Widmar v. Sun Chemical Corporation et al
Filing
93
MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 4/19/2012:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GEORGE WIDMAR,
Plaintiff,
Case No. 11 C 1818
v.
Hon. Harry D. Leinenweber
SUN CHEMICAL CORPORATION,
PETER KLUG, CHARLES RAMSEY,
and THEODORE KNOTT,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants’ Motion to Strike the Amended
Complaint, the Parties’ Cross-Motions to Dismiss, and Plaintiff’s
Motion to Compel.
For the reasons stated herein, the Motion to
Strike is denied, Plaintiff’s Motion to Dismiss Defendant Klug is
denied as moot, Defendants’ Motion to Dismiss is granted in part
and denied in part, and Plaintiff’s Motion to Compel is granted in
part and denied in part.
I.
BACKGROUND
Plaintiff George Widmar (“Widmar” or “Plaintiff”) was a plant
manager for 16 years at Sun Chemical Corporation (“Sun Chemical”),
and
at
its
predecessor
company,
Rycoline.
companies produced printing inks and pigments.
Evidently,
both
Plaintiff Widmar
claims that he was an exemplary employee, but that the company
began receiving complaints in 2009 in response to cost-cutting
changes that the company made to its product formulas.
These
problems, he alleges, were not attributable to manufacturing, his
area of responsibility.
Plaintiff
claims
that
he
was
repeatedly,
publicly,
and
improperly blamed for the problems, and was fired in November 2009.
He claims that after he was fired, he did not receive the severance
that he expected — two weeks’ salary in lieu of notice, one week’s
salary for each full year of service, and payment for unused
vacation time.
Although the allegations are not entirely clear,
Plaintiff appears to allege in the Amended Complaint that he had a
written contract for such a severance package while employed by
Rycoline,
and
had
been
assured
that
that
policy,
not
Sun
Chemical’s, would continue to apply to him once Sun Chemical took
over the business.
assurances.
It is not clear who allegedly made those
Plaintiff claims that other Sun Chemical employees
over 40 years old were fired and not paid their severance, while
some younger employees did receive severance packages.
Plaintiff
was told that he was terminated for cause.
After his termination in November 2009, Plaintiff filed a
complaint with the Equal Employment Opportunity Commission (the
“EEOC”), and later added a retaliation charge to that Complaint.
He received a Right-to-Sue Letter, and filed this suit.
that
his
firing
violated
the
Federal
Age
He claims
Discrimination
in
Employment Act of 1967 (the “ADEA,” 29 U.S.C. §621, et seq.), the
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Illinois Wage Payment and Collection Act (the “IWPCA,” 820 ILL .
COMP. STAT. 115/1, et seq.), and the common law of contract. He also
claims
that
certain
statements
by
Defendants
Charles
Ramsey
(“Ramsey”) (a Sun Chemical Technical Service Manager) and Theodore
Knott (“Knott”) (a Sun Chemical sales manager), to the effect that
Widmar had been performing poorly and/or sabotaging the company,
constitute defamation.
Plaintiff specifically alleges that in
November 2010, Knott told one Ron Petzel of Fisher Printing that
Plaintiff had been sabotaging Sun Chemical’s products.
Plaintiff filed this Complaint on March 15, 2011, and the
Defendants answered on or before July 29, 2011.
2012,
Plaintiff
responses.
filed
a
Motion
to
Compel
On January 25,
certain
discovery
On February 10, 2012, Plaintiff moved to dismiss then-
Defendant Peter Klug (“Klug”) under FED . R. CIV . P. 41(b), having
concluded that he did not participate in the alleged defamatory
statement by Theodore Knott.
On February 22, 2012, Defendants
moved to dismiss Counts III and IV of the Complaint, and to dismiss
Count V as to Defendants Klug and Knott.
This Court granted
Plaintiff leave to amend his complaint on March 7, 2012.
Two days
later, Defendants moved to strike the Amended Complaint.
Since
then, the parties have finished briefing their respective motions
to dismiss, updated the status of the discovery disputes, and
Defendants Sun Chemical, Ramsey, and Knott have answered the
Amended Complaint.
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II.
LEGAL STANDARD
On a motion to dismiss under Rule 12(b)(6), the Court accepts
as true all well-pleaded facts in the complaint and draws all
inferences in the plaintiff’s favor.
