KAP HOLDINGS , LLC, doing business as PART SCRIPTION v. Mar -Cone Appliance Parts C O.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1359
KAP HOLDINGS , LLC, doing business as P ART S CRIPTION ,
Plaintiff-Appellant,
v.
M AR -C ONE A PPLIANCE PARTS C O.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:21-cv-05648 — Joan H. Lefkow, Judge.
____________________
A RGUED O CTOBER 26, 2022 — DECIDED D ECEMBER 12, 2022
____________________
Before R OVNER , HAMILTON , and BRENNAN , Circuit Judges.
BRENNAN , Circuit Judge. This case concerns a purported
multi-million-dollar contract between two companies that sell
and distribute replacement parts for appliances. For years,
KAP Holdings, LLC, doing business as PartScription, and
Mar-Cone Appliance Parts Company (“Marcone”) contem-
plated forming a business association. But the businesses
never combined, and now PartScription seeks to recover from
Marcone for breach of an agreement to form a partnership.

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2 No. 22-1359
The district court decided that PartScription failed to plau-
sibly allege an enforceable contract and dismissed the com-
plaint with prejudice. PartScription appeals that dismissal as
error. In the alternative, PartScription argues that it should
have been allowed to amend its complaint. We disagree. Be-
cause PartScription’s complaint fails to plausibly allege a
valid contract, and amendment would be futile, we affirm the
district court’s judgment.
I
PartScription’s business centers around its e-commerce
platform, which allows stores to place orders online for parts
and other products. Tens of thousands of hardware stores are
“loaded into” PartScription’s platform and utilize its network
of suppliers. Marcone operates in the same industry and is
one of the country’s largest wholesalers for replacement ap-
pliance components.
In 2006 before PartScription formally existed, Kevin
Price—PartScription’s eventual founder—approached Mar-
cone and pitched using e-commerce in the appliance parts in-
dustry. Price and Marcone entered into a non-disclosure
agreement while evaluating the concept, but no partnership
resulted. Price then independently created PartScription.
Roughly a decade later in 2017, Price restarted talks with Mar-
cone executives about a potential business relationship, but
those efforts stalled as well.
Not until late 2018 did PartScription and Marcone make
discernable progress in their discussions. In November of that
year, Marcone’s Chief Executive Officer, Jim Souers, invited
Price to Marcone’s headquarters, and proposed that Part-
Scription and Marcone form a “50-50” partnership. Price

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No. 22-1359 3
accepted, and the two men shook hands on the idea. From
there, Price drafted a term sheet for the contemplated partner-
ship and sent it to Marcone’s Senior Vice President, Dave
Cook, for review with a copy to Souers. The first line of the
term sheet states “PartScription and Marcone (PSM) have
agreed to form a partnership/joint venture to serve the inde-
pendent hardware industry.” Other terms address marketing,
market strategy, profit sharing, and the like.
Negotiations continued and coalesced around the term
sheet. In a January 22, 2019, conference call, Price, Cook, and
Marcone’s Chief Operating Officer, Avichal Jain, discussed
the term sheet’s language. During the call, according to the
complaint the Marcone representatives “stated that they ap-
proved of the terms outlined in the Term Sheet,” and offered
only one discrete change regarding a joint bank account pro-
vision. Some days later Price sent a follow-up email to Jain
and Cook saying that his meeting notes indicated “Marcone
ha[d] approved the terms outlined in the draft PSM term
sheet” and asking whether they needed to memorialize the
agreement. No further memorialization took place, but Price
delivered a slide presentation to Marcone’s vice president of
Information Technology in February. The presentation cov-
ered certain technical details about the integration of Part-
Scription’s platform with Marcone’s platform. This was the
last substantive meeting between the parties.
Price sent several emails to Marcone representatives to
which they were increasingly unresponsive. For instance, Jain
calendared a meeting for March 2019 but cancelled it because
“Some urgent matter [had] come up.” Similarly, Jain in-
formed Price in the spring of 2019 that Marcone was busy
with a “couple of very high priority initiatives” and would be

