The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 48). For the reasons stated below, Defendant's Motion to Strike and Motion to Dismiss, filed on May 15, 2009 is denied as moot, Defendant's Motion to Dismiss, filed on August 6, 2009 is granted, and Plaintiff is granted twenty-one days from the date of this Order & Opinion to file a Fourth Amended Complaint that cures the pleading deficiencies of Count I and that omits the claims of Count II.
Plaintiff originally filed her pro se Complaint in this Court on August 8, 2008, charging The Library Store, Don Gunter, Stephen Gunter, Gregory Gunter, and Marilyn Gunter with discrimination in violation of Title VII. (Doc. 1). In September 2008, after Defendants had filed a Motion to Dismiss (Doc. 10), attorney Stephen Thomas entered his appearance on behalf of Plaintiff, and Plaintiff filed an Amended Complaint (Doc. 22). Defendants' first Motion to Dismiss was thus found to be moot. (9/30/08 Text Order). Defendants then filed a second Motion to Dismiss, on November 3, 2008 (Doc. 23), to which Plaintiff responded by requesting leave to file a Second Amended Complaint (Doc. 28). Magistrate Judge Gorman granted Plaintiff's Motion for Leave to File, and noted that the new complaint rendered the second Motion to Dismiss moot. (11/20/08 Text Orders). The Second Amended Complaint dropped the charges against Don Gunter, Stephen Gunter, Gregory Gunter, and Marilyn Gunter. (Doc. 33).
On May 15, 2009, Defendants filed a Motion to Strike and Motion to Dismiss. (Doc. 44). Again, rather than oppose the Motion to Strike and Motion to Dismiss, Plaintiff requested leave to file another amended complaint. (Doc. 46). On July 30, 2009, she filed her second "Second" Amended Complaint. (Doc. 47). The second Second Amended Complaint reinstated Defendants Don Gunter, Stephen L. Gunter, Gregory L. Gunter, and Marilyn Gunter, who had been dismissed from the action by the filing of the first Second Amended Complaint. (Doc. 33). On August 6, 2009, Defendants filed another Motion to Dismiss. (Doc. 48). On September 21, 2009, Plaintiff was granted leave by Magistrate Judge Gorman to file her Third Amended Complaint. (9/21/09 Text Order). Plaintiff sought leave to amend because she had inadvertently added the Gunters' names to the second Second Amended Complaint and because she had mistakenly labeled the second Second Amended Complaint as "Second," rather than "Third." (Doc. 51). Magistrate Judge Gorman noted that the Third Amended Complaint did not moot the last two Motions to Dismiss. (9/21/09 Text Order). The Third Amended Complaint again drops the charges against the individual defendants, the Gunters.*fn1 (Doc. 52).
"In ruling on Rule 12(b)(6) motions, the court must treat all well-pleaded allegations as true and draw all inferences in favor of the non-moving party." In re marchFIRST Inc., --- F.3d ----, 2009 WL 4894248, *3 (7th Cir. Dec. 21, 2009) (citing Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008)). To survive a motion to dismiss under 12(b)(6), a plaintiff's complaint must "plead some facts that suggest a right to relief that is beyond the 'speculative level.'" EEOC v. Concentra Health Svcs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560-63 (2007)). Though detailed factual allegations are not needed, a "formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 547. "The complaint must contain 'enough facts to state a claim to relief that is plausible on its face' and also must state sufficient facts to raise a plaintiff's right to relief above the speculative level." Bissessur v. Indiana University Bd. of Trustees, 581 F.3d 599, 602 (7th Cir. 2009) (quoting Twombly at 557; Tamayo, 526 F.3d at 1084). "A claim has facial plausibility 'when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)).
I. May 15, 2009 Motion to Strike and Motion to Dismiss
Ordinarily, under Local Rule 7.1(E), "Whenever an amended pleading is filed, any motion attacking the original pleading will be deemed moot unless specifically revived by the moving party within fourteen (14) days after the amended pleading is served." Therefore, Defendant's May 15, 2009 Motion to Strike and Motion to Dismiss (Doc. 44) would typically be moot under the Local Rule, as it was followed by an amended complaint (Doc. 47). However, in granting Plaintiff's Motion for Leave to File her Third Amended Complaint, Magistrate Judge Gorman specifically noted that the filing of the Third Amended Complaint "does NOT moot the pending motions to dismiss (#44 and 48)." (9/21/09 Text Order).
Though the May 15 Motion was not rendered moot by operation of the Local Rule, it is now moot. Plaintiff responded to the May 15 Motion to Strike and Motion to Dismiss by noting that she did not intend to oppose it, but that she sought leave to amend her complaint. (Doc. 46). Defendant did not oppose Plaintiff's request. On July 30, 2009, Plaintiff filed her second "Second" Amended Complaint. (Doc. 47). As Plaintiff did not oppose the May 15 Motion to Strike and Motion to Dismiss against first Second Amended Complaint, the Motion would likely have been granted. On August 6, 2009, though, before the Court had ruled on the May 15 Motion, Defendant filed another Motion to Dismiss, directed toward the second Second Amended Complaint. (Doc. 48).
The May 15 Motion to Strike and Motion to Dismiss argued (1) that Plaintiff's request for compensatory and punitive damages under the second count, which alleges retaliation in violation of the Americans with Disabilities Act ("ADA"), must be dismissed, and (2) that her request for a jury trial on the second count must be stricken. Plaintiff's Third Amended Complaint omits the request for compensatory and punitive damages from Count II, and the May 15 Motion is thus moot insofar as it requests the dismissal of Plaintiff's request for compensatory and punitive damages from Count II. (Doc. 45). Further, in its August 6 Motion to Dismiss, Defendant argues, inter alia, that Plaintiff's request for a jury trial as to the ADA retaliation count must be stricken; Defendant's second argument in its May 15 Motion is thus moot, as it is duplicated in the August 6 Motion to Dismiss. (Doc. 48). Therefore, the May 15 Motion to Strike and Motion to Dismiss (Doc. 44) is denied as moot.
II. Count I: Title VII Sex Discrimination
Plaintiff claims that Defendant discriminated against her on the basis of her sex when it hired a male for a warehouse job she had applied for, though she was qualified for the position and had been in Defendant's employ for six years, while the male was new to the company.*fn2 Title VII discrimination plaintiffs can use either a direct or an indirect method of proof in order to state their prima facie case. Winsley v. Cook County, 563 F.3d 598, 604 (7th Cir. 2009). Defendant argues that Plaintiff fails to state a claim for Title VII sex discrimination under both the direct method and the indirect method of proof. As Plaintiff's ...