Lores v. SailPoint Techs., Inc.
| Decision Date | 27 March 2019 |
| Docket Number | Case No. 18-cv-3910 |
| Parties | DENISE M. LORES, Plaintiff, v. SAILPOINT TECHNOLOGIES, INC., a Delaware Corporation, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiff Denise Lores alleges that her employer, Defendant SailPoint Technologies, fabricated a host of lies about her to justify putting her on a performance improvement plan, then withheld compensation to which she was entitled, and finally terminated her when she demanded that compensation. Plaintiff asserts four claims in response to Defendant's actions: defamation per se (Count I), defamation per quod (Count II), and two claims under the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq.—failure to timely pay earned compensation (Count III) and retaliatory discharge (Count IV). After Plaintiff originally filed suit in the Circuit Court of Cook County, Defendant removed the action to this Court on June 5, 2018. [1.]
Currently before the Court is Defendant's motion [18] to dismiss Plaintiff's first amended complaint for improper venue under the Federal Arbitration Act, 9 U.S.C. §§ 2-4, and Federal Rule of Civil Procedure 12(b)(3), or, alternatively, to transfer the case to the United States District Court for the Western District of Texas (Austin Division) under 28 U.S.C. § 1406(a). In further alternative, Defendant moves to dismiss Counts I & II under Federal Rule of Civil Procedure 12(b)(6). In addition, Plaintiff has moved to strike [21] sections of Defendant's reply [20] in support of its motion to dismiss. For the reasons set forth below, the Court grants in part and denies in part Defendant's motion [18] and denies Plaintiff's motion to strike [21]. The Clerk is directed to transfer the case to the Western District of Texas (Austin Division) for all further proceedings.
As a preliminary matter, the Court addresses Plaintiff's motion to strike [21] portions of Defendant's reply brief [20], especially certain facts relevant to the current motion. In her motion, Plaintiff asks the Court to strike (and thus not consider) (1) Defendant's argument that Plaintiff failed to allege special damages in her claim for defamation per quod; (2) the Declaration of Matthew F. Prewitt [20-1] attached to Defendant's reply and the documents it seeks to introduce and authenticate [20-2-20-6]; and (3) the sections of the reply [20-1, 3-4] which contain references to the Plaintiff's original verified complaint [1-1, 7-32].
Failure to raise an argument in the first instance constitutes waiver of that argument. United States v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007). An argument so waived may not later be raised in a reply brief. Id. The purpose of the waiver rule is to avoid unfairness to a non-movant who is denied the opportunity to respond to an issue because the movant raised the issue for the first time only in a reply brief. See Wright v. United States, 139 F.3d 551, 553 (7th Cir. 1998).
With regard to Plaintiff's first argument, Defendant responds that Plaintiff put into issue whether she had pled special damages when she asserted that she is not claiming unpaid commissions in her response. [24, at 8.] However, as explained below, because the Court does not reach Defendant's motion to dismiss under Rule 12(b)(6) given its determination that it must transfer this case to the Western District of Texas, the Court denies the motion with prejudice. Likewise, Plaintiff's motion to strike the evidence submitted by Defendant to support the notion that the SCP is a valid enforceable agreement is also stricken, given the Court's conclusion that Plaintiff has waived that argument. With that, the Court turns to Plaintiff's arguments that Defendant may not reference facts pled in her initial verified complaint.
Plaintiff is mistaken that Defendant may not refer to Plaintiff's initial complaint. As explained below, the Court may consider evidence outside the pleadings in its consideration of a motion to dismiss under Rule 12(b)(3). See Section III(A). And, as Defendant correctly points out, the first complaint was a verified complaint. See [1-1, at 33 (verifying the complaint).] As the Seventh Circuit recently explained, Beal v. Beller, 847 F.3d 897, 901 (7th Cir. 2017) (citation omitted). Because the Court may look to information outside the pleadings, and the Court may treat Plaintiff's initial verified complaint as if it were an affidavit, Defendant may reference it. The Court therefore denies Plaintiff's motion to strike Defendant's references to the complaint and has considered allegations from that complaint in its resolution of the motion to dismiss.