Cole v. Milwaukee Area Tech.
Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011).
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).
Plaintiffs need not make “detailed factual allegations,” but must
offer more than conclusions or “a formulaic recitation of the
elements of the cause of action[.]”
550 U.S. 544, 555 (2007).
Bell Atl. Corp. v. Twombly,
“Naked assertion[s] devoid of further
factual enhancement” will not suffice – a complaint “must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”
Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949-50 (2009).
After a complaint and answer have been filed, a party may move
for judgment on the pleadings under Rule 12(c), so long as the
motion is not so late as to delay the trial.
FED . R. CIV . P. 12(c).
While not all of the 12(b) defenses are available in a 12(c)
motion, defendants can argue that a plaintiff failed to state a
claim upon which relief can be granted.
FED . R. CIV . P. 12(h)(2).
Motions under Rule 12(c) are reviewed under the same standards as
motions to dismiss under Rule 12(b)(6).
Buchanan-Moore v. County
of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009).
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III.
DISCUSSION
The Amended Complaint, if accepted, moots several arguments in
Defendants’ Motion to Dismiss.
Accordingly, the Court turns first
to the Motion to Strike.
A.
Motion to Strike Amended Complaint
FED. R. CIV. P. 15(a) dictates that once a responsive pleading
has been filed, a party may amend their pleading only with the
Court’s permission or the other party’s consent.
take a liberal approach to amendments.
However, courts
Stern v. U.S. Gypsum,
Inc., 547 F.2d 1329, 1334 (7th Cir. 1977).
Absent a showing of
undue prejudice, bad faith, futility, or other substantial cause,
amendments are generally permitted.
Foman v. Davis, 371 U.S. 178,
182 (1962).
As noted above, Plaintiff sought leave to amend his complaint
on March 7, 2012. Plaintiff’s counsel explained that the amendment
would fix a typographical error and some “pleading issues,” and
would moot some of Defendants’ Motion to Dismiss.
granted
Plaintiff’s
request.
In
addition
to
The Court
typographical
corrections, the Amended Complaint includes several new factual
allegations. See, e.g., Am. Compl. ¶20 (adding the allegation that
a Sun Chemical employee knew certain statements were false when he
made them); Id. ¶29 (adding the allegation that when Sun Chemical
bought Rycoline, Plaintiff was told that Rycoline’s personnel
policies would still apply to him).
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Defendants now move to strike the Amended Complaint, calling
the substantive amendments “untimely, prejudicial, futile, made in
bad faith, and contradict[ory to] Plaintiff’s sworn interrogatory
responses[.]”
Defs.’ Mem. in Support of Mot. to Strike, 1.
Defendants ask this Court to strike the complaint and require
Plaintiff to either file another complaint with no substantive
amendments, or to seek leave again to amend, so that Defendants can
oppose that motion on the merits.
Defendants
claim
that
the
Amended
Complaint
contradicts
Plaintiff’s interrogatory responses, arguing that Plaintiff has
added a claim for (or least allegations of) the breach of an oral
contract, whereas throughout discovery Plaintiff maintained that
the only relevant contract was written. Defendants also argue that
in Plaintiff’s initial disclosures, he did not list any statements
or witnesses relating to the new allegations that he was assured
that Rycoline’s policies would still govern his employment.
The
Court notes, however, that Plaintiff’s response to Interrogatory
Number 4 ends with the phrase “Investigation continues,” and that
Plaintiff has agreed to supplement his discovery responses. Nor is
the Court persuaded, as Defendant appears to be, that the amendment
added a claim for a breach of an oral contract.
(However, as noted
below, many facts surrounding the alleged contract remain unclear.)
Although Plaintiff should have supplemented his discovery responses
at
the
earliest
practicable
time
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after
identifying
these
statements, the Court does not find the amendment to be in bad
faith.
Defendants
also
argue
that
they
are
prejudiced
amendments, because discovery is nearly complete.
by
the
As Plaintiff
points out, however, Defendants took the opposite position just a
few weeks ago when they sought leave to file an amended answer to
the original complaint.
sought
leave
to
amend,
The Court finds that Plaintiff properly
and
that
any
additional
discovery
necessitated by the new allegations, while not negligible, is
unlikely to be exceedingly burdensome.
