Driveaway & Truckaway Service v. Aaron Driveaway & Truckaway Co.

Citation781 F. Supp. 548
Decision Date05 December 1991
Docket NumberNo. 91 C 1603.,91 C 1603.
PartiesDRIVEAWAY AND TRUCKAWAY SERVICE, INC., an Illinois corporation, and James P. Burke, Jr., Plaintiffs, v. AARON DRIVEAWAY & TRUCKAWAY COMPANY, INC., a New York corporation, and Aanthony's Driveaway Truckaway Co., Inc., a New Jersey corporation, Defendants.
CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)

781 F. Supp. 548

DRIVEAWAY AND TRUCKAWAY SERVICE, INC., an Illinois corporation, and James P. Burke, Jr., Plaintiffs,
AARON DRIVEAWAY & TRUCKAWAY COMPANY, INC., a New York corporation, and Aanthony's Driveaway Truckaway Co., Inc., a New Jersey corporation, Defendants.

No. 91 C 1603.

United States District Court, N.D. Illinois, E.D.

December 5, 1991.

Donald S. Rothschild, Mark C. Gross, Donald S. Rothschild & Associates, Ltd., Oak Park, Ill., for plaintiffs.

Michael H. King, Donald Christopher Pasulka, Ross & Hardies, P.C., Chicago, Ill., for defendants.


KOCORAS, District Judge.

This matter is before the Court on a motion by defendants, Aaron Driveaway &

781 F. Supp. 549
Truckaway Co. and Aanthony's Driveaway Truckaway Co. ("Truckaway"). Truckaway's motion is entitled a "Motion to Strike Plaintiffs' Prayer For Punitive Damages" and is purportedly pursuant to Federal Rule of Civil Procedure 12(f). For the reasons set forth below, Truckaway's motion is granted


Truckaway is a New York corporation engaged in the business of transporting vehicles throughout the United States. It also retains agency relationships in a number of states for the purpose of conducting automotive transport services on its behalf. Plaintiff-Truckaway Service, Inc., on the other hand, is an Illinois corporation. Jurisdiction is based on diversity.

The plaintiffs, James P. Burke and Driveaway and Truckaway Service, Inc. ("Plaintiffs"), brought a two count complaint against Truckaway. Plaintiffs' complaint alleges that on approximately July 1, 1990 the Plaintiffs entered into an oral agency agreement with Truckaway for the purpose of operating an exclusive Chicago-Area Aaron Driveaway Service agency. The complaint further alleges that in reliance upon this agreement, Plaintiffs formed an Illinois corporation called Driveaway, Inc. in mid-July of 1991. Also in reliance upon the agreement, Plaintiffs procured capitalization, entered into a lease agreement, and made improvements upon the leasehold. Still other expenses included purchasing liability and worker's compensation insurance, employing and compensating persons to transport automobiles, and providing wages and insurance for drivers.

Only Count II of the complaint, which is styled "Breach of Agency Agreement — Termination," is relevant for purposes of Truckaway's motion. It alleges that Truckaway terminated the oral agreement "in violation of the parties' agreement that the agency relationship would remain in full force and effect so long as Plaintiffs complied with lawful company procedures and fulfilled its obligations." Count II further alleges that Truckaway terminated the agreement because Plaintiffs refused to participate in a number of illegal schemes and that such termination was wrongful, malicious, and without justification. These alleged illegal schemes included violations of both the Illinois Commerce Commission regulations and Interstate Commerce Commission requirements, in addition to an illegal checking scheme that purportedly violated both state and federal tax laws. As relief for Truckaway's alleged breach and retaliatory discharge, Plaintiffs seek $275,000 in compensatory and $250,000 in punitive damages.

Truckaway's motion seeks to strike Plaintiffs' prayer for punitive damages pursuant to Federal Rule of Civil Procedure 12(f). Truckaway argues that Plaintiffs' Count II fails to plead an independent tort. More specifically, Truckaway argues that Plaintiffs cannot properly plead an action for retaliatory discharge since Plaintiffs were never Truckaway employees. Accordingly, Truckaway seeks to strike Plaintiffs' prayer for punitive damages.


Truckaway's motion presents two issues. The first issue is whether Plaintiffs have properly pleaded an employment relationship with Truckaway such that they can seek punitive damages pursuant to a retaliatory discharge claim against Truckaway under established precedent. If Plaintiffs have not established that they were employees of Truckaway, we must decide whether the tort of retaliatory discharge should extend to agents whose services are wrongfully terminated by their principals. As a threshold matter, however, we must address the proper nature of Truckaway's motion.

