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December 5, 1991

DRIVEAWAY AND TRUCKAWAY SERVICE, INC., an Illinois corporation, and JAMES P. BURKE, JR., Plaintiffs,
AARON DRIVEAWAY & TRUCKAWAY COMPANY, INC., a New York corporation, and AANTHONY'S DRIVEAWAY TRUCKAWAY CO., INC., a New Jersey corporation, Defendants.


The opinion of the court was delivered by: CHARLES P. KOCORAS

CHARLES P. KOCORAS, District Judge:


 Truckaway is a New York corporation engaged in the business of transporting vehicles throughout the United States. It also retains agency relationships in a number of states for the purpose of conducting automotive transport services on its behalf. Plaintiff-Truckaway Service, Inc., on the other hand, is an Illinois corporation. Jurisdiction is based on diversity.

 The plaintiffs, James P. Burke and Driveaway and Truckaway Service, Inc. ("Plaintiffs"), brought a two count complaint against Truckaway. Plaintiffs' complaint alleges that on approximately July, 1 1990 the Plaintiffs entered into an oral agency agreement with Truckaway for the purpose of operating an exclusive Chicago-Area Aaron Driveaway Service agency. The complaint further alleges that in reliance upon this agreement, Plaintiffs formed an Illinois corporation called Driveaway, Inc. in mid-July of 1991. Also in reliance upon the agreement, Plaintiffs procured capitalization, entered into a lease agreement, and made improvements upon the leasehold. Still other expenses included purchasing liability and worker's compensation insurance, employing and compensating persons to transport automobiles, and providing wages and insurance for drivers.

 Only Count II of the complaint, which is styled "Breach of Agency Agreement--Termination," is relevant for purposes of Truckaway's motion. It alleges that Truckaway terminated the oral agreement "in violation of the parties' agreement that the agency relationship would remain in full force and effect so long as Plaintiffs complied with lawful company procedures and fulfilled its obligations." Count II further alleges that Truckaway terminated the agreement because Plaintiffs refused to participate in a number of illegal schemes and that such termination was wrongful, malicious, and without justification. These alleged illegal schemes included violations of both the Illinois Commerce Commission regulations and Interstate Commerce Commission requirements, in addition to an illegal checking scheme that purportedly violated both state and federal tax laws. As relief for Truckaway's alleged breach and retaliatory discharge, Plaintiffs seek $ 275,000 in compensatory and $ 250,000 in punitive damages.

 Truckaway's motion seeks to strike Plaintiffs' prayer for punitive damages pursuant to Federal Rule of Civil Procedure 12(f). Truckaway argues that Plaintiffs' Count II fails to plead an independent tort. More specifically, Truckaway argues that Plaintiffs cannot properly plead an action for retaliatory discharge since Plaintiffs were never Truckaway employees. Accordingly, Truckaway seeks to strike Plaintiffs' prayer for punitive damages.


 Truckaway's motion presents two issues. The first issue is whether Plaintiffs have properly pleaded an employment relationship with Truckaway such that they can seek punitive damages pursuant to a retaliatory discharge claim against Truckaway under established precedent. If Plaintiffs have not established that they were employees of Truckaway, we must decide whether the tort of retaliatory discharge should extend to agents whose services are wrongfully terminated by their principals. As a threshold matter, however, we must address the proper nature of Truckaway's motion.

 A. Truckaway's Motion

 Truckaway has incorrectly styled its motion as a motion to strike pursuant to Rule 12(f). Rule 12(f) provides that a "court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Plaintiffs' prayer for punitive damages is neither a defense, redundant, immaterial, impertinent, nor scandalous. Accordingly, Rule 12(f) is inapplicable. Instead of relying on Rule 12(f), Truckaway should have filed their motion pursuant to Rule 12(b)(6) as a motion to dismiss. See Peterson v. Baloun, 715 F. Supp. 212, 213-14 (N.D. Ill. 1989); Professional Asset Mgt., Inc. v. Penn Square Bank, 566 F. Supp. 134, 136 (W.D. Okla. 1983). In accordance with this precedent, we view Truckaway's motion as a motion to dismiss.

 In filing a 12(b)(6) motion, Truckaway must satisfy a high standard. The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits of the case. Under the "simplified notice pleading" of the Federal Rules of Civil Procedure, the complaint's allegations should be construed liberally, and "the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984).

 When considering a defendant's motion to dismiss the Court must view the complaint's allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Conley, 355 U.S. at 45. All well-pleaded facts and allegations in the plaintiff's complaint must be taken as true, Ed Miniat, Inc. v. Globe Life Inc Group, Inc., 805 F.2d 732, 733 (7th Cir. 1986), cert. denied, 482 U.S. 915, 96 L. Ed. 2d 676, 107 S. Ct. 3188 (1987), and the plaintiff is entitled to all reasonable inferences that can be drawn therefrom. Ellsworth v. Racine, 774 F.2d 182, ...

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