Opinion
No. 96 Civ. 9327 (TPG).
March 12, 2001.
OPINION Summary
Plaintiff Christopher Boyd is suing pro se. The remaining defendants in this action are IODyne Corporation; Robert Wedgeworth, the Director of the University of Illinois Library and president of IODyne; and Melvin DeGeeter, Vice Chancellor of the University's Research and Technology Management Office. The essence of plaintiff's claim is that he developed a valuable business concept and presented it to representatives of the University, who used his services and then created a company without compensating him.
Defendants Wedgeworth and IODyne have moved for summary judgment. Defendant DeGeeter has also filed a motion for summary judgment. Both motions are granted.
Facts
During much of the relevant time period, plaintiff lived in Urbana-Champaign, Illinois, working and taking some classes at the University of Illinois. Plaintiff had moved to Urbana-Champaign in September 1994 for the stated purpose of developing start-up companies based on technology developed by the University.
Plaintiff's first business venture at the University of Illinois involved the University's National Center for Supercomputing Applications ("NCSA"). Several months of negotiations with NCSA's principals resulted in the signing of a University of Illinois Individual Independent Contractor Agreement ("Agreement"). This Agreement provided for plaintiff to develop a series of plans and procedures to control, resource and manage NCSA-developed technologies. The Agreement was executed by plaintiff and two of NCSA's principals, but not by all the required University officials. Plaintiff apparently believes that the Agreement with NCSA is binding despite the absence of these signatures. In any event, plaintiff was provided with an office and computer at NCSA. However, in October 1995 plaintiff was asked to return his keys and leave NCSA. The reason for this termination is unclear.
Plaintiff learned of defendant Robert Wedgeworth through Dr. Bruce Schatz, whom plaintiff knew from his activities at NCSA. Schatz was a professor at NCSA, the director of the University's Digital Library Initiative, and an associate of Wedgeworth's. Plaintiff met with Wedgeworth twice around Thanksgiving of 1995. At the second of these meetings, plaintiff proposed creating a company to commercialize software developed by the "Digital Library Project." The notion of commercializing library technology was not new to Wedgeworth, who had discussed the subject with many other people on many other occasions. Plaintiff claims that, at the second meeting, he and Wedgeworth discussed the explicit terms of plaintiff's compensation, to include roughly $82,000 for his fee, a consulting rate of $800 per hour, and a share of equity in the company. Plaintiff claims that Wedgeworth indicated an interest in pursuing the proposal.
Plaintiff claims that in these two meetings with Wedgeworth, he disclosed confidential and proprietary ideas and trade secrets. However, there was never a written confidentiality agreement between plaintiff and Wedgeworth.
By February of 1996 plaintiff had moved to Arizona. Wedgeworth called him there to discuss commercializing the Library's thesaurus browser technology. No further discussion of plaintiff's compensation occurred during this telephone call. However, plaintiff claims that by the end of the call, Wedgeworth had engaged him to draft a business plan and private placement memorandum. Wedgeworth denies this, and no written document memorializes it.
On March 12, 1996 plaintiff faxed a one-page memorandum to Wedgeworth proposing commercialization of the "Interspace Search, Indexing and Data Filtering technology in the Digital Library Project." In the memorandum plaintiff proposed negotiations with the University of a licensing agreement, and the formation of a corporation named Interspace Corp. The memorandum also proposed distribution of percentages of equity in the resulting corporation, although it is unclear what was intended because the percentages added up to more than 100%.
Plaintiff solicited the involvement of investors Richard Spizzirri and Donaldson Pillsbury in the project, and also engaged Joseph Diamante of Pennie Edmonds in New York as legal counsel.
Pennie Edmonds convened an organizational meeting on May 17, 1996 in New York City. The meeting was attended by Wedgeworth, DeGeeter, Pillsbury, Spizzirri, and two lawyers from Pennie Edmonds. Plaintiff was expected to attend, but did not.
Plaintiff sent copies of a draft business plan to Spizzirri, Pillsbury, Wedgeworth, and an attorney from Pennie Edmonds on August 2, 1996. Plaintiff also sent the draft business plan to Schatz. The scope of Schatz's involvement in the Interspace/IODyne project is unclear, but it is clear that he was involved to some degree. Plaintiff's draft business plan listed Schatz as "Director of Information Systems Research," a designation to which Schatz objected. Schatz commented on the draft business plan in a memorandum to plaintiff of August 30, 1996 that the "document as stands is not distributable. In fact, I would term it `incredible' in the negative sense of not believable." Schatz sent copies of his comments to Wedgeworth. Wedgeworth stated in his declaration in support of this motion that neither he nor the others who reviewed the draft business plan found the document informative or helpful.
