United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on defendant Zachary Ball's
Motion (Doc. 13) to Dismiss for Failure to State a Claim and
defendant Todd Linebarger's Motion (Doc. 14) to Dismiss
for Failure to State a Claim. The plaintiff filed a timely
response to each motion. (Docs. 19 and 20).
matter was initially filed in the Circuit Court of the Third
Judicial Circuit, Madison County, Illinois and removed to
this Court pursuant to 28 U.S.C. §§ 1332, 1441, and
1446 (diversity of citizenship). The complaint alleges breach
of contract and injunctive relief against defendants Ball and
Linenbarger and tortious interference with business
expectancy and civil conspiracy against all defendants.
the complaint alleges that the defendants, Ball and
Linenbarger, worked for the plaintiff and left to become
employed by defendant Advance. Plaintiff operates a network
of physical therapy rehabilitation services for industrial
clients and defendant Advance is a competitor providing the
same services. Plaintiff alleges that once defendants Ball
and Linenbarger became employed with Advance, they solicited
the plaintiff's customers in violation of their
employment and confidentiality agreements.
reviewing a Rule 12(b)(6) motion to dismiss, the Court
accepts as true all allegations in the complaint.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To avoid dismissal under Rule 12(b)(6) for failure
to state a claim, 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). This
requirement is satisfied if the complaint (1) describes the
claim in sufficient detail to give the defendant fair notice
of what the claim is and the grounds upon which it rests and
(2) plausibly suggests that the plaintiff has a right to
relief above a speculative level. Bell Atl., 550
U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); EEOC v. Concentra Health Servs., 496
F.3d 773, 776 (7th Cir. 2007). “A 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 (citing Bell Atl.,
550 U.S. at 556).
Bell Atlantic, the Supreme Court rejected the more
expansive interpretation of Rule 8(a)(2) that “a
complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief, ” Conley v. Gibson, 355
U.S. 41, 45-46 (1957). Bell Atlantic, 550 U.S. at
561-63; Concentra Health Servs., 496 F.3d at 777.
Now “it is not enough for a complaint to avoid
foreclosing possible bases for relief; it must actually
suggest that the plaintiff has a right to relief . . . by
providing allegations that ‘raise a right to relief
above the speculative level.'” Concentra
Health Servs., 496 F.3d at 777 (quoting Bell
Atl., 550 U.S. at 555).
Bell Atlantic did not do away with the liberal
federal notice pleading standard. Airborne Beepers &
Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667
(7th Cir. 2007). A complaint still need not contain detailed
factual allegations, Bell Atl., 550 U.S. at 555, and
it remains true that “[a]ny district judge (for that
matter, any defendant) tempted to write ‘this complaint
is deficient because it does not contain . . .' should
stop and think: What rule of law requires a
complaint to contain that allegation?” Doe v.
Smith, 429 F.3d 706, 708 (7th Cir. 2005) (emphasis in
original). Nevertheless, a complaint must contain “more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl., 550 U.S. at 555. If the factual detail of
a complaint is “so sketchy that the complaint does not
provide the type of notice of the claim to which the
defendant is entitled under Rule 8, ” it is subject to
dismissal. Airborne Beepers, 499 F.3d at 667.
Court may review all exhibits attached to the complaint and
“[w]here an exhibit and the complaint conflict, the
exhibit typically controls. A court is not bound by the
party's characterization of an exhibit and may
independently examine and form its own opinions about the
document.” Forrest v. Universal Sav. Bank,
F.A., 507 F.3d 540, 542 (7th Cir. 2007).
matter, there is a choice of law provision that neither party
challenges. The choice of law provision mandates that the law
of the State of Illinois will govern.
Defendant Zachary Ball's Motion (Doc. 13) to Dismiss
for Failure to State a Claim.
Defendant Ball first moves for dismissal arguing a lack of
consideration. According to defendant Ball, he “was not
employed by Plaintiff for the requisite two years in order
for the restrictive covenant Plaintiff attempts to rely upon
to be enforceable.” (Doc. 20 at 1). Mr. Ball was
employed by Apex from April 30, ...