Moffett v. Gene B. Glick Co., Inc.

• Decision Date: 30 November 1984
• Docket Number: Civ. No. F 84-250.
• Parties: Susan K. MOFFETT (formerly Susan K. Partin), Plaintiff, v. GENE B. GLICK COMPANY, INC.; Harry Hall; and Joseph Mickilini, Defendants.
• Court: U.S. District Court — Northern District of Indiana

604 F. Supp. 229

Susan K. MOFFETT (formerly Susan K. Partin), Plaintiff, v. GENE B. GLICK COMPANY, INC.; Harry Hall; and Joseph Mickilini, Defendants.

Civ. No. F 84-250.

United States District Court, N.D. Indiana, Fort Wayne Division.

November 30, 1984.

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Ernest M. Beal, Jr., Parrish, Knight, Jackson & Beal, Fort Wayne, Ind., for plaintiff.

James F. Beatty, James W. Beatty, Virginia Dill McCarty Landman & Beatty, Indianapolis, Ind., Richard J. Thonert, Fort Wayne, Ind., for defendants.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendants' Motion to Dismiss filed September 20, 1984. For the reasons set forth below, the motion will be granted in part and denied in part.

Plaintiff Moffett has filed a complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) and § 2000e-3(a), under 42 U.S.C. § 1981, and under four Indiana common law tort theories for actions taken by the defendants with respect to Moffett's employment with defendant Gene B. Glick Co., Inc. ("Glick"). The defendants have responded by filing a Motion to Dismiss as to the § 1981 and Indiana common law counts.

In deciding a motion to dismiss for failure to state a claim, this court must take the well-pleaded factual allegations of plaintiff's complaint as true. Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir.1980). A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Jafree v. Barker, 689 F.2d 640, 643 (7th Cir.1982); Park Electric Co. v. Local 701, 540 F.Supp. 779, 781 (N.D.Ill.1982). Further, this court must consider the complaint in the light most favorable to the plaintiff and must resolve every reasonable doubt in favor of the claimant. Henry C. Beck Co. v. Fort Wayne Structural Steel, 701 F.2d 1221 (7th Cir.1983).

Under these principles, the relevant facts of this case appear to be as follows. Plaintiff Moffett is a Caucasian female who was employed as a manager by defendant Glick at Glick's Cambridge Square, Phase I, apartment complex from June, 1982 until August 15, 1983. In November, 1982, defendants Hall and Mickilini, who worked as maintenance managers at the Cambridge Square, Phase I, complex, learned of Moffett's personal relationship with a black man, and began to make racially discriminatory comments, derogatory remarks, threats of physical or personal harm, and engaged in other forms of harassment. From December, 1982 until May, 1983, plaintiff reported this conduct to her superiors, but no meaningful action was taken by anyone at Glick to curtail the harassment. A letter from Jack Kline, an executive officer of Glick, to Moffett's supervisor indicated that "I am not sure we can keep our staff from saying things. I am not sure that we could fire them on the basis of their remarks."

Within the statutorily-prescribed time limits, Moffett filed employment discrimination charges with the Equal Employment Opportunity Commission ("EEOC") and the Fort Wayne Metropolitan Human Relations Commission ("FWMHRC"). The FWMHRC determined there was "probable cause" to believe that Moffett's charges were true, and the EEOC issued a Notice of Right to Sue. This action was timely filed after the completion of administrative proceedings.

The complaint alleges six counts: (1) a Title VII claim against Glick; (2) a claim under 42 U.S.C. § 1981 against all defendants; (3) invasion of privacy; (4) intentional or negligent infliction of emotional distress; (5) a claim of breach of contract and/or fraud against Glick for retaliatory discharge; and (6) a claim of intentional interference with contract or advantageous business relations against Hall and Mickilini. Moffett claims damages "in an amount and character to be proven at trial," and seeks "all appropriate relief, including an award of costs and attorneys fees, that the court deems just and proper."

The defendants have responded by filing their motion to dismiss. The motion does not challenge the Title VII claim against Glick in Count One. Rather, the motion attacks the sufficiency of the rest of the complaint by raising the following arguments: (1) pleading deficiencies mandate dismissal; (2) Hall and Mickilini cannot be liable under § 1981, and therefore should be dismissed from Count Two; (3) the allegations of Count Three do not fall within the parameters of the Indiana common law tort of invasion of privacy; (4) failure to allege an "impact" mandates dismissal of the intentional/negligent infliction of emotional distress claim of Count Four; (5) the at will nature of Moffett's employment contract forecloses a breach of contract claim, and the failure to allege fraud particularly requires dismissal of Count Five; and (6) Hall and Mickilini did not perform any acts amounting to an interference for purposes of Count Six. The court will analyze these arguments in turn.

