Plesnik v. Big Lots Stores Inc
MEMORANDUM AND ORDER, The Court GRANTS in part and DENIES in part Big Lots motion to dismiss (Doc. 5 ), DISMISSES Count I with prejudice, ORDERS that future proceedings in this case with respect to Counts II and III be limited in scope as discussed above and DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.Signed by Judge J. Phil Gilbert on 5/16/2014. (jdh)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Case No. 13-cv-1242-JPG-DGW
BIG LOTS STORES, INC.,
MEMORANDUM AND ORDER
This matter comes before the Court on the motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) filed by defendant Big Lots Stores, Inc. (“Big Lots”) (Doc. 5). Plaintiff
Palo Plesnik has responded to the motion (Doc. 7).
Standard for Dismissal
When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts as true all allegations
in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). To avoid dismissal under Rule 12(b)(6) for failure to state a claim, a
complaint must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement is satisfied if the complaint (1)
describes the claim in sufficient detail to give the defendant fair notice of what the claim is and the
grounds upon which it rests and (2) plausibly suggests that the plaintiff has a right to relief above a
speculative level. Bell Atl., 550 U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl., 550 U.S. at 556).
Although even after Bell Atlantic and Iqbal liberal federal notice pleading standards ensure
that minimally detailed complaints can survive a motion to dismiss, those standards will not
prevent dismissal of complaints that plead too much. A case can be dismissed because a
complaint pleads facts establishing that the defendant is entitled to prevail. Bennett v. Schmidt,
153 F.3d 516, 519 (7th Cir. 1998); Soo Line R.R. Co. v. St. Louis S.W. Ry. Co., 125 F.3d 481, 483
(7th Cir. 1997); see Hecker v. Deere & Co., 556 F.3d 575, 588 (7th Cir. 2009) (dismissal
appropriate when party pleads facts establishing defense to his claim).
Taking all well-pleaded allegations as true, the complaint established the following
relevant facts for the purposes of this motion.
In 1971, Big Lots1 leased a 60,000 square foot facility from the property’s owner. In
1996, they modified their lease to cover only 30,000 square feet of the facility (“Leased Area”).
The owner intended to split the facility and find a new tenant for the other 30,000 square feet
(“Unleased Area”), but it promised Big Lots that it would still have access to certain parts of the
Unleased Area – the rest rooms, offices, lounges and sprinkler riser – until the work to split the
building had been done and a tenant for the Unleased Area had been located. The owner never
located a tenant for the Unleased Area, and Big Lots continued to occupy and use all of the
Unleased Area. In 2007, Plesnik bought the property and, as described in the Complaint,
“permitt[ed]” Big Lots to use the Unleased Area. See Compl. at 5, ¶ 15. In 2012, Plesnik
negotiated with Big Lots another amendment to the lease. At some point thereafter, Plesnik
demanded Big Lots pay for or vacate the Unleased Area. Big Lots has paid all the sums due under
the lease but has not paid Plesnik any more than that and continues to occupy and use the Unleased
It was actually Big Lots’ predecessor, but for simplicity’s sake, the Court simply refers to this
entity and its successors as Big Lots.
In December 2013, Plesnik filed this lawsuit seeking nearly a million dollars in damages
from Big Lots for its occupation and use of the Unleased Area for eight years. He pleads three
causes of action: Count I is a claim for breach of the lease, Count II is an unjust enrichment claim
and Count III is a trespass claim. Big Lots asks the Court to dismiss all of Plesnik’s claims.
Count I: Breach of Contract
Plesnik alleges Big Lots has breached the lease by failing to vacate or pay for occupying
and using the Unleased Area. Big Lots argues the lease does not contain any obligation to pay for
or refrain from occupying the Unleased Area, so the failure to pay or vacate does not breach the
written lease. To the extent Plesnik may believe he has an oral lease for the Unleased Area, Big
Lots argues that a claim for breach of that lease is barred by the Statute of Frauds and the statute of
Under Illinois law, to establish a breach of contract, the plaintiff must show “(i) the
existence of a valid and enforceable contract, (ii) performance by the plaintiff, (iii) breach of the
contract by the defendant, and (iv) resultant injury to the plaintiff.” Batson v. Oak Tree, Ltd., 2
N.E.3d 405, 414 (Ill. App. Ct. 2013).
The Court has reviewed the various iterations of the written lease between Plesnik and Big
Lots and has found no contract term prohibiting Big Lots from occupying or using the Unleased
Area or obligating Big Lots to pay for occupying or using the Unleased Area. On the contrary, the
written lease concerns the Leased Area and Big Lots’ access to limited parts of the Unleased Area
until a tenant for the Unleased Area is found, which never occurred. Thus, Plesnik has not pled a
breach of the written lease for the Leased Area.
Plesnik does not contend Big Lots’ continued occupation and use of the Unleased Area
breached an oral agreement, so the Court need not explore that theory of liability.
