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October 18, 2004.

TAMI REMIEN and DEBRA FLETCHER, on behalf of themselves and all others similarly situated, Plaintiffs,

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 opportunity.

  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 therefore denied.


  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 ...

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