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Nieman v. Nationwide Mutual Insurance Co.

July 8, 2010

JASON L. NIEMAN, PLAINTIFF,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jeanne E. Scott United States District Judge

OPINION

JEANNE E. SCOTT, U.S. District Judge

This cause is before the Court on Plaintiff's Second Motion Seeking Leave to Amend Complaint (Motion) (d/e 34). Defendants have filed Defendants' Opposition to Plaintiff's Second Motion Seeking Leave to File an Amended Complaint (d/e 37). This matter is fully briefed and ripe for adjudication. For the following reasons, the Motion is denied.

FACTS

The facts of this case are explained in greater detail in the Court's Opinion of April 8, 2010 (April 8 Opinion) (d/e 30). Plaintiff filed this suit in the Circuit Court of Sangamon County, Illinois, on November 4, 2009.

On November 19, 2009, Defendants removed the case to this Court and filed their Motion to Dismiss, In Part, Plaintiff's Complaint (d/e 9), which the Court granted in its April 8 Opinion. Plaintiff's claims that survived the Motion to Dismiss are ones for retaliation, gender discrimination, and race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII) against Defendant Nationwide Mutual Insurance Company (Nationwide), and claims for race discrimination under the Civil Rights Act of 1991, 42 U.S.C. § 1981 (§ 1981) against Defendants Nationwide, Jocelyn Curry, Judy Reynolds, and John Raybuck.

Plaintiff then sought leave to file his First Amended Individual and Class Action Complaint (d/e 26-1), attempting to add new Defendants and claims to this action. The Court denied Plaintiff's request on April 9, 2010. Opinion of April 9, 2010 (d/e 31). Plaintiff then filed the Motion now before the Court, and subsequently filed the proposed Second Amended Individual and Class Action Complaint (Second Amended Complaint) (d/e 36-1 & 36-2). Defendants filed Defendants' Answer to Plaintiff's Complaint (d/e 35) on April 26, 2010.

ANALYSIS

The Federal Rules of Civil Procedure allow a party to amend his pleading once "as a matter of course" if he does so within certain specified time limits. Fed. R. Civ. P. 15(a)(1). In all other circumstances, the amending party must, prior to filing his amendment, obtain either: (1) consent from the opposing party; or (2) leave of court. Fed. R. Civ. P. 15(a)(2). This Court is to "freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2); see Doe v. Howe Military School, 227 F.3d 981, 989 (7th Cir. 2000). Federal district courts evaluate several factors when determining whether to grant leave to amend, including whether the proposed amendments would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962); Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 792 (7th Cir. 2004); General Elec. Capital Corp. v. Lease Resolution Corp., 128 F. 3d 1074, 1085 (7th Cir. 1997). An amendment is futile if it would not survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Gen. Elec. Capital Corp., 128 F. 3d at 1085; Moore v. State of Indiana, 999 F.2d 1125, 1128 (7th Cir. 1993); Aviation Professionals Inst. LLC v. Gary/Chicago Intern. Airport, 2007 WL 3286890, at *3 (N.D. Ind. Nov. 6, 2007); see Fed. R. Civ. P. 12(b)(6). A proposed amendment is likewise futile if it "'merely restates the same facts using different language, or reasserts a claim previously determined.'" Bower v. Jones, 978 F.2d 1004, 1008 (7th Cir. 1992) (quoting Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1244 (7th Cir. 1983)).

Plaintiff's proposed Second Amended Complaint contains the following amendments: (1) re-pleading his retaliatory discharge claim under Indiana law against Nationwide, Curry, Eric E. Smith, Bonnie O'Neil, and Natalie Cadwallader; and (2) a claim under Ohio law against Nationwide, M. Diane Koken, Fred C. Finney, Barry J. Nalebuff, William G. "Jerry" Jurgensen, Steve Rasmussen, Kirt Walker, Smith, Timothy Cotter, Cadwallader, Curry, Vicki Schneider, Joseph Garber, O'Neil, and David Bano.

As an initial matter, there are discrepancies between the parties and claims identified in the Motion, and the parties and claims listed in the proposed Second Amended Complaint. Additionally, the proposed Second Amended Complaint contains claims and parties that the Court has previously dismissed. The Court disregards any reference to claims and parties that appear only in the proposed Second Amended Complaint itself, and instead considers only the proposed amendments that appear in both the Motion and the proposed Second Amended Complaint.

I. RETALIATORY DISCHARGE CLAIM UNDER INDIANA LAW

Plaintiff seeks to re-plead his claim for retaliatory discharge under Indiana law against existing Defendants Nationwide and Curry, former Defendants Smith and Cadwallader, and O'Neil. Defendants argue that Plaintiff's amendment is barred by the law-of-the-case doctrine and, in the alternative, that Plaintiff's attempt to invoke the public policy exception to Indiana's at-will employment doctrine fails as a matter of law. The Court addresses Defendants' second argument only.

As discussed in the April 8 Opinion, Indiana is an at-will employment jurisdiction. Montgomery v. Bd. of Trustees of Purdue Univ., 849 N.E.2d 1120, 1128 (Ind. 2006). This means that an employer can fire an employee at any time for any reason, or for no reason at all. Id. However, in limited situations the Indiana courts have recognized a public policy exception to this rule. Meyers v. Meyers, 861 N.E.2d 704, 706 (Ind. 2007); Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717 (Ind. 1997). To invoke the public policy exception to the at-will employment rule, the plaintiff must allege that he was terminated "in contravention of a 'clear statutory expression of a right or duty.'" Ryan v. Underwriters Labs., Inc., 2007 WL 2316474, at *8 (S.D. Ind. Aug. 8, 2007) (quoting Orr, 689 N.E.2d at 718)). The plaintiff must identify the statutory source of the right he exercised or the duty he fulfilled. Hostettler v. Pioneer Hi-Bred Intern., Inc., 624 ...


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