The opinion of the court was delivered by: Joe Billy Mcdade United States Senior District Judge
Before the Court is the Motion to Dismiss filed by Defendants on July 13, 2010 (Doc. 25). The Motion is GRANTED.
The Court assumes familiarity with the facts of this case that were outlined in an Order dated July 6, 2010 (Doc. 24). As relates to the present Motion, in Counts 9, 10, 13, and 14, Plaintiff's Jack Knight II and Allison Knight, individually, allege claims of reckless infliction of emotional distress. Defendants seek dismissal of these claims in light of this Court's ruling that Plaintiffs failed to state a claim for negligent infliction of emotional distress.
Before reaching the merits of the argument, Plaintiffs argue that Defendants' Motion is untimely. Defendants filed their first Motion to Dismiss pursuant to Rule 12(b)(1) on May 24, 2010 (Doc. 16). While captioned a Rule 12(b)(1) Motion, Defendants also sought dismissal, pursuant to Rule 12(b)(6), of Plaintiffs' claims for negligent infliction of emotional distress. After a ruling on that Motion, Defendant's filed the Rule 12(b)(6) Motion under consideration along with an Answer to the Complaint.
Rule 12(g)(2) provides that "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." An exception to this Rule provides that a failure to state a claim defense may be raised (again) in a pleading, by a Motion pursuant to Rule 12(c), or at trial. See Rule 12(h)(2)(A-C).
Defendants already filed a Motion pursuant to Rule 12 and their argument that Plaintiffs failed to state a reckless infliction of emotional distress claim was available when they filed their first Motion. This second motion does not comply with the letter of Rule 12(h)(2)(A-C). Therefore, this Motion is untimely.
However, the Motion may be considered by the Court in order to avoid unnecessary delay. See Doe v. White, 2010 WL 323510 (C.D. Ill. 2010) (noting that a successive Rule 12(b)(6) Motion may be considered if it has "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"). This matter is currently at the pleading stage and no Rule 16 conference has been set. Considering the Motion on the merits would narrow the issues for discovery and for trial and significantly expedite this matter.
In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must view a complaint in a light most favorable to the plaintiff. Williams v. Ramos, 71 F.3d 1246, 1250 (7th Cir. 1995). The Court must accept all well-pleaded factual allegations and draw all reasonable inferences from those facts in favor of the plaintiff. Richards v. Kiernan, 461 F.3d 880, 882 (7th Cir. 2006). A plaintiff is not required to plead extensive facts, legal theories, or to anticipate defenses. Massey v. Merrill Lynch and Co., Inc., 464 F.3d 642, 650 (7th Cir. 2006). However, a plaintiff must "provide the grounds of his entitlement to relief" that are "more than labels and conclusion  [or] a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-1965 (2007) (citations and editing marks omitted). In particular, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965.
In order to prevail on a claim for the reckless infliction of emotional distress, Plaintiff must plead and prove that:
(1) the defendant's conduct was extreme and outrageous,
(2) the defendant knew that there was a high probability that his or her conduct would cause ...