Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kawczynski v. F.E. Moran, Inc.

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

June 1, 2015



AMY J. ST. EVE, District Judge.

The Court grants Defendant's motion to dismiss without prejudice and grants Defendant's motion to strike with prejudice [8]. The Court grants Plaintiff leave to file an Amended Complaint in accordance with this ruling by no later than June 19, 2015. Status hearing set for August 6, 2015 is stricken and reset to June 25, 2015 at 8:30 a.m.


On April 8, 2015, Defendant F.E. Moran, Inc. Fire Protection removed this action from the Circuit Court of Cook County, Illinois pursuant to the Court's original jurisdiction over Plaintiff Jeffrey Kawczynski's employment discrimination claim brought under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA").[1] See 28 U.S.C. §§ 1331, 1441, 1446(b). Before the Court is Defendant's motion to dismiss and motion to strike under Federal Rules of Civil Procedure 12(b)(6) and 12(f). For the following reasons, the Court grants Defendant's Rule 12(b)(6) motion without prejudice and Defendant's Rule 12(f) motion with prejudice. The Court grants Plaintiff leave to file an Amended Complaint by no later than June 19, 2015.


In his Complaint, Plaintiff alleges that Defendant employed him for approximately five years and ten months and that he is 51 years old. (R. 1-1, Verified Compl., ¶ 1.) Plaintiff also alleges that Defendant terminated his employment on April 5, 2013, based on his age. ( Id. ) In addition, Plaintiff contends that Defendant terminated other employees over the age of 51 based on their age. ( Id. ¶ 2.) Plaintiff asserts that during his employment, he endured harassment due to his age, including co-workers and management calling him "old man" and "old Jeff." ( Id. ¶¶ 3-5.) Also, a superintendent at a job site asked Plaintiff how old he was, after which Defendant terminated his employment. ( Id. ¶ 6.)

Plaintiff alleges that he filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") and on December 18, 2014, the EEOC issued a right-to-sue letter. ( Id., Admin Pro., ¶ 3.) Plaintiff's EEOC Charge, dated May 9, 2013, states that he began his employment with Respondent, who he indicates is F.E. Moran Mechanical Contracting & Service, on or about June 4, 2007. (R. 9-3, Def.'s Ex. 3, EEOC Charge.)


"A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). Under the federal notice pleading standards, a plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Put differently, 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, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570).

"In reviewing the sufficiency of a complaint under the plausibility standard, [courts] accept the well-pleaded facts in the complaint as true, Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013), and draw "reasonable inferences in favor of the plaintiffs." Teamsters Local Union No. 705 v. Burlington No. Santa Fe, LLC, 741 F.3d 819, 823 (7th Cir. 2014). Also, when ruling on motions to dismiss, courts may also consider documents attached to the pleadings without converting the motion to dismiss into a motion summary judgment, as long as the documents are referred to in the complaint and central to the plaintiff's claims. See Adams v. City of Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014); Fed.R.Civ.P. 10(c). "[A] plaintiff is not required to plead facts in the complaint to anticipate and defeat affirmative defenses, " but "when a plaintiff's complaint nonetheless sets out all of the elements of an affirmative defense, dismissal under Rule 12(b)(6) is appropriate." Independent Trust Corp. v. Stewart Info. Serv. Corp., 665 F.3d 930, 935 (7th Cir. 2012).

Pursuant to Rule 12(f), the Court can strike "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f); Delta Consulting Grp., Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009). Motions to strike are appropriate if they serve to expedite litigation. See Heller Fin., Inc. v. Midwhey Powder, 883 F.2d 1286, 1294 (7th Cir. 1989); see also Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664 (7th Cir. 1992) (allegations may be stricken if matter bears no possible relation to controversy). District courts have considerable discretion under Rule 12(f). See Delta, 554 F.3d at 1141-42.


I. Failure to State a Claim

First, Defendant argues that the Court should dismiss Plaintiff's ADEA claim because Plaintiff fails to plead sufficient facts that Defendant was his employer as defined by the ADEA. The ADEA defines "employer" as "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 29 U.S.C. § 630(b). In addition, the "term also means (1) any agent of such a person, and (2) a State or political ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.