Airborne Beepers v. At & T Mobility LLC, No. 06-2949.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtWood
Citation499 F.3d 663
PartiesAIRBORNE BEEPERS & VIDEO, INC., Plaintiff-Appellant, v. AT & T MOBILITY LLC, f/k/a Cingular Wireless LLC, Defendant-Appellee.
Decision Date24 August 2007
Docket NumberNo. 06-2949.
499 F.3d 663
AIRBORNE BEEPERS & VIDEO, INC., Plaintiff-Appellant,
v.
AT & T MOBILITY LLC, f/k/a Cingular Wireless LLC, Defendant-Appellee.
No. 06-2949.
United States Court of Appeals, Seventh Circuit.
Argued April 13, 2007.
Decided August 24, 2007.

[499 F.3d 664]

Diane M. Ainsworth (argued), Ainsworth & Associates, Chicago, IL, for Plaintiff-Appellant.

Veronica Gomez (argued), Neal, Gerber & Eisenberg, Chicago, IL, for Defendants-Appellees.

Before FLAUM, MANION, and WOOD, Circuit Judges.

WOOD, Circuit Judge.


The only question presented in this appeal is whether the district court abused its discretion in denying Airborne Beepers & Video, Inc., leave to file a fourth amended complaint. The district court decided that the plaintiff had been given enough chances and dismissed the case with prejudice. We find no abuse of discretion and thus affirm the judgment of the district court.

I

As this case did not advance beyond the motion-to-dismiss stage, we take the facts alleged in the plaintiffs' complaints as true. Gustavo R. Calderon is the owner and operator of Airborne, a retail store that sells among other things cellular, pager, and long-distance telephone services. On December 1, 1997, Airborne entered into an "Authorized Dealer Agreement" with Southwestern Bell Mobile Systems, Inc. ("Southwestern Bell"), which at the time did its business under the name Cellular One-Chicago. (Southwestern Bell became part of Cingular Wireless, which itself was later taken over by AT & T. We refer to the company as Southwestern Bell in this opinion, but we have modified the caption of the case to reflect the correct name of the company.) This agreement allowed Airborne to "solicit and contract on behalf of CELLULAR ONE, with Subscribers" for communications services in exchange for a commission fee based on the number of activations of new services. The parties renewed their agreement on September 9, 1999.

On January 1, 2002, when a year remained on this renewed contract, Southwestern Bell stopped paying Airborne commissions on activations for the preceding month, residuals (based on its customers' monthly bills), and commissions for sales of insurance. In addition, Southwestern Bell began taking back Airborne's commissions on accounts when the customers failed to pay their bills, directly contracted with customers who had originally signed up with Airborne and did not compensate Airborne for those accounts, and otherwise engaged in practices that Calderon considered breaches of the agreement.

Calderon responded with this lawsuit against Southwestern Bell, which he filed on December 17, 2002, as "Gustavo R. Calderon doing business as Airborne Beepers & Video, Inc." The original complaint contained eleven counts: breach of contract (Count I); a plea for an accounting (Count II); deceptive and fraudulent practices (Count III); breach of fiduciary duty (Count IV); unfair competition

499 F.3d 665

(Count V); tortious interference with business relationships (Count VI); unjust enrichment (Count VII); a pattern of racketeering in violation of the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. (Count VIII); "illegal retaliation" (Count IX); "unlawful discrimination" (Count X); and intentional infliction of emotional distress (Count XI).

At that point, a seemingly endless round of motions all directed to the legal sufficiency of the complaint began; they were to continue for four and a half years. At the outset, the district court decided to treat Airborne as a plaintiff, after Southwestern Bell filed its first motion to dismiss the original complaint. In the next iteration, captioned the Verified Amended Complaint and filed on February 26, 2003, Calderon and Airborne were listed separately as plaintiffs. By the third amended complaint, Calderon had been dropped from the complaint and Airborne was the only plaintiff. With the exception of the first filing of the third amended complaint — which the court struck after it was submitted pro se by Calderon on Airborne's behalf but then permitted Airborne to file through an attorney — plaintiffs were represented by counsel throughout. (Airborne and Calderon have cycled through a number of attorneys; current counsel came in only to attempt the filing of the fourth amended complaint and the appeal of its denial.)

