule 8 imposes no

such requirement. See Kirksey v. R.J. Reynolds Tobacco Co.,

168 F.3d 1039, 1041 (7th Cir. 1999). That this case was

brought under federal diversity jurisdiction, see 28 U.S.C.

§ 1332, and thus state law governs the substantive rights of

the parties, makes no difference. The Federal Rules of Civil

Procedure apply to all cases filed in federal court, no matter

what the basis of subject matter jurisdiction. See Hanna v.

Plumer, 380 U.S. 460 (1965). That fact makes Torres v.

Divis, 494 N.E.2d 1227 (Ill. App. 1986), which both

Hefferman and Bass discuss at length in their briefs, and

the other Illinois cases they mention, utterly irrelevant.

Torres is similar to this case in that it involves pleading in

a legal malpractice and breach of contract case, but it is

decided within the framework of Illinois’s fact pleading

rules and therefore inapplicable. In federal court under

Rule 8, the rules are simple: Notice is what counts. Not

facts; not elements of “causes of action”; not legal theories.

B

Regardless of what Hefferman may be able to prove at

a later stage of this litigation, Count IV of Hefferman’s

second amended complaint certainly gives notice of the

malpractice claim. Under Illinois law, legal malpractice

requires (1) an attorney-client relationship, (2) a negligent

act or breach, (3) proximate cause, and (4) damages. See
6 No. 05-2753

Webb v. Damisch, 842 N.E.2d 140, 146 (Ill. App. 2005). The

district court found that Hefferman had not properly

alleged two elements—the attorney-client relationship

and proximate cause. But from the point of view of notice,

rather than elements of a claim, this complaint said

more than enough: “Hefferman understood from what

St. Pierre told him that Bass was to represent both him and

St. Pierre in rendering these services”; “Bass then told Mr.

Hefferman that . . . ‘I’m your guy. I’ll make sure you’re

protected and you get what’s been agreed’ ”; “Bass then

asked Mr. Hefferman for an advance payment of fees . . .

and Mr. Hefferman there and then paid Bass several

hundred dollars”; “As Mr. Hefferman’s attorney, Bass owed

Mr. Hefferman the professional duties of, inter alia, candor,

honesty, loyalty and competence.” The complaint also

alleged that Bass’s breach of his fiduciary duties to

Hefferman caused Hefferman’s losses, stating in part that

“[b]ut for Bass’s breach of his fiduciary duties to Mr.

Hefferman . . . Mr. Hefferman would [ ] have been able to

protect his interest in the Skokie car wash and would not

have lost his share of the ongoing and future profits of that

business.” While at some later stage of the litigation, it

might turn out that the facts show that Bass had an

attorney-client relationship only with the car wash itself,

not with Hefferman (as the district court concluded), that

conclusion cannot be drawn if one looks at the pleadings in

the light most favorable to Hefferman. Indeed, the district

court itself recognizes that “[c]onceivably, the complaint

could be read to require that Bass look after the interests of

both shareholders and company so long as there was no

conflict of interest.” See, e.g., Manion v. Nagin, 394 F.3d

1062, 1069 (8th Cir. 2005) (finding that the pleadings left

open a question about who exactly was represented by the

attorney accused of malpractice).

We recognize that there is always some danger when a

plaintiff puts facts in her complaint that she may plead

herself out of court, because the facts pleaded preclude

recovery. See McCready, 2006 WL 1881142, at *4.
No. 05-2753 7

Hefferman, however, did not fall into that trap. The district

court dismissed Hefferman’s claims because of the absence

of facts that demonstrated his potential to recover, not

because the facts pleaded were inconsistent with recovery.

In the absence of a pleading that clearly precludes a claim,

“[a]t this stage of the litigation, we are concerned not with

what plaintiff did or did not show, but rather with what

plaintiff did or did not allege.” Brown v. Budz, 398 F.3d 904,

914 (7th Cir. 2005). Regardless of what he may prove later,

Hefferman satisfied Rule 8’s requirement that he provide

notice of his malpractice claim.

