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 ...