On or about September 1, 1996 plaintiff prepared a draft private placement memorandum for units of shares of common stock and common stock purchase warrants for Interspace. He distributed copies to Wedgeworth, Pillsbury, Spizzirri, and two attorneys. The draft private placement memorandum stated that Interspace would pay $82,500 to "Interspace's business advisor," and would allow "Quantum Ventures" to purchase 10,000 shares of Interspace Common Stock for $100. Plaintiff testified at his deposition that "Interspace's business advisor" referred to himself. He also testified that "Quantum Ventures," a company he had intended to form, referred to himself. Wedgeworth stated in his declaration in support of this motion that he did not find the document informative or useful.
Plaintiff had no further contact with Wedgeworth, Pillsbury or Spizzirri. Wedgeworth claims that he had expected plaintiff to form the corporation, and that plaintiff did not do so. Plaintiff claims that he asked Wedgeworth to contact a local attorney, Larry Johnson, who would handle the formation of the corporation. It is unclear whether there were any conversations between Wedgeworth and Johnson. It is clear, however, that by October 1996 Interspace had not been incorporated.
An organizational meeting was held on September 11, 1996 in New York City, attended by those involved in the project other than plaintiff, who was not invited. In October 1996 attorneys from Pennie Edmonds incorporated IODyne Digital Library Technologies, Inc., which was to function as the licensee of University technology. Defendants assert that IODyne was formed because plaintiff had not incorporated Interspace. However, IODyne never succeeded in negotiating a licensing agreement with the University for any technologies. It was never capitalized. It never commenced doing business. In March 1999 the Delaware Secretary of State revoked IODyne's license to do business for failure to pay corporate franchise taxes.
In October and November 1996 plaintiff made calls to an attorney at Pennie Edmonds asking for payment of his alleged $82,500 fee. This attorney is the only person to whom plaintiff made a request for payment. No such payment was made to plaintiff.
The Complaint
Plaintiff's Amended Complaint contains ten claims for relief. These are: (1) Misappropriation/Conversion of Trade Secrets; (2) Breach of Contract; (3) Breach of Implied Contract and Equitable Restitution; (4) Promissory Estoppel; (5) Conversion of a Business Scheme; (6) Actual and Constructive Fraudulent Conveyance; (7) Unjust Enrichment; (8) Common Law Unfair Competition; (9) Breach of the Implied Covenant of Good Faith and Fair Dealing; and (10) Tortious Interference with Contract and Prospective Business Advantage.
Prior Proceedings
In August 1998 the University, DeGeeter and Wedgeworth moved, pursuant to Fed.R.Civ.P. 12(c), to dismiss the Amended Complaint on the ground of Eleventh Amendment immunity. In addition, all defendants moved for summary judgment pursuant to Fed.R.Civ.P. 56. In an opinion dated September 30, 1999, this court dismissed plaintiff's claims against the University, citing Eleventh Amendment immunity. The court stated: "DeGeeter and Wedgeworth would also be immune if they were acting in their official capacities as employees of the state agency . . . In this light, it is not at all clear that Wedgeworth acted on behalf of the University in becoming the president of a private corporation. As for DeGeeter, while he may in fact have acted for the University, he has submitted no affidavit to the court to argue this point." The motions of DeGeeter, Wedgeworth and IODyne for summary judgment were denied, except that such motions were granted dismissing plaintiff's claim under the 1996 Economic Espionage Act.
In the present motion, defendant DeGeeter moves for summary judgment, pursuant to Fed.R.Civ.P. 56, on the ground that Eleventh Amendment immunity applies to him. Defendants Wedgeworth and IODyne move for summary judgment on several grounds, as will be described. Wedgeworth has not renewed his argument that he is protected from suit by the Eleventh Amendment.
