In its response to Advanced Analytical’s motion to dismiss or transfer, Korein Tillery argues that a forum clause written into a contract with the research contractor and two economists is voidable due to fraud in a suit involving a minor league baseball class action.

In its complaint Korein Tillery argues that the defendants were hired to estimate the work hours of minor league baseball players and calculate their wage and hour damages by observing players entering and leaving their ballparks. The data was intended to be used in a class action wage dispute involving minor league baseball players.

However, the plaintiff alleges that five weeks before the expert disclosure deadline, and after costing nearly $500,000, the defendants admitted that they were unable to determine between baseball players and other employees entering the ballparks.

Defendants Advanced Analytical Consulting Group Inc., Daniel Levy and Audrius Girnius filed a motion to dismiss the complaint on Oct. 11 through attorney W. Jason Rankin of HeplerBroom LLC in Edwardsville.

Rankin argues that the parties agreed to a binding enforceable forum selection clause within the contract, which states that any action arising under the contract must be brought in a federal court or any Massachusetts court.

After the case was originally filed in St. Clair County Circuit Court in March, it was removed to federal court on May 4 and then remanded to circuit court on Sept. 12.

The defendants also argue that they were dealing with Korein Tillery attorneys from the St. Louis office and were unaware of the actions in St. Clair County.

Citing the recent Bristol-Myers Squibb and Aspen decisions, Rankin also wrote that the court does not have jurisdiction over the defendants.

Korein Tillery filed a response to the defendants’ motion to dismiss on Oct. 23, through attorney Robert Sprague of Sprague and Urban in Belleville.

“After one failed attempt to avoid this Court’s jurisdiction by improperly removing the case to federal court, now they want it transferred or dismissed based on their claim they had no idea they were dealing with an Illinois law firm and the untimely assertion of a boilerplate forum selection clause that was obtained by their fraud,” the response states.

Recognizing the forum clause, Korein Tillery argues that the objections to venue were raised too late and the contract was “induced by Defendants’ fraud.”

“Having held themselves out as experts in this field, Defendants knew or should have known that they could not perform as promised. This is a classic case of fraud in the inducement,” the response states.

“Accordingly, the contract is voidable and Defendants cannot enforce any part of it, including the forum selection clause,” it adds.

Korein Tillery also argues that the court has personal jurisdiction over all of the defendants.

Girnius and Korein Tillery are Illinois residents, and Advanced Analytical and Levy’s contacts with Illinois relate directly to the allegations of the complaint.

Korein Tillery adds that the complaint adequately states all claims.

It argues that the defendants made false statements in reckless disregard of the truth by repeatedly misrepresenting that they could perform the requested study.

Further, Korein Tillery claims it adequately made claims for breach of contract and negligence because the defendants failed to complete the study after the plaintiff paid “very large” sums of money.

“No expert acting in a prudent manner would continue to bill large sums of money while performing a study that the expert knew could not be performed as promised and without alerting the client to the fact that the study could not be performed,” the response states. “Yet that is exactly what Defendants did to Korein Tillery.”

Korein Tillery also filed a separate response to the defendants’ motion to transfer venue on Oct. 23.

The firm argues that the defendants “failed to meet their burden to show St. Clair County is an improper venue for the parties’ dispute, and they waived their objection to venue by failing to timely raise it.”

However, if the court intends to grant the motion to transfer, the plaintiff requests discovery prior to transferring the case “in order to develop a factual record on the venue issue.”

Korein Tillery argues that St. Clair County is the proper venue because negotiations and discussions as well as signing the agreement all took place there.

“And these are the very facts that gave rise to Korein Tillery’s asserted cause of action,” the response states.

As for the defendants’ assertion that they were unaware that any of the actions took place in St. Clair County, the plaintiff says “it is no secret” where its offices are located and “any doubts should be resolved in favor of Korein Tillery.”

Korein Tillery also argues that the motion to transfer was filed almost a month late, waiving their objection.

On Oct. 31, Circuit Judge Vincent Lopinot continued the defendants’ motions.

Associate Judge Chris Kolker previously presided over the case before it was reassigned to Lopinot on Oct. 17.

St. Clair County Circuit Court case number 17-L-98

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HeplerBroom LLC Sprague & Urban St. Clair County Circuit Court

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