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August 4, 2004.

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 ability.

  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 ...

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