The opinion of the court was delivered by: Robert W. Gettleman United States District Judge
Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Lauren Hobson filed a five-count second amended complaint against her previous employer, Tishman Speyer Properties, L.P. ("Tishman Speyer"), and her direct supervisor, Lenny Sciascia ("Sciascia"), in his individual capacity. The complaint alleged sexual harassment, gender discrimination, and retaliation by Tishman Speyer in violation of plaintiff's rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. (Counts I and II, respectively); common-law assault and battery by Tishman Speyer and Sciascia (Count III); common-law intentional infliction of emotional distress ("IIED") by Tishman Speyer and Sciascia (Count IV); and retaliatory discharge by Tishman Speyer in violation of public policy under Illinois law (Count V). Sciascia has moved to dismiss Counts III and IV under the Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). Since Sciascia filed his motion to dismiss, plaintiff has filed a third amended complaint on July 22, 2008, voluntarily dismissing Counts III and V. Therefore, the court will consider only Sciascia's motion as to plaintiff's claim of IIED (Count IV of the second amended complaint and Count III of the third amended complaint).*fn1 For the reasons discussed below, Sciascia's motion to dismiss is granted.
Plaintiff first filed her claim on October 10, 2007, when she filed a five-count complaint in federal court against her former employer Tishman Speyer and her former supervisor at Tishman Speyer, Lenny Sciascia. Counts I (gender discrimination and sexual harassment) and Count II (retaliation) were brought pursuant to Title VII against defendant Tishman Speyer. Counts III (assault and battery) and Count IV (intentional infliction of emotional distress) were brought pursuant to Illinois state common law against all defendants. Count V (retaliatory discharge) was brought pursuant to Illinois state common law against Tishman Speyer. On December 3, 2007, the court dismissed her Title VII claims without prejudice because she had not yet received a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"), a prerequisite to suit in this court under Title VII. The court also declined supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(c)(3).
After plaintiff obtained the right-to-sue letter, she re-filed her suit as a first amended complaint in this court on February 5, 2008. Plaintiff included only the Title VII claims against defendant Tishman Speyer in the first amended complaint.*fn3 She did not assert any state law claims against Sciascia despite repeated references to him as a defendant in the caption, preamble and body of the text.
On March 20, 2008, plaintiff filed a second amended complaint and added the original state law claims against both Tishman Speyer and Sciascia. On July 22, 2008, plaintiff filed a third amended complaint retaining Count I (Title VII - gender discrimination and sexual harassment), Count II (Title VII - retaliation), and Count IV (common law - IIED) of the second amended complaint. Pas mentioned above, plaintiff voluntarily withdrew Count III (common law - assault and battery) and Count V (common law - retaliatory discharge).
Sciascia has moved to dismiss Count III (assault and battery) and IV (intentional infliction of emotional distress) of plaintiff's second amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). Sciascia claims that he has never been properly served with process under Rule 4(e)(2) and that Counts III and IV are time barred. Because plaintiff voluntarily dismissed the assault and battery claim in her third amended complaint filed after Sciascia moved for dismissal, the court will consider only his arguments as to the remaining count of IIED.
The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to rule on its merits. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court accepts all well-pleaded allegations of the complaint as true and draws all reasonable inferences in the plaintiff's favor. See McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006). The complaint must, nevertheless, plead sufficient facts to suggest plausibly that the plaintiff is entitled to relief. See Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1965 (2007).
The first issue before the court is whether Count III (common law - intentional infliction of emotional distress) of plaintiff's third amended complaint is time-barred.
Federal law provides that"[t]he period of limitations ... shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." 28 U.S.C. 1267(d). The Illinois Code of Civil Procedure (the "Code") provides for a tolling period of one year following a dismissal by a United States ...