Accordingly, any prejudice
to Defendants does not warrant striking the Amended Complaint.
Next, Defendants argue that the amendments are futile, because
Plaintiff has already admitted that the document that he attached
to his complaint was not a contract, and that he was subject to Sun
Chemical’s employment policies.
These arguments, based on their
motion to dismiss, are addressed below and are rejected for the
same reasons here.
Finally, Defendants argue that the Amended Complaint merely
stalls their dispositive motion.
However, filing an amended
complaint in response to a motion to dismiss under Rule 12(b)(6) —
which is, in part, what Defendants’ motion purports to be – is
hardly unusual.
Furthermore, any delay in amending the complaint
is attributable in significant part to Defendants’ unusual decision
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not to file their motion to dismiss until many months after filing
an answer.
The Court accordingly concludes that striking the Amended
Complaint is not warranted. That being said, however, Plaintiff is
to supplement his discovery responses as necessary before any
remaining depositions and in any event no later than seven (7) days
after the entry of this order.
The Court will entertain requests
for limited discovery extensions to address the new allegations.
B.
Having
Cross-Motions to Dismiss Defendant Klug
accepted
the
Amended
Complaint,
the
Court
must
determine its impact on the parties’ Cross-Motions to Dismiss
Defendant Klug.
The parties agree that Klug should be dismissed,
but
contest
vigorously
prejudice.
Contrary
whether
to
the
dismissal
Defendants’
should
unsupported
be
with
assertions,
however, district courts in Illinois have treated dropping a
defendant from an amended complaint as a voluntary dismissal
pursuant to Rule 41.
See Cook v. Starling, 104 F.R.D. 468, 469
(D.C. Ill. 1985).
Under Rule 41(a)(2), such a dismissal is “on terms that the
court considers proper,” and is without prejudice unless the order
states otherwise.
FED. R. CIV . P. 41 (a)(2).
To determine whether
dismissal with prejudice is appropriate, courts evaluate whether
the dismissed defendant suffered “plain legal prejudice.” F.D.I.C.
v. Knostman, 966 F.2d 1133, 1142 (7th Cir. 1992).
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For example,
courts consider any time and effort that the dropped defendant
expended in trial preparation, whether the plaintiff showed a lack
of diligence, whether plaintiff sufficiently explained the need for
dismissal, and whether the defendant had already filed a motion for
summary judgment. Id.
Defendants have not identified which, if
any, of these factors support their argument that dismissal with
prejudice is necessary. As discussed below, Defendants’ motion for
summary judgment (in Rule 12 clothing) is not dispositive here.
Additionally, because Klug will likely remain a witness in this
case,
most
trial
preparation
efforts
were
not
in
vain.
Accordingly, the Court finds that dismissal with prejudice is
unnecessary.
If
Plaintiff
later
seeks
to
re-add
Klug
as
a
defendant, however, he will need to make a compelling showing of
good cause.
Accordingly, Plaintiff’s Motion to Dismiss Defendant
Klug [DKT 42] is denied as moot, and Defendants’ Motion to Dismiss
Defendant Klug with prejudice is denied.
C.
As
Defendants’ Motion to Dismiss Count III and Count IV,
and Count V against Defendant Knott
noted
above,
Defendants
filed
a
Motion
to
Dismiss
Counts III and IV, and Count V as to Defendant Knott (Klug now
having been dropped).
Defendants moved under FED . R. CIV. P. 12
(b)(6), 12(c), and 12(h).
Because the motion was filed well after
Defendants’ answers, however, the motion is governed by Rules 12(c)
and (h) only.
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Like motions to dismiss under Rule 12(b), motions under
Rule 12(c) rely only on the pleadings — that is, courts ordinarily
limit their inquiry to the four corners of the complaint. Platinum
tech., inc. v. Federal Ins. Co., No. 99 C 7378, 2000 WL 875881, at
*2 (N.D. Ill. June 28, 2000).
Indeed, if a party presents
extraneous matter which the court does not strike, the court must
deem the motion one for summary judgment and give the other side a
chance to respond in kind.
mandatory.
See
Venture
FED . R. CIV . P. 12(d).
Assocs.
Corp.
v.
Rule 12(d) is
Zenith
Data
Sys.
