Dika-Homewood L.L.C v. Officemax, Inc.
| DIKA-HOMEWOOD, L.L.C. and Dika-Homewood L.L.C |
| OFFICEMAX, INC. n/k/a OFFICEMAX NORTH AMERICA, INC. and Officemax, Inc. |
| 1:2021cv00786 |
| February 11, 2021 |
| US District Court for the Northern District of Illinois |
| Matthew F Kennelly |
| Contract: Other |
| 28 U.S.C. ยง 1332 |
| Defendant |
Docket Report
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Filing 11
MINUTE entry before the Honorable Matthew F. Kennelly: Telephonic status hearing held on 3/23/2021. The defendant's response to the amended complaint is due on 4/15/2021. The plaintiff's response to any counterclaim is due on 5/6/2021. Rule 26(a)(1) disclosures are due on 5/20/2021. Written discovery is to be issued by 6/10/2021 and responded to by 8/5/2021. Fact discovery is to be completed by 12/21/2021. The deadline for filing dispositive motions is 1/27/2022. A telephonic status hearing is set for 4/23/2021 at 9:20 a.m. The following call-in number will be used for the hearing: 888-684-8852 conference code 746-1053. Mailed notice. (mma, )
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Filing 10
STATUS Report Joint Status Report Pursuant to Dkt. #7 by Officemax, Inc. (Marrese, John)
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Filing 9
NOTICE by Dika-Homewood L.L.C re amended complaint #8 (Kahn, Sandra)
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Filing 8
AMENDED complaint by Dika-Homewood L.L.C against Officemax, Inc. (Kahn, Sandra)
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Filing 7
MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiff sued defendant in state court for breach of a lease and for fraud, and defendant removed the case to federal court based on diversity of citizenship. Defendant has now moved to dismiss for failure to state a claim. The Court denies the motion #6 with respect to count 1, the breach of contract claim. Defendant argues that plaintiff has failed to allege that it complied with all conditions precedent. Wrong. Plaintiff alleges in paragraph 17 of the complaint that it "performed all of its obligations under the Lease." Defendant specifically references a notice-and-cure term, but a plaintiff is not required in federal court to plead with particularity an allegation like its own compliance with contractual conditions. In short, plaintiff has alleged what all it needs to allege. Defendant also says that plaintiff is improperly alleging, in part, a future breach, but plaintiff's allegation regarding the possible need for repair is not asserted as a separate claim for breach--at least not at this point--so this is no basis for dismissal. The Court therefore denies the motion as to count 1. Count 2 is entitled "fraud." It simply incorporates the breach of contract allegations in count 1 and then says that defendant has engaged in a course of conduct of vacating business premises and stiffing landlords, and that it has done so deliberately. If there were such a thing as a common law claim for aggravated breach of contract, this might be one, but there isn't. And count 2 pretty clearly does not state a claim for fraud, as it does not identify any misrepresentations or material omissions, which (among other missing elements) are necessary elements of a fraud claim in Illinois. If plaintiff wants to try to persuade the Court that it is missing something on count 2, it has until 3/8/2021 to file a response to the motion to dismiss regarding that count, but plaintiff would be better advised to either amend count 2 or drop it--which the Court gives it until that same date, 3/8/2021, to do. The motion to dismiss is held in abeyance until after that. The case is set for a case management conference under Federal Rule of Civil Procedure 16 on 3/23/2021 at 8:55 a.m. The case management conference will be conducted by telephone, using the following call-in number: 888-684-8852, access code 746-1053. By no later than 3/16/2021 the parties are to file a joint status report that includes the following information: (1) the status of service of process upon each defendant; (2) a description of each party's claims and defenses; (3) details regarding any discussions concerning settlement, whether before or after the filing of the lawsuit; (4) a proposed discovery and pretrial schedule; and (5) any other matters that any party wishes to bring to the Court's attention. (mk)
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Filing 6
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant Officemax, Inc. (Hart, Steven)
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Filing 5
MAILED Notice of Removal letter to counsel of record. (mc, )
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Filing 4
ATTORNEY Appearance for Defendant OFFICEMAX, INC. n/k/a OFFICEMAX NORTH AMERICA, INC. by Steven Alan Hart (Hart, Steven)
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Filing 3
ATTORNEY Appearance for Defendant OFFICEMAX, INC. n/k/a OFFICEMAX NORTH AMERICA, INC. by John Shannon Marrese (Marrese, John)
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Filing 2
CIVIL Cover Sheet (Marrese, John)
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Filing 1
NOTICE of Removal from Circuit Court of Cook County, Illinois, case number (2021L000027) filed by OFFICEMAX, INC. n/k/a OFFICEMAX NORTH AMERICA, INC. Filing fee $ 402, receipt number 0752-17921188. Exhibit 1 - Complaint, Exhibit 2 - Docket, Exhibit 3 - Marrese Declaration, Exhibit 4 - Notice of Filing Notice of Removal (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4)(Marrese, John)
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CASE ASSIGNED to the Honorable Matthew F. Kennelly. Designated as Magistrate Judge the Honorable M. David Weisman. Case assignment: Random assignment. (sxh, )
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