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Reschke v. Pactiv, LLC

United States District Court, N.D. Illinois, Eastern Division

December 12, 2014

PACTIV, LLC, Defendant.


MARVIN E. ASPEN, District Judge.

Presently before us is Defendant Pactiv's motion to dismiss Counts IV and V of Plaintiff Robert Reschke's complaint, filed pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). For the reasons stated below, we grant Defendant's motion.


In 1992, Plaintiff began working as a Finishing Manager for Dopaco, Inc., and was promoted to Plant Manager in 1998. (Compl. at Count IV ¶¶ 9, 12.) In July 2000, Plaintiff entered into an "Employment Stay Bonus and Severance Agreement" (the "Dopaco Agreement") with Dopaco. ( Id. at Count IV ¶ 11, Ex. C.) The Dopaco Agreement as amended provides that in the event of a "Change of Control" or of Plaintiff's termination for "Good Reason" or "Without Cause, " Plaintiff could receive severance pay equal to 100% of his "Two Year Average Compensation, " plus benefits. ( Id. at Count IV ¶ 14.)

Defendant acquired Dopaco on May 20, 2011, through a stock purchase agreement. ( Id. at Count IV ¶ 12.) Plaintiff alleges that the acquisition bound Defendant to the Dopaco Agreement. ( Id. at Count IV ¶ 13.) In April 2012, Defendant changed the bonus structure that had entitled Plaintiff to a bonus for the prior fifteen years. ( Id. at Count IV ¶¶ 16-18.) Plaintiff alleges that because this change resulted in a permanent reduction of his compensation, he elected to exercise his severance option under the Dopaco Agreement. ( Id. at Count IV ¶ 19.) Plaintiff further claims that Defendant "terminated [him] by leading him to believe a severance payment would be made" pursuant to the Dopaco Agreement, but then refused to pay him the severance compensation. ( Id. at Count IV ¶¶ 22-25.)

Plaintiff initially filed charges with the United States Equal Employment Opportunity Commission ("EEOC") and the Illinois Department of Human Rights ("IDHR"). (Resp. at 2.) The EEOC issued a right to sue letter on March 24, 2014. ( Id. ) Thereafter, Plaintiff filed his five-count complaint on June 19, 2014, alleging that Defendant: (1) discriminated against him because of his age when it terminated his employment without severance pay in violation of the Age Discrimination in Employment Act ("ADEA"), and the Illinois Human Rights Act (Counts I and II); (2) breached its obligations under the Dopaco Agreement (Count III); (3) made fraudulent misrepresentations to induce him to elect his severance option (Count IV); and

(4) negligently misrepresented that he would be entitled to severance pay (Count V). ( See Compl.) Defendant answered Counts I, II, and III, and moved to dismiss Counts IV and V. (Resp. at 2.) For both Counts IV and V, Plaintiff seeks damages of 100% of his two-year average compensation, in addition to life insurance, medical insurance, and disability insurance for one year. (Compl. at Count IV ¶ 26; Count V ¶ 32.)


A motion to dismiss under Rule 12(b)(6) is meant to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a motion to dismiss, the 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). Specifically, "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, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 540 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). 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. Thus, while a complaint need not give "detailed factual allegations, " it must provide more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 540 U.S. at 545, 127 S.Ct. at 1964-65; Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618-19 (7th Cir. 2007). The statement must be sufficient to provide the defendant with "fair notice" of the claim and its basis. Twombly, 540 U.S. at 545, 127 S.Ct. at 1964 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102 (1957)); Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008). In evaluating a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Thompson v. Ill. Dep't of Prof'l Reg., 300 F.3d 750, 753 (7th Cir. 2002).


Defendant argues that Plaintiff's claims of fraudulent misrepresentation (Count IV) and negligent misrepresentation (Count V) should be dismissed. As set forth below, we grant Defendant's motion because Plaintiff's complaint does not meet the heightened pleading standard for fraudulent misrepresentation, and because his negligent misrepresentation claim is barred by the Moorman doctrine.

A. Fraudulent Misrepresentation (Count IV)

Plaintiff claims that Defendant made fraudulent misrepresentations to induce him into electing his severance option. (Compl. at Count IV ¶ 22.) A claim for fraud must include the following elements: "(1) a false statement of material fact; (2) defendant's knowledge that the statement was false; (3) defendant's intent that the statement induce the plaintiff to act; (4) plaintiff's reliance upon the truth of the statement; and (5) plaintiff's damages resulting from reliance on the statement." Tricontinental Indus., Ltd. v. PricewaterhouseCoopers, LLP, 475 F.3d 824, 841 (7th Cir. 2007) (citing Connick v. Suzuki Motor Co., Ltd., 174 Ill.2d 482, 496, 675 N.E.2d 584, 591 (Ill. 1996)).

Additionally, Federal Rule of Civil Procedure 9(b) requires plaintiffs who assert fraud claims to "state with particularity the circumstances constituting fraud." Fed.R.Civ.P. 9(b). To satisfy the particularity requirement, an allegation of fraud must include the "who, what, when, where, and how: the first paragraph of any newspaper story." DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990); accord Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007); Hoffman v. Nationwide Mut. Ins. Co., No. 10 C 3841, 2011 WL 3158708, at *3 (N.D. Ill. July 26, 2011). Although Rule 9(b) does not require the plaintiff to plead facts sufficient to prove that the alleged misrepresentations were false, it does require the plaintiff to state "the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the ...

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