United States District Court, N.D. Illinois, Eastern Division
October 18, 2004.
TAMI REMIEN and DEBRA FLETCHER, on behalf of themselves and all others similarly situated, Plaintiffs,
EMC CORPORATION, Defendant.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the motions of Defendant
EMC Corporation ("EMC") to dismiss and for a more definite
statement. For the reasons set forth below, Plaintiffs are
granted leave to amend their complaint, thus mooting the motion
to dismiss. The motion for a more definite statement is denied.
Plaintiffs Tami Remien and Debra Fletcher (collectively
referred to as "Plaintiffs") are former employees of EMC, which
produces computer hardware, software, networks, and related
services worldwide. EMC's workforce numbers in the tens of thousands, and the company maintains around 100 sales
offices in several states.
In brief, the complaint at issue alleges that EMC unlawfully
discriminated against Remien and Fletcher because of their sex.
It contends that EMC engaged in a pattern of illegal conduct with
respect to Plaintiffs and a putative class of other female
employees. Plaintiffs have amended their complaint once, and EMC
has answered that complaint in its entirety. EMC has moved to
dismiss one count that applies to Plaintiffs individually, as
well as requesting a more definite statement with respect to the
potential scope of the membership of the putative class.
A. Motion to Dismiss Count IV
First, we examine EMC's challenge to the cognizability of Count
IV of the first amended complaint, which purports to state a
claim for intentional infliction of emotional distress. In their
response, Plaintiffs acknowledge the deficiencies in Count IV and
request a Rule 41(a)(2) voluntary dismissal of that count.
However, the rule they have chosen is ill-fitted for the relief
they seek; by its own terms Rule 41(a) applies only to voluntary
dismissal of an "action." See Berthold Types Ltd. v. Adobe
Systems, Inc., 242 F.3d 772, 777 (7th Cir. 2001). As Plaintiffs
want to eliminate only a single count, the proper procedural
vehicle and analytic framework for their request is found in Rule 15(a). See Loufty v. R.R. Donnelly & Sons,
148 F.R.D. 599, 602 (N.D. Ill. 1993).*fn1
Rule 15(a) provides that leave to amend a complaint "shall be
freely given when justice so requires." Reasons sufficient to
deny leave to amend include "undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, [or]
futility of amendment," Foman v. Davis, 371 U.S. 178, 182,
83 S. Ct. 227, 230 (1962). We do not detect any of these obstacles
in the present case, and EMC has not supplied any support to the
contrary. In fact, EMC does not dispute Plaintiffs' ability to
eliminate Count IV; it only requests that Plaintiffs be required to pay its fees and costs incurred in
bringing the motion to dismiss, apparently as a "term and
condition" of dismissal pursuant to Rule 41(a)(2). As discussed
above, Rule 41(a)(2) does not apply to these circumstances, and
there is no provision within Rule 15(a) that is analogous to the
section of Rule 41 upon which EMC relies.*fn2 Justice
requires that Plaintiffs be given leave to amend their complaint
to withdraw Count IV, and we accordingly afford them that
B. Motion for a More Definite Statement
EMC's second motion targets the scope of the putative class.
Initially, EMC contended that the allegations of the First
Amended Complaint were vague and inconsistent in describing the
class of employees potentially within its scope. Specifically, EMC claimed that it could not tell if the class was
limited to female employees within EMC's sales and "professional
services" departments or if it included every current and former
female employee of EMC who allegedly suffered some form of
discrimination because of their sex or retaliation for opposing
the same. Plaintiffs responded, both informally and within the
context of the proceedings on this motion, that the class
allegations are limited to the narrower of the two alternatives.
Nevertheless, EMC asserts in its reply that Plaintiffs'
response is still insufficient to allow the parties to engage in
efficient and reasonable discovery efforts and continues to press
for further detail pursuant to Rule 12(e). EMC misunderstands the
purpose of the rule, which is to provide a remedy for a defendant
faced with a pleading that is "so unintelligible that the movant
cannot draft a responsive pleading," thus undermining the notice
function of the complaint. See U.S. for Use of Argyle Cut
Stone Co., Inc. v. Paschen Contractors, Inc., 664 F.Supp. 298,
303 (N.D. Ill. 1987). As the Paschen court aptly noted, Rule
12(e) motions do not function as substitutes for discovery,
requiring a party to flesh out its preliminary assertions to the
satisfaction of its opponent before the case can proceed out of
the pleadings stage. See id. Out of the 82 paragraphs
contained in the First Amended Complaint, EMC asserted that only
12 were vague in whole or in part. A review of the "offending"
portions of the complaint reveals that, with the clarifying
representations Plaintiffs have now made, the first amended complaint is sufficient to put EMC on notice of the
claims asserted against it. Thus, there is no need for relief
under Rule 12(e), and the motion for a more definite statement is
Based on the foregoing analysis, EMC's motion for a more
definite statement is denied. Plaintiffs are granted leave to
amend their complaint to withdraw Count IV, and EMC's motion to
dismiss that count is denied as moot.