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4 No. 22-1359
preoccupied for several months. Marcone never revisited the
proposed partnership with PartScription.
In 2021, PartScription filed suit for breach of contract in Il-
linois state court. Marcone timely removed the case to federal
court pursuant to diversity jurisdiction. 28 U.S.C. §§ 1441,
1332.1 The district court ultimately granted Marcone’s Rule
12(b)(6) motion, dismissed the complaint with prejudice, and
entered judgment. Thereafter, PartScription moved the dis-
trict court under Federal Rule of Civil Procedure 59(e) for re-
consideration of the dismissal order or, in the alternative, for
leave to amend its complaint. The district court denied that
motion, finding that any amendment would be futile.
PartScription seeks review of the dismissal of its complaint
and denial of its Rule 59(e) motion.
II
PartScription alleges breach of contract. We evaluate that
claim under Illinois substantive law because Marcone re-
moved this case to the Northern District of Illinois under di-
versity jurisdiction and no party raises a conflict of law issue.
Citadel Grp. Ltd. v. Wash. Reg'l Med. Ctr., 692 F.3d 580, 587 n.1
(7th Cir. 2012) (“‘[W]hen neither party raises a conflict of law
issue in a diversity case, the federal court simply applies the
law of the state in which the federal court sits.’”) (quoting
Wood v. Mid-Valley Inc., 942 F.2d 425, 426 (7th Cir. 1991));
Munoz v. Nucor Steel Kankakee, Inc., 44 F.4th 595, 599 n.3 (7th
1 PartScription and Marcone have complete diversity for purposes of
28 U.S.C. § 1332. PartScription is an Illinois limited liability company with
two members, both of whom are Illinois citizens. Marcone is a Missouri
corporation with its principal place of business in Missouri.

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No. 22-1359 5
Cir. 2022) (citing RLI Ins. Co. v. Conseco, Inc., 543 F.3d 384, 390
(7th Cir. 2008)).
Under Illinois law, “The elements of a breach of contract
claim are: (1) the existence of a valid and enforceable contract;
(2) performance by the plaintiff; (3) breach of contract by the
defendant; and (4) resultant injury to the plaintiff.” Henderson-
Smith & Assocs., Inc. v. Nahamani Fam. Serv. Ctr. Inc., 752
N.E.2d 33, 43 (Ill. App. Ct. 2001) (citing Gallagher Corp. v. Russ,
721 N.E.2d 605, 611 (Ill. App. Ct. 1999)); Smith v. Jones, 497
N.E.2d 738, 740 (Ill. 1986). As a result, PartScription cannot
plead a breach of contract claim unless it plausibly alleges the
existence of a valid and enforceable contract.
The elements of a valid and enforceable contract are “offer,
acceptance and consideration.” Fuqua v. SVOX AG, 13 N.E.3d
68, 80 (Ill. App. Ct. 2014) (citing All Am. Roofing, Inc. v. Zurich
Am. Ins. Co., 934 N.E.2d 679, 689 (Ill. App. Ct. 2010)); Melena v.
Anheuser-Busch, Inc., 847 N.E.2d 99, 109 (Ill. 2006) (“In Illinois,
an offer, an acceptance and consideration are the basic ingre-
dients of a contract.”) (citation omitted). Relatedly, there can
only be a binding offer and acceptance when the parties mu-
tually assent to definite and certain terms. “To be enforceable,
the material terms of a contract must [ ] be definite and cer-
tain. ‘The terms of a contract will be found to be definite and
certain … if a court is able to ascertain what the parties agreed
to … .’” Szafranski v. Dunston, 34 N.E.3d 1132, 1147 (Ill. App.
Ct. 2015) (citation omitted) (quoting Bruzas v. Richardson, 945
N.E.2d 1208, 1215 (Ill. App. Ct. 2011)).
This framework affords certain flexibility, and “[a] con-
tract may be enforced even though some contract terms may
be missing or left to be agreed upon.” Acad. Chi. Publishers v.
Cheever, 578 N.E.2d 981, 984 (Ill. 1991) (citation omitted). But

