The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Defendants McLean County Unit District No. 5 ("School District"), Braksick, Chapman, Heidbreder, and Pye previously filed Motions to Dismiss and Defendants School District and Heidbreder previously filed Motions to Strike Plaintiffs' Complaint, which were ruled upon by this Court on March 30, 2009. On October 30, 2009, a Report & Recommendation [#142] was filed by Magistrate Judge Byron G. Cudmore recommending that Defendants McLean County Unit District No. 5's ("School District"), Braksick's, Pye's, and Chapman's second Motion to Dismiss [#114] be denied, and their Motion to Strike [#116] be denied as well. Defendants School District, Braksick, Pye, and Chapman have filed an objection [#143] to the Magistrate Judge's recommendation, and this Order follows.
A district court reviews de novo any portion of a Magistrate Judge's Report and Recommendation to which written objections have been made. See FED. R. CIV. P. 72(b).
"The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.
The relevant procedural history is sufficiently set forth in the comprehensive Report & Recommendation of the Magistrate Judge. Relevant to Defendants' current motion to dismiss, Plaintiffs have brought this litigation alleging premises liability, Defendants Heidbreder, Braksick, Pye, and Chapman were willfully and wantonly indifferent to their actual knowledge of White's teacher-on-student sexual harassment, and Defendant School District was willfully and wantonly indifferent to known teacher-on-student sexual harassment under the doctrine of respondeat superior.
I. Motion to Dismiss Count X Premises Liability
Defendants first object to the Magistrate's recommendation that their second motion to dismiss Plaintiffs' Count X be denied because the arguments they rely upon are waived for purposes of the motion to dismiss stage. The Magistrate Judge explained that the issue was not the merits of the School District's new argument for dismissal in regard to Count X, but rather whether the School District should be permitted to make this new argument in a second motion to dismiss even though it could have done so in its first motion to dismiss. The Report discusses the "two bites at the apple" analogy and how Fed. R. Civ. P. 12(g)(2), Local Rule 72.2, and principles of waiver all provide that the School District is unable to make the argument in its second Rule 12 motion.*fn1 The Report further discusses whether the School District could have been successful in filing a Rule 12(c) motion, but ultimately concludes that Local Rule 72.2 prevents that outcome. With all due respect, this Court finds that Rule 12(g)(2) does not preclude consideration of the School District's new argument for dismissal of Count X (premises liability), or Counts XV and XVI.
Federal Rule of Civil Procedure 12(g)(2) provides:
(2) Limitation of Further Motions
Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. The Court agrees with the Magistrate that principles of waiver, as expressed in Rule 12(g)(2), should be enforced in order to prevent a second bite at the apple, and to prevent piecemeal litigation. However, Federal Rule of Civil Procedure 1 provides that the Rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding."
There is a substantial amount of case law which provides that successive Rule 12(b)(6) motions may be considered where they have not been filed for the purpose of delay, where entertaining the motion would expedite the case, and where the motion would narrow the issues involved. See Donnelli v. Peters Securities Co., L.P., 2002 WL 2003217, at *3-4 (N.D. Ill. 2002); Muhammad v. Village of Bolingbrook, 2004 WL 1557958, at * 1 (N.D. Ill. 2004); Campbell-El v. District of ...