Corp., 987 F.2d 429, 431 (7th Cir. 1993) (construing prior version
of the Rule).
There is a limited exception, however.
If a
plaintiff refers to a document in the complaint, and it is central
to his claim, a defendant may introduce that document as part of a
Rule 12 motion without converting the motion to one for summary
judgment. Id.
Documents that constitute “the core of the parties’
contractual relationship” may qualify. Id. at 432.
1.
Exhibits to the Briefing on the Motion to Dismiss
Both parties have attached declarations and documents to their
briefing on Defendants’ Motion to Dismiss.
Neither, however, asks
this Court to convert Defendants’ motion into one for summary
judgment.
Accordingly, the Court will strike any impermissible
exhibits, and disregard argument based thereon.
- 10 -
a.
Defendants
Declaration of Michael Kraus
offer
the
declaration
Chemical’s Human Resources Manager.
vehicle
for
its
attached
of
Michael
Kraus,
Sun
The declaration is largely a
exhibits,
a
Sun
Chemical
“Employee
Handbook Acknowledgment Form” signed by Plaintiff on May 15, 2008,
and excerpts from that handbook. The Acknowledgment Form, like the
handbook excerpt, states that all employment is at-will and that
the handbook creates no contractual rights.
The handbook also
states
does
that
it
is
not
comprehensive,
and
not
individual applications or exceptions to the rules.
excerpt, titled
“Leaving
Sun
Chemical,”
is
silent
address
The final
as
to
any
severance pay.
Defendants argue that these excerpts are part of the pleadings
because
Plaintiff’s
contract-based
claims
are
Chemical’s policies at the time he was fired.
Support of Mot. to Dismiss, at 2 n.1.
based
on
Sun
Defs.’ Mem. in
It is difficult to see what
Defendants gain from the excerpts, in light of their disclaimers
and the Court’s obligation to construe all facts in the light most
favorable to Plaintiff.
In any event, however, neither complaint
references Sun Chemical’s handbook, and the amended complaint
disavows the applicability of any Sun Chemical policy.
Plaintiff
instead alleges that he had a written contract for severance pay —
which, reading the complaint as a whole, refers to a written
contract with Rycoline. The handbook is not central to Plaintiff’s
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complaint.
The Kraus declaration and its exhibits are therefore
stricken.
b.
Declaration of Vicki DiDomenico
Defendants next offer the declaration of Vicki DiDomenico
(“DiDomenico”),
a
Sun
Chemical
employee
secretary to the Rycoline president.
and
former
executive
In it, DiDomenico narrates
her job duties and her version of Charles Ramsey’s comments about
Plaintiff, and explains that the written severance policy which
Plaintiff attached to his complaint was something that she typed up
in response to a subpoena in Plaintiff’s 2003 divorce.
asserts that
Rycoline
had no
written
severance
DiDomenico
policy.
Her
declaration exhibits include documents relating to the subpoena as
well as the same one-page severance statement that Plaintiff
attached to his complaint.
Ms. DiDomenico’s account of her career and her interactions
with Charles Ramsey must be stricken under Venture Associates.
Furthermore, her account of how the written severance policy
statement that Plaintiff attached to his complaint came to be
likewise is inappropriate, as Plaintiff does not allege that that
page is the contract at issue, nor does he reference his divorce.
The only permissible part of her declaration appears to be the
exhibit that was already attached to Plaintiff’s complaint.
Accordingly,
the
declaration
and
its
attachments
duplicative or inappropriate, and are stricken.
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are
either
c.
Plaintiff’s Discovery Responses
Defendants also have attached several of Plaintiff’s discovery
responses from this case to their motion and reply.
It should go
without saying that this material is inappropriate for a motion to
dismiss.
It is stricken.
d.
Declaration of Ronald Petzel
For the same reasons that Ms. DiDomenico’s declaration was
stricken, Ronald Petzel’s narrative declaration of his interactions
with Klug and Knott is stricken.
e.
Affidavit of Ruth Major
As Ms. DiDomenico’s declaration has been stricken, Plaintiff’s
counsel’s affidavit regarding DiDomenico’s recent deposition is
stricken as irrelevant and outside of the scope of the pleadings.
f.
Exhibits Attached to Defendants’ Reply
At least two of the exhibits attached to Defendants’ reply in
support of their motion are inappropriate for the reasons listed
above.