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6 No. 22-1359
there can be no binding contract when “the essential terms are
so uncertain that there is no basis for deciding whether the
agreement has been kept or broken.” Id. Hence, definite and
certain terms are indispensable.
We pause here to identify PartScription’s specific allega-
tions under Illinois contract law. PartScription’s complaint
does not allege that Marcone breached a partnership agree-
ment. In fact, PartScription acknowledges that it “has made
no allegation that a partnership was actually formed.” In-
stead, PartScription seeks to recover for breach of an “execu-
tory agreement to form a partnership.” In essence, PartScrip-
tion claims that Marcone reneged on its promise to form a
partnership.
The form of contract that PartScription alleges existed may
be unusual, but it can be valid under Illinois law.2 In Wilson v.
Campbell, the Illinois Supreme Court recognized that parties
can enter a binding agreement to form a partnership separate
and apart from a partnership agreement. 10 Ill. 383, 402 (Ill.
1848). That court explained: “A mere agreement to form a
partnership does not of itself create a partnership.” Id. Rather,
it creates obligations on the contracting parties distinct from
the partnership form: “The parties must enter on the execu-
tion of the agreement before the relation of partners exists be-
tween them.” Id. And failure of a party to satisfy the agree-
ment terms “[w]hile the agreement remains executory,” gen-
erates an “action at law for the violation of the agreement.” Id.
More than one hundred years later, an Illinois appellate
court confirmed that such an oral agreement to form a part-
nership can be enforceable. In Rankin v. Hojka, the court
2 The district court reached the same conclusion.

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No. 22-1359 7
acknowledged, “An agreement to form a partnership does not
of itself create a partnership, and where one party refuses to
carry the executory agreement into effect, an action at law will
lie for the breach.” 355 N.E.2d 768, 774 (Ill. App. Ct. 1976) (ci-
tation omitted) (citing Wilson, 10 Ill. 383). As a result, Part-
Scription’s contract theory could be cognizable under state
law, at least if the parties orally agreed to sufficiently definite
terms.
With that legal framework in mind, we turn to PartScrip-
tion’s complaint. Taking all the factual allegations as true and
drawing inferences in PartScription’s favor, the district court
properly dismissed the complaint. We agree that PartScrip-
tion’s complaint fails to allege facts that support the existence
of an enforceable agreement. Consequently, even if negotia-
tions unfolded precisely as PartScription suggests, a wide
range of material terms remain undecided, and there is no
contract as a matter of law.
The district court dismissed PartScription’s complaint un-
der Rule 12(b)(6), so our review is de novo. Levy v. West Coast
Life Ins. Co., 44 F.4th 621, 626 (7th Cir. 2022). When examining
a motion to dismiss, we accept as true all well-pleaded facts
in the complaint and draw reasonable inferences in favor of
the plaintiff. Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir.
2016) (citation omitted). “[B]ut legal conclusions and conclu-
sory allegations merely reciting the elements of the claim are
not entitled to this presumption of truth.” McCauley v. City of
Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (citing Ashcroft v. Iq-
bal, 556 U.S. 662, 680–81 (2009)).
To avoid dismissal, “the complaint must ‘state a claim to
relief that is plausible on its face.’” Bancorpsouth, Inc. v. Fed.
Ins. Co., 873 F.3d 582, 586 (7th Cir. 2017) (quoting Iqbal, 556

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8 No. 22-1359
U.S. at 678). There is no rigid reference point for the plausibil-
ity inquiry; the determination is context-specific and “re-
quires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679. At bottom, “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.” Id. at 678; see
also Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639,
644 (7th Cir. 2019).
PartScription contends the district court erred in granting
Marcone’s motion to dismiss. Per PartScription, its complaint
plausibly alleges a claim for breach of contract and adequately
identifies definite and certain terms between itself and Mar-
cone. According to PartScription, the parties reached an
agreement on November 1, 2018, to form a “50-50” partner-
ship. Price subsequently memorialized that accord in a term
sheet, which all parties orally agreed to (with only one slight
modification) during the January 22, 2019, conference call.
When asked at oral argument about the alleged agreement,
PartScription’s counsel explained, “The term sheet confirms
that the parties agreed to form a partnership. It sets forth the
terms of how to form the partnership.”3 Ergo, PartScription
claims, the parties created a binding contract when they
agreed to the term sheet language on January 22.4 Marcone
disagrees, responding that the term sheet “does not set forth
any obligations for Marcone or PartScription to execute in
forming the purported partnership.” The question of whether
3 Oral Arg. at 4:17–30.
4 Oral Arg. at 5:36–57.

