United States District Court, N.D. Illinois, Eastern Division
August 4, 2004.
DAPHNE BILAL Plaintiff,
ROTEC INDUSTRIES, INC., a Delaware corporation; and ROBERT OURY, individually, Defendants.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the motion of Defendant
Robert Oury to dismiss Counts III-V of the amended complaint. For
the reasons set forth below, the motion is denied.
According to the allegations of the amended complaint, which we
must assume are true for purposes of this motion, Plaintiff
Daphne Bilal is a former receptionist for Rotec. Shortly after
Bilal started at Rotec, Oury, chief executive officer of Rotec,
began making sexual comments about and sexual advances toward
her. He made repeated invitations to Bilal to have dinner with
him, all of which she declined. Bilal told Oury on more than one occasion that his comments made her
uncomfortable and that he should refrain from making them.
Later, Oury allegedly told Bilal that if she had sex with him,
he would make her job at Rotec better. She refused and threatened
to report him to the Equal Employment Opportunity Commission
("EEOC"). According to the complaint, Oury grew angry with Bilal,
called her "a useless tease," and said that he knew what to do
with a tease. Thereafter, he refused to address Bilal's
complaints about not receiving help answering phones at lunchtime
or when she needed to use the restroom. She was required to use a
time clock, even though she was a salaried employee. Oury also
began to make disparaging comments about her professional
In October 2002, Oury began touching Bilal in sexually
suggestive ways, as well as continuing to make sexually charged
remarks. On one occasion, he placed a piece of chocolate from his
mouth into Bilal's and licked his lips. Bilal alleges that Oury
also told her that he wished she would quit so that he could
"have" her and "no one would have anything to say about it." On
or about October 30, 2002, Bilal reported to Oury that her
supervisor had thrown a newspaper at Bilal. The supervisor denied
doing so, and Oury fired Bilal.
On March 12, 2003, Bilal filed a charge of discrimination with
the EEOC complaining of sex discrimination. On September 24, the
agency issued Bilal a letter informing her of her right to sue. She filed the instant action
on December 22, 2003, within 90 days of receiving her right to
sue letter. In March 2004, she filed an amended, five-count
complaint, alleging sex discrimination, retaliation, battery,
assault, and intentional infliction of emotional distress. Two
days after the amended complaint was filed, Rotec filed its
answer as well as a motion to dismiss Count II, which was granted
on June 2.
At the time of the initial motion to dismiss, Oury had not been
served. During the pendency of the briefing on that motion, Bilal
effected personal service on Oury through her attorney.
Approximately three weeks later, Oury moved to dismiss the three
counts naming him as a defendant pursuant to Fed.R. Civ. Proc.
12(b)(1), (2), (4), (5), and (6).
Two points deserve attention before we address the heart of
Oury's motion. First, the motion makes reference to the filing of
the amended complaint without leave of court in such a way as to
imply that its submission was improper. This is incorrect.
Fed.R. Civ. Proc. 15(a) provides that a plaintiff may amend once as a
matter of course before the defendant has filed a responsive
pleading. The docket reflects that no answer or motion responsive
to the original complaint had been filed at the time the amended complaint was submitted. In such a circumstance, there
was no need to for Bilal to request this court's permission to
amend her complaint.
Second, we note that Oury was given until July 19 to file a
reply to Bilal's response. He failed to do so. Consequently, the
issues discussed herein are framed solely by Oury's motion, his
memorandum in support, and Bilal's response.
Having addressed these preliminary matters, we turn our
attention to the substance of Oury's motion.
A. Rule 12(b)(1) Motion to Dismiss
Rule 12(b)(1) provides for dismissal of claims over which the
federal court lacks subject matter jurisdiction. Jurisdiction is
the "power to decide" and must be conferred upon the federal
court. See In re Chicago, Rock Island & Pac. R.R. Co.,
794 F.2d 1182, 1188 (7th Cir. 1986). The plaintiff bears the burden
of establishing that the jurisdictional requirements have been
met. See Kontos v. United States Dept. of Labor,
826 F.2d 573, 576 (7th Cir. 1987). When a party moves for dismissal
pursuant to Rule 12(b)(1), the nonmoving party must support its
allegations with competent proof of jurisdictional facts. See
Thomson v. Gaskill, 315 U.S. 442, 446, (1942).
