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ZAKUTANSKY v. BIONETICS CORP.

November 5, 1992

JULIE ZAKUTANSKY, Plaintiff,
v.
BIONETICS CORP., et al., Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 This action has been reassigned to this Court's calendar from that of its former colleague Honorable Ilana Rovner (now elevated to our Court of Appeals). Before the reassignment Judge Rovner had referred two motions to dismiss to Magistrate Judge Edward Bobrick for decision--one motion filed by defendants Bionetics Corporation ("Bionetics") and Dr. John Parks ("Parks"), represented by one law firm, and the other filed by defendants Muhammad Rafique ("Rafique") and William Sabato ("Sabato"), represented by another. Both motions have become fully briefed and are ripe for decision.

 This Court rarely refers motions to dismiss under Fed. R. Civ. P. ("Rule") 12 or motions for summary judgment under Rule 56 to magistrate judges. *fn1" Accordingly it has obtained and reviewed the parties' memoranda to determine whether there is any need for the intervention of two levels of judicial consideration as to the sufficiency of the First Amended Complaint (the "Complaint") filed by Julie Zakutansky ("Zakutansky"). There is not, and this opinion will deal with the issues in comparatively brief compass. *fn2" It will eschew any detailed rehearsal of Zakutansky's allegations, instead turning directly to defendants' arguments.

 Pleading Matters

 One way in which Bionetics-Parks take issue with the Complaint is by challenging its inclusion of some allegations "on information and belief." According to defendants (principally citing the opinion of another of this Court's colleagues, Honorable George Lindberg, in Gallagher v. Kopera, 789 F. Supp. 277, 278 (N.D. Ill. 1992)), that form of pleading violates Rule 11.

 Stated as an ironclad principle, that really makes no sense at all. *fn3" Rule 11's mandate of prefiling inquiry has not altered the obvious truth that some matters are inherently within the knowledge of defendants rather than plaintiffs. And even apart from facts of that nature, there may be perfectly good reasons to support the filing of a lawsuit based on information rather than buttoned-down knowledge. Indeed, if a plaintiff has alleged something on information and belief that could have been learned by prefiling inquiry and that proves to be true in fact, no defendant can complain--and if it turns out that the allegation is false, that does not impair the validity of the pleading (remember that the allegations of the Complaint must be accepted as true for Rule 12(b)(6) purposes)--though it might under some circumstances subject plaintiff or plaintiff's counsel or both to sanctions under Rule 11.

 Somewhat relatedly, Bionetics-Parks R. Mem. 1 & n.1 also criticize Zakutansky for having advanced some added facts in her own responsive Memorandum rather than in the Complaint (citing in support of that proposition Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) *fn4" ). It is of course true that a Rule 12(b)(6) motion must be tested against the complaint itself, and not with reference to matters extraneous to the pleading. But the applicable standard is a generous one, as stated in Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984):

 At this stage of the litigation, we must accept petitioner's allegations as true. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.

 That is the measure that this opinion will apply. *fn5"

 Count I

 Zakutansky sues three of the four defendants--Bionetics, Sabato and Parks--in Count I for alleged sexual harassment. On that score the law in this Circuit is well set out in Daniels v. Essex Group, Inc., 937 F.2d 1264, 1270-71 (7th Cir. 1991) and Brooms v. Regal Tube Co., 881 F.2d 412, 418-19 (7th Cir. 1989) (taking their cue, of course, from Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). Bionetics-Parks R. Mem. 4-5 improperly urges this Court to make a ruling of insufficiency of the Complaint's allegations as a matter of law. *fn6"

 One respect in which Bionetics-Parks do have the better of it, however, has to do with the applicability of the Civil Rights Act of 1991 to Zakutansky's Title VII claims (as advanced in Counts I and V), which would bring into the case a jury trial and claims for compensatory and punitive damages. In that respect our Court of Appeals has not yet spoken expressly to the situation here--one in which the charged conduct preceded the effective date of the 1991 Act, but the suit was filed after that effective date. However, the strong signal from Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir. 1992) is that the timing of the assertedly discriminatory conduct, and not the date when suit was filed, is the determinative date. As have most (if not all) of its colleagues who have written on the subject, this Court grants the motion to dismiss those aspects of Zakutansky's prayer for relief, obviously without prejudice to their reinstatement if before trial our Court of Appeals (or of course the Supreme Court) were to announce a different rule.

 That ruling also leads to another partial rejection of the Count I claim. Title VII liability runs against "employers," a principle reconfirmed by the nature of the relief that it affords. Where as here Zakutansky's termination took the form of Parks' acceptance of her resignation, the fact that Sabato was not a decisionmaker as to any possible termination of her employment (either at Bionetics' instance or in accepting her resignation) calls for his dismissal as a Count I defendant. At least for the present, however, Parks will remain as a defendant in Count I, but only in his individual capacity (not in ...


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