Aaron McCoy v. Iberdrola Renewables, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3350
AARON MCCOY,
Plaintiff,
v.
IBERDROLA RENEWABLES, INC., and STREATOR-CAYUGA RIDGE
WIND POWER, LLC,
Defendants, Third-Party Plaintiffs,
and
GAMESA TECHNOLOGY CORPORATION, INC., and GAMESA
WIND US, LLC,
Defendants, Third-Party Plaintiffs, Counter Defendants-
Appellees,
v.
OUTLAND RENEWABLE ENERGY, LLC, n/k/a RENOVO
RENEWABLE ENERGY, LLC, and OUTLAND ENERGY SERVICES,
LLC, n/k/a NORTHWIND HOLDINGS, LLC, f/k/a OUTLAND
RENEWABLE ENERGY FIELD SERVICES, LLC,
Third-Party Defendants, Counter Plaintiffs-Appellants.
____________________
2 No. 13-3350
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11-CV-00592 — Charles P. Kocoras, Judge.
____________________
ARGUED MAY 21, 2014 — DECIDED JULY 28, 2014
____________________
Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This lawsuit began as a personal
injury case. It expanded to encompass disputes over the en-
tire business relationship between the appellants (collective-
ly “Outland”) and appellees (collectively “Gamesa”). Only
Outland’s numerous third-party counterclaims against
Gamesa are at issue in this appeal. Gamesa prevailed on a
motion to dismiss, and the district court denied Outland’s
motion for leave to amend.
Outland’s third-party counterclaims are not part of the
original case or controversy, so Outland needed an inde-
pendent basis for federal subject matter jurisdiction to assert
them as part of this lawsuit. In an effort to salvage part of its
case, therefore, Outland now makes the desperate argument
that its own federal antitrust counterclaims were so feeble
that they could not support federal question jurisdiction un-
der 28 U.S.C. § 1331 and that its original third-party counter-
claims based on state law fell outside the scope of supple-
mental jurisdiction under 28 U.S.C. § 1367 that Outland itself
invoked. In the alternative, Outland argues that the district
court erred in applying Illinois substantive law and should
have granted leave to amend. We affirm across the board.
No. 13-3350 3
I. Factual and Procedural Background
The procedural history on the defense side of this case is
complex. We provide a simplified summary, and we accept
as true all factual allegations from Outland’s counterclaims
and proposed amended counterclaims. See Hayes v. City of
Chicago, 670 F.3d 810, 813 (7th Cir. 2012); Gillman v. Burling-
ton Northern R.R. Co., 878 F.2d 1020, 1022 (7th Cir. 1989).
A. The Parties and the McCoy Accident
Appellees Gamesa Wind US and Gamesa Technology
Corp. (collectively “Gamesa”) are wholly-owned domestic
subsidiaries of a non-party Spanish manufacturer of wind
turbines. They contracted with Minnesota-based appellants
Outland Renewable Energy and Outland Energy Services
(collectively “Outland,” though their names have since
changed) to provide maintenance services for Gamesa wind
turbines. Utility company Iberdrola Renewables (“Iberdro-
la”) operated Gamesa-made wind turbines at the Cayuga
Ridge Wind Farm in Illinois.
While servicing a wind turbine at Cayuga Ridge, Out-
land employee Aaron McCoy was electrocuted when the
turbine unexpectedly re-energized. McCoy began this case
by filing a personal injury case in state court against Iberdro-
la and Gamesa Technology Corp. The case was removed to
federal court on the basis of diversity of citizenship. Iberdro-
la then impleaded Gamesa Wind US and Outland to seek
indemnification for the McCoy accident based on contract
and the Illinois Joint Tortfeasor Contribution Act (“JTCA”).
The various defendants then filed numerous cross-claims
and counterclaims related to the personal injury dispute.
4 No. 13-3350
B. Outland’s Original Counterclaims and the Settlement
This appeal concerns only Outland’s third-party counter-
claims against Gamesa. Gamesa asserted third-party claims
against Outland for contribution for the McCoy accident
based on contractual indemnification and the Illinois JTCA.
Outland responded with 22 counterclaims, raising a host of
new issues and greatly widening the scope of the case. These
included indemnification for the McCoy accident; federal
antitrust claims under the Sherman and Clayton Acts; state
antitrust claims under Illinois, Minnesota, and Texas law;
and numerous other state law claims. Outland makes only
jurisdictional arguments regarding these claims on appeal.