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No. 22-1359 9
PartScription alleges definite and certain terms turns chiefly
on the contents of the term sheet.
The first line of the term sheet states “PartScription and
Marcone (PSM) have agreed to form a partnership/joint ven-
ture to serve the independent hardware industry.” That pas-
sage confirms the parties planned to do business together, but
it does not independently form a contract. For a legally bind-
ing agreement to be formed, there must be definite and cer-
tain terms for performance. Szafranski, 34 N.E.3d at 1147. The
rest of the term sheet falls short of that requirement.
Though the parties generally agreed to form a partnership
or joint venture, “[t]he exact legal structure” was yet to be de-
termined. Even if a partnership and a joint venture share com-
mon legal characteristics, the legal form of the contemplated
business is an important outstanding term. The rest of the
term sheet fares no better. Many sections use aspirational
words that neither resemble contract language nor identify
clear, binding obligations. Several sentences begin with what
the hypothetical partnership “would” or “will” do in the fu-
ture:
[T]he PSM partnership would serve all current
and future hardware store Affiliates … .
PSM would integrate PartScription’s current
multi-category parts selection … .
Marcone would provide all Marketing, Product
Strategy, Field Sales & Support … .
PSM would jointly set strategy, operational
standards and planning for all activities … .

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10 No. 22-1359
Marcone’s platform shall become the fully inte-
grated source for PSM … .
The functions to be provided should be world
class … .
Such language does not evidence the parties’ intent to be
bound.
Other parts of the term sheet identify general next steps
but leave essential terms missing or undecided. For example,
the term sheet states, “Marcone must execute a non-disclosure
agreement to adequately protect PSM and its access to hard-
ware store data entrusted to PartScription.” But the parties
never agreed to specific terms for the non-disclosure agree-
ment.5 The term sheet also contemplates a return policy
unique to Ace Hardware but states the policy “will be ad-
dressed separately.” Importantly, the document reveals no
timeline on which PartScription and Marcone were to alleg-
edly perform their obligations. Language in the term sheet
also expressly contemplates a future writing filling out the
agreement between PartScription and Marcone: “[T]he final
documents evidencing the structure of the partnership shall
contain standard and customary provisions that each of Part-
Scription and Marcone shall retain the ownership of their re-
spective intellectual property … .”
PartScription argues against these facts and repeatedly
contends that “the only step required of Marcone to carry out
its end of the executory agreement to form the partnership
was to cooperate in the agreed step of integrating the e-com-
merce platforms.” Assuming we could construe the alleged
5 See Oral Arg. at 10:22–11:50.

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No. 22-1359 11
“cooperation” requirement as an enforceable obligation, the
term sheet does not support PartScription’s characterization.
PartScription points to term sheet language that “PSM would
integrate PartScription’s current multi-category parts selec-
tion … into Marcone’s most sophisticated platform environ-
ment to provide unparalleled capabilities and service.” And
“Marcone’s platform shall become the fully integrated source
for PSM, including all current and future product categories.”
But even setting aside the marketing vocabulary in those pro-
visions, that cited language reveals no binding obligations be-
tween PartScription and Marcone. Those sections merely
highlight what the parties hoped their partnership might be-
come in the future—i.e., what PSM “would” do or could “be-
come”—but stop short of binding the parties in contract. The
language is descriptive, not promissory.
A party can agree to a plan. But it is something else for a
party to promise performance and intentionally bind itself in
a legally enforceable manner. The plain language of the term
sheet shows no intent to do the latter. Without identifying def-
inite and certain terms, PartScription cannot plausibly allege
the existence of a legally binding contract. Acad. Chi. Publish-
ers, 578 N.E.2d at 984 (“An enforceable contract must include
a meeting of the minds or mutual assent as to the terms of the
contract.”). We therefore hold that the district court decided
correctly that the term sheet “does not contain definite and
certain obligations for either party to execute in forming
PSM.”
Looking beyond the term sheet to the rest of PartScrip-
tion’s complaint, we similarly hold that no other allegations
provide the missing definite and certain terms. PartScription
does not claim that the parties orally agreed to more detailed