Oury's 12(b)(1) challenge to Counts III-IV claims that the
complaint does not properly allege a jurisdictional basis for
their inclusion in a federal suit. The three counts, for common
law battery, assault, and intentional infliction of emotional distress, do not present a federal question, so there is no
jurisdiction under 28 U.S.C. § 1331. Bilal and Oury are both
citizens of Illinois, so neither will jurisdiction arise out of
28 U.S.C. § 1332. However, the allegations of the challenged
counts make apparent that they originate in the same nucleus of
operative facts as the federally based Count I. Moreover, they
are of the kind that Bilal would be expected to bring them in a
single judicial proceeding. Thus, Bilal has carried her burden of
showing that these claims could support an exercise of
supplemental jurisdiction. See 28 U.S.C. § 1367; United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138
(1966). Although Oury is correct that the complaint does not
specifically refer to 28 U.S.C. § 1367, Rule 8(a)(1) does not
require formalistic statutory invocations. See Rohler v. TRW,
Inc., 576 F.2d 1260, 1264 (7th Cir. 1978). Of course, a more
optimal pleading would include such a reference, but its omission
is not fatal to the pleading's vitality. See id.
There is an additional consideration on the issue of
jurisdiction that the parties have not addressed that warrants
our attention at this time. Federal courts cannot exercise
supplemental jurisdiction over a state-law claim that courts of
the state cannot themselves recognize. See Al-Dabbagh v.
Greenpeace, Inc., 873 F. Supp. 1105, 1114-15 (N.D. Ill. 1994). In Illinois, when a common-law tort claim is inextricably
linked to a civil rights violation, it is preempted by the
Illinois Human Rights Act ("IHRA"). See Geise v. Phoenix Co.
of Chicago, Inc., 639 N.E.2d 1273, 1277 (Ill. 1994). In a later
case, the Illinois Supreme Court clarified the holding of
Geise, explaining that a tort is not "inextricably linked" to a
corresponding civil rights violation if the facts alleged would
create a cause of action that exists separate and apart from a
civil rights violation as defined by the IHRA. See Maksimovic
v. Tsogalis, 687 N.E.2d 21, 24 (Ill. 1997).
We see no functional difference between the allegations
contained in the complaint and those that were found to be
independent of the IHRA in Maksimovic. See Maksimovic,
687 N.E.2d at 22; see also, e.g., Barnard v. City of Chicago
Heights, 692 N.E.2d 733, 738 (Ill.App. Ct. 1998) (applying
Maksimovic to a claim for intentional infliction of emotional
distress).*fn1 Whether Bilal may ultimately be unable to
prove that Oury violated a legal duty imposed upon him by a
source extricable from the IHRA is of no moment; at this point,
the allegations of the complaint state a cognizable claim. Accordingly, there is no current bar to our
exercise of supplemental jurisdiction over Bilal's state law
claims, and the 12(b)(1) motion to dismiss is denied.
B. Rule 12(b)(2) and 12(b)(5) Motions to Dismiss
Oury next contends that he was never served with a summons in
this case, making Bilal's service of process deficient and
preventing us from obtaining personal jurisdiction over him for
the causes of action listed in the complaint. See Fed.R. Civ.
Proc. 12(b)(2), (5). A Rule 12(b)(5) motion to dismiss tests the
sufficiency of service of process. When a defendant challenges
the sufficiency of service of process, the plaintiff must make a
prima facie showing of proper service, which allows the court to
assert personal jurisdiction over the defendant. See Trotter
v. Oppenheimer & Co., Inc., 1997 WL 102531, at *2 (N.D. Ill.
Mar. 4, 1997). The requirements for proper service on individuals
are established in Rule 4(e).
