Jackson v. Northwestern Memorial Hospital

Filing 53

MEMORANDUM Opinion and Order Signed by the Honorable Franklin U. Valderrama on 11/19/2020: For the reasons stated in the Opinion, Defendant's Motion to Dismiss Counts II, III, and IV of Jackson's Second Amended Complaint 18 is granted. Northwestern's Motion to Strike certain allegations is granted in part and denied as moot in part 18 . Finally, Jackson's request for leave to amend is denied. Mailed notice (axc).

Case: 1:19-cv-04924 Document #: 53 Filed: 11/19/20 Page 1 of 18 PageID #:335

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JUENELL JACKSON,
Plaintiff,
v.

No. 19-cv-4924
Judge Franklin U. Valderrama

NORTHWESTERN MEMORIAL
HOSPITAL,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Junell Jackson (Jackson), a former employee for Defendant
Northwestern Memorial Hospital (Northwestern), was terminated from her position
as a Patient Registration Representative by Northwestern. Jackson filed suit against
Northwestern, asserting a race discrimination claim under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §1981, et seq. and three Illinois common law claims.
Northwestern now (i) moves to dismiss Counts II, III, and IV of the Second Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and (ii) moves to
strike certain allegations from the Second Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(f). R. 18, Mot. Dismiss. 1 For the reasons that follow,
Northwestern’s Motion to Dismiss Counts II, II, and IV is granted. Northwestern’s
Motion to Strike is granted with respect to identified allegations in paragraphs 1, 25,
and 44. Northwestern’s Motion to Strike is denied as moot with respect to identified

1Citations

to the docket are indicated by “R.” followed by the docket number and a page or
paragraph citation where necessary.

1

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allegations in paragraphs 54 and 70. Finally, Jackson’s request for leave to amend is
denied. R. 27, Pl.’s Resp.
Background
Jackson, a black female, began working at Northwestern on or around April
25, 2015. 2 R. 17, Second Amended Complaint (SAC) ¶ 7. On November 21, 2016, she
made an internal transfer to a full-time position in Northwestern’s Emergency
Department as a Patient Registration Representative. Id. ¶ 8. Tina Reagan (Reagan)
was Jackson’s new supervisor. Id. ¶ 9. On August 31, 2017, Jackson had her Annual
Evaluation Review, which was conducted by Reagan and Anthony Wallace. Id. ¶ 12.
Jackson was granted a rating of “Meets Expectations.” Id. ¶ 13. The next day, on
September 1, 2017, Reagan called and informed Jackson that she was being
terminated. Id. ¶ 14. When pressed for an explanation, Reagan stated that “it was
related to possible mishandling of patient information and fraudulent activity for
personal gain based on an internal investigation.” Id. ¶ 16. Later that day, on the
afternoon of September 1, 2017, Jackson went to Northwestern’s Human Resources
Office to file an appeal of the termination decision. Id. ¶ 21. Jackson was instructed
to complete an “Appeal Form” and was informed that she should receive a response
within seven (7) business days. Id. ¶ 21.
On September 2, 2017, Jackson learned that a notice had been circulated to
third parties, including security personnel, that indicated she was dangerous and

2The

Court accepts as true all of the well-pleaded facts in the complaint and draws all
reasonable inferences in favor of the plaintiff. Platt v. Brown, 872 F.3d 848, 851 (7th Cir.
2017).

