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Sherer v. Casey's General Stores

April 1, 2011

TINA SHERER, PLAINTIFF,
v.
CASEY'S GENERAL STORES, INC., DEFENDANT.



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

MEMORANDUM AND ORDER

A. Factual and Procedural Background

Tina Sherer worked for Casey's Retail Company ("Casey's") from December 30, 2008 to mid-May 2010. Hired as a cashier, Sherer was later promoted to assistant manager of the Casey's store in Wood River, Illinois. While she was working a busy shift in that capacity on May 11, 2010, a shipment of inventory arrived at the store. Sherer completed her routine job duties but did not unload the shipment that had been delivered. Six days later, Casey's fired Sherer.

On December 29, 2010, Sherer filed suit in the Circuit Court of Madison County, Illinois against Casey's (whom she named as "Casey's General Stores, Inc.").*fn1 Her complaint contains two counts. Count 1 alleges "wrongful discharge," and Count 2 alleges intentional infliction of emotional distress.

Served with the state court complaint on January 10, 2011, Casey's timely removed the action to this United States District Court. Subject matter jurisdiction rests on the federal diversity statute, 28 U.S.C. § 1332. The parties are completely diverse. Sherer is an Illinois citizen, and both Casey's -- the named Defendant and the subsidiary/true employer -- are Iowa citizens (incorporated in and maintaining principal places of business in that state). And the complaint indicates that the amount in controversy exceeds the $75,000 mark, exclusive of interest and costs.

On February 4, 2011, Casey's moved to dismiss plaintiff's complaint "in its entirety with prejudice," pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 7). The motion is fully briefed with response and reply (Docs. 13 and 15). For the reasons described below, the Court partially grants the dismissal motion.

B. Applicable Legal Standards

A 12(b)(6) motion challenges the sufficiency of the complaint to state a claim upon which relief can be granted. Hallinan v. Fraternal Order of Police Chicago Lodge 7, 570 F.3d 811, 820 (7th Cir.), cert. denied, 130 S. Ct. 749 (2009). The United States Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), that Rule 12(b)(6) dismissal is warranted if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face."

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. See Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); St. John' s United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007), cert. denied, 128 S. Ct. 2431 (2008).

Even though Twombly (and Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937 (2009))retooled federal pleading standards, notice pleading remains all that is required in a complaint. "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.'" Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008).The level of detail the complaint must furnish can differ depending on the type of case before the Court. So for instance, a complaint involving complex litigation (antitrust or RICO claims) may need a "fuller set of factual allegations . to show that relief is plausible." Tamayo, 526 F.3d at 1083, citing Limestone Dev. Corp. v. Village of Lemont, Illinois, 520 F.3d 797, 803-04 (7th Cir. 2008).

The Seventh Circuit Court of Appeals has offered further direction on what (post-Twombly & Iqbal) a complaint must do to withstand dismissal for failure to state a claim. In Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008), the Court reiterated: ""surviving a Rule 12(b)(6) motion requires more than labels and conclusions;" the allegations must "raise a right to relief above the speculative level." Similarly, the Court remarked in Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010): "It is by now well established that a plaintiff must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has happened to her that might be redressed by the law."

More recently, Judge Posner explained that Twombly and Iqbal: require that a complaint be dismissed if the allegations do not state a plausible claim. The Court explained in Iqbal that "the plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949. This is a little unclear because plausibility, probability, and possibility overlap..

But one sees more or less what the Court was driving at: the fact that the allegations undergirding a plaintiff's claim could be true is no longer enough to save it. .. [T]he complaint taken as a whole must establish a nonnegligible probability that the claim is valid, though it need not be so great a probability as such terms as "preponderance of the evidence" connote.. After Twombly and Iqbal a plaintiff to survive dismissal "must plead some facts that suggest a right to relief that is beyond the 'speculative level.' " In re marchFIRST Inc., 589 F.3d 901, 905 (7th Cir. 2009).

Atkins v. City of Chicago, 631 F.3d 823, 831-32 (7th Cir. 2011)(emphasis added). See also Smith v. Medical Benefit Administrators Group, Inc., -- F.3d --, 2011 WL 913085 (7th Cir. March 15, 2011)(Plaintiff's claim "must be plausible on its face," that is, "The complaint must establish a nonnegligible probability that the claim is ...


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