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El Samad v. Shoukry

United States District Court, N.D. Indiana, Hammond Division

July 23, 2018

AHMAD EL SAMAD, Plaintiff,
v.
AHMED F. SHOUKRY, Defendants.

          OPINION AND ORDER

          JAMES T. MOODY UNITED STATES DISTRICT COURT

         Plaintiff Ahmad El Samad (“El Samad”) brings suit against defendant Ahmed F. Shoukry (“Shoukry”). (DE # 1.) The matter is now before the court on defendant's motion to dismiss. For the reasons set forth below, the motion to dismiss (DE # 14) will be granted in part.

         I. BACKGROUND

         Plaintiff alleges that he and defendant had a “partnership contract for the operation of a medical clinic (podiatry) in the State of Illinois.” (DE # 1 ¶ 2.) In addition to the partnership agreement, defendant also worked under an employment agreement. (See id. ¶ 6.) According to plaintiff, defendant failed meet the requirements of these agreements, causing financial loss and other damages. (Id. ¶ 7.) Based on these events, plaintiff filed a complaint against defendant on September 18, 2017, alleging “breach of contract, ” “breach, ” “extortion, ” and “false claims.” (Id.)

         The two alleged agreements-the partnership and employment agreements- are at the heart of the complaint. Defendant's employment agreement is titled “Agreement for Professional Services” and it is attached to the complaint. (“Employment Agreement, ” DE # 1-1 at 5-12.) The parties to that agreement are defendant Dr. Shoukry and The Institute of Foot & Ankle Reconstructive Surgery, LLC, an Indiana limited liability company (the “Indiana LLC”). (Id. at 5.) Plaintiff did not attach the partnership agreement to the complaint.

         On October 13, 2017, defendant filed a motion to dismiss the claims against him. (DE # 14.) He attached the partnership agreement, which is titled “Operating Agreement of The Institute of Foot & Ankle Reconstructive Surgery of Illinois, LLC.” (“Partnership Agreement, ” DE # 15-1.) The parties to that agreement are The Institute of Foot & Ankle Reconstructive Surgery of Illinois, LLC (the “Illinois LLC”) (signature by El Samad as a manager for the LLC), El Samad (as a member of the LLC), Shoukry (as a member of the LLC), and Dr. Murad Abdel-Qader (as a member of the LLC). (Id. at 11-12.) Both of these two agreements are relevant, as Count I of plaintiff's complaint alleges anticipatory breach of the Employment Agreement and Count II alleges breach of “both agreements, ” meaning both the Employment and Partnership Agreements.[1] (Id. ¶¶ 6-7.)

         On November 27, 2017, plaintiff responded to defendant's motion to dismiss. (DE # 27.) On December 8, 2017, defendant filed a reply in support of his motion to dismiss. (DE # 29.) Thus, the motion is fully briefed and ripe for review.

         II. LEGAL STANDARD

         Defendant has moved to dismiss plaintiffs' claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. A judge reviewing a complaint under a Rule 12(b)(6) standard must construe it in the light most favorable to the non-moving party, accept well-pleaded facts as true, and draw all inferences in the non-movant's favor. Erickson v. Pardus , 551 U.S. 89, 93 (2007); Reger Dev., LLC v. Nat'l City Bank, 595 F.3d 759, 763 (7th Cir. 2010). Under the liberal notice-pleading requirements of the Federal Rules of Civil Procedure, the complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy Rule 8(a), “the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson, 551 U.S. at 93 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         “While the federal pleading standard is quite forgiving, . . . the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ray v. City of Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011); Twombly, 550 U.S. at 555, 570. A plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To meet this standard, a complaint does not need detailed factual allegations, but it must go beyond providing “labels and conclusions” and “be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing Sanjuan v. Am. Bd. of Psychiatry & Neurology, 40 F.3d 247, 251 (7th Cir. 1994) among other authorities). As the Seventh Circuit recently explained, a complaint must give “enough details about the subject-matter of the case to present a story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).

         Defendant also moves for dismissal under Federal Rule of Civil Procedure 12(b)(1). A motion to dismiss under Rule 12(b)(1) asserts that the court lacks jurisdiction over the subject matter. A Rule 12(b)(1) motion can present either a facial or factual challenge to subject-matter jurisdiction. Apex Digital, Inc. V. Sears, Roebucks & Co., 572 F.3d 440 (7th Cir. 2009). A facial attack is a challenge to the sufficiency of the pleading itself. Id. When such a challenge has been presented, the court takes all well-pleaded factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). Conversely, where there is a factual challenge to subject-matter jurisdiction, “the district court may properly look beyond the jurisdictional allegations of the complaint . . . to determine whether in fact subject matter jurisdiction exists.” Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir. 1999) (internal quotation marks and citation omitted).

         III. DISCUSSION

         Defendant moves to dismiss the claims against him on multiple grounds. However, the court will first address his argument that the action should be dismissed because this court lacks subject matter jurisdiction, along with the related argument for dismissal pursuant to Rule 17 of the Federal Rules of Civil Procedure. Without jurisdiction, this court cannot proceed in this case at all. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998).

         Plaintiff pleads that jurisdiction is proper in this court based on diversity. (DE # 1 at 2.) A federal court may exercise diversity jurisdiction if the parties are citizens of different states and the amount in controversy exceeds $75, 000, exclusive of interest and costs. 28 U.S.C. § 1332. Since plaintiff has invoked federal jurisdiction, he bears the burden of demonstrating its existence. Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 79 (7th Cir. 2006). On the face of the complaint, plaintiff's allegations seem to establish diversity, because plaintiff is a resident of Indiana, defendant is a resident of Illinois, and the amount in controversy “exceeds $ 200, 000.” (See DE # 1 at 2.) Defendant does not ...


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