Plaintiff began working for Defendant as a Sales Engineer in July 2015. [16, ¶ 6.] When she joined, Defendant promised an initial base salary of $133,000 per year, with additional incentive compensation expected to be at least $57,000 per year, for "on-target earnings" of at least $190,000. [Id.] The Sales Commission Plan (the "SCP") referenced in Plaintiff's employment agreement provided for the manner in which that "incentive compensation" would be calculated and paid. [1-1, ¶ 4; 18-2.]2
The SCP contains both an arbitration provision and a forum selection provision. [18-2, at 6.] The arbitration provision provides that "[a]ny controversy or claim relating to the SCP that is not resolved after good faith efforts shall be resolved according to the commercial arbitration rules of the American Arbitration Association." [Id.] The forum selection provision states "that exclusive venue for litigation involving the enforcement of this Agreement or any rights, duties or obligations under this Agreement * * * shall be in Texas state court in Travis County, Texas, or in a United States District Court located in Travis County, Texas * * *." [Id.]
By Plaintiff's account, her work in 2015 and 2016 was exemplary considering the positive feedback she received on her annual reviews and other encouraging feedback she received from her coworkers and superiors. [16, ¶¶ 7-10.] Despite these positive reviews, Plaintiff alleges that Defendant suddenly and inexplicably initiated an adverse employment action against her on May 17, 2017. [Id. ¶ 12.] On that date, Plaintiff's direct supervisor, who had only given her positive reviews prior to that point, informed her that she would have to submit to a 60-day Performance Improvement Plan ("PIP"). [Id. ¶ 13.] In the alternative, he invited her to leave Defendant voluntarily pursuant to a separation agreement. [Id.] Plaintiff's supervisor did not provide any explanation for the sudden reversal in fortune, though he did make an oblique suggestion that it had nothing to do with an incident between Plaintiff and a colleague earlier that year. [Id. ¶ 15.] Shortly thereafter, Plaintiff's supervisor emailed her a written PIP along with a proposed separation agreement. [Id. ¶ 17.]
Plaintiff alleges that the PIP was filled with pretextual justifications and premised upon "false and libelous statements of fact." [Id. ¶ 19.] Similarly, the separation agreement that accompanied the PIP stated that regardless of whether she agreed to the PIP or not, her employment with Defendant would be terminated on May 24, 2017. [Id.] If she agreed to the separation agreement and released all of her claims against Defendant, the company agreed to provide her with two months of salary as a severance payment. [Id.]
On May 30, 2017, Plaintiff submitted the signed and acknowledged PIP to her supervisor. [Id. ¶ 20.] Approximately one week later, on June 5, 2017, Plaintiff through counsel complained that Defendant was acting pretextually and that the fact statements in the PIP were false. [Id. ¶ 21.] Plaintiff's counsel also noted that Plaintiff was owed commissions by Defendant. [1-1, at 13 ¶ 21.] Although the PIP expressly contemplated Plaintiff's continued employment until July 30, 2017, [16, ¶ 26], on June 8, 2017, Plaintiff discovered that she had been terminated when she called her now former supervisor and then attempted to log into her employee account. [Id. ¶ 28-29.] She received a direct confirmation of her termination the next day when a member of Defendant's IT department sent her an email with a shipping label for her to return her "SailPoint Asset" back to Defendant's headquarters. [Id. ¶ 30.]
On May 1, 2018, Plaintiff filed this suit in the Cook County Circuit Court. [1-1, at 7.] On June 5, Defendant removed the case to this Court. [1.] Plaintiff filed an amended complaint on July 11, 2018, which narrowed the case to the four claims currently before the Court. See generally [16]. On August 10, Defendant moved to dismiss the complaint. [18.] That motion was fully briefed on September 24, 2018. [20.] However, on October 15, 2018, Plaintiff moved to strike significant portions of Defendant's reply [20]. [21.] The Court granted leave to brief the motion, which was completed on November 9, 2018. The Court now resolves the motions.
Defendant requests that the Court dismiss the case under Federal Rule of Civil Procedure 12(b)(3). Rule 12(b)(3) allows a defendant to seek dismissal for "improper venue." The plaintiff bears the burden of establishing that the chosen venue is proper. See Int'l Travelers Cheque Co. v. BankAmerica Corp., 660 F.2d 215, 222 (7th Cir. 1981) (citing Grantham v. Challenge-Cook Bros., Inc., 420 F.2d 1182, 1184 (7th Cir. 1970)). A court deciding a Rule 12(b)(3) motion must take...
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