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12 No. 22-1359
terms at the November 1 meeting than are identified in the
term sheet. Nor does PartScription identify any communica-
tions or interactions after the January 22 call that furnish def-
inite and certain terms, including the February 12 technical
meeting. Without such terms, PartScription cannot plausibly
allege the existence of a valid contract.
PartScription’s other arguments are also unpersuasive.
According to PartScription, this case cannot be resolved on a
motion to dismiss because there is ambiguity regarding the
parties’ intent to be bound. It is true that this court “must ini-
tially determine, as a question of law, whether the language
of a purported contract is ambiguous as to the parties’ intent.”
Quake Constr. Inc. v. Am. Airlines, Inc., 565 N.E.2d 990, 994 (Ill.
1990). And “If the language of an alleged contract is ambigu-
ous regarding the parties’ intent, the interpretation of the lan-
guage is a question of fact which a [ ] court cannot properly
determine on a motion to dismiss.” Id. But no such ambiguity
exists here.
Preliminary negotiations can be enforceable if parties so
intend, but that intent must be discerned from the text of the
relevant instrument. Id. Here, that instrument is the written
term sheet to which Marcone representatives orally agreed. If
that document reveals no ambiguity, “the parties’ intent must
be derived by the [ ] court, as a matter of law, solely from the
writing itself.” Id.; see also People ex. rel. Dept. of Pub. Health v.
Wiley, 843 N.E.2d 259, 268 (Ill. 2006) (“The construction of a
contract is a question of law.”); Farm Credit Bank of St. Louis v.
Whitlock, 581 N.E.2d 664, 667 (Ill. 1991) (“The intention of the
parties to contract must be determined from the instrument
itself, and construction of the instrument where no ambiguity
exists is a matter of law.”).

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No. 22-1359 13
There is no ambiguity in the term sheet because its text re-
veals no objective intent of the parties to be bound. The docu-
ment contains only aspirational language and, as discussed
above, is missing definite and certain terms regarding obliga-
tions owed. Neither the text nor the format of the term sheet
suggests it was intended to be a binding legal document. So,
the parties’ oral agreement to the language of the term sheet
did not create a contract.
We addressed a comparable situation in Empro Manufac-
turing Co. v. Ball-Co Manufacturing, Inc., 870 F.2d 423, 424 (7th
Cir. 1989). There, the two sides signed a three-page letter of
intent, which identified a purchase price but contemplated a
later, “formal, definitive Asset Purchase Agreement signed by
both parties.” Id. When Ball-Co began negotiating with other
potential buyers, Empro filed suit to enforce the letter of in-
tent. Id. After the district court dismissed the complaint,
Empro appealed and insisted its allegations raised a question
of fact. Id. at 424–25. Per Empro, “the binding effect of a doc-
ument depends on the parties’ intent, which means that the
case may not be dismissed.” Id. Applying Illinois law, we re-
jected Empro’s position and held that its approach to contract
law would deal “a devastating blow to business.” Id. at 425.
This court explained that “‘intent’ in contract law is objective
rather than subjective.” Id. And while “Parties may decide for
themselves whether the results of preliminary negotiations
bind them, [ ] they do [so] through their words.” Id. (citation
omitted).
Here, the words of the term sheet reveal no ambiguity as
to the parties’ intent. The document speaks of general goals—
not obligations—and it fails to identify definite and certain
terms binding PartScription and Marcone. It does not

