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Steve Omans v. Manpower

May 2, 2012

STEVE OMANS, PLAINTIFF,
v.
MANPOWER, INC., DEFENDANT.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant's Partial Motion to Dismiss. For the reasons stated herein, the Motion is granted in part and denied in part.

I. BACKGROUND

Plaintiff Steve Omans ("Omans") is suing his former employer, Manpower, Inc. ("Manpower"). Manpower employed Omans from on or about December 28, 2008 until July 15, 2009. Omans was hired to facilitate sales of Manpower's staffing services to the healthcare industry. The parties appear to agree that Plaintiff was employed under an agreement that included Manpower's "Manpower 2009 Field Incentive Plan Document" (hereinafter, the "Incentive Plan"), which makes a sales representative's commission a function of Manpower's gross profit from a given sale. The incentive payments were to be made on a monthly basis "on targeted account revenues for 12 months from the assignment date per account sold during the first 12 months of a new account." The Incentive Plan, which was attached to the Complaint, essentially states that an employee must be actively employed by Manpower on the closing date of the particular incentive period to be eligible for incentive payout for that period.

Omans allegedly won for Manpower a $6 million service contract with Allscripts, LLC ("Allscripts") around July 6, 2009, as well as several smaller contracts. All told, had he continued to work for Manpower for the 12 months after the Allscripts contract was signed, he allegedly would have received commissions in excess of $200,000 on those accounts. Instead, he alleges, he was fired in July 2009 so that Manpower would not have to pay him the commissions he had earned.

Plaintiff filed this suit in the Circuit Court of Cook County, and it was removed to this Court. The Complaint includes six counts, including breach of the covenant of good faith and fair dealing (Count II), violations of the Illinois Wage Payment and Collection Act ("IWPCA," 820 ILL. COMP. STAT. 115/1 et seq.)

(Count IV), and promissory fraud (Count V). Defendant moved to dismiss all but Count II. Plaintiff has now withdrawn Count I, Count III, and the misnumbered Count VII (which withdrawal, contrary to Defendant's claim, is not a concession of any contested facts). Accordingly, the only counts remaining in the suit are Count II, Count IV, and Count V.

II. LEGAL STANDARD

On a motion to dismiss under Rule 12(b)(6), the Court accepts as true all well-pleaded facts in Plaintiff's Complaint and draws all inferences in his favor. Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). Plaintiffs need not allege "detailed factual allegations," but must offer more than conclusions or "a formulaic recitation of the elements of the cause of action[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). That is to say, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009).

Where a plaintiff alleges fraud, however, FED. R. CIV. P. 9 requires him to state the basis for his allegations "with particularity." Therefore, although states of mind may be pled generally, the "who, what, when, where, and how" of the fraud must be pled in detail. DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990).

III. DISCUSSION

A. Removal Petition

Before proceeding, the Court must assure itself that it has proper subject matter jurisdiction in this case. The Notice of Removal states: "Plaintiff alleges in his complaint that he resides in Chicago, Illinois and therefore is a citizen of the state of Illinois. Plaintiff is an individual residing in Chicago, Illinois." The Complaint states merely that Plaintiff "is an individual residing in" Chicago. However, the Seventh Circuit is clear that merely alleging that someone is an Illinois resident, and by virtue of that fact alone an Illinois citizen, is insufficient to confer jurisdiction. Heinen v. Northrop Grumman Corp., 671 F.3d 669, 670 (7th Cir. 2012) (rejecting as deficient an allegation that a party was a resident of Massachusetts and therefore citizen of that state). However, facts supporting Plaintiff's Illinois citizenship are stated, albeit imperfectly, in the Notice of ...


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