In response to each complaint, Southwestern Bell filed a motion to dismiss. (It filed a motion to strike the pro se third amended complaint.) The district court's patient and comprehensive ruling on the original complaint set the pattern for its rulings on plaintiffs' first two efforts at amendments. The court dismissed all of the claims in response to each of the four motions to dismiss. Each time, the court combed the complaint to identify the claims that could, if properly pleaded, survive another motion to dismiss. It dismissed with prejudice only those claims that had no merit and dismissed without prejudice other claims that apparently had only pleading defects.

Each time it acted, the court gave the plaintiffs detailed instructions about the pleading requirements for particular claims. For example, in its opinion on the motion to dismiss the initial complaint, the court noted that Count X, which charged unlawful discrimination in contracting in violation of 42 U.S.C. § 1981(a), "is a claim that could only be...

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563 practice notes
  • Vance v. Rumsfeld, Nos. 10–1687
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 7, 2012
    ...claims. See, e.g.,Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir.2010); Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th Cir.2007). Consider two possible amendments, for example. After years of delay, the government finally complied with the district court'......
  • Bausch v. Stryker Corp.., No. 09–3434.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 23, 2010
    ...party by virtue of allowance of the amendment, [and] futility of amendment.” Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th Cir.2007), quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). However, while a court may deny a motion for l......
  • In Re: Jack Weichman, CASE NO. 08-23482 JPK
    • United States
    • U.S. Bankruptcy Court — Northern District of Indiana
    • September 30, 2010
    ...United Church of Christ v. City of Chi., 502 F.3d 616, 625 (7th Cir.2007) (quoting Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir.2007)). A Seventh Circuit panel opinion recently observed that, "[t]he task of applying Bell Atlantic to the different types o......
  • Harjo v. City of Albuquerque, CIV 16-1113 JB/JHR
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 30, 2018
    ...rests." [Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S. Ct.] at 1965 n.3. See Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007)("[A]t some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of no......
  • Request a trial to view additional results
567 cases
  • In Re: Jack Weichman, CASE NO. 08-23482 JPK
    • United States
    • U.S. Bankruptcy Court — Northern District of Indiana
    • September 30, 2010
    ...United Church of Christ v. City of Chi., 502 F.3d 616, 625 (7th Cir.2007) (quoting Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir.2007)). A Seventh Circuit panel opinion recently observed that, "[t]he task of applying Bell Atlantic to the different types o......
  • Harjo v. City of Albuquerque, CIV 16-1113 JB/JHR
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 30, 2018
    ...rests." [Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S. Ct.] at 1965 n.3. See Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007)("[A]t some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of no......
  • Vance v. Rumsfeld, Nos. 10–1687
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 28, 2011
    ...prejudice. See, e.g., Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir.2010); Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th Cir.2007). The Supreme Court's recent decisions in Iqbal and Twombly have created new uncertainties about the level of detail requir......
  • Aktieselskabet Af 21. November 2001 v. Fame Jeans, No. 07-7105.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 29, 2008
    ...6 (6th Cir.2007) (concluding only that Twombly did not overrule Swierkiewicz); Airborne Beepers & Video, Inc. v. AT & T Mobility L.L. C., 499 F.3d 663, 667 (7th Cir.2007) ("Twombly did not signal a switch to fact-pleading"); Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir......
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1 books & journal articles
  • IN HONOR OF STEPHEN BURBANK: BEYOND THE FOREST AND THE TREES.
    • United States
    • University of Pennsylvania Law Review Vol. 169 Nbr. 8, August 2021
    • August 1, 2021
    ...[https://perma.cc/XC4S-RFXS]. (54) 551 U.S. 89 (2007). (55) Id. at 93 (quoting Twombly, 550 U.S. at 555). (56) 499 F.3d 663 (7th Cir. 2007). (57) Id. at 667. (58) 614 F.3d 400 (7th Cir. 2010). (59) Id. at 402. (60) Id. at 403. (61) Id. at 403, 405. (62) Id. at 403. (63) Id. at 404. (64) Id.......

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