Discussion
As a preliminary matter, the claim against DeGeeter should be dismissed. DeGeeter is entitled to Eleventh Amendment protection from suit if he was acting in his official capacity as an employee of the University. On November 9, 1999 DeGeeter submitted an affidavit that stated: "In my actions with respect to Interspace, IODyne, and the prospect of licensing UIUC technology, I acted at all times in my official capacity and within the scope of my official duties as UIUC Associate Vice Chancellor and RTMO Director. I never acted in any personal capacity or with any personal interest in any matter relating to Interspace, IODyne, or the prospect of licensing or commercializing UIUC technology." Plaintiff has provided no evidence to contradict this assertion. The complaint is therefore dismissed as against DeGeeter.
The remainder of this analysis applies to the motion for summary judgment of Wedgeworth and IODyne.
Standard
A party moving for summary judgment has the burden of demonstrating the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Adickes v. Kress Co., 398 U.S. 144, 157 (1970); United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2d Cir. 1982); United States v. Pent-R-Books, Inc., 538 F.2d 519, 529 (2d Cir. 1976), cert. denied, 430 U.S. 906 (1977). Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion. Adickes, 398 U.S. at 157. However, if the moving party carries its preliminary burden, the opposing party may not defeat the motion by relying on the contentions of its pleading; rather, it must produce "significant probative evidence tending to support [its position]." Pent-R-Books. Inc., 538 F.2d at 529 (2d Cir. 1976). A non-moving party may not rely on mere conclusory allegations but must set forth "concrete particulars." SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978).
Choice of Law
For choice-of-law purposes, the first, fifth, sixth, eighth and tenth claims for relief may be characterized as tort claims, whereas the second, third, fourth, seventh and ninth claims for relief may be characterized as contract and quasi-contract claims.
In a diversity case, a district court ordinarily determines the applicable state law by reference to the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941). New York courts apply a grouping of contacts approach to contract and quasi-contract claims. Lazard Freres Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1539 (2d Cir. 1997). Courts should consider such contacts as places of contracting, negotiation, performance, location of the subject matter, and domicile or place of business of the contracting parties. Id.
In this case, defendants argue for the application of Illinois law to the contract and quasi-contract claims. The relevant contacts with Illinois are as follows: (1) plaintiff initiated discussions and met with Wedgeworth at the University of Illinois at Urbana-Champaign; (2) the proposed business would be located at the University of Illinois at Urbana-Champaign; (3) the licensing agreement that plaintiff claims is the corporation's main asset would be with the University of Illinois at Urbana-Champaign; (4) many of the people alleged to be involved in the development of the business, including all of the defendants, are at the University of Illinois at Urbana-Champaign.
Plaintiff argues that the court should apply New York law to the contract and quasi-contract claims. The relevant contacts with New York are as follows: (1) at least two meetings among the principals occurred in New York; (2) Pillsbury, Spizzirri and Pennie Edmonds are domiciled in New York; (3) plaintiff currently resides in New York, although at the time of the occurrences alleged in this case, plaintiff resided in Illinois and Arizona.
The court concludes that the most substantial contacts were with Illinois. The court will apply Illinois law to the contract and quasi-contract claims.
In tort actions, New York courts apply an interest analysis approach to choice-of-law questions. Babcock v. Jackson, 12 N.Y.2d 473, 481-82 (1963); AroChem Int'l. Inc. v. Buirkle, 968 F.2d 266, 270 (2d Cir. 1992). Interest analysis requires that the law of the jurisdiction with the greatest interest in the litigation be applied. Kalb, Voorhis Co. v. American Fin. Corp., 8 F.3d 130, 132 (2d Cir. 1993). "Two separate inquiries are . . . required to determine the greater interest: (1) what are the significant contacts and in which jurisdiction are they located; and (2) whether the purpose of the law is to regulate conduct or allocate loss." Padula v. Lilarn Properties Corp., 84 N.Y.2d 519, 521 (1994).
In this case, by far the most significant contacts are with Illinois. The court is satisfied that for this reason Illinois law should apply to the tort claims, and will not undertake an analysis of the purpose of each state's law.
First Claim for Relief
Plaintiff's first claim for relief alleges misappropriation and conversion of trade secrets. Plaintiff claims that his concept for IODyne was trade secret information as were the ideas embodied in the business plans, in the marketing strategy, in what way to package technology, in how to obtain financing, in who to approach as an investor, and in how to protect certain intellectual property. Amended Complaint ¶ 36.
