Kawczynski v. F.E. Moran, Inc. Fire Protection

Filing 52

ORDER Signed by the Honorable Amy J. St. Eve on 12/21/2015: The Court denies Defendant's Federal Rule of Civil Procedure 12(b)(6) motion to dismiss 43 . Defendant's answer is due on or before January 5, 2016. Status hearing set for Feb ruary 17, 2016 is stricken and reset to January 21, 2016 at 8:30 a.m. Rule 26(a)(1) disclosures shall be exchanged by January 8, 2016. Written discovery shall be issued by January 15, 2016. Parties shall file a joint proposed schedule for the remainder of discovery by January 19, 2016. [For further details, see Order.] Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEFFREY E. KAWCZYNSKI,
Plaintiff,
v.
F.E. MORAN, INC. FIRE PROTECTION
OF NORTHERN ILLINOIS f/k/a FE
MORAN INC. FIRE PROTECTION,
Defendant.

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Case No. 15 C 3099
Judge Amy J. St. Eve

ORDER
The Court denies Defendant’s Federal Rule of Civil Procedure 12(b)(6) motion to
dismiss [43]. Defendant’s answer is due on or before January 5, 2016. Status hearing set for
February 17, 2016 is stricken and reset to January 21, 2016 at 8:30 a.m. Rule 26(a)(1)
disclosures shall be exchanged by January 8, 2016. Written discovery shall be issued by January
15, 2016. Parties shall file a joint proposed schedule for the remainder of discovery by January
19, 2016.
STATEMENT
On November 5, 2015, Plaintiff filed a Third Amended Complaint against Defendant F.E.
Moran, Inc. Fire Protection of Northern Illinois f/k/a FE Moran Inc. Fire Protection alleging
employment discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621,
et seq. (“ADEA”). Before the Court is Defendant’s motion to dismiss. This is Defendant’s third
motion to dismiss and the Court presumes familiarity with its prior rulings in this matter. The
Court denies Defendant’s motion and will not consider any further motions to dismiss. Further,
the Court reminds Defendant’s counsel of its Federal Rule of Civil Procedure 11(b)(2)
obligations.
LEGAL STANDARD
“Under Illinois law as under federal law, an amendment relates back when it arises out of
the same transaction or occurrence set up in the original pleading.” Cleary v. Philip Morris Inc.,
656 F.3d 511, 515 (7th Cir. 2011) (citation omitted). More specifically, an amendment relates
back to the date of the original pleading when “the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out – or attempted to be set out – in the
original pleading.” Fed.R.Civ.P. 15(c)(1)(B); see also Luevano v. Wal-Mart Stores, Inc., 722
F.3d 1014, 1022 (7th Cir. 2013). “[T]he purpose of relation back” is “to balance the interests of
the defendant protected by the statute of limitations with the preference expressed in the Federal

Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes on their
merits.” Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 549-50, 130 S.Ct. 2485, 177 L.Ed.2d
48 (2010).
ANALYSIS
On March 6, 2015, Plaintiff filed a Verified Complaint in the Circuit Court of Cook
County, and, on April 8, 2015, Defendant removed this action pursuant to the Court’s original
jurisdiction over Plaintiff Jeffrey Kawczynski’s employment discrimination claim brought under
the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”). Defendant’s
removal notice states that Plaintiff alleges a violation of the ADEA. (R. 1, Notice of Removal ¶
4.) Plaintiff’s state court Verified Complaint alleges that “this is a claim for relief for Title
VII...the Age Discrimination in Employment Act.” (R. 1-1, Verified Compl. ¶ 1.) Although
Plaintiff brought this claim stating it was a Title VII and ADEA claim in his original allegations,
in response to Defendant’s first motion to dismiss, Plaintiff clarified that this lawsuit is based on
the ADEA. Indeed, through the many iterations of Plaintiff’s complaints and Defendant’s
motions to dismiss, the parties and the Court have addressed Plaintiff’s claim as an ADEA claim.
Also, Plaintiff has consistently alleged that her EEOC right-to-sue letter was dated December 18,
2014.
Now, Defendant argues that the Court should dismiss Plaintiff’s Third Amended
Complaint because Plaintiff raises an ADEA claim for the first time in these new allegations, and
it is thus untimely under the 90-day limitations period because Plaintiff’s right to sue letter is
dated December 18, 2014. See 29 U.S.C. § 626(e). Defendant bases this argument on the fact
that the Court granted its first motion to dismiss without prejudice. To clarify, Defendant argues
that the relation back doctrine under Rule 15(c) is inapplicable because once the Court dismissed
the original complaint without prejudice, there was nothing for the amended complaint to “relate
back” to. See Smith v. Union Pac. R.R., No. 11 CV 986, 2013 WL 474382, at *7 (N.D. Ill. Feb.
7, 2013). The Seventh Circuit, however, reversed Smith in this regard. See Smith v. Union Pac.
R. Co., 564 F. App’x 845, 847 (7th Cir. 2014). Quoting Luevano v. Wal-Mart Stores, Inc., 722
F.3d 1014 (7th Cir. 2013), the Smith decision stated:
If a timely complaint is dismissed but the action remains pending, as occurred
here, an amended complaint relates back to the filing of the original complaint
when “the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out-or attempted to be set out – in the original
pleading.”
Smith, 564 F. App’x at 847. As officers of the Court, defense counsel should not rely on case
law that the Seventh Circuit has expressly overruled.
Here, as in Smith and Luevano, Plaintiff’s lawsuit remained pending after the Court
granted Defendant’s first motion to dismiss without prejudice. In particular, the Court did not
enter a Rule 58 judgment, but instead granted Plaintiff leave to amend his complaint. See
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Luevano, 722 F.3d at 1020; see also Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010)
(“As a general matter, Rule 15 ordinarily requires that leave to amend be granted at least once
when there is a potentially curable problem with the complaint or other pleading.”). As such,
Plaintiff’s lawsuit has remained pending since he filed his original complaint 78 days after the
date of his EEOC right-to-sue letter and his allegations relate back to his original complaint
dated March 6, 2015. The Court therefore denies Defendant’s motion.

Dated: December 21, 2015

______________________________
AMY J. ST. EVE
United States District Court Judge

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