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should not be allowed on campus. Id. ¶ 25. On September 8, 2017, Jackson received
a Disciplinary Action Report (Report) in the mail. Id. ¶ 27. The Report noted that on
August 31, 2017, Northwestern had received a complaint that Jackson had “misused
patient credit card information for personal purchases as well as provided patient
credit card information to a friend to pay bills.” Id. The Report was unsigned. Id. ¶
28. Jackson alleges that she had never been disciplined nor reprimanded prior to her
September 1, 2017 termination. Id. ¶ 33. Jackson is aware that she had been the
subject of several hidden investigations conducted by Northwestern, but no
department has informed her of any specific ordinances or laws that she violated, let
alone any evidence of violations. Id. ¶ 34. Although Northwestern informed Jackson
that the Chicago Police Department (CPD) was investigating her, Jackson was
provided no further information and has never been questioned by CPD. Id. ¶ 35.
On July 22, 2019, Jackson first filed a multi-count Complaint against
Northwestern. The Complaint has been amended several times with Jackson’s
Second Amended Complaint being the operative complaint. Jackson’s Second
Amended Complaint includes a claim for race discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Count I), as well as three Illinois common law claims
for wrongful termination (Count II), breach of contract (Count III), and fraudulent
misrepresentation (Count IV). Northwestern moves to dismiss Counts II, III, and IV
of Jackson’s Second Amended Complaint pursuant to Rule 12(b)(6) and moves to
strike certain allegations asserted pursuant to Rule 12(f). The Court will first address
the Motion to Dismiss, followed by the Motion to Strike, and finally, Plaintiff’s request

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for leave to amend, which was submitted as part of her Response to the pending
Motion to Dismiss.
Legal Standard
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the
complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811,
820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include only “a short and
plain statement of the claim showing that the pleader is entitled to relief.” FED. R.
CIV. P. 8(a)(2). To survive a motion to dismiss, a complaint need only contain factual
allegations, accepted as true, sufficient to “state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). The allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. The allegations that are
entitled to the assumption of truth are those that are factual, rather than mere legal
conclusions. Iqbal, 556 U.S. at 678–79.
Discussion
I.

Wrongful Termination Against Public Policy (Count II)

In Count II, a claim for “wrongful termination against public policy,” Jackson
alleges that Northwestern terminated her without conducting an adequate
investigation or following any of its procedures as outlined in the employee handbook.

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SAC ¶ 52. Jackson further maintains that her discharge was motivated in whole, or
in part, by defamatory statements that she (i) broke the rules, (ii) shared patient or
employee information, and (iii) was armed and dangerous. Id. ¶ 54.
Northwestern argues that it is unclear what specific cause of action is alleged
in Count II and asserts that Jackson fails to state a claim. The Court agrees. In
discerning the asserted cause of action, Northwestern first notes that while Jackson
references “defamatory statements” (id.), she does not plead the elements of a
defamation claim under Illinois common law. 3 R. 20, Def.’s Mem. at 3. Second,
Northwestern contends that “wrongful termination against public policy” is not a
viable claim under Illinois’s at-will employment regime and instead construes Count
II as a claim for “retaliatory discharge.” Id. Northwestern explains that retaliatory
discharge, a narrow exception to the “at-will” doctrine, is the only viable wrongful
termination claim under Illinois common law. Id. at 3–4 (citing Mack v. City of Chi.,
2019 WL 1331786, at *9 (N.D. Ill. Mar. 25, 2019)). To state a cause of action for
“retaliatory discharge,” Northwestern argues that Jackson must demonstrate that:
1) she was discharged, 2) in retaliation for her protected activities, and 3) the
discharge violates a clear mandate of public policy. Id. Northwestern contends that
Jackson fails to allege the second and third elements of retaliatory discharge—she
does not allege that she engaged in any protected activities, let alone that her

v. Rogers, 917 N.E. 450, 459 (Ill. 2009) (citing Krasinski v. United Parcel Service, Inc.,
530 N.E.2d 468 (1988) (“To state a defamation claim, a plaintiff must present facts showing
that the defendant made a false statement about the plaintiff, that the defendant made an
unprivileged publication of that statement to a third party, and that this publication caused
damages.”)).
3Green