In response to Outland’s third-party counterclaims,
Gamesa attempted to enforce a contractual provision provid-
ing for venue exclusively in Pennsylvania, but the district
court found the provision invalid under Illinois law. Outland
then moved for a preliminary injunction against Gamesa’s
allegedly unfair competitive practices. After a five-day hear-
ing, Outland’s request for a preliminary injunction was de-
nied based on Illinois substantive law.
Gamesa then moved for judgment on the pleadings un-
der Rule 12(c). The district court dismissed all but one of
Outland’s counterclaims for failure to state claims for relief.
Only the claim for indemnification related to the McCoy ac-
cident survived. McCoy, Gamesa, and Outland then settled.
The district court accepted the settlement with a finding of
good faith, protecting Outland and Gamesa from further
claims for contribution under the Illinois JTCA, see 740 Ill.
Comp. Stat. 100/2, and all claims arising from the accident
among those parties were dismissed. At that point, only the
original personal injury dispute between McCoy and
No. 13-3350 5
Iberdrola remained, but the court had not issued a final
judgment.
C. Outland’s Proposed Amended Counterclaims
About six months after the district court dismissed Out-
land’s third-party counterclaims, Outland moved for leave to
amend its counterclaims against Gamesa. Outland presented
seven proposed amended counterclaims and argued for the
first time that the substantive law of Minnesota, not Illinois,
should apply. The district court determined that Outland
had waived the choice of law issue. It then denied leave to
amend based on futility and undue delay. Outland focuses
its appeal on the merits of the proposed amended counter-
claims, so we follow suit.
The proposed amended counterclaims arose from the fol-
lowing alleged events from early 2011. Gamesa attempted to
acquire Outland but was rebuffed. Duke Energy, a utility
company and Gamesa customer, then entered an agreement
to purchase a twenty-five percent stake in Outland. Duke
and Outland also began negotiating a possible fleet services
agreement, which would have been very lucrative for Out-
land by making it the main provider of maintenance services
for Duke-operated wind turbines. They also discussed a pos-
sible agreement for Duke to purchase all of Outland, which
would be funded in part by an institutional investor.
During these negotiations, the federal Occupational Safe-
ty and Health Administration (“OSHA”) issued six citations
to Outland based on the McCoy accident. Shortly thereafter,
Duke informed Gamesa of its ongoing negotiations with
Outland. Gamesa made its own offer to provide mainte-
nance services for Duke-operated wind turbines, but Duke
6 No. 13-3350
declined. Gamesa then sent a letter to Outland saying that
the OSHA citations resulting from the McCoy accident
showed a breach of their maintenance contract. Gamesa
stopped issuing new purchase orders to Outland as a result
of the alleged breach, which significantly reduced the value
of Outland. (For reference, Outland’s revenue from Gamesa
purchase orders was over $6 million in 2010.) Duke and Out-
land eventually closed the complete acquisition agreement,
but only after Duke lowered its offer by $15 million after
Gamesa stopped issuing purchase orders to Outland. Duke
did not enter a contractual fleet services agreement despite
having previously “agreed” to do so.
Outland alleged that it did not breach its contract with
Gamesa and that Gamesa’s letter claiming breach based on
the OSHA citations was sent in bad faith. Outland presented
three theories of liability based on the resulting change in the
value of the complete acquisition agreement—tortious inter-
ference with contract; tortious interference with prospective
economic advantage; and if the other two theories failed, the
generic “prima facie tort,” a problematic concept not adopt-
ed by Illinois state courts. The district court determined that
these claims would not survive a motion to dismiss and de-
nied leave to amend based on futility.
Outland further alleged that Gamesa had been planning
to replace Outland with in-house maintenance services but
had encouraged Outland to expand and train new person-
nel. The cessation of new purchase orders after the OSHA
citations was done in bad faith to complete this scheme. Out-
land alleged claims for promissory estoppel based on its det-
rimental reliance and for breach of fiduciary duty on the
theory that Gamesa and Outland had a principal-agent rela-
No. 13-3350 7
tionship. The district court denied leave to amend to add
these claims because the nearly six months that had passed
since the Rule 12(c) dismissal constituted an undue delay
that unfairly prejudiced Gamesa.