Count II: Unjust Enrichment; Count III: Trespass
In Count II, Plesnik alleges Big Lots has been unjustly enriched because it benefited when
Plesnik permitted it to occupy and use the Unleased Area without paying anything in return. In
Count III, Plesnik alleges Big Lots is intruding on the Unleased Area, thereby interfering with his
right to use that area. The Court will address each of Big Lots’ arguments for dismissal in turn.
Statute of Frauds
With respect to Count II, Big Lots argues that Plesnik cannot use an equitable theory such
as unjust enrichment to circumvent the Statute of Frauds regarding contracts involving land, 740
ILCS 80/2 (providing that a lease for more than one year must be in writing). Plesnik does not
address this theory in his response. Nevertheless, the Court is not persuaded by Big Lots’ blanket
assertion that equitable remedies are categorically unavailable for leases within the Statute of
Frauds. Such an assertion does not account for the recognized equitable exceptions to the statute,
for example, where a contract otherwise subject to the Statute of Frauds has been fully or partly
performed. See David v. Schiltz, 114 N.E.2d 691, 697 (Ill. 1953) (“The Statute of Frauds cannot
be invoked to avoid a contract that has been carried into execution.”); Rose v. Dolejs, 116 N.E.2d
402, 408 (Ill. 1953) (“It has been held that acts of part performance are sufficient, in a court of
equity, to take an oral agreement out from under the operation of the Statute of Frauds.”). For this
reason, the Court finds Big Lots has failed to show Plesnik has not adequately plead a right to relief
because of the Statute of Frauds.
Statute of Limitations
Additionally, Big Lots argues the unjust enrichment and trespass claims would be barred
by the five-year statute of limitations, 735 ILCS 5/13-205, which all parties agree applies.
Plesnik counters that, although his claims to damage for time periods more than five years before
he filed the Complaint may be barred by the statute of limitations, the violation is ongoing, and he
has a right to recover for his alleged damages for the five years immediately preceding the day he
filed suit. The Court agrees with Plesnik that the statute of limitations will not bar this claim in its
entirety. While it is true that under Illinois’ discovery rule, the statute of limitations generally
accrues when the plaintiff knows or reasonably should know that he has been injured and that the
injury was wrongfully caused, Hermitage Corp. v. Contractors Adjustment Co., 651 N.E.2d 1132,
(Ill. 1995), the cases cited by Big Lots involve completed acts of defendants rather than continuing
wrongs. See Feltmeier v. Feltmeier, 798 N.E.2d 75, 85-86 (Ill. 2003) (discussing “continuing
torts”). Furthermore, if Big Lots had Plesnik’s permission to occupy the Unleased Area until his
recent demand that Big Lots pay for or vacate that area, Plesnik’s injury did not occur until Big
Lots failed to acquiesce to that demand, which was within five years of when the complaint was
Permitted Use of Unleased Area
Finally, Big Lots maintains Plesnik cannot succeed on an unjust enrichment or a trespass
claim where he pled that he permitted Big Lots to use and occupy the Unleased Area. Plesnik
claims his complaint, when read as a whole, shows that he did not consent or acquiesce to Big
Lots’ occupying and using the Unleased Area and instead asked them to vacate or pay for using
To prevail on an unjust enrichment claim, a plaintiff must show “that the defendant has
unjustly retained a benefit to the plaintiff’s detriment, and that defendant’s retention of the benefit
violates the fundamental principles of justice, equity, and good conscience.” HPI Health Care
Services, Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill. 1989). A plaintiff cannot
establish unjust enrichment where the benefit to the defendant was the product of a voluntary gift
by the plaintiff. Gagnon v. Schickel, 983 N.E.2d 1044, 1052 (Ill. App. Ct. 2012). This is
because it is not unjust to retain a gift freely given.
To prevail on a trespass claim, a plaintiff must show the defendant entered onto his land
“without permission, invitation, or other right.” Benno v. Central Lake Cnty. Joint Action Water
Agency, 609 N.E.2d 1056, 1061 (Ill. App. Ct. 1993).
In this case, despite Plesnik’s assertions to the contrary in his brief, he pled that, “By
permitting Defendant to use the 30,000 square feet,” Compl. at 5, ¶ 15 (emphasis added) – that is,
the Unleased Area – Big Lots received a benefit from him. The Complaint, when read as a whole
and with due regard for this allegation, indicates that Plesnik essentially allowed the privilege of
using the Unleased Area to Big Lots for a period of time, but then decided to stop giving that
privilege. For the periods Plesnik gave the use privilege – and he pled in the Complaint that there
were such times – he cannot state a claim for unjust enrichment or trespass. However, for periods
after he changed his mind, Big Lots may be liable for damages under an unjust enrichment or
For these reasons, the Court declines to dismiss Counts II or III but will limit them to
events after Plesnik stopped permitting Big Lots to use the Unleased Area.
For the foregoing reasons, the Court GRANTS in part and DENIES in part Big Lots’
motion to dismiss (Doc. 5), DISMISSES Count I with prejudice, ORDERS that future
proceedings in this case with respect to Counts II and III be limited in scope as discussed above
and DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.
IT IS SO ORDERED.
DATED: May 16, 2014
s/J. Phil Gilbert
J. PHIL GILBERT
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