All, however, were identified for the first time in reply,
giving Plaintiff an insufficient opportunity to respond to them.
They are stricken.
2.
The Remainder of Defendants’ Motion to Dismiss
Having stricken the inappropriate exhibits to the briefing and
disregarded
arguments
based
thereon,
remainder of Defendants’ motion.
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the
Court
considers
the
a.
Defendants
have
moved
Count III
to
dismiss
contract claim against Sun Chemical.
Plaintiff’s
breach
of
Paragraphs 63-67 of the
Amended Complaint generally recite the elements required to prove
a breach of contract claim under Illinois law.
See Baxi v. Ennis
Knupp & Assocs., No. 10 C 6346, 2011 WL 3898034, at *8-9 (N.D. Ill.
Sept. 2, 2011) (discussing Illinois’ standard).
However, the
factual allegations in the complaint render unclear the basis for
Plaintiff’s claim for the breach of a written contract — for
example, none of the ordinary “when, where, or how” of the contract
formation between Plaintiff and Rycoline are alleged.
Compl. ¶¶27, 28, 29.
See Am.
Furthermore, both the original and Amended
Complaints assume, without corresponding factual allegations, that
Sun
Chemical
Plaintiff.
assumed
Rycoline’s
employment
agreement
with
Cf. Wiggins Ferry Co. v. Ohio & M. R. Co., 142 U.S.
396, 408-09 (1892) (a party may become bound to a contract if,
having knowledge of it, he deliberately interacted with the other
party consistent with the contract terms); W.P. Iverson & Co. v.
Dunham Mfg. Co., 152 N.E.2d 615, 625 (Ill. App. Ct. 1958) (same).
Paragraph 29 of the Amended Complaint seems directed to the
assumption issue. However, the paragraph says merely that when Sun
Chemical bought Rycoline, and “throughout Mr. Widmar’s employment
with Rycoline,” he was told “by various management-level employees
that personnel policies and practices” from Rycoline would continue
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applying
to
him
once
Sun
Chemical
took
over.
indication whose employees made those statements.
There
is
no
Although this
Court reads the complaint favorably to Plaintiff, it will not
inject factual allegations that Plaintiff failed to make — namely,
that
Sun
Chemical
provided
any
such
assurance.
Absent
an
allegation of express assumption or any other exception to the
successor liability doctrine under Illinois law, see Joseph Huber
Brewing Co., Inc. v. Pamado, Inc., No. 05 C 2783, 2006 WL 2583719,
at *8 (N.D. Ill. September 5, 2006), Plaintiff has not adequately
pled his contract claim.
The Court dismisses Count III without
prejudice.
b.
Count IV
In Count IV, Plaintiff alleges that Sun Chemical violated the
IWPCA, by failing to pay him the severance that he was owed in
light of his 16-year career at the company.
Am. Compl. ¶69.
The
IWPCA sets out timelines for the payment of “final compensation” to
employees who separate from a company.
820 ILL. COMP . STAT . 115/5.
The IWPCA defines final compensation as “wages, salaries . . . and
any other compensation owed the employee by the employer pursuant
to an employment contract or agreement between the 2 parties.” Id.
§ 115/2.
Illinois cases are clear that an “agreement” requires
only a manifestation of mutual assent, not a formal contract.
See
Skelton v. Am. Intercontinental Univ. Online, 382 F.Supp.2d 1068,
1075 (N.D.
Ill.
2005)
(citing,
inter
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alia,
Catania
v. Local
4250/5050, Commc’ns Workers of Am., 834 N.E.2d 966, 971-72 (Ill.
App. Ct. 2005)).
As noted above, Plaintiff has sufficiently pled that someone
agreed to pay him the alleged severance package.
He has not,
however, alleged that that person could or did speak for Sun
Chemical. Because the IWPCA only enforces parties’ agreements, the
IWPCA claim fails along with the contract claim, and is dismissed
without prejudice.
c.
Count V as to Knott
The amended Count V alleges that Sun Chemical, Theodore Knott,
and Charles Ramsey defamed Plaintiff.
Defendants initially moved
to dismiss Count V as time-barred. The Amended Complaint, however,
corrected the date of the alleged defamatory statements to Ronald
Petzel
(“Petzel”)
from
November
2009
to
November
Accordingly, Count V is not time-barred as alleged.