The Illinois Trade Secrets Act ("the Act") governs this claim for relief. The Act provides for recovery of actual damages suffered as a result of misappropriation of trade secrets. There can also be recovery for unjust enrichment. 765 ILCS 1065/4. Under the Act, "trade secret" encompasses information, including but not limited to, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers." The provision goes on to provide that such information is a trade secret if its value depends on its secrecy, and if reasonable efforts are taken to maintain its secrecy. 765 ILCS 1065/2(d). Misappropriation, under the Act encompasses either wrongful acquisition or wrongful disclosure of a trade secret.
Plaintiff has provided some clarification on what is meant by his "concept for IODyne." The concept was apparently the development of a start-up business to commercialize digital information technology developed by the University. The primary asset of the business was to be a license agreement with the University, in exchange for which the University would receive a percentage of net profit and a percentage of the equity of the business. Plaintiff has failed to demonstrate that these ideas were secret. The notion of forming a start-up company to commercialize new computer technology is hardly unique to plaintiff, and indeed seems to be a mainstay of modern commerce. Plaintiff has not shown how his concept for creating a start-up company is different from anyone else's.
Plaintiff also states that his ideas regarding who to approach as an investor are trade secrets. Here, plaintiff is probably referring to Spizzirri and Pillsbury, whom plaintiff introduced to the project. These investors do not fit into the definition of a "trade secret" under the Act. Illinois courts have held that, although a customer list can be a trade secret, no business can have a proprietary interest in the customers themselves. Prudential Ins. Co. of America v. Van Matre, 511 N.E.2d 740, 745 (Ill.App. 1987). Likewise, investors cannot be trade secrets.
The other alleged trade secret items — "the ideas embodied in the business plans;" "the marketing strategy;" the "way to package technology;" "how to obtain financing;" and "how to protect certain intellectual property," are unexplained and vague. Plaintiff has failed to show that any of these ideas were secret within the meaning of any part of the statutory definition or had value arising from their secrecy. Plaintiff has not demonstrated that defendants used these ideas, much less acquired or disclosed them wrongfully.
Plaintiff's first claim for relief should be dismissed.
Plaintiff's Second Claim for Relief
Plaintiff's second claim for relief is for breach of express contract. Plaintiff alleges that a contract existed between himself and Wedgeworth, providing for payment to plaintiff of various fees, and to provide him with stock and options in exchange for "his role in bringing the parties together."
To meet his burden in a breach of contract action, the plaintiff must establish an offer and acceptance, consideration, definite and certain terms of the contract, plaintiff's performance of all required contractual conditions, the defendant's breach of the terms of the contract, and damages resulting from the breach. Mannion v. Stallings and Company, Inc., 204 Ill. App.3d 179, 186 (1990). A contract "is sufficiently definite and certain to be enforceable if the court is enabled from the terms and provisions thereof, under proper rules of construction and applicable principles of equity, to ascertain what the parties have agreed to do." Morey v. Hoffman, 12 Ill.2d 125, 131 (1957). The promised performance of each party is an essential term of the contract. Academy Chicago Publishers v. Cheever, 144 Ill.2d 24, 29 (1991).
Plaintiff argues that the offer in this case was the September 2, 1996 private placement memorandum. He states that defendants never rejected the offer and accepted the benefits of plaintiff's work, and that in doing so, accepted the offer. Plaintiff states that this occurred when the parties agreed to form IODyne in the fall of 1996.
The private placement memorandum was merely a draft of a document that was to be given to investors if Interspace was formed. It was not, in form or substance, a contract or an offer to contract by plaintiff. The private placement memorandum did indicate that plaintiff was to receive payment of certain fees, stock and options. But there is no evidence of any contract or agreement in which any defendant promised to confer such benefits.
Plaintiff's second claim for relief should be dismissed.
Plaintiff's Third Claim for Relief
Plaintiff claims that defendants breached an implied contract that existed between himself and defendants. The Amended Complaint states: "Defendants requested and accepted the benefits of plaintiff's labors expecting to pay for such labor, or under such circumstances that defendants knew, or reasonably should have known, that plaintiff expected to be paid for the services rendered." Plaintiff requests that the court order defendants to disgorge the value of the services rendered on their behalf by plaintiff, to disgorge the fair value of the equity created by plaintiff, and to pay plaintiff's consequential damages. He does not ask to be paid what he expected to receive under the alleged implied contract.