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activities implicate a clear mandate of public policy. Def.’s Mem. at 4 (citing Roberts
v. Board of Trustees of Comm. Coll. Dist. No. 508, Dkt. Nos. 123594, 123599—
N.E.3d—2019 IL 123595, at *4) (not yet released for publication)).
Jackson counters, disagreeing with Northwestern’s characterization of Count
II. Pl.’s Resp. at 4. Jackson maintains that she is not alleging a claim for retaliatory
discharge, as Northwestern suggests. Id. She explains that she does not need to rely
on retaliatory discharge, the exception to the at-will doctrine, because she was not an
at-will employee (she would have had permanent employment as long as she
performed her job satisfactorily). Id. Rather, Jackson contends that she is alleging a
claim for wrongful termination against public policy, as written, and to state a claim,
she must allege only that she was performing in line with her employer’s “legitimate
expectations,” and similarly-situated employees were treated better. Id. (citing
Contreras v. Suncast Corp., 237 F.3d 756 (7th Cir. 2001)). Jackson maintains that she
has alleged these elements.
In reply, Northwestern argues that these “legitimate expectations” and
“similarly-situated” elements track the elements of a prima facie case of a Title VII
discrimination claim and adds that Title VII discrimination was indeed the claim at
issue in Contreras, the case cited as support in Plaintiff’s response. R. 33, Def.’s Reply
at 2. Northwestern contends that to the extent Jackson is alleging a Title VII
discrimination claim, it should be dismissed as duplicative of Count I. Id. And,
alternatively, to the extent Jackson is alleging a wrongful termination claim (as she
repeatedly maintains), a wrongful termination claim is again only viable in the form

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of a retaliatory discharge claim for an at-will employee, like Jackson. Id. This brings
the Court back to square one.
Taking Jackson’s statement that she is not alleging a retaliatory discharge
claim at face value, the Court agrees with Northwestern and finds that it is unable
to discern what cause of action Jackson purports to allege in Count II—a wrongful
termination claim using Title VII discrimination elements, a duplicative Title VII
discrimination claim, or something else entirely. It is well established under the
Federal Rules and in the Seventh Circuit that a complaint must be dismissed if the
claim for which the plaintiff seeks relief is not discernable. See Stanard v. Nygren,
658 F.3d 792, 797 (7th Cir. 2011) (citing FED. R. CIV. P. 8(a)); Brooks v. Ross, 578 F.3d
574, 581 (7th Cir. 2009) (“So, what do we take away from Twombly, Erickson,
and Iqbal? First, a plaintiff must provide notice to defendants of her claims.”).
Accordingly, the Court finds that Jackson fails to state a claim upon which relief may
be granted. Northwestern’s motion to dismiss is granted with respect to Count II.
II.

Breach of Contract (Count III)

In Count III, Jackson alleges that she entered into an oral, written, or implied
agreement with Northwestern at the time of her hiring. SAC ¶ 59. Jackson claims
that the oral and/or written agreement constituted a valid and enforceable contract,
because it contained “a promise sufficiently clear that as an employee, Plaintiff would
reasonably believe a promise had been made.” Id. ¶ 60. Jackson further asserts that
under this agreement, Northwestern promised not to terminate her without good
cause. Id. ¶ 62. Jackson claims that Northwestern breached this contract by

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terminating her without conducting an adequate investigation or following any of its
procedures as outlined in the employee handbook and rules and regulations. Id. ¶ 68.
In response, Northwestern contends that Jackson fails to sufficiently plead a claim
for breach of contract—oral or written. Def.’s Mem. at 4–6.
A. Oral Contract
Northwestern first addresses the assertion that it entered into an oral contract
with Jackson at the time of her hiring. Northwestern notes that to state a claim for
an oral contract for employment that is not at-will, a plaintiff must include
allegations that reflect an offer and acceptance, consideration, definite and certain
terms, performance of all required contractual conditions, breach by the employer,
and resulting damages. Id. at 5 (citing Britton v. IIT Tech. Institute, 2014 WL
1568684, at *4 (N.D. Ill. Apr. 17, 2014)); see also Zemke v. City of Chi., 100 F.3d 511,
513 (7th Cir. 1996). Northwestern argues that Jackson fails to plead any of the terms
of the alleged oral contract that promised termination only for cause, and any
assertion of an oral contract should be dismissed. Id. at 5 (citing Britton, 2014 WL
1568684, *4 (dismissing breach of oral contract claim where the allegations did not
demonstrate the necessary elements, including any specific allegations about the
offer and acceptance)). The Court agrees. The Second Amended Complaint is devoid
of any factual allegations regarding the elements necessary for the formation of an
oral contract. To the extent that Jackson’s breach of contract claim relies on an oral
contract, the claim is dismissed.