The sixth proposed counterclaim sought indemnification
for the OSHA penalties imposed on Outland for the McCoy
accident. The district court denied leave to amend based on
the settlement order and undue delay. The final proposed
counterclaim again alleged federal antitrust violations of the
Sherman and Clayton Acts based on Gamesa’s supposed
monopoly over its own services and its unusually high mar-
ket power despite having roughly ten percent of wind tur-
bine sales market. The district court also denied leave to
amend these claims based on futility.
The district court entered a separate judgment under
Federal Rule of Civil Procedure 54(b) on Outland’s counter-
claims against Gamesa. Outland then moved to alter or
amend the judgment under Rule 59(e), arguing for the first
time that the district court lacked subject matter jurisdiction
over the original counterclaims. Outland argued that its own
federal antitrust claims were too weak even to invoke federal
question jurisdiction under 28 U.S.C. § 1331 and alternative-
ly that its own state claims did not fall within the scope of
supplemental jurisdiction under 28 U.S.C. § 1367(a). At no
point did Outland request the district court to exercise its
discretion under § 1367(c), which allows a court to decline
supplemental jurisdiction under certain circumstances even
when a claim falls within the scope of § 1367(a). The district
court denied the motion, and Outland has appealed.
8 No. 13-3350
II. Analysis
A. Subject Matter Jurisdiction
The extraordinary feature of this case is Outland’s argu-
ment that its own federal antitrust counterclaims were so
“fatally flawed” that they did not even invoke federal ques-
tion jurisdiction under 28 U.S.C. § 1331, and thus could not
have been the basis for the exercise of supplemental jurisdic-
tion over its state law claims under 28 U.S.C. § 1367. Cf. City
of Chicago v. International College of Surgeons, 522 U.S. 156, 168
(1997) (“Understandably, ICS does not rest [its argument that
the district court lacked jurisdiction] on the notion that its
federal claims are so insubstantial as not to establish federal
jurisdiction.”).
Whether there is an independent basis for federal juris-
diction over Outland’s counterclaims would not matter if
they arose from the allegations supporting McCoy’s original
personal injury claims, which provided the court with diver-
sity jurisdiction under § 1332. But Outland’s antitrust and
commercial tort third-party counterclaims arose from a dif-
ferent set of facts and were not part of the same case or con-
troversy, as required for supplemental jurisdiction under
§ 1367(a). The federal antitrust claims are the only jurisdic-
tional anchors for those third-party counterclaims. In the al-
ternative, Outland argues that its state law claims did not
“form part of the same case or controversy under Article III”
as the federal antitrust claims, as required by § 1367(a), and
that the district court should have exercised its discretion to
decline jurisdiction under § 1367(c). We address these argu-
ments in turn.
No. 13-3350 9
1. Federal Question Jurisdiction
Outland argues that its own federal antitrust claims were
so feeble (carefully avoiding the term “frivolous”) that they
could not even invoke federal question jurisdiction. That ar-
gument leaves Gamesa to offer a delicate defense of its op-
ponent’s claims, at least to a point. Gamesa argues that Out-
land merely failed to state claims for relief but that the
claims were not so utterly frivolous as to fail to invoke fed-
eral jurisdiction. We agree.
When it comes to invoking federal question jurisdiction,
the bar is low. The district court generally has jurisdiction
over a claim “arising under” federal law. 28 U.S.C. § 1331;
International College of Surgeons, 522 U.S. at 163. Even if the
federal claim fails to state a cause of action, the district court
retains jurisdiction to say so. See Bell v. Hood, 327 U.S. 678,
682 (1946). “[T]he district court has jurisdiction if ‘the right
of the petitioners to recover under their complaint will be
sustained if the Constitution and laws of the United States
are given one construction and will be defeated if they are
given another,’ unless the claim ‘clearly appears to be imma-
terial and made solely for the purpose of obtaining jurisdic-
tion or where such a claim is wholly insubstantial and frivo-
lous.’” Steel Co. v. Citizens for a Better Environment, 523 U.S.
83, 89 (1998), quoting Bell v. Hood, 327 U.S. at 685, 682–83.