The law recognizes two kinds of implied contracts, those implied in fact and those implied in law. In re Estate of Jesmer v. Rohlev, 241 Ill. App.3d 290 (1991). "A contract implied in fact is an actual contract; the only difference between an express contract and a contract implied in fact is that in the former the parties arrive at their agreement by words, either written or oral, while in the latter their agreement is arrived at by a consideration of their acts and conduct."Barry Mogul Associates. Inc. v. Terrestris Development Co., 267 Ill. App.3d 742, 750 (1994).
Plaintiff has clearly not demonstrated the existence of a contract implied in fact. No facts have been shown indicating an implied agreement by any defendant to pay plaintiff fees, or to provide stock and options.
A contract implied in law arises by implication of law, apart from the usual rules relating to contracts; it does not depend on the agreement or consent of the parties. Such a contract is equitable in nature, predicated on the principle that no one should be unjustly enriched at another's expense. Suarez v. Pierard, 278 Ill. App.3d 767, 773 (1996). "The essence of a cause of action for a contract implied in law is the defendant's failure to make equitable payment for a benefit which it voluntarily accepted from the plaintiff." Spowls v. First State Bank, 204 Ill. App.3d 514, 516 (1990).
Plaintiff's third claim for relief asks for "the fair value of the services rendered on behalf of the defendants." Amended Complaint at 52. This amounts to a claim for quantum meruit. A party seeking recovery on a quantum meruit theory must demonstrate the performance of services by the party, the conferral of the benefit of those services on the party from whom recovery is sought, and the unjustness of the latter party's retention of the benefit in the absence of any compensation. In re Estate of Callahan, 144 Ill.2d 32 (1991). The theory of recovery in quantum meruit is that a party has received a benefit which would be unjust for him to retain without paying for it. Therefore, in order to recover in quantum meruit, it is essential that the services performed by the claimant must be of some measurable benefit to the person from whom recovery is sought. Bank of Alton v. Bowman, 198 Ill. App.3d 329, 331 (1990).
Plaintiff drafted several documents, including the draft business plan and the draft private placement memorandum, which were circulated among the defendants and others involved in the creation of the business. However, affidavits submitted by the defendants state that the documents were not informative or helpful. Indeed, the memorandum from Schatz regarding the draft business plan stated in very critical terms that the document was not usable and was misleading. Plaintiff has not shown that the documents were in fact used in the development of the business, or were otherwise of value to the defendants.
Plaintiff also appears to have performed certain services that resulted in the introduction of Wedgeworth to investors Pillsbury and Spizzirri, and to Pennie Edmonds. These individuals were involved in the IODyne project to a considerable degree, and defendants have provided no alternate explanation for their involvement. However, plaintiff has not shown that their involvement benefitted defendants. IODyne is a defunct corporation; it does not do business, and it never did business. None of the persons involved in the project appear to have profited from it in any way. It has not been shown that the involvement of Pillsbury and Spizzirri, and of Pennie Edmonds was of any value to the defendants.
Plaintiff's third claim for relief should be dismissed.
Plaintiff's Fourth Claim for Relief
Plaintiff's fourth claim for relief is for promissory estoppel. He states "[t]he defendants request for services, formation of companies, protection of intellectual property assets, writing of business plans, the raising of capital were such that the defendants must have expected or reasonably should have expected such representations to induce actions of a definite and substantial character on the part of plaintiff, i.e., to induce plaintiff to expend substantial labor, costs and materials in satisfying these requests." Plaintiff goes on to state that these requests for services did induce action on the part of plaintiff, and requests that defendants' promises be enforced.
To establish a promissory estoppel claim, plaintiff must prove: (1) that defendant made an unambiguous promise, (2) that plaintiff relied on such promise, (3) that plaintiff's reliance was expected and foreseeable by defendant; and (4) that plaintiff relied to his detriment. Goldberg v. Collins Tuttle Company, 264 Ill. App.3d 878 (1994).
The evidence presented on this motion for summary judgement does not demonstrate the existence of either an unambiguous request for services or an unambiguous promise to pay. Plaintiff testified at his deposition that Wedgeworth told him that the proposal was "a very good option." Plaintiff could not recall exactly what Wedgeworth had said regarding his proposed fees, but that Wedgeworth did not say no to them. Wedgeworth's remarks cannot, under any circumstances, be considered an unambiguous promise to pay plaintiff fees, or to provide stock and options. An indication of interest in a proposal is not the equivalent of an unambiguous acceptance of all its terms.
Plaintiff's fourth claim for relief should be dismissed.