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14 No. 22-1359
adequately establish that the parties promised anything to
one another, precluding a determination of whether each
party lived up to its side of the bargain. So, like Empro Manu-
facturing Co., this case is properly resolved at the motion to
dismiss stage.
As we explained in Empro Manufacturing Co., “Letters of
intent and agreements in principle often, and here, do no
more than set the stage for negotiations on details. Sometimes
the details can be ironed out; sometimes they can’t.” Id. at 426.
Yet Illinois law “allows parties to approach agreement in
stages, without fear that by reaching a preliminary under-
standing they have bargained away their privilege to disagree
on the specifics.” Id. We do not deny that Price and Marcone
representatives engaged in serious negotiations, but they
were only preliminary. The November handshake and ensu-
ing term sheet credibly demonstrate that the parties were con-
sidering going into business together. Nevertheless, Part-
Scription’s complaint does not plausibly allege anything be-
yond that conclusion. The parties’ agreement to the term sheet
did not create a valid contract.
Borg-Warner Corp. v. Anchor Coupling Co., which PartScrip-
tion cites, is not to the contrary. 156 N.E.2d 513 (Ill. 1958).
There, defendants sent plaintiff Borg-Warner a detailed op-
tion offer, which cabined a few terms to be decided upon later.
Id. at 514–15. The defendants assured Borg-Warner that if it
accepted the option in the time allotted, they were “willing to
enter into a contract” based on the terms in the letter. Id. at
515. After Borg-Warner undertook an expensive survey of the
target company in reliance on the letter, it formally accepted
the offer. Id. at 515, 517 The defendants refused to consum-
mate the transaction, and Borg-Warner sued. Id. at 515.

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No. 22-1359 15
Reviewing the case, the Supreme Court of Illinois deter-
mined that the letter contained enough definite terms to plau-
sibly create a binding contract. Id. at 518. Per that court, the
letter indicated that the parties agreed upon the purchase
price and many additional terms of sale. Id. at 514, 517–18. The
identified open terms were also not so material as to “pre-
clude the existence of an enforceable contract” as a matter of
law. Id. at 517. Still, the court recognized that there was ambi-
guity as to the parties’ intentions for the designated open
terms. Specifically, it was unclear whether or not the parties
intended to resolve the “four very minor” open terms as a
condition precedent to contract formation. Id. at 515–16. An-
swering that ambiguity required a trier of fact. Id. at 517–18.
This case’s facts differ from those of Borg-Warner. There,
the court determined that the letter of intent contained
enough definite and certain terms as to plausibly constitute a
contract. Id. at 516–17. Indeed, the court stated, “We are of the
opinion that on the allegations of the complaint, the trier of
fact could find that there was a binding contract of sale in the
instant case.” Id. at 518. It was plausible from the complaint in
that case that the parties had executed a contract; the only
question was how to interpret the parties’ intent with respect
to the minor open terms.
Here, the complaint, which fails to adequately plead defi-
nite and certain terms, falls short of plausibly alleging the ex-
istence of a valid and enforceable contract. Unlike the facts of
Borg-Warner, the term sheet and surrounding conversations
do not leave just a few immaterial terms undecided. Instead,
the term sheet speaks in nonbinding expository language, and
the complaint otherwise fails to identify concrete obligations
between the parties.

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16 No. 22-1359
A final case, Rankin v. Hokja, merits discussion, because it
demonstrates how definite and certain terms operate in the
context of an agreement to form a partnership. 355 N.E.2d 768
(Ill. App. Ct. 1976). Two men “agreed to form a joint venture,”
and exchanged reciprocal promises to that effect. Id. at 770.
Plaintiff Rankin promised to supervise construction of the
business’s building, obtain a tenant, and pay a disputed
amount of cash into the joint venture; for his part, defendant
Hojka pledged to convey a parcel of land into a trust jointly
owned with Rankin. Id. The agreement there resulted in liti-
gation when Hojka refused to transfer the land and claimed
that Rankin had not paid his promised share of cash. Id. at
770–72. After a bench trial, the state court found that the par-
ties had formed a valid contract, that Rankin had substantially
performed, and that Hojka had breached his obligations. Id.
at 772. On review, the Illinois appellate court affirmed those
findings. Id. at 777.
The Rankin case features the kind of concrete terms miss-
ing from this case. Both parties took on definite obligations
through their oral agreement to form the joint venture. Id. at
770. The dispute in Rankin was over the details of a particular
term—how much cash Rankin promised to contribute. The
existence of a contract was established. Id. at 770, 772–73.
Here, the term sheet fails to identify any concrete, definite ob-
ligations owed between PartScription and Marcone analo-
gous to those in Rankin, so there is no contract as a matter of
law.
The district court held that PartScription’s complaint
“does not allege an enforceable agreement to form a partner-
ship,” and we agree. Taking all PartScription’s allegations as
true, the complaint falls short of plausibly alleging a breach of

