United States District Court, N.D. Illinois, Eastern Division
October 13, 2004.
SHELLY PENA, Plaintiff,
NOVARTIS PHARMACEUTICALS CORP. and EARL GATCH, Defendants.
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Shelly Pena was employed by Defendant Novartis
Pharmaceuticals Corp. ("Novartis") as a sales representative from
January 19, 2001 until her termination on June 2, 2003. Defendant
Earl Gatch ("Gatch") was Plaintiff's supervisor at Novartis. As a
result of her termination, Plaintiff filed a five-count Complaint
against Novartis and Gatch, with Counts I though III against
Novartis, and Counts IV and V against Gatch. Before the Court is
Gatch's Motion to Dismiss Count V. For the reasons that follow,
Gatch's motion to dismiss is granted with prejudice as to a
potential tortious interference with contract claim, and granted
without prejudice as to a potential interference with
prospective economic advantage claim. Plaintiff may amend Count V
of her Complaint to plead properly the tort of interference with
prospective economic advantage if she so desires. I. LEGAL STANDARD
In considering a motion to dismiss pursuant to FED. R. CIV. P.
12(b) (6), the court must accept as true all well-pleaded facts
and must draw all reasonable inferences from those allegations in
plaintiff's favor. MCM Partners, Inc. v. Andrews-Bartlett &
Assoc., 62 F.3d 967, 972 (7th Cir. 1995). The district court
shall only dismiss a complaint under Rule 12(b) (6) if it is
beyond doubt that the plaintiff cannot prove any facts that would
entitle him to relief. See id.
In Count V, Plaintiff seeks compensatory and punitive damages
against Gatch, but does not plead a specific cause of action.
Count V, which is untitled, alleges that: (1) Plaintiff had an
employment contract with Novartis; (2) as Plaintiff's supervisor,
Gatch knew of the employment contract; (3) Gatch intentionally
induced Novartis to breach the employment contract with
Plaintiff; (4) Gatch influenced Novartis by "intentionally making
false statements that Plaintiff falsified records"; (5) as a
result, Novartis terminated Plaintiff; and (6) Plaintiff suffered
economic loss and emotional distress.
Under Illinois law, employment relationships without a fixed
duration are presumed to be terminable at will by either party.
See Duldulao v. St. Mary of Nazareth Hosp. Center,
505 N.E.2d 314, 317 (Ill. 1987). The at-will presumption can be overcome if parties demonstrate that they contracted otherwise. Id. at 318.
Gatch initially contends that Plaintiff was an at-will employee
of Novartis and did not have an employment contract. Because
Plaintiff failed to attach a copy of her alleged employment
contract to the pleadings, Gatch, citing Illinois law and case
precedent, argues that Plaintiff is presumed to be an at-will
employee. See 735 Ill. Comp. Stat. 5/2-606 (2004); Moskowitz v.
City of Chicago, 1993 WL 478938 *9-10 (N.D. Ill. 1993);
Miller-Calabrese v. Continental Grain Co., 1997 WL 392340 *7
(N.D. Ill. 1997).
This court, however, has declined to apply Illinois contract
pleading rules to actions filed in federal court. In Mt. Hawley
Ins. Co. v. Guardsmark, Inc., 2001 WL 766874 (N.D. Ill. 2001),
defendant moved to dismiss plaintiff's breach of contract claim
on the basis that the plaintiff had not attached the contract in
question to the pleadings. In denying defendant's motion, the
court noted that federal, rather than state law, should be
applied to such "purely procedural things as pleading." Id. at
*1. The court stated that when a plaintiff pleads the existence
of a written contract in federal court, the plaintiff, "at his
election, may set it forth verbatim in the complaint, attach a
copy as an exhibit, or plead it according to its legal effect."
Id. at *2. See also Arnold v. Janssen Pharmaceutica, Inc.,
215 F.Supp.2d 951, 962 (N.D. Ill. 2002) (stating that unlike state
courts, Federal courts do not require that critical documents be attached to the
Here, Plaintiff did not attach a copy of the alleged employment
contract to the pleadings and did not describe the terms of the
employment contract in the Complaint. Consequently, Plaintiff has
failed to satisfy even the more liberal federal pleading
requirements because she has not either (1) attached the
contract, (2) set forth the contract verbatim in the Complaint,
or (3) plead the contract according to its legal effect. See Mt.