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B. Written Contract
Jackson’s claim that Northwestern breached a written contract fares no better.
Northwestern argues that as a baseline, Jackson fails to attach a copy of any written
agreement or any “employee handbook.” Def.’s Mem. at 5. Northwestern continues
that even assuming Jackson is referring to the Northwestern Rules for Personal
Conduct (referenced in SAC ¶¶ 30–31), the Rules expressly states that it “creates no
rights, contractual or otherwise,” that the policy statements therein “should not be
considered promises,” and that nothing in the policy “impairs the right of an employee
or NMHC to terminate their employment at will.” Def.’s Mem., Exh. B at 6. 4 Under
Illinois law, as Northwestern concedes, although an employee hired without a fixed
term is presumed to be an at-will employee, an employee handbook may create an
enforceable contract if the traditional requirements of contract formation are present.
Duldulao v. St. Mary of Nazareth Hospital Center, 505 N.E.2d 314, 318 (Ill. 1987).
However, where the employee handbook contains a disclaimer indicating that the
handbook promises nothing and does not act as a contract, no enforceable contractual
rights will be conferred on the employee based on that handbook, as is the case here.
Ivory v. Specialized Assistance Services, 850 N.E.2d 230, 233 (Ill. App. Ct. 2006).
Northwestern submits that Jackson has not alleged the existence of a valid and
enforceable contract. Def.’s Mem. at 6. Moreover, even if the Rules for Personal
Conduct conferred enforceable contractual rights, Northwestern argues that Jackson
4The

Court may consider Northwestern’s Rules for Personal Conduct at the pleadings stage,
because Plaintiff’s Second Amended Complaint references the Rules for Personal Conduct
(SAC ¶ 31), and the Rules are central to Plaintiff’s claims. See Allstate Life Ins. Co. v.
Peoplesoft, Inc., 2004 WL 1375383, at *2 (N.D. Ill. May 26, 2004) (collecting cases).

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has not alleged the Rules contain any language supporting Northwestern’s promise
to terminate employees only for cause. Id. Without a promise that termination must
be for cause, there is no breach.
In response, Jackson accepts that as a general rule in Illinois, an employment
handbook is not part of an employment contract, but Jackson further explains that
there are two exceptions to that rule. Pl.’s Resp. at 5. Under the first exception, an
employee handbook can be adopted as a modification of a pre-existing contract where
sufficient consideration exists to create a mutuality of obligation. Id. (citing Carter v.
Kaskaskia Community Action Agency, 322 N.E.2d 574 (Ill. App. Ct. 1974)). And under
the second exception, another document may exist that could be construed as an
express employment contract. Pl.’s Resp. at 5–6. Jackson argues that in this
circumstance, the personnel policies contained in an employee handbook will be
deemed incorporated into the contract with full contractual effect, because she will
be able to prove, and a jury could find, that her allegations satisfy these two
exceptions. Id. at 6 (citing Piper v. Board of Trustees of Community College District
No. 514, 426 N.E. 2d 262 (Ill. App. Ct. 1981)).
The Court agrees with Northwestern that Jackson has failed to state a claim
for breach of a written contract. First, as to the claim’s first element (that there is a
valid and enforceable contract), it is worth noting that Jackson states she is not in
possession of the “written employment agreement between she [Jackson] and
Northwestern.” SAC ¶ 61. Even if Northwestern’s Rules for Personal Conduct is the
“employee handbook” referenced in the Second Amended Complaint, Jackson does

