Volling v. Antioch Rescue Squad

999 F. Supp. 2d 991, 2013 WL 6254254, 2013 U.S. Dist. LEXIS 170064
CourtDistrict Court, N.D. Illinois
DecidedDecember 3, 2013
DocketNo. 11 C 04920
StatusPublished
Cited by33 cases

This text of 999 F. Supp. 2d 991 (Volling v. Antioch Rescue Squad) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Volling v. Antioch Rescue Squad, 999 F. Supp. 2d 991, 2013 WL 6254254, 2013 U.S. Dist. LEXIS 170064 (N.D. Ill. 2013).

Opinion

MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge

Plaintiffs Sharon Volling, Julie Banser, and April Soulak allege that they were subjected to sexual harassment, sex discrimination, retaliation, and assault and battery at the hands of co-workers and supervisors while they worked for the Antioch Rescue Squad, a private, non-profit provider of emergency medical and ambulance services in the Village of Antioch, Illinois. The squad is jointly operated and staffed by the two defendants. In an earlier decision, with which the Court assumes the reader’s familiarity, the Court dismissed the counts brought under 42 U.S.C. § 1988 with prejudice and their state-law counts, alleging negligent retention and supervision, without prejudice. In the Third Amended Complaint (Dkt. # 80), the plaintiffs re-plead their negligence counts and add counts of assault and battery; they also reprise their allegations of sexual harassment, sex discrimination, and retaliation under Title VII and the Illinois Human Rights Act (“IHRA”). Only plaintiff Banser brings claims against ARS, the other plaintiffs having satisfied their claims pursuant to an offer of judgment; with this distinction in mind, the Court will refer to the “plaintiffs” collectively throughout this decision. Each defendant now moves to dismiss the Third Amended Complaint; Metro furthers moves to strike what it claims are inflammatory and irrelevant allegations. The motions are granted in part and denied in part for the reasons set forth below.

DISCUSSION

A motion under Rule 12(b)(6) challenges a complaint’s sufficiency to state a claim upon which relief may be granted. Hollinan v. Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir.2009). To survive a motion to dismiss, a complaint must set forth enough factual detail give the defendant fair notice of the claims and the grounds upon which they rest, and the allegations must add up to a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. v. Twombly, 550 U.S. 544, 545, 555-57, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Engel v. Buchan, 710 F.3d 698, 709 (7th Cir.2013). For purposes of the motions to dismiss, “[a]ll well-pleaded allegations in the plaintiffs’ complaint are accepted as true, and all reasonable inferences are drawn in their favor.” Navarro v. Neal, 716 F.3d 425, 429 (7th Cir.2013). The Court will not attempt to summarize the factual allegations in the 223-paragraph Third Amended Complaint, and instead will refer the plaintiffs’ specific allegations as necessary to address the defendants’ arguments.

[996]*996I. State-Law Tort Claims

In Counts XIII(a) and XlII(b),1 XIV, XV, the plaintiffs allege that the defendants were negligent because they knew of but failed to prevent or stop misconduct by their employees — including assault, battery, and harassment — that caused harm to the plaintiffs and others, and retained and failed to discipline the “unfit” employees after becoming aware of their misconduct. The defendants challenge the negligence counts on several grounds: lack of standing, preemption, timeliness, and (for lack of a better term) double-pleading. The Third Amended Complaint also adds state-law counts of assault and battery (Counts XVI-XVIII2) premised on the plaintiffs’ allegations that the defendants’ employees, including Kyle Shouse and Chris McBrady, grabbed, touched, groped, slapped, or otherwise offensively touched them, and placed them in reasonable fear of imminent offensive contact. The defendants move to dismiss these counts because, they argue: (1) they cannot be held vicariously liable for conduct outside of the scope of employment; and (2) the claims are preempted.

A. Pleading Requirements

Although the plaintiffs have divided their allegations into separate counts corresponding to various legal theories, and the defendants attack the complaint count by count, it bears noting at the outset that this common approach to litigating motions to dismiss tends to obscure the critical difference between “claims,” which explain the plaintiffs grievance and demand relief, and “counts,” which describe legal theories by which those facts purportedly give rise to liability and damages. See NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir.1992). Pleading in counts, although common and frequently helpful, is not required unless “doing so would promote clarity” as to “each claim founded on a separate transaction or occurrence.” See F. R. Civ. P. 10(b) (emphasis added); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir.2011). Indeed, it is axiomatic that a plaintiff is not required to plead legal theories, period. See Jajeh v. County of Cook, 678 F.3d 560, 567 (7th Cir.2012) (hostile work environment claim pleaded where complaint never used that term). Nothing in Twombly or Iqbal changes that tenet: those cases “do not undermine the principle that plaintiffs in federal courts are not required to plead legal theories.” Hatmaker v. Memorial Med. Ctr., 619 F.3d 741, 743 (7th Cir.2010); Alioto, 651 F.3d at 721 (“[W]e have stated repeatedly (and frequently) that a complaint need not plead legal theories, which can be learned during discovery.”).

That is why a motion to dismiss should be filed (and granted) when the facts in the plaintiffs complaint, taken as true, do not state a plausible claim under any “recognized legal theory.” See Richards v. Mitcheff, 696 F.3d 635, 638 (7th Cir.2012). That is true whether or not the plaintiff includes her theories of relief in the complaint; because plaintiffs are not required to do so, it follows that specifying an incorrect theory is not fatal. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992). “Identifying legal theories may assist defendants and the court in seeing how the plaintiff hopes to prevail, but this organization does not track the idea of ‘claim for relief in the federal rules.” NAACP, 978 F.3d at 292.

[997]*997The import of all this is that “[o]ne set of facts producing one injury creates one claim for relief, no matter how many laws the deeds violate.” Id. And in this case, when it comes to various state-law “claims” that the defendants seek to vanquish in their motions to dismiss, the Court notes that these “claims” are all premised on the same core set of facts, as evidenced by the integration of all of the factual allegations into every count of the complaint. Thus, although it is true that a count based on a negligence theory

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999 F. Supp. 2d 991, 2013 WL 6254254, 2013 U.S. Dist. LEXIS 170064, Counsel Stack Legal Research, https://law.counselstack.com/opinion/volling-v-antioch-rescue-squad-ilnd-2013.