C

The adequacy of Hefferman’s allegations with respect

to his aiding and abetting claim in Count V presents a more

difficult question. Hefferman alleges that Bass aided and

abetted St. Pierre in both St. Pierre’s breach of fiduciary

duties and in St. Pierre’s fraud. In the first place, Bass

argues that as a matter of law this circuit does not recognize aiding and abetting as a tort, citing Eastern Trading

Co. v. Refco, Inc., 229 F.3d 617, 623 (7th Cir. 2000), and

Cenco Inc. v. Seidman & Seidman, 686 F.2d 449, 452-53

(7th Cir. 1982). Bass is technically correct but misses the

point. What these opinions say is that aiding and abetting

is a theory for holding the person who aids and abets liable

for the tort itself; the rejection of aiding and abetting as an

independent tort is not the same thing as saying that there

is never liability for aiding and abetting. See Refco, 229

F.3d at 624 (“Law should be kept as simple as possible. One

who aids and abets a fraud is guilty of the tort of fraud

(sometimes called deceit); nothing is added by saying that

he is guilty of the tort of aiding and abetting as well or

instead.”); Cenco, 686 F.2d at 453 (“Anyone who would be

guilty in a criminal proceeding of aiding and abetting a

fraud would be liable under tort law as a participant in the

fraud, since aider-abettor liability requires participation in

the criminal venture.”). Furthermore, this is a diversity
8 No. 05-2753

case, governed by the law of Illinois. See generally Erie

Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Recent

Illinois decisions recognize aiding and abetting liability.

Under Illinois law, to state a claim for aiding and abetting,

one must allege (1) the party whom the defendant aids

performed a wrongful act causing an injury, (2) the defendant was aware of his role when he provided the assistance,

and (3) the defendant knowingly and substantially assisted

the violation. See Thornwood, Inc. v. Jenner & Block, 799

N.E.2d 756, 767 (Ill. App. 2003). To the extent that the

question is whether Hefferman adequately alleged that

Bass aided and abetted St. Pierre’s breach of his fiduciary

duty, we look again to Rule 8. Once again, we conclude that

the complaint provided sufficient notice to Bass.

To the extent that the claim is that Bass aided and

abetted St. Pierre in committing fraud, however, there is a

higher pleading standard. Federal Rule of Civil Procedure

9(b) provides, “In all averments of fraud or mistake, the

circumstances constituting fraud or mistake shall be stated

with particularity.” This is a heightened pleading standard,

which requires more than the plain statement of the claim

of Rule 8. Rule 9(b) requires that facts such as “the identity

of the person making the misrepresentation, the time,

place, and content of the misrepresentation, and the method

by which the misrepresentation was communicated to the

plaintiff” be alleged in detail. Bankers Trust Co. v. Old

Republic Ins. Co., 959 F.2d 677, 683 (7th Cir. 1992) (quoting

Sears v. Likens, 912 F.2d 889, 893 (7th Cir. 1990)). In

contrast, even under Rule 9(b) “[m]alice, intent, knowledge,

and other condition of mind of a person may be averred

generally.” Furthermore, Rule 9(b) does not require a

plaintiff to demonstrate that a representation was indeed

false. Bankers Trust Co., 959 F.2d at 683.

In this case, Hefferman’s complaint adequately identifies the person making the misrepresentation—St. Pierre.

We also have the time, the place, and the content of the

misrepresentation. According to the complaint, the time

was “some time in late August or early September” 2003
No. 05-2753 9

“late at night—it was after midnight.” The place was

Hefferman’s home in Chicago. The misrepresentation

was St. Pierre’s statement that the release, an unsigned

copy of which Hefferman attached to the complaint, only

gave St. Pierre sole responsibility for the car wash building lease as opposed to control over Hefferman’s interest in

the business itself. The manner in which it was communicated was orally by St. Pierre to Hefferman at that middleof-the-night meeting. Indeed, there are multiple misrepresentations alleged in Hefferman’s complaint; this is merely

the central one. The district court found that Hefferman

sufficiently alleged that Bass aided St. Pierre and that St.

Pierre committed a wrongful act, but that “nothing in the

allegations even suggests that Bass knew (as opposed to

should have known) either that St. Pierre was engaged in

a fraud or that Bass willingly joined in his scheme.” That

point, however, relates to Bass’s “knowledge” or “condition

of mind,” which as noted above Rule 9(b) permits to be

alleged generally. The complaint does just that, when it

says that “Bass’s participation in St. Pierre’s fraud and

breach of fiduciary duty was knowing and intentional.”

Furthermore, the complaint also specifically identifies the

assistance provided—the drafting of the release itself. Thus,

to the extent that Hefferman’s claims against Bass turn on

fraud, we find that Hefferman’s complaint satisfies Rule

9(b).

III

For these reasons, the judgment of the district court

is REVERSED and this case is REMANDED to the district court

for proceedings consistent with this opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-19-06