Diehl v. URS Energy & Construction Inc. et al

Filing 29

ORDER, GRANTING 10 MOTION to Dismiss Count V for Failure to State a Claim filed by Ronