United States District Court, N.D. Illinois, Eastern Division
Andrea Louise Lewis, Vedder Price P.C., Nancy Richter, The Gleason Law Group, PC, Chicago, IL, for Plaintiff.
Aaron Robert Gelb, Andrea Louise Lewis, Vedder Price P.C., Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
MILTON I. SHADUR, Senior District Judge.
Counsel for plaintiff Deborah MacFarlan (" MacFarlan" ) has employed the common, though conceptually flawed (see NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287, 291-93 (7th Cir.1992)), practice of dividing her Amended Complaint (" AC" ) into a number of counts that assert different theories of recovery (causes of action), rather than the federal concept of separate " claims" spoken of in Fed.R.Civ.P. (" Rule" ) 10(b) and elsewhere in the Rules.
All defendants— Board of Education of School District 65 (" District 65" ), Haven Middle School (" Haven" ), Kathleen Roberson Dr. Elizabeth Flores and Dr. Marcy Wolff Canel — have responded by answering a portion of the AC and moving to dismiss other portions: Count I, Count II against District and Haven and Count III. That motion has been fully briefed and is ripe for decision.
But before this Court launches on the analysis of those disputed matters, a few words should be said about MacFarlan's agreement to dismiss voluntarily her Illinois False Claims Act contention within Count III as well as her Count IV claim against Haven for assertedly wrongful discharge. This Court orders those dismissals, but the parties differ as to whether such dismissal should be specified as a dismissal with prejudice.
Any consideration of that request by defense counsel brings into play the provisions of Rule 54(b), which states that such a ruling as to fewer than all claims or fewer than all parties is not a final judgment unless the court so directs and accompanies that direction with an express determination that there is no just reason for delay. Even when that is done, however, the Court of Appeals is free to reject finality on the ground that the decided issues are too closely linked with other issues in the case that remain to be decided (a concept that is related to the general desire to discourage piecemeal appeals). This Court sees no reason to complicate
life by a with-prejudice characterization, so it declines defense counsel's invitation.
On then to the still-live aspects of defendants' motion. On that score it should be said at the outset that from an attitudinal point of view the approach taken by defense counsel to pleading under the Rules is much like that expressed in Lord Maitland's classic aphorism in his century-old book The Forms of Action at Common Law:
The forms of action we have buried, but they still rule us from their graves.
By contrast, to this Court the appropriate approach to Rule 12(b)(6) motions calls for the preservation of plausible complaints (applying the Twombly-Iqbal canon) if that does not threaten overkill in the discovery process as to any ...