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Jones v. Hoosman

May 9, 2006

NEDRA JONES, PLAINTIFF,
v.
EMMIT Q. HOOSMAN DEFENDANT.



The opinion of the court was delivered by: Marvin E. Aspen District Judge

MEMORANDUM ORDER AND OPINION

Presently before us is defendant Emmit Q. Hoosman's motion to dismiss Count I of plaintiff Nedra Jones's first amended complaint, Jones' motion for taxation of costs, and Hoosman's motion to strike the jury demand insofar as it relates to piercing the corporate veil. For the reasons set forth below grant Hoosman's motion to dismiss, Jones' motion for costs of service, and Hoosman's motion to strike the jury demand in part.

BACKGROUND

On May 10, 2005, Jones filed a two count complaint against Hoosman alleging sexual harassment, gender discrimination, and hostile work environment (Count I) and retaliation for filing complaints with the Illinois Human Rights Division ("IHRD") and the EEOC (Count II). (Compl. ¶¶ 1-29.) In response, Hoosman filed a motion to dismiss for lack of subject matter jurisdiction, failure to state a claim upon which relief may be granted, expiration of the statute of limitations, and discharge in bankruptcy. ( Mot. to Dismiss ¶¶ 1-60.) We dismissed Count I because a plain reading of the complaint indicated that the limitations period elapsed. (Mem. Op. at 6-9.) However, we granted Jones leave to file an amended complaint if she could allege a basis for waiver, equitable estoppel or tolling of the statute of limitations. (Id. at 7, n.4.)

Jones filed an amended complaint on November 29, claiming that Hoosman misrepresented and fraudulently concealed that the corporation was merely his alter ego, thus depriving her of notice of a potential cause of action within the statute of limitations.*fn1 (Am. Compl. ¶¶ 5-15.) Hoosman now seeks to dismiss the amended complaint, alleging, inter alia, that Jones did not plead fraud with specificity and that she failed to properly allege piercing the corporate veil.*fn2 (Mot. to Dismiss Am. Compl. (hereinafter "Mot.") ¶ 24.) Jones counters by arguing that fraudulent concealment is not fraud and thus not subject to Rule 9(b) and, in the alternative, that the complaint satisfies the heightened pleading requirements for fraudulent concealment and an alter ego theory. (Resp. to Mot. at 3-5.)

STANDARD OF REVIEW

"The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits." Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) (quotation omitted). A complaint is required to provide only a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(e)(2), unless the pleading avers fraud, in which case, the complaint must state the circumstances constituting the fraud with particularity. Fed. R. Civ. P. 9(b). In reviewing a complaint falling within the ambit of Rule 9(b), we consider the purposes for requiring heightened pleading, such as protecting a defendant's reputation and eliminating conclusory complaints filed as a pretext for engaging in a fishing expedition. See Builders Bank v. First Bank & Trust Co. of Illinois, No. 03 C 0459, 2004 WL 2415053, at *3 (N.D. Ill. Oct. 27, 2004); see also Dexia Credit Local v. Rogan, No. 02 C 8288, 2003 WL 22349111, at *10 (N.D. Ill. Oct. 14, 2003) ("[T]he overall purposes of Rule 9(b) ... are to protect defendants from the harm of false accusations, minimize 'fishing expeditions,' and provide defendants with adequate notice."). Nonetheless, when a defendant has control over necessary information and discovery has not commenced, courts are more lenient in regards to the degree of specificity in the pleadings. See Stap v. Chicago Aces Tennis Team, Inc., 63 Ill. App. 3d 23, 29-30, 379 N.E.2d 1298, 1303 (1st Dist. 1978).

ANALYSIS

I. Motion to Dismiss for Failure to Plead with Specificity

In her amended complaint, plaintiff argues that we should disregard the statute of limitations because Hoosman fraudulently concealed or misrepresented that he was the corporation's alter ego. Jones relies upon the same allegations to support both elements (fraudulent concealment and alter ego) justifying equitable estoppel. We find that those allegations do not satisfy Rule 9(b)'s heightened pleading requirements.*fn3

Allegations of fraudulent concealment and alter ego in the context of fraud must be pled with specificity.*fn4 To adequately plead a basis for piercing the corporate veil under an alter ego theory, Jones must allege "(1) such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist; and (2) circumstances must exist such that adherence to the fiction of a separate corporate existence would sanction a fraud, promote injustice, or promote inequitable consequences." Typographics Plus, Inc. v. I.M. Estrada, No. 98 C 886, 2000 WL 1006572, at *4 (N.D. Ill. Jul. 19, 2000). To sufficiently plead fraudulent concealment for purposes of tolling the statute of limitations in Illinois, Jones must allege:

(1) there was concealment of a material fact;*fn5 (2) the concealment was intended to induce a false belief, under circumstances creating a duty to speak; (3) the innocent party could not have discovered the truth through a reasonable inquiry or inspection and relied upon the silence as a representation that the fact did not exist; (4) the concealed information was such that the injured party would have acted differently had [s]he been aware of it; and (5) reliance by the person from whom the defendant concealed the fact led to h[er] injury.

Triple Canopy, Inc., 2005 WL 1629768, at *12. Additionally, plaintiff must show due diligence in discovering the cause of action before the statute of limitations expired. See Greer, 2002 WL 1732366, at *2. Moreover, in order to comply with Rule 9(b), Jones must describe the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff. The absence of any necessary detail renders the pleading deficient.*fn6 Polansky, 2005 WL 3557858, at *7.

The amended complaint uniformly fails to comply with Rule 9(b). Jones includes six paragraphs of conclusory allegations to support her claims. (Am. Compl. ΒΆΒΆ 4-5, 7-8, 9, 15.) For ...


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