2010.
735 ILL . COMP .
STAT. 5/13-201.
Defendants also moved to dismiss on the ground that Petzel’s
declaration denies that he heard any such statement.
factual
dispute
(based
upon
a
stricken
Neither this
declaration),
nor
Defendants’ argument that Plaintiff cannot rely on hearsay in his
defamation complaint (based upon summary judgment standards), holds
water.
Accordingly, the motion to dismiss Count V as to Defendant
Knott is denied.
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D.
Motion to Compel
In January, Plaintiff moved to compel responses to certain of
his discovery demands. This Court continued that motion, which has
been updated in light of the parties’ discussions.
The Court
considers each dispute in turn.
First,
Plaintiff
has
requested
that
Defendant
identify
“sources where [Sun Chemical] e-mails and electronic documents may
be found.”
Plaintiff claims that he and his technical consultant
have received
inadequate
information
backup tapes and IT policies.
regarding
Sun
Chemical’s
Defendants claim that they are
currently seeking the requested information.
Plaintiff’s request
appears to be reasonable and not burdensome, and is granted.
Second, Plaintiff requests that Defendant search the files of
seven individuals (who are allegedly involved in testing Sun
Chemical
products)
for
documents
responsive
to
his
discovery
requests. He argues that their information is necessary for him to
show
that
the
manufactured.
problematic
products
were
not
defectively
Defendants object that they have searched the
documents of 11 people so far, turning over thousands of pages, and
that adding seven more individuals’ worth of documents would be
unduly burdensome, expensive, and partially redundant.
Defendants
gave no estimate of time or cost of complying with this request,
other than that it would be substantial.
Given that lack of
precision and the significance to this case of whether the products
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were defectively manufactured under Mr. Widmar’s supervision, the
Court grants the motion.
Third, Plaintiff seeks broad discovery into product quality
issues at Sun Chemical from 2007 to the present, including customer
complaints, returns, recalls, records of formula changes, etc.
He
seeks this information for the entire territory in which he worked,
including Illinois, Georgia, Texas, California, and New Jersey.
All plants except those in Illinois and California were closed by
November 2009, however, and Plaintiff has agreed to forgo discovery
relating to those plants so long as Defendants do not later
challenge Plaintiff’s failure to consider them.
Defendants note
that they have produced the product return authorization logs
(which include information about returned products and any tests
done on them) for 2008 through 2010, as well as 3,000 pages of
documents
pertaining
to
quality
issues
in
Chicago
in
2009.
Accordingly, Defendants argue that any other documents from 2008 or
2010 would be duplicative, and would unduly expand the 30-35 hours
spent in producing the 2009 documents. However, limiting Plaintiff
to 2009 gives him no baseline against which to compare the troubles
of 2009. Accordingly, subject to Plaintiff’s stipulation regarding
geographic
limits,
Defendant
shall
turn
over
the
requested
documents, but only for 2008-2010.
Fourth,
Plaintiff
asks
for
all
instructions
from
Sun
Chemical’s labs regarding what raw materials were needed, and the
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records of what raw materials were actually purchased.
Plaintiff
intends to argue that the product problems attributed to Widmar
were the result of either formula changes or a disconnect between
the laboratories’ needs and the materials they got.
Defendants
object that the complaint is silent as to raw materials, and that
some information regarding 2009 raw material orders has already
been produced.
The Seventh Circuit, however, has emphasized that
it is appropriate for Plaintiffs to develop their theories during
discovery.
See, e.g., Abuelyaman v. Ill. State Univ., 667 F.3d
800, 813-14 (7th Cir. 2011) (affirming grant of summary judgment on
a theory because it had not been presented during discovery).
However, like the requests above, Defendant need only produce such
records for 2008-2010.
Fifth, Plaintiff seeks the return authorization logs for 2007
and 2011 in addition to the 2008-2010 logs that Defendant has
produced.
Given that the discrimination case centers around the
events in 2009, the Court considers the 2008-2010 logs sufficient.
The request is denied.
Sixth, Plaintiff requests a copy of his own e-mail inbox and
outbox from 2007 to the present.
Defendants object that those
files have already been searched, with thousands of pages being
turned over.
