United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
T. MOODY UNITED STATES DISTRICT COURT
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.
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
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.
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. (Id. ¶¶ 6-7.)
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.
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)).
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).
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).
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).
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