Hawley Ins. Co., 2001 WL 766874 at *1. Thus, Plaintiff has failed
to rebut the presumption that she was an at-will employee and the
Court concludes as a matter of law that she was an at-will
As discussed, Plaintiff's Count V does not specify a particular
cause of action. In supporting memoranda, both parties have
interpreted Count V as an action for tortious interference with a
contractual relations. To establish this claim, plaintiff must
show: (1) the existence of a valid contract with some other
party; (2) defendant's knowledge of the contract; (3) an
intentional and unjustified inducement of a breach of the
contract that causes a subsequent breach of the contract by
another; and (4) resulting damages to the plaintiff. See A-Abart
Elec. Supply, Inc. v. Emerson Elec. Co., 956 F.2d 1399, 1404 (7th
Cir. 1992) (citations omitted). By definition, at-will employment is terminable by either
party. Accordingly, an at-will employee cannot state a claim for
tortious interference with an employment contract. See, e.g.,
Prudential Ins. Co. v. Sipula, 776 F.2d 157, 162 (7th Cir. 1985);
Accurso v. United Airlines, Inc., 109 F.Supp.2d 953, 962 (N.D.
Ill. 2000). This court has previously held that inducement of the
termination of an at-will employment contract constitutes, at
most, interference with a prospective economic advantage, not
interference with contractual relations. See, e.g., Prudential
Ins. Co., 776 F.2d at 162. Thus, to the extent that Count V is
based on the theory that Gatch tortiously interfered with her
employment contract, it is dismissed with prejudice.
In her opposing memorandum, Plaintiff contends that Count V
also asserts a cause of action for interference with a
prospective economic advantage. Gatch does not address this
theory in his supporting memoranda. To establish a claim for
interference with a prospective economic advantage under Illinois
law, a plaintiff must show: "(1) his reasonable expectation of
entering into a valid business relationship; (2) the defendant's
knowledge of the plaintiff's expectancy; (3) purposeful
interference by the defendant that prevents the plaintiff's
legitimate expectancy from ripening into a valid business
relationship; and (4) damages to the plaintiff resulting from
such interference." Fellhauer v. City of Geneva, 568 N.E.2d 870,
878 (Ill. 1991). Unlike the tort of interference with an employment contract, at-will employees may
assert a cause of action for interference with a prospective
economic advantage. See id.; Prudential, 776 F.2d at 162-163;
Mustafa v. Ill. Dept. of Public Aid, 1997 WL 194980 (N.D. Ill.
1997); Otterbacher v. Northwestern U., 838 F.Supp. 1256 (N.D.
Plaintiff has pled facts that, if true, could establish the
elements of interference with prospective economic advantage. For
instance, Plaintiff may have had a reasonable expectation of
continued at-will employment by Novartis. Further, in Count V,
Plaintiff asserted that Gatch knew of the business expectancy,
that he intentionally and unjustifiably induced Novartis to fire
Plaintiff by making false statements that Plaintiff falsified
records, Novartis terminated Plaintiff, and that Plaintiff
suffered damages in the form of lost wages/benefits and emotional
In Sgouros v. Diamond Park Fine Jewelers, 1990 WL 119421, *6
(N.D. Ill. 1990), this court encountered a similar situation and
granted plaintiff leave to amend the complaint to plead properly
interference with a prospective economic advantage. In so
holding, the court noted that the "court has a duty to examine
the complaint to determine if the allegations provide for relief
under any possible theory." Id. at *5 (citations omitted).
Similarly, the Court concludes that it is appropriate in this
case to grant Plaintiff leave to file an Amended Complaint which
properly pleads the tort of interference with prospective economic advantage as
explained above. Accordingly, Gatch's motion to dismiss Count V
on the theory of interference with prospective economic advantage
is granted without prejudice. Plaintiff is given leave to file
an Amended Complaint which properly pleads the tort of
interference with prospective economic advantage under Count V.
For the foregoing reasons, Gatch's Motion to Dismiss is
GRANTED WITH PREJUDICE as to an interference with contract
claim, and GRANTED WITHOUT PREJUDICE as to an interference with
prospective economic advantage claim under Count V.
IT IS SO ORDERED.
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