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Steven Trochuck, and v. Patterson Companies

February 8, 2011

STEVEN TROCHUCK, AND RICHARD HAVENER, PLAINTIFFS,
v.
PATTERSON COMPANIES, INC., AND PATTERSON DENTAL CO., DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge:

ORDER

Before the Court is Defendant's motion to dismiss the complaint (Doc. 10), and memorandum in support (Doc. 11). Also before the Court is Plaintiffs' motion for leave to amend the complaint (Doc. 19).

Plaintiffs Steven Trochuck and Richard Havener brought suit against Defendant Patterson Companies, Inc., formerly known as Patterson Dental Company*fn1 , on October 1, 2012, after their jobs with Patterson were terminated (Doc. 2-1). According to the complaint, in October 2008, a representative of Patterson presented each Plaintiff with a document for signature, requiring Plaintiffs to indemnify Patterson for damages and repairs to company owned vehicles. Both Plaintiffs indicated that they thought the demand was illegal, that they would not participate in the procedures for indemnification, and that they would not sign the document. Each Plaintiff also informed Patterson that they believed Patterson was failing to pay full and proper wages, as required by state and federal law, and the strong public policy of Illinois. More specifically, Plaintiffs cite the Illinois Wage Payment and Collection Act, 820 ILCS 115/9. Both Plaintiffs were suspended on or about November 20, 2008; shortly thereafter, their employment was terminated. Each Plaintiff asserts (1) a claim of common law retaliatory discharge, and (2) a violation of the Illinois Whistleblower Act, 740 ILCS 174/20.

Defendant Patterson is before the Court pursuant to Federal Rule of Civil Procedure 12(b)(6), seeking to dismiss Plaintiffs' complaint for failure to state a claim (Doc. 10). Plaintiffs did not file a response; rather, two days after the response deadline, they moved to amend the complaint (Doc. 19). Oddly, Plaintiffs state that they do not agree that the complaint is deficient, but "instead of subjecting this Court to the intricacies of an unnecessary multi-page . analysis and argument," they simply seek leave to file an amended complaint to address the issues raised by Patterson, and to serve as their response (Doc. 19).*fn2 Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011), makes clear that this approach-a "non-responsive response"- is not favored. Nevertheless, the procedural posture of the case does not permit the Court to deny leave to amend out of hand.

Plaintiffs correctly observe that Federal Rule of Civil Procedure 15(a)(2) dictates that leave to amend be "freely given when justice so requires." Furthermore, Defendant Patterson has not objected to the motion to amend. However, leave to amend can be denied where an amendment would be futile. Feldman v. American Mememorial Life Insurance Co., 196 F.3d 783, 793 (7th Cir. 1999); McGee v. Kerr-Hickman Chrysler Plymouth, 93 F.3d 380, 385 (7th Cir. 1996). Therefore, despite Plaintiffs' enticing suggestion, the Court cannot merely permit an amended complaint to be filed without analyzing the arguments attacking the viability of the original complaint vis-a-vis the proposed amended complaint. Also, the Court's congested trial calendar does not afford the Court the luxury of permitting a plaintiff to amend his complaint when a subsequent motion to dismiss would be futile.

1.The Applicable Legal Standards

Dismissal is warranted under Rule 12(b)(6) if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). In making this assessment, the District Court accepts as true all well-pled factual allegations and draws all reasonable inferences in the plaintiff's favor. Tricontinental Industries, Inc., Ltd. v. Price Waterhouse Coopers, LLP, 475 F.3d 824, 833 (7th Cir. 2007); Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006). Although federal complaints need only plead claims (not facts), the pleading regime created by Bell Atlantic requires the complaint to allege a plausible theory of liability against the defendant. Sheridan v. Marathon Petroleum Co., LLC, 530 F.3d 590, 596 (7th Cir. 2008); see also Limestone Dev. Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803-804 (7th Cir. 2008).

In Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008), the Court of Appeals for the Seventh Circuit emphasized that even though Bell Atlantic "retooled federal pleading standards," notice pleading is still all that is required. "A plaintiff still must provide only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief." Id. Accord Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008) (the allegations "must be enough to raise a right to relief above the speculative level").

2.Analysis

Each claim in the original complaint will be analyzed, and then compared to the corresponding proposed amended claim.

Counts I and III: Common Law Retaliatory Discharge

"The tort of retaliatory discharge is a limited and narrow exception to the general rule that an at-will employee is terminable at any time for any or no cause." Geary v. Telular Corp., 793 N.E.2d 128, 133 (Ill. App. 1st Dist. 2003) (citation omitted). To establish a claim for retaliatory discharge, a plaintiff must show: (1) he was discharged in retaliation for his activities; and (2) the discharge violated a clearly mandated public policy. Fellhauer v. Geneva, 528 N.E.2d 870, 875 (Ill. 1991). As explained in Chicago Commons Association v. Hancock, 804 N.E.2d 703 (Ill. App. 1st Dist. 2004), the Supreme Court of Illinois has advised:

There is no precise definition of the term. In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State's constitution and statutes and, when they are silent, in its judicial decisions. Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen's social rights, duties, and responsibilities before the tort will be allowed.

Palmateer v. International Harvester Co., 421 N.E.2d 876, 878-879 (Ill. 1981) (internal citation omitted). The issue is not simply whether a protected activity is involved, the activity must strike at the heart of the claimant's social rights, duties and responsibilities-not a private and individual grievance. Chicago Commons Association, 804 N.E.2d at 706. "Illinois courts have allowed retaliatory discharge actions in two settings: (1) when an employee is discharged for filing, or in anticipation of the filing of, a claim under the Workers' Compensation Act [820 ILCS 305/1 et seq.]; and (2) when an employee is discharged in retaliation for ...


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