Outland’s strategy on appeal could expose it to sanctions
under Federal Rule of Civil Procedure 11 or otherwise. We
have noted that “[i]n deciding whether a claim is so insub-
stantial as not to invoke federal jurisdiction, the cases some-
times use language more emphatic than one encounters in
modern Rule 11 cases.” Crowley Cutlery Co. v. United States,
849 F.2d 273, 278 (7th Cir. 1988). A district court lacks juris-
10 No. 13-3350
diction only if a suit is “utterly frivolous” on the face of the
pleadings, but “Rule 11 is not so cabined” both in the sense
that it can reach (arguably) less egregious conduct and can
be based on defects not evident from the pleadings alone. Id.Outland’s first federal antitrust claim alleged that Game-
sa conspired with its Spanish parent company and Iberdrola.
It has been clear for thirty years that a subsidiary cannot
“conspire” with its parent in violation of the Sherman Act.
Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771–
74 (1984). For reasons that are not clear from the record, Out-
land did not try to save this claim from dismissal by point-
ing to the alleged involvement of Iberdrola. Instead, Outland
relied only on a district court decision issued before Copper-
weld settled the parent-subsidiary question. This strategy
was a certain loser, but the poor argument in its defense did
not deprive the court of jurisdiction. (At this point in the liti-
gation, waiver would block any attempt Outland might
make to revive this claim based on alleged involvement of
Iberdrola.)
The second claim alleged that Gamesa unlawfully tied
maintenance services to the sales of its wind turbines and
had disproportionate market power in the late 2000s in a
market for maintenance services for Gamesa turbines. The
district court dismissed the claim because of the insufficien-
cy of Gamesa’s alleged market power. Gamesa supposedly
had a ten percent share of the wind turbine market, which is
just not enough by itself, if that’s the relevant market and
there were no extraordinary circumstances. However, Out-
land opposed dismissal by arguing that Gamesa did have
market power at the relevant time because of serious short-
ages in the wind turbine market, giving it the power to tie
No. 13-3350 11
the sale of maintenance services to the sale of the turbines
themselves. That may be a tough theory to prove. How long
might the shortage have lasted? See Sheridan v. Marathon Pe-
troleum Co., 530 F.3d 590, 594 (7th Cir. 2008) (market power is
ability to charge a price persistently above competitive level
despite existence of competitors). We need not wrestle these
nuances to the ground, however, because Outland does not
attack the dismissal or try to defend its theory. It argues in-
stead that its theory was so vacuous as to fail to invoke fed-
eral question jurisdiction. Suffice it to say there was at least
some room for argument about market power, so the alleged
claim was not “utterly frivolous,” nor was the theory of a
combination between Gamesa and Iberdrola. Outland also
has not admitted to pleading the federal antitrust claims as a
mere pretext for bringing its other claims into federal court
using supplemental jurisdiction. Cf. Steel Co., 523 U.S. at 89.
Accordingly, although Outland has essentially confessed
to sanctionable conduct (an issue Gamesa may take up with
the district court if it wishes to), the claims under the Sher-
man and Clayton Acts were sufficient to invoke the district
court’s subject matter jurisdiction.
2. Supplemental Jurisdiction
Not until after judgment was entered did Outland ques-
tion supplemental jurisdiction—which Outland itself had
asked the court to exercise by filing its original counter-
claims and its motion for leave to amend. Even then, its mo-
tion under Rule 59(e) argued only that the “other state
claims” (the original counterclaims that were not federal or
state antitrust claims) were not part of the “same case or con-
troversy” as required by 28 U.S.C. § 1367(a). The motion did
not address the discretionary factors in § 1367(c). A post-
12 No. 13-3350
judgment motion would have been too late to raise the issue
anyway, but Outland clearly forfeited its argument that the
district court should have exercised its discretion under
§ 1367(c) to decline jurisdiction by failing ever to make it to
the district court.
The discretionary power to decline jurisdiction under
§ 1367(c) does not present a limit on subject matter jurisdic-
tion that a district court must raise and decide on its own:
“This division between the requisites of jurisdictional com-
petence in § 1367(a) and the criteria for the exercise of discre-
tion in § 1367(c) also marks, we believe, the division between
matters the court must examine on its own and those that
depend on an assertion of error by the litigants.” Myers v.
County of Lake, 30 F.3d 847, 850 (7th Cir. 1994); see also Inter-
national College of Surgeons, 522 U.S. at 172 (reaffirming the
proposition that pendent or supplemental jurisdiction “is a
doctrine of discretion, not of plaintiff’s right”); Mayor of Phil-
adelphia v. Educational Equality League, 415 U.S. 605, 627 (1974)
(discretionary doctrine of pendent jurisdiction, the forerun-
ner of § 1367(c), was not “something akin to subject matter
jurisdiction that may be raised sua sponte at any stage”). We
therefore address only whether the other state law claims
formed part of the “same case or controversy” as the anchor-
ing federal antitrust claims.