Plaintiff's Fifth, Seventh and Tenth Claims for Relief
Plaintiff's fifth claim for relief asserts that defendants converted a business scheme and related ideas that were the property of plaintiff. Plaintiff's seventh claim for relief asserts that defendants have been unjustly enriched as a result of the misappropriation of plaintiff's ideas, business concepts, contacts, etc. Plaintiff's tenth claim for relief asserts that defendants formed IODyne "behind plaintiff's back," using plaintiff's concept, business scheme, and ideas.
These claims are merely reiterations of his other claims couched in different legal designations. For the reasons discussed above, these claims are not tenable. Plaintiff's fifth, seventh and tenth claims for relief are dismissed.
Plaintiff's Sixth Claim for Relief
Plaintiff's sixth claim for relief is for fraudulent conveyance. Plaintiff claims that "the UI and certain of its employees, is using IODyne as a "front company" for transactions (and liabilities associated with said transation) actually conducted by the UI and or certain employees of the. . . . . [S]aid "front company has no means of paying for goods and services, or has been rendered insolvent. . . . [D]efendants have caused plaintiff's claims to become uncollectible against IODyne. . . . [T]he aforesaid actions constitute fraud on defendants' creditors, including plaintiff." Amended Complaint at 67-73.
Plaintiff has not presented any evidence to prove this claim for relief. No facts in support of this claim were mentioned in his affidavit in opposition to this motion for summary judgment. Similarly, none of the documents attached to plaintiff's memorandum are helpful. A party opposing a motion for summary judgment may not simply rest on his pleadings. Evidence in the form of documents or affidavits must be presented. Plaintiff has not done so with regard to this claim for relief. Therefore, it must be dismissed.
Plaintiff's Eighth Claim for Relief
Plaintiff's eighth claim for relief is styled "common law unfair competition." The Amended Complaint states: "Defendants knew or should have known that plaintiff's present and future ability to conduct business would be severely damaged by the acts of defendants. Defendants had a clear understanding that plaintiff was relying on the revenue due from plaintiff's work which was maliciously interfered with by defendants. This action by defendants caused losses and a disaster in plaintiff's financial affairs. . . .
The tort of unfair competition exists if the adoption and use of a name by the defendant is likely to cause confusion in the trade as to the source of products or is likely to lead the public to believe that the defendant is in some way connected with the plaintiff. Chapman Performance Products, Inc. v. Producers Sales, Inc., 16 Ill. App.3d 459, 462 (1973).
In this claim for relief, plaintiff alleges nothing more than that he expected to be paid and that defendants' refusal to pay him caused him financial difficulty. Plaintiff does not allege facts that could give rise to a cause of action for unfair competition. The facts plaintiff does allege in this claim for relief do not give rise to any other cause of action of which the court is aware.
Plaintiff's eighth claim for relief should be dismissed.
Plaintiff's Ninth Claim for Relief
Plaintiff's ninth claim for relief states that defendants breached the implied covenant of good faith and fair dealing. The Amended Complaint states: "Plaintiff undertook the work described above in reliance upon defendants dealing with them in good faith, and with the reasonable expectation that defendants would pay for the services received. It would be unjust and inequitable for defendants to retain the benefit of plaintiff's efforts while not paying for them." Plaintiff asks the court to compel defendants to disgorge the fair value of his services.
The elements of a claim for breach of the duty of good faith and fair dealing are practically identical to the elements of a negligence claim, i.e. the defendant must owe plaintiff a duty to act in good faith and conduct fair dealing; the defendant must have breached that duty; and the breach of the duty must have proximately caused plaintiff's damages.Interstate Indem. Co. v. Utica Mut. Ins. Co. 867 F. Supp. 1355 (S.D.Ill. 1994); Ranger Ins. Co. v. Home Indem. Co., 714 F. Supp. 956 (N.D.Ill. 1989); Kavanaugh v. Interstate Fire and Casualty Co., 35 Ill. App.3d 350, 342 N.E.2d 116 (1975).
Plaintiff does not allege any of these elements in the ninth claim for relief. Instead, the ninth claim for relief is a claim for quantum meruit. The court addressed the merits of plaintiff's quantum meruit claim in the context of the discussion of his third claim for relief. This additional quantum meruit claim should be dismissed as duplicative.
Conclusion
The motions for summary judgment of Wedgeworth, IODyne and DeGeeter are granted. The action is dismissed as to these remaining defendants.
SO ORDERED.