A. Truckaway's Motion

Truckaway has incorrectly styled its motion as a motion to strike pursuant to Rule 12(f). Rule 12(f) provides that a "court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Plaintiffs' prayer for punitive damages is neither a defense,

781 F. Supp. 550
redundant, immaterial, impertinent, nor scandalous. Accordingly, Rule 12(f) is inapplicable. Instead of relying on Rule 12(f), Truckaway should have filed their motion pursuant to Rule 12(b)(6) as a motion to dismiss. See Peterson v. Baloun, 715 F.Supp. 212, 213-14 (N.D.Ill.1989); Professional Asset Mgt., Inc. v. Penn Square Bank, 566 F.Supp. 134, 136 (W.D.Okla.1983). In accordance with this precedent, we view Truckaway's motion as a motion to dismiss

In filing a 12(b)(6) motion, Truckaway must satisfy a high standard. The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits of the case. Under the "simplified notice pleading" of the Federal Rules of Civil Procedure, the complaint's allegations should be construed liberally, and "the 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, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-34, 81 L.Ed.2d 59 (1984).

When considering a defendant's motion to dismiss the Court must view the complaint's allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley, 355 U.S. at 45, 78 S.Ct. at 101-02. All well-pleaded facts and allegations in the plaintiff's complaint must be taken as true, Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d 732, 733 (7th Cir.1986), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 676 (1987), and the plaintiff is entitled to all reasonable inferences that can be drawn therefrom. Ellsworth v. Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986). We address Truckaway's motion with this standard in mind.

B. Retaliatory Discharge Under Established Precedent

Truckaway's argument for dismissing Plaintiffs' prayer for punitive damages is that Plaintiffs have merely pleaded a breach of contract claim and have failed to properly establish a viable claim for retaliatory discharge. In so arguing, Truckaway contends that an employer-employee relationship is an essential element of a retaliatory discharge action. Truckaway further asserts that Plaintiffs were never its employees. Accordingly, Truckaway argues that Plaintiffs are not entitled to seek punitive damages through a retaliatory discharge claim. We agree that under existing precedent, Plaintiffs' complaint fails to establish a claim for retaliatory discharge.

A plaintiff who seeks to file a retaliatory discharge action must satisfy a number of elements. He must establish: (1) that he was an employee; (2) that he was dismissed; (3) that the dismissal was in retaliation for his activities; and (4) that the dismissal was in contravention of a clearly mandated public policy. Fellhauer v. Geneva, 142 Ill.2d 495, 154 Ill.Dec. 649, 654, 568 N.E.2d 870, 875 (1991); Wheeler v. Caterpillar Tractor...

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3 cases
  • Ehlerding v. Am. Mattress & Upholstery, Inc.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • September 22, 2016 essentially what Defendants are attempting to do. See Driveaway and Truckaway Serv., Inc. v. Aaron Driveaway & Truckaway Co., Inc. , 781 F.Supp. 548, 549–50 (N.D. Ill. 1991) ("Plaintiffs' prayer for punitive damages is neither a defense, redundant, immaterial, impertinent, nor scandalous......
  • Harvey v. Care Initiatives, Inc., 99-1074.
    • United States
    • United States State Supreme Court of Iowa
    • October 10, 2001
    ...action to independent contractors and other non-employees. See Driveaway & Truckaway Serv., Inc. v. Aaron Driveaway & Truckaway Co., 781 F.Supp. 548, 551-52 (N.D.Ill.1991); Sistare-Meyer v. YMCA, 58 Cal.App.4th 10, 67 Cal. Rptr.2d 840, 842, 844 (1997); Ostrander v. Farm Bureau Mut. Ins. Co.......
  • Egan v. Wells Fargo Alarm Services, 93-2963
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 11, 1994
    ...compensation claim), cert. denied, 474 U.S. 909, 106 S.Ct. 278, 88 L.Ed.2d 243 (1985); Driveaway and Truckaway Service, Inc. v. Aaron Driveaway & Truckaway Co., 781 F.Supp. 548, 552 (N.D.Ill.1991) (acknowledging Midgett 's extension of retaliatory discharge tort beyond at-will employees, bu......

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