Section 1367(a) “authorizes the district courts to exercise
jurisdiction to the full extent of Article III’s ‘case or contro-
versy’ requirement.” Baer v. First Options of Chicago, Inc.,
72 F.3d 1294, 1299 (7th Cir. 1995). Claims form part of the
same case or controversy when they “derive from a common
nucleus of operative fact.” United Mine Workers v. Gibbs,
383 U.S. 715, 725 (1966). To satisfy this requirement, “‘[a]
No. 13-3350 13
loose factual connection between the claims is generally suf-
ficient.’” Baer, 72 F.3d at 1299, quoting Ammerman v. Sween,
54 F.3d 423, 424 (7th Cir. 1995). In Ammerman, the plaintiff
brought a Title VII claim against her employer for sexual
harassment by a co-worker and a state tort claim against her
co-worker for assault and battery. The district court had
supplemental jurisdiction over the state claim because the
assault facts relevant to the tort claim formed a subset of the
facts supporting the Title VII claim. Ammerman, 54 F.3d at
424.
Outland concedes that its state antitrust claims over-
lapped with its federal antitrust claims, but in fact all of its
original counterclaims arose from a common nucleus of op-
erative facts. Ammerman is instructive because Outland put
its entire relationship with Gamesa at issue through the fed-
eral antitrust claims, and each of the state claims arose from
a subset of the antitrust allegations. We discuss the other
state law claims in three groups: tortious interference claims,
contract claims, and defamation claims.
The tortious interference claims dealt with Gamesa’s
conduct with respect to Outland’s other business relation-
ships. Outland alleged that Gamesa interfered with prospec-
tive agreements with third parties for maintenance services,
including its acquisition by Duke Energy. Outland also al-
leged that Gamesa interfered with its technicians and safety
policies, which ultimately led to the McCoy accident and
OSHA sanctions. These tactics threatened Outland’s exist-
ence, thus contributing to the federal antitrust claims and
forming part of the same nucleus of operative facts.
The contract claims dealt with Gamesa’s conduct with re-
spect to its own business with Outland. The allegations in-
14 No. 13-3350
cluded straightforward breach of the maintenance service
contract and dealing in bad faith by encouraging Outland to
hire new workers while planning to cut back on Outland’s
services. The alleged bad-faith commercial conduct clearly
relates to the federal antitrust claims. Outland also tied the
terms of the maintenance services contract, which allegedly
restrained competition, into its federal antitrust claims. Dif-
ferent causes of action between the same parties that arise
from the same contract and same events will ordinarily be
part of the same case or controversy. See, e.g., Channell v. Cit-
icorp Nat’l Servs., Inc., 89 F.3d 379, 385–86 (7th Cir. 1996)
(holding that actions based on signing and termination of
the same lease formed part of the same case or controversy
under § 1367(a)). Outland shows no reason for requiring liti-
gation of the contract claims in a separate case.
The defamation claims alleged that Gamesa made un-
specified false statements about Outland’s service and about
its breach of the maintenance services contract, the same
course of events supporting the federal antitrust claims. Out-
land never alleged any particular defamatory statement,
which was a problem in itself. In any event, because an anti-
trust claim for conspiracy to monopolize requires a showing
of a specific intent to monopolize, see 15 U.S.C. § 2; Great Es-
cape, Inc. v. Union City Body Co., 791 F.2d 532, 540–41 (7th Cir.
1986), and because the unspecified allegations of defamation
to harm Outland as a potential competitor could have con-
tributed to an inference of intent, the defamation claims
were part of the same case or controversy.
The federal antitrust claims had a large “nucleus of oper-
ative facts,” and the other original state law claims all had a
basis in at least a portion of those facts. Accordingly, the dis-
No. 13-3350 15
trict court could exercise supplemental jurisdiction over all
of the original counterclaims.
B. Denial of Leave to Amend
Outland also contests the district court’s denial of leave to
amend its third-party counterclaims. While the federal
courts “should freely give leave [to amend a pleading] when
justice so requires,” Rule 15(a)(2), a district court may deny
leave for a variety of reasons, including undue delay and fu-
tility. See Foman v. Davis, 371 U.S. 178, 182 (1962); Hukic v.
Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009). We re-
view the denial of leave to amend for an abuse of discretion.
See Bausch v. Stryker Corp., 630 F.3d 546, 561 (7th Cir. 2010).
The district court applied Illinois substantive law and
denied leave to amend. Outland argues now that the district
court should have applied Illinois choice of law principles,
which it asserts would have led to the application of Minne-
sota substantive law and a more favorable outcome. Outland
also defends six of the seven proposed counterclaims on the
merits. (The proposed federal antitrust claim is similar to its
feeble predecessors; Outland does not defend it on appeal.)
We conclude that the district court did not err by (1) finding
that Outland waived its choice of law argument and apply-
ing Illinois law, (2) denying leave to add Counts I, II, and III
of the proposed amended counterclaims for futility, and (3)
denying leave to add Counts IV, V, and VI of the proposed
amended counterclaims for undue delay.
1. Choice of Law
Federal courts hearing state law claims under diversity or
supplemental jurisdiction apply the forum state’s choice of
law rules to select the applicable state substantive law. See
16 No. 13-3350
Felder v. Casey, 487 U.S. 131, 151 (1988); Houben v. Telular
Corp., 309 F.3d 1028, 1032 (7th Cir. 2002). The choice of law
issue may be waived, however, if a party fails to assert it. See
Vukadinovich v. McCarthy, 59 F.3d 58, 62 (7th Cir. 1995). For
example, in Lott v. Levitt we held that a plaintiff who “sub-
mitted to Illinois law and relied solely on it” at the motion to
dismiss stage had waived his argument for different sub-
stantive law raised seven months later. 556 F.3d 564, 567–68
(7th Cir. 2009); see also Muslin v. Frelinghuysen Livestock Man-
agers, Inc., 777 F.2d 1230, 1231 n.1 (7th Cir. 1985). When no
party raises the choice of law issue, the federal court may
simply apply the forum state’s substantive law. Camp v. TNT
Logistics Corp., 553 F.3d 502, 505 (7th Cir. 2009).
In this case, Outland acquiesced to the application of Illi-
nois law. The original counterclaims included alleged anti-
trust violations under Illinois, Minnesota, and Texas statutes,
but Outland made no argument in favor of any particular
state’s substantive common law. Outland benefitted from Il-
linois venue law, under which the court invalidated a provi-
sion in its contract with Gamesa that provided for venue in
Pennsylvania. Outland did not object to the court’s later ap-
plication of Illinois substantive law when deciding its mo-
tion for a preliminary injunction and even relied entirely on
Illinois law when defending its original counterclaims
against Gamesa’s motion for judgment on the pleadings.
Outland finally raised the choice of law issue only as this
litigation approached the two-year mark and after it had lost
on the merits under Illinois law. We do not condone such
procedural gamesmanship. Cf. Lott, 556 F.3d at 568. With
Outland having acquiesced to the application of Illinois law,
No. 13-3350 17
the district court did not err by applying Illinois law to the
proposed amended counterclaims.
2. Futility
The district court denied leave to amend five of Outland’s
seven proposed amended counterclaims based on futility.
We address only Counts I, II, and III, alleging various torts
for interference with Outland’s acquisition by Duke. (We af-
firm denial regarding Count VI on the alternate ground of
undue delay. We need not address the undefended federal
antitrust claim.)
“District courts may refuse to entertain a proposed
amendment on futility grounds when the new pleading
would not survive a motion to dismiss.” Gandhi v. Sitara Cap-
ital Mgmt., LLC, 721 F.3d 865, 869 (7th Cir. 2013). “To survive
a motion to dismiss, a complaint must contain sufficient fac-
tual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007).
Outland’s proposed amended counterclaims for tortious
interference with contract, tortious interference with pro-
spective economic advantage, and “prima facie tort” arise
from the same alleged conduct and injury. Outland claims
that Gamesa’s breach letter based on the OSHA penalties
was sent to disrupt the ongoing negotiations with Duke for
the complete acquisition agreement and fleet services
agreement, focusing on the alleged $15 million reduction in
value of the closed complete acquisition agreement.
An action for tortious interference with contract requires
the plaintiff to prove that the defendant induced a third par-
18 No. 13-3350
ty to breach a contract. See HPI Health Care Servs., Inc. v. Mt.