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No. 22-1359 17
contract claim. Given that PartScription fails to allege the ex-
istence of a valid contract, we do not examine the other ele-
ments of the breach of contract claim, such as performance,
breach, and damages.
III
We review next PartScription’s request to amend its com-
plaint. As stated, the district court dismissed PartScription’s
original complaint with prejudice and entered final judgment.
In doing so, the district court did not allow PartScription an
opportunity to amend its complaint. With final judgment en-
tered, PartScription filed a motion under Federal Rule of Civil
Procedure 59(e) seeking reconsideration of the district court’s
dismissal order, or in the alternative, leave to amend the com-
plaint. PartScription included a proposed amended com-
plaint with its motion. The district court denied that motion
as well, finding that any amendment would be futile.
This court reviews a district court’s “denial of a Rule 59(e)
motion for reconsideration and denial of a motion for leave to
amend for abuse of discretion.” O’Brien v. Vill. of Lincolnshire,
955 F.3d 616, 628 (7th Cir. 2020) (citation omitted). Generally,
Rule 59(e) relief is considered extraordinary, but “we still re-
view post-judgment motions for leave to amend according to
Rule 15 in situations, like this one, where a district court en-
ters judgment at the same time it first dismisses a case.”
NewSpin Sports, LLC v. Arrow Elecs., Inc., 910 F.3d 293, 310 (7th
Cir. 2018) (citation omitted). This is because a district court’s
simultaneous dismissal of a complaint and entry of judgment
forecloses a plaintiff from seeking amendment via Rule 15(a).
O’Brien, 955 F.3d at 629 (citing NewSpin Sports, 910 F.3d at
310). PartScription was not afforded a chance to amend before

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18 No. 22-1359
the district court entered judgment, so the Rule 15 standard
governs.
Rule 15(a) provides that a court “should freely give leave
[to amend] when justice so requires.” F ED. R. C IV. P. 15(a)(2).
Regardless, a district court may deny leave to amend if
amendment would be futile. Gen. Elec. Cap. Corp. v. Lease Re-
sol. Corp., 128 F.3d 1074, 1085 (7th Cir. 1997); Foman v. Davis,
371 U.S. 178, 182 (1962). The district court made that precise
finding, and we now review its analysis.
When evaluating a district court’s denial of leave to amend
based on futility, we apply “the legal sufficiency standard of
Rule 12(b)(6) to determine whether the proposed amended
complaint fails to state a claim.” Runnion ex rel. Runnion v. Girl
Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 524 (7th Cir.
2015). Consequently, our review of whether the district court
abused its discretion “includes de novo review of the legal ba-
sis for the futility.” Nowlin v. Pritzker, 34 F.4th 629, 635 (7th Cir.
2022) (quoting Runnion, 786 F.3d at 524).
After review of PartScription’s proposed amended com-
plaint, we agree with the district court that amendment is fu-
tile. Simply put, the additions fail to provide the missing def-
inite and certain terms. At most, the proposed amended com-
plaint offers supplemental information about what the parties
considered to be important next steps. For instance, one new
section reads: “[The parties] discussed that the only addi-
tional steps required of Marcone to form the new PSM part-
nership according to the Term Sheet would be to cooperate
with PartScription in integration of PartScription’s customers
and vendors into Marcone’s existing platform … .” That lan-
guage describes a conversation, but it does not allege that the
parties promised to undertake obligations. Because

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No. 22-1359 19
amendment would be futile, the district court properly de-
nied PartScription’s Rule 59(e) motion.
* * *
For these reasons, we A FFIRM the judgment of the district
court.

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