Defendants also dispute that copying the inbox would
be easy, noting that employee e-mail is backed up to two servers
(one of which is ultimately copied to backup tapes) and to two
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additional e-mail archive servers.
Although some Courts will not
require parties to search backup tapes, it appears from Defendants’
explanation that the archive servers could be searched and copied
with less effort. Accordingly, the Court grants Plaintiff’s motion
to the extent that the files are archived on servers, not just
backup tapes. However, in order to reduce Defendants’ burden, they
need
not
provide
those
documents
in
both
requested
formats.
Plaintiff may choose to have the documents produced in either their
native
electronic
format
or
converted
to
TIFF
images,
Defendants need not pay to provide Plaintiff with both.
but
See FED .
R. CIV. P. 34(b)(2)(A)(iii).
Seventh, Plaintiff seeks a list of Sun Chemical employees
terminated in the relevant territory between January 2009, and the
present.
Defendants have produced a list of 45 Illinois employees
terminated in 2009, and state that no California employees were
terminated in 2009, but argue that all terminations after 2009 are
irrelevant.
Although producing all terminations from 2009 to the
present seems unnecessarily broad, the Court grants Plaintiff’s
request for the 2010 termination data.
Eighth, Plaintiff seeks all Sun Chemical communications about
him from 2007 to the present.
Defendants complied with this
request for dates between January 1, 2009, and November 18, 2009.
Defendants object that Plaintiff was involved in many daily emails, and so Plaintiff’s request is unduly burdensome.
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The Court
generally agrees with Defendants; however, because the alleged
defamatory statements occurred in November 2010, the Court will
grant Plaintiff’s request but only as to communications between
July 1, 2008 and December 31, 2010.
Ninth,
Plaintiff
communications
made
asks
concerning
otherwise, since his termination.
Defendants
him,
to
within
identify
Sun
all
Chemical
or
This request is directed to Sun
Chemical, Ramsey, and Knott. The Court grants the motion regarding
statements known by the individual Defendants.
considerably
more
complicated
for
a
The request is
corporation,
however.
Plaintiff has offered to limit the corporate request to anyone
communicating with Sun Chemical customers, in addition to Ramsey,
Knott, Klug, and Mark DeSandre. Defendants nonetheless object that
many employees interact with customers, and so the request remains
an unduly burdensome fishing expedition.
agrees.
The Court generally
Plaintiff’s request is therefore granted, only as to
statements known to defense counsel and those individuals involved
in this litigation — parties, witnesses, or declarants identified
by either party.
Tenth, Plaintiff seeks basic information about people employed
by Sun Chemical in the relevant territory from 2007 to the present.
Defendants object that contrary to Plaintiff’s claim, they have
provided
organizational
November 1, 2009.
charts
and
an
employee
list
as
of
The Court agrees with Plaintiff that the
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November 2009 list is insufficient to identify potential witnesses
to the various alleged events.
Accordingly, Defendants will
provide a list of all Sun Chemical employees in the relevant
territory during 2008 through 2010.
Eleventh,
Plaintiff
seeks
copies
of
Sun
Chemical’s
manufacturing job postings from August and September of 2009.
Defendants have stated that no such advertisements occurred between
October 2009, and April 2010, and argue that this information
suffices to show whether Sun Chemical advertised for Plaintiff’s
replacement before firing him.
However, Defendant has identified
no difficulty in providing the requested data, and the motion is
granted.
Twelfth, Plaintiff seeks the personnel files of defamation
Defendants Ramsey and Knott.
Defendants argue that they have
turned over the personnel files relevant to the discrimination
claim,
but
that
defamation claim.
personnel
information
is
irrelevant
to
the
However, as Ramsey and Knott are named parties
whose history and credibility are doubtless relevant to the case,
the Court concludes that their personnel files are relevant and
grants Plaintiff’s request.
IV.
CONCLUSION
For the reasons stated herein, the Court rules as follows:
1.
Denies the Motion to Strike Plaintiff’s Amended Complaint
[DKT 61];
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2.
Denies Plaintiff’s Motion to Dismiss as moot [DKT 42];
3.
Grants in part and denies in part Defendants’ Motion to
Dismiss [DKT 46]; and
4.
Grants in part and denies in part Plaintiff’s Motion to
Compel [DKT 35].
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
DATE:4/19/2012
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