Vernon Hosp., Inc., 545 N.E.2d 672, 676 (Ill. 1989); Philip I.
Mappa Interest, Ltd. v. Kendle, 554 N.E.2d 1008, 1011 (Ill. App.
1990). Outland has not alleged any breach, either of the orig-
inal or the amended agreement with Duke. It complains only
that Gamesa’s alleged interference lowered the value of the
complete acquisition agreement, which was still being nego-
tiated at the time Gamesa sent its letter. Because Outland did
not allege a breach by Duke, amendment of this claim would
have been futile. 1
The elements of a claim for intentional interference with
prospective economic advantage are different. A plaintiff
must allege “(1) a reasonable expectancy of entering into a
valid business relationship, (2) the defendant’s knowledge of
the expectancy, (3) an intentional and unjustified interference
by the defendant that induced or caused a breach or termi-
nation of the expectancy, and (4) damage to the plaintiff re-
sulting from the defendant’s interference.’” Voyles v. Sandia
Mortg. Corp., 751 N.E.2d 1126, 1133–34 (Ill. 2001), quoting
Anderson v. Vanden Dorpel, 667 N.E.2d 1296, 1299 (Ill. 1996).
The district court determined this claim was not viable be-
1 Two additional points warrant brief attention. First, the district court
based its futility determination in part on Outland’s allegation that
Gamesa had knowledge of negotiations but not the exact terms of the
final amended agreement. We doubt that complete knowledge of details
is necessary, but we need not consider the exact level of knowledge re-
quired because Outland did not allege a breach. Second, Outland de-
scribes its understanding with Duke regarding the fleet services agree-
ment as a “commitment” but not a contract. The district court correctly
noted that a vague “commitment” is not a sufficient stand-in for a valid
contract. See, e.g., HPI Health Care Servs., 545 N.E.2d at 676–77 (tortious
interference with contract protects plaintiff’s contractual rights).
No. 13-3350 19
cause (1) Outland alleged only a temporal connection be-
tween Gamesa’s letter and the negotiations rather than
knowledge, (2) Gamesa’s alleged interference did not result
in a complete termination of Outland’s relationship with
Duke, and (3) Gamesa’s activity was protected because it was
acting as a commercial competitor. We find each of these
reasons problematic, but we affirm on another ground.
Finding futility based on the first and third grounds
would raise the plausibility requirement of Twombly too
high. See generally 550 U.S. at 555, 570. While the temporal
connection between the Duke negotiations and Gamesa’s
breach letter alone raises a plausible inference of knowledge,
Outland additionally alleged that Duke informed Gamesa
about the ongoing negotiations after the original partial ac-
quisition. Outland also plausibly alleged that Gamesa had a
bad-faith motive for its actions rather than a good-faith mo-
tive of genuine competition.
The second ground—that the relationship between Out-
land and Duke was merely impaired but not terminated—
presents a close question of state law. It is possible that Illi-
nois courts would require a complete termination of the pro-
spective relationship as the district court did in this case, but
most Illinois cases on the subject involve an employee’s suit
against an employer for a rejection from another job, which
is necessarily an all-or-nothing proposition. See, e.g., Ander-
son, 667 N.E.2d at 1300 (stating that firm job offer can be ba-
sis for prospective economic advantage claim, but “leading
candidate” after first interview does not have a reasonable
expectancy). Here, Outland’s expectancy did ripen into an
acquisition by Duke, but only after it allegedly suffered a
significant drop in value for which Outland blames Gamesa.
20 No. 13-3350
And Outland might have benefitted even more from the
never-consummated fleet services agreement; that potential
relationship with Duke was entirely terminated. 2
Nevertheless, Outland’s claim still would have failed un-
der Illinois law because it did not allege that Gamesa inter-
fered improperly by communicating with Duke. “Actions
that form the basis of a tortious interference claim must be
directed at third-party business prospects.” F:A J Kikson v.
Underwriters Laboratories, Inc., 492 F.3d 794, 800 (7th Cir.
2007), citing Galinski v. Kessler, 480 N.E.2d 1176, 1180 (Ill.