Pleading Deficiencies

Defendants allege three pleading deficiencies. First, they claim that the "tacking on" of state common law claims without alleging their essential elements makes Counts Three through Six "makeweight" claims that should be dismissed. Second, defendants challenge plaintiff's use of the phrase "and/or" in several places of the complaint because it does not "fairly inform Defendants of the specific nature of the case." Lastly, defendants challenge plaintiff's damage claim and prayer for relief, claiming that the request for "all appropriate relief" fails to meet Federal Rule of Civil Procedure 8(a)(3)'s requirement of a "demand for judgment for the relief to which the claimant deems himself entitled." The court finds none of these arguments persuasive.

Defendants' assertion that the pendant state claims are "makeweight" misconstrues the pleading requirements under the Federal Rules. Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The statement need only be enough to give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 45, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Under this "notice pleading" framework, Moffett has clearly alleged sufficient facts and the theory under which she seeks relief in all six counts. The defendants certainly have "fair notice" —their brief examines each theory of recovery and how the facts alleged in the complaint relate to each theory.

Nor do the Federal Rules require that each state common law claim be pleaded according to state law rules. The adequacy of a pleading is governed by federal law, not state pleading rules. Colton v. Swain, 527 F.2d 296, 304 (7th Cir.1975); Kelly v. Stratton, 552 F.Supp. 641, 648-49 (N.D.Ill. 1982); Wright and Miller, Federal Practice and Procedure § 1204 (1969). Thus, to the extent that defendants' argument can be characterized as alleging that Moffett fails to allege all of the elements of the common law torts under Indiana law, it must be rejected. Plaintiff's counts clearly give notice of the nature of the claims against the defendants. Perhaps the best evidence of this is defendants' memorandum in support of the motion to dismiss; that brief analyzes the legal theory of each count, and presents extensive argument on the sufficiency of each theory.

For precisely the same reason, defendants' arguments against the use of "and/or" in plaintiff's pleadings does not violate Rule 8(a). The defendants have been clearly apprised of the nature of the claims and facts alleged, and have stated their legal positions on each issue. The court finds no damage to defendants' position by this form of pleading.

Lastly, Moffett's prayer for relief, although admittedly general, is sufficient to meet the pleading requirements of the federal rules. Rule 8(a)(3) requires that a complaint contain "a demand for judgment for the relief to which the pleader deems himself entitled." Here, ¶ 23 of Moffett's complaint alleges that she was damaged "in an amount and character to be proven at trial." Given the nature of Moffett's allegations, the court characterizes ¶ 23 as asserting a claim for money damages, with the ultimate prayer for relief ("Plaintiff prays that this court grant her all appropriate relief") being a request for a judgment awarding monetary relief. Viewed in this light, the complaint satisfies the mandate of Rule 8(a)(3).

Defendants cite two cases to support their argument that general requests for relief violated Rule 8(a)(3), but neither case supports the argument. In RKO-Stanley Warner Theatres, Inc. v. Mellon National Bank & Trust Co., 436 F.2d 1297 (3d Cir. 1970), the court affirmed the dismissal of a claim against one defendant on grounds of Rule 8(a)(3), but the court's discussion about the inability to conceive how the defendant could be liable and what kind of relief against the defendant would help the plaintiff indicates that the complaint's failure to suggest appropriate relief made the general prayer for relief ineffective. Here, the complaint clearly contemplates monetary damages as relief. In National Indian Youth Council v. Morton, 363 F.Supp. 475 (W.D.Okla.1973), the damage claim was defective not because of its generality per se, but rather because its generality forced the court to assume that each unnamed plaintiff suffered more than $10,000 in damages for being expelled from school. The court was understandably reluctant to make that assumption. However, Moffett's complaint contains allegations of monetary damages (¶ 23) which require no such sweeping assumptions. Thus, both cases are distinguishable, and do not contradict the conclusion that Moffett's damage allegations and prayer for relief meet the requirements of the federal rules.

Overall, defendants'...