The docket for this case includes a signed return of service
for Oury indicating that personal service was effectuated on Oury
on May 21, 2004. It is signed by Bilal's attorney, who filed an
affidavit to the same effect in conjunction with Bilal's response
to the instant motion. "A signed return of service constitutes
prima facie evidence of valid service which can be overcome only
by strong and convincing evidence." O'Brien v. R.J. O'Brien &
Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993). As stated, Oury's sole contention is that he never received a
copy of the summons that appears on the docket. Such an
allegation, even if it were contained in an affidavit (which it
is not), is insufficient to counter the "strong and convincing
evidence" presented by the signed return of service Bilal filed
with this court. See Trustees of Local Union No. 727 Pension
Fund v. Perfect Parking, Inc., 126 F.R.D. 48, 52 (N.D. Ill.
Plaintiff's counsel is a proper party to effect service under
Fed.R. Civ. Proc. 4(c)(2). See id. According to the return
of service, counsel personally served Oury with the summons and
complaint. This comports with the dictates of Rule 4. In sum,
Bilal has provided competent proof of proper service, which Oury
has failed to effectively rebut. Thus, there is no basis for
dismissal under Rule 12(b)(5), and our exercise of personal
jurisdiction over Oury is proper.
C. Rule 12(b)(4) Motion to Dismiss
Oury also cryptically alludes to Rule 12(b)(4). In contrast to
Rule 12(b)(5), Rule 12(b)(4) is concerned with the form of the
summons as dictated by Rule 4(a) and 4(b). See 5A Charles Alan
Wright and Arthur R. Miller, Federal Practice and Procedure §
1353. Deficiencies cognizable under Rule 12(b)(4) include errors
in naming the proper defendant, failing to specify the number of
days allotted for defendant to answer, and failure to obtain a
court seal or signature. See O'Brien, 998 F.2d at 1400. A motion challenging sufficiency of process under this rule must
point out specific instances where the plaintiff has failed to
comply with the requirements of Rule 4. See id. Oury has not
pointed out any facial problems with the summons filed with the
court, and, as explained above, he has not provided sufficient
indication that he was served with a summons whose content
differed from the filed copy. As such, a Rule 12(b)(4) dismissal
is not warranted.
D. Rule 12(b)(6) Motion to Dismiss
Lastly, Oury contends that Count V, a state law action for
intentional infliction of emotional distress ("IIED"), fails to
state a claim upon which relief can be granted and therefore must
be dismissed pursuant to Fed.R. Civ. Proc. 12(b)(6). A Rule
12(b)(6) motion to dismiss is used to test the legal sufficiency
of a complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520
(7th Cir. 1990). In ruling on a motion to dismiss, a court must
draw all reasonable inferences in favor of the plaintiff,
construe allegations of a complaint in the light most favorably
to the plaintiff, and accept as true all well-pleaded facts and
allegations in the complaint. Bontkowski v. First Nat'l Bank of
Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v.
Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The allegations
of a complaint should not be dismissed under this rule unless it
is patently clear that the plaintiff cannot prove any set of
facts in support of the claim that could entitle him to relief.
See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Nonetheless, in order to withstand a motion to dismiss, a
complaint must allege the "operative facts" upon which each claim
is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th
Cir. 1998). A pleading need only convey enough information that
the defendant is able to understand the gravamen of the
complaint. Payton v. Rush-Presbyterian-St. Luke's Med. Ctr.,
184 F.3d 623, 627 (7th Cir. 1999).
In Illinois, a claim for IIED is comprised of three elements.
First, a plaintiff must allege that a defendant engaged in
conduct that is truly extreme and outrageous. See McGrath v.
Fahey, 533 N.E.2d 806, 809 (Ill. 1988). Second, the defendant
must either intend to cause the plaintiff severe emotional
distress or know that there is a high probability that the
conduct will cause such distress. See id. Third, the conduct
must actually cause severe emotional distress. See id. Oury
argues that Bilal's allegations fall short on the first element:
IIED claims that allege conduct that is clearly not beyond the
bounds of civilized behavior can be disposed of simply on the
pleadings. However, we do not presently share Oury's view that
the actions alleged within the complaint are so obviously tame
that we can pronounce them not outrageous as a matter of law at
this early stage of the proceedings. The motion to dismiss Count
V is correspondingly denied. CONCLUSION
Based on the foregoing analysis, Oury's motion to dismiss
Counts III-IV of the amended complaint is denied in its entirety.