App. 1985). Gamesa did not send the letter to Duke, and
Outland alleged only that Gamesa made a competing offer
during its prior communications with Duke. Assuming, as
we must, that Gamesa’s breach letter was directed at lower-
ing the value of Outland in bad faith, the proper cause of ac-
tion would be different. (Outland opted to bring claims for
promissory estoppel and breach of fiduciary duty, but a bad-
faith claim of breach would often itself be a breach of con-
tract.) Without any allegedly improper action directed to the
relevant third party, this claim must fail. Cf. F:A J Kikson,
492 F.3d at 800–01 (analyzing four communications between
defendant and third parties); Voyles, 751 N.E.2d at 1134 (con-
sidering reports made by defendant to credit agencies).
Thus, amendment would have been futile.
Turning to the generic claim for “prima facie tort,” Out-
land concedes that this vaguely defined cause of action has
not been recognized under Illinois law. Outland makes much
2 While a “commitment” is not a contract, see n.1 supra, it can be a rea-
sonable expectancy for purposes of tortious interference with prospec-
tive economic advantage.
No. 13-3350 21
of a parenthetical comment in a decision of this court: “Some
states, though not Illinois (not yet anyway), recognize an an-
imal called ‘prima facie tort,’ a catchall for harmful inten-
tional misconduct that eludes the familiar categories.”
Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1042–43
(7th Cir. 1999) (internal citation omitted). That comment did
not implicitly predict that Illinois courts would adopt the
new tort. Fifteen years later they still have not done so. Fur-
thermore, Gamesa’s alleged misconduct does not “elude the
familiar categories.” It merely falls outside the two causes of
actions we have already discussed. Amendment to add this
claim also would have been futile.
3. Undue Delay
Gamesa allegedly misled Outland by saying it expected
to continue using Outland’s services when in fact it was
planning to develop in-house maintenance services. Outland
proposed Counts IV and V for promissory estoppel and
breach of fiduciary duty, the latter based on an alleged prin-
cipal-agent relationship. The district court denied leave to
amend to add these claims based on undue delay, reasoning
that Outland should have known about these theories when
it asserted its original counterclaims. The court also denied
leave to amend Count VI, requesting indemnification from
Gamesa for the OSHA penalties, for both futility and undue
delay. We affirm for undue delay alone. While we approach
the concept of undue delay at the pleading stage with some
skepticism, we find no abuse of discretion in this case.
The issue of undue delay generally arises when a plain-
tiff seeks leave to amend deep into the litigation. See, e.g.,
Sanders v. Venture Stores, Inc., 56 F.3d 771, 773–74 (7th Cir.
1995) (affirming denial of leave to amend after close of dis-
22 No. 13-3350
covery because more discovery would have been needed).
The underlying concern is the prejudice to the defendant ra-
ther than simple passage of time. Id.; see also Bell v. Allstate
Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998) (“Delay alone is
insufficient justification; prejudice to the nonmovant must
also be shown.”). Although the litigation on Outland’s vari-
ous commercial tort counterclaims was still in the pleading
stage, the parties had already invested significant resources
in the case. In particular, the district court was cognizant of
Gamesa’s costs in defeating Outland’s motion for a prelimi-
nary injunction and was understandably unwilling to grant
Outland leave to present new theories.
Outland had been a party for twenty months when it re-
quested leave to amend, and almost six months had passed
since its original counterclaims had been dismissed. Outland
presented no excuse for omitting these three theories origi-
nally, and the unexplained delay looks more like procedural
gamesmanship than legitimate ignorance or oversight. Cf.
Doe v. Howe Military School, 227 F.3d 981, 990 (7th Cir. 2000)
(“[P]leading is not like playing darts: a plaintiff can’t keep
throwing claims at the board until she gets one that hits the
mark.”). That impression is consistent with the sheer num-
ber of original counterclaims and even Outland’s desperate
arguments before this court, challenging its own attempts to
invoke federal jurisdiction. Undue delay is unusual at the
pleading stage, see Dubicz v. Commonwealth Edison Co.,
377 F.3d 787, 793 (7th Cir. 2004) (reversing denial of leave to
amend for undue delay at pleading stage where only preju-
dice to defendant was unsupported allegation of loss of evi-
dence), but there was no abuse of discretion here.
No. 13-3350 23
III. Conclusion
Despite Outland’s perverse contention that its own feder-
al claims were too feeble to invoke jurisdiction, the district
court properly exercised federal question and supplemental
jurisdiction over the original third-party counterclaims. It
also properly applied Illinois substantive law and denied
leave to amend Outland’s counterclaims based on futility
and undue delay. The judgment is AFFIRMED.