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not address Northwestern’s argument that the Rules for Personal Conduct contain a
disclaimer that would negate any alleged contractual effect. With only an employee
handbook that includes a preclusive disclaimer, Jackson has not plausibly alleged the
existence of a contract. As for the third element, a breach, Jackson has not alleged
that the Rules for Personal Conduct contain any language supporting the contention
that Northwestern promises to terminate employees only for cause. Without a
promise that termination must be for cause, there is no breach here. Overall, the
Second Amended Complaint fails to plausibly state a cause of action for breach of a
written contract. As Jackson has not plausibly stated a claim for an oral or a written
contract, Count III is dismissed.
III.

Fraudulent Misrepresentation (Count IV)

In Count IV, Jackson alleges that under her oral and/or written agreement,
Northwestern made oral and written promises not to terminate her without cause.
SAC ¶¶ 75, 77. Jackson further alleges that at the time of her hiring, Northwestern
made false statements of material fact to her, misrepresenting that Plaintiff would
have a career with Northwestern and would not be subject to discharge without cause
and investigation. Id. ¶ 81. Jackson claims that when Northwestern made these
misstatements, it knew or should have known that the representations were false.
Id. ¶ 82. Jackson maintains that she reasonably relied upon these misrepresentations
and was induced to accept employment with Northwestern. Id. ¶¶ 84, 85.
As a threshold issue, before even turning to the claim’s merits, Northwestern
argues, and the Court agrees, that the heightened pleading requirements of Federal

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Rule of Civil Procedure 9(b) apply to claims for fraudulent misrepresentation. Def.’s
Mem. at 7 (citing Jackson-Cruz v. North Central College, 2013 WL 6498761, at *4
(N.D. Ill. Dec. 11, 2013); Arnold v. Janssen Pharm., 215 F. Supp. 2d 951, 958 (N.D.
Ill. 2002) (dismissing fraudulent misrepresentation claim for failure to meet
heightened pleading standard)). Rule 9(b) requires plaintiffs to allege the “who, what,
when, where, and how” of the fraud. Borsellino v. Goldman Sachs Group, Inc., 477
F.3d 502, 507 (7th Cir. 2007) (internal citation and quotation marks omitted). Rule
9(b) applies not only to claims of fraud, but also to those “that sound in fraud,”
meaning those premised on a course of fraudulent conduct. Borsellino, 477 F.3d at
507. Jackson concedes that her fraudulent misrepresentation claim must meet Rule
9(b)’s heightened pleading standard and contends that her Complaint satisfies this
standard, as it provides a general outline of the alleged fraud scheme sufficient to
reasonably notify the defendants of their role in the fraud. Pl.’s Resp. at 6–7 (citing
Midwest Grinding Co. Inc., v. Spitz, 976 F.2d 1016, 1020 (7th Cir. 1992)).
Northwestern counters, arguing that Jackson’s Complaint fails to plead with
particularity, the who, what, when, where, and how of the fraud. Def.’s Mem. at 6.
The Court agrees with Northwestern. Jackson references “conversations
between Plaintiff and NMH,” during which she understood that Northwestern was
promising her it would not terminate her without good cause. SAC ¶ 77. Jackson
alleges neither who she engaged in conversations with nor approximately when and
where those conversations occurred. From the facts alleged, the Court cannot discern
whether Jackson entered into a written agreement, an oral agreement, an implied

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agreement, or no agreement at all. This level of uncertainty does not comport with
Rule 9(b)’s particularity requirement. Because Jackson has not met the Rule 9(b)
standard, her fraudulent misrepresentation claim is dismissed, and the Court need
not address whether Jackson has pled the specific elements of a fraudulent
misrepresentation claim. Siegel v. Shell Oil Co., 480 F. Supp. 2d 1034, 1040 (N.D. Ill.
2007) (“… to proceed to trial on a claim that requires proof of an intentional
fraudulent misrepresentation, a plaintiff must at the pleading stage describe with
particularity the circumstances surrounding the intentional misrepresentation
(i.e., the ‘averment of fraud’)—failure to do so warrants dismissal.”).
As for Jackson’s negligent misrepresentation claim, Northwestern contends
that this claim also fails, because Illinois has not expanded the duty requirement in
a negligent misrepresentation claim to include the employment context. Def.’s Mem.
at 8–9 (citing Jones v. W.S. Darley & Co., 2015 WL 4100295, at * (N.D. Ill. July. 7,
2015)). In her Response, Jackson clarifies that she is not pursuing a claim for
negligent misrepresentation but rather a claim for intentional (or fraudulent)
misrepresentation, which she claims is not precluded by the Workers’ Compensation
Act, because her claim seeks redress for physical on the job injuries. Pl.’s Resp. at 6–
7. The Court need not address this issue, as the Court has already determined that
Jackson’s Complaint fails to satisfy Rule 9(b)’s heightened pleading standard.
IV.

Motion to Strike

Pursuant to Federal Rule of Civil Procedure 12(f), Northwestern also moves to
strike Jackson’s allegations in her Second Amended Complaint regarding (i) color

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discrimination (SAC ¶ 44); (ii) a denial of rights under the United States Constitution
(id. ¶ 1); and (iii) defamation (id. ¶¶ 25, 54, 70) on the basis that such allegations are
“immaterial, impertinent, or scandalous.” Def.’s Mem. at 9 (citing Naylor v.
Streamwood Behav. Health Sys., 2012 WL 5499441, at *7 (N.D. Ill. Nov. 13, 2012)
(noting that striking portions of a pleading in order to remove “unnecessary clutter
from the case” can serve to expedite, not delay, the case)); see also Hardin v. Am. Elec.
Power, 188 F.R.D. 509, 511 (S.D. Ind. 1999) (“[U]nnecessary prolixity in a pleading
places an unjustified burden on the court and the party who must respond to it
because they are forced to select the relevant material from a mass of verbiage.”)
(internal citations omitted). In arguing that certain allegations should be stricken,
Northwestern relies entirely on Rule 12(f)’s “immaterial” restriction, but importantly,
immateriality alone is not enough to trigger the Court to strike pleadings; the
pleading must be prejudicial to the defendant. See Talbot v. Robert Matthews Distrib.
Co., 961

F.2d

654,

664

(7th

Cir.

1992)

(“However,

mere

redundancy

or immateriality is not enough to trigger the drastic measure of striking the pleading
or parts thereof; in addition, the pleading must be prejudicial to the defendant.”).
Prejudice occurs when the challenged pleading or allegation confuses the issues or is
so lengthy and complex that it places an undue burden on the responding
party. See Hoffman–Dombrowski v. Arlington Int’l Racecourse, Inc., 11 F.Supp.2d
1006, 1009 (N.D. Ill. 1998).
Jackson fails to address Northwestern’s Motion to Strike in her Response. No
matter, as the Court finds that the identified allegations are immaterial to Jackson’s

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claims and prejudicial to Defendant. First, as to the “color discrimination” allegation
in SAC ¶ 44, this case involves a Title VII discrimination claim based on race, not
color. Any allegations concerning color discrimination are immaterial to the asserted
Title VII claim and confuse a discrimination claim based on race with a
discrimination claim based on color, which triggers an entirely separate
administrative process. Second, as to allegations regarding the United States
Constitution, Northwestern is not a government actor (as Plaintiff readily concedes,
id. ¶ 4). Not only is Northwestern not subject to constitutional scrutiny, but
allegations regarding constitutional violations are immaterial to the asserted claims
and confuse Title VII issues with constitutional issues. See Kahalnik v. John Hancock
Funds, Inc., 1996 WL 145842, at *4 (N.D. Ill. Mar. 27, 1996) (“The NASD
is not a government actor and, therefore, constitutional scrutiny does not apply.”).
Finally, as to allegations related to defamation, although Jackson appears to include
standalone references to “defamatory statements,” she makes no attempt to assert
the requisite elements of a defamation claim. Allegations regarding defamatory
statements are immaterial to the claims actually asserted and confuse Title VII,
breach of contract, and misrepresentation claims with defamation claims, all claims
comprised of entirely different elements.
Because identified allegations in paragraphs 1, 25, and 44 of Jackson’s Second
Amended Complaint are immaterial and confuse the claims actually at issue, the
Court grants Defendant’s Motion to Strike as to those allegations. The Court denies
as moot Defendant’s Motion to Strike as to the identified allegations in paragraphs

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54 and 70, as those paragraphs fall under Count III, which is now dismissed without
leave to amend, as further discussed below.
V.

Leave to Amend

In her Response, Jackson asks for leave to file an amended complaint pursuant
to Federal Rule of Civil Procedure 15 should the Court find her Second Amended
Complaint deficient. Northwestern opposes this request, asserting that as a
preliminary matter, Jackson should be required to file a formal motion for leave to
amend setting forth her proposed amended complaint. On a more substantive basis,
Northwestern argues that Jackson’s Second Amended Complaint fails to cure the
deficiencies Northwestern pointed out in its prior motion to dismiss. As such,
Northwestern reasons that it would be futile to allow yet another amendment.
Despite Jackson not filing a separate motion for leave to amend, the Court will
consider the request. See Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010)
(noting that requesting leave to file an amended complaint in the response to the
defendant’s motion to dismiss sufficed as a request for leave).
Rule 15 allows a plaintiff to amend her complaint “once as a matter of course
at any time before a responsive pleading is served . . . . Otherwise a party may amend
the party’s pleading only by leave of the court or by written consent of the adverse
party; and leave shall be freely given when justice so requires.” FED. R. CIV. P. 15(a).
Even though Rule 15(a) provides that “leave shall be freely given when justice so
requires,” a district court may deny leave to amend for undue delay, bad faith,
dilatory motive, prejudice, or futility. Gen. Elec. Capital Corp. v. Lease Resolution

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Corp., 128 F.3d 1074, 1085 (7th Cir. 1997) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)).
The Court denies Jackson’s request for leave to amend Counts II, III, and IV.
Jackson has already amended her pleadings twice. Though Northwestern’s motion to
dismiss the First Amended Complaint was dismissed as moot in light of Jackson’s
refiling, Jackson did not meaningfully address the deficiencies identified in that
motion to dismiss, as many of the same deficiencies are present now. Further, and
perhaps more importantly, the Court finds that amendment at this point would be
futile. Nolan v. City of Chicago, 2017 WL 569154, at *7 (N.D. Ill. Feb. 13, 2017)
(denying motion for leave to amend a complaint to replead the same legal theories as
futile). At this late stage, Jackson has not alleged facts sufficient to support actionable
claims for Counts II, III, or IV. On a Second Amended Complaint, the Court still
cannot discern which cause of action is being asserted in Count II. Jackson cannot
allege the existence of an enforceable contract, as required under Count III. And,
Jackson has not made a meaningful attempt to comply with Rule 9(b), as required
under Count IV. As such, Jackson’s request for leave to amend is denied.
Conclusion
For the foregoing reasons, Northwestern’s Motion to Dismiss Counts II, III,
and IV of Jackson’s Second Amended Complaint is granted. Northwestern’s Motion
to Strike certain allegations is granted in part and denied as moot in part. The Motion
to Strike is granted as to allegations in paragraphs 1, 25, and 44 of the Second
Amended Complaint concerning color discrimination, United States Constitutional

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violations, and defamation; those allegations are hereby stricken. The Motion to
Strike is denied as moot as to the allegations in paragraphs 54 and 70 concerning
defamation, as Count III is dismissed (without leave to amend). Finally, Jackson’s
request for leave to amend is denied.

____________________________________
Franklin U. Valderrama
United States District Judge
DATED: November 19, 2020

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