United States District Court, S.D. Illinois
ELLIS LEROY CRABTREE, as Independent Administrator of the Estate of AVIS SWITZER, deceased, Plaintiffs,
DG RETAIL, LLC, d/b/a DOLLAR GENERAL, Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
Ellis Leroy Crabtree initiated this action on August 19,
2016, as the Independent Administrator of the Estate of Avis
Switzer (“the decedent”) by filing a six-count
complaint against DG Retail, LLC, d/b/a Dollar General
(“Dollar General”) (Doc. 1). After Crabtree twice
amended the complaint to resolve jurisdictional issues,
Dollar General filed a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) and/or a motion for more
definite statement pursuant to Federal Rule of Civil
Procedure 12(e) (Doc. 15).
August 23, 2014, the decedent fell while inside the Dollar
General store in Troy, Illinois (Doc. 10). According to
Plaintiff, the design of the check-out area of the store
required customers to pay, then pull their cart backwards and
exit through the other aisles where customers were waiting in
line. Plaintiff also alleges that the shopping cart used by
the decedent had one or more wheels that would stutter or
lock up, or otherwise was not fit for use by customers.
Plaintiff claims Dollar General failed to inspect and repair
its check-out lanes and shopping carts, failed to have
reasonable inspection policies for its check-out lanes and
shopping carts, and failed to take the shopping cart used by
the decedent out of service. As a result of Dollar
General's acts and/or omissions, Plaintiff alleges, the
decedent fell as she was attempting to leave the check-out
aisle. The fall caused the decedent to sustain a hip
fracture, which required surgery and caused the decedent to
incur medical bills in excess of $100, 000. Plaintiff alleges
that on January 7, 2015, the decedent died as a result of the
injuries she sustained in the incident.
Second Amended Complaint (Doc. 10) contains six counts: Count
I-Negligence under the Illinois Survival Act, 755 ILCS
5/27-6; Count II-Negligence under the Illinois Wrongful Death
Act, 740 ILCS 180/1; Count III-Negligence under the Illinois
Family Expense Act, 750 ILCS 65/15; Count IV-Premises
liability under the Illinois Survival Act, 755 ILCS 5/27-6;
Count V-Premises liability under the Illinois Wrongful Death
Act, 740 ILCS 180/1; and Count VI-Negligence under the
Illinois Family Expense Act, 750 ILCS 65/15.
motion to dismiss and/or motion for more definite statement,
Dollar General asserts that Plaintiff has failed to allege
how its actions and/or omissions specifically caused the
decedent to fall and sustain injuries. Dollar General argues
that while Plaintiff alleges various theories about the
condition of the check-out aisle and the condition of the
cart used by the decedent, Plaintiff fails to factually
connect the theories to the decedent's fall. Dollar
General accordingly seeks dismissal of the Second Amended
Complaint for failure to state a claim upon which relief can
be granted. Alternatively, Dollar General asks the Court to
require Plaintiff to provide a more definite statement of
what caused the decedent to fall as she was attempting to
leave the checkout aisle.
General further seeks dismissal of Counts III and VI,
Plaintiff's claims under the Illinois Family Expense Act.
Under these counts, Plaintiff alleges that the decedent's
“next of kin” have suffered losses, including
medical, funeral, and burial expenses. To recover under the
Family Expense Act, however, a plaintiff must prove that he
or she is the spouse of the person injured. Because
neither Plaintiff nor the decedent's “next of
kin” are the decedent's spouse, Plaintiff lacks
standing to bring an action under the Family Expense Act.
Plaintiff concedes this point and has agreed to voluntarily
dismiss Counts III and VI as currently alleged. Plaintiff
seeks leave to amend the complaint to add common law claims
for these expenses (Doc. 19, p. 12).
motion to dismiss under Federal Rule of Civil Procedure
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) (citation omitted). In evaluating a motion to
dismiss, the Court must accept all well-pleaded allegations
in the complaint as true and draw all reasonable inferences
in the plaintiff's favor. Cole v. Milwaukee Area
Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011);
Thompson v. Ill. Dep't. of Prof'l
Regulation, 300 F.3d 750, 753 (7th Cir. 2002). Pursuant
to Federal Rule of Civil Procedure 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).
Accordingly, the Court may grant a motion to dismiss under
Rule 12(b)(6) only if a complaint lacks “enough facts
to state a claim [for] relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 697,
129 S.Ct. 1937, 1960 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974
(2007)); Swanson v. Citibank, N.A., 614 F.3d 400,
404 (7th Cir. 2010).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at
1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. at
1955). While a complaint need not include detailed factual
allegations, there “must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
at 678, 129 S.Ct. at 1949 (citing Twombly, 550 U.S.
at 556, 127 S.Ct. at 1955). These requirements ensure that
“the defendant [receives] fair notice of what the . . .
claim is and the grounds upon which it rests . . . .”
Twombly, 550 U.S. at 556, 127 S.Ct. at 1964 (quoting
Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103
for more definite statement are governed by Rule 12(e) of the
Federal Rules of Civil Procedure, which provides: “If a
pleading to which a responsive pleading is permitted is so
vague or ambiguous that a party cannot reasonably be required
to frame a responsive pleading, he may move for a more
definite statement before interposing his responsive
pleading.” Fed.R.Civ.P. 12(e). Motions for a more
definite statement “are generally disfavored, and
courts should grant such motions only if the complaint is so
unintelligible that the defendant cannot draft a responsive
pleading.” Moore v. Fid. Fin. Servs., Inc.,
869 F.Supp. 557, 559-60 (N.D. Ill. 1994). “Rule 12(e)
motions are not to be used as substitutions for
discovery.” Id.; see also 5 C. Wright
& A. Miller, Federal Practice & Procedure § 1376
at 737-41 (1969).
the allegations in the operative complaint, Dollar General is
aware of the “who, what, when, where, and why” of
this lawsuit. Plaintiff alleges that the decedent, Avis
Switzer, fell and broke her hip (eventually dying as a result
of her injuries) on August 23, 2014, inside the Dollar
General store in Troy, Illinois. Plaintiff further claims
that the decedent's injuries were caused by Dollar
General's breach of its duty to inspect and repair its
carts and check-out lanes, which required customers to back
their carts out of the aisle in order to exit the store. At
the crux of Dollar General's motion is a desire for the
answer to one more question: how? More precisely, how did
Dollar General's acts and/or omissions cause the decedent
details Dollar General seeks can be uncovered through
discovery. The Federal Rules of Civil Procedure require only
that a complaint include a short and plain statement of the
claim showing that the pleader is entitled to relief.
Fed.R.Civ.P. 8(a). While the complaint's allegations must
be enough to raise a right to relief above the speculative
level, detailed factual allegations are not required.
Twombly, 550 U.S. at 555. Here, the facts alleged by
Plaintiff are sufficient to put Dollar General on notice of
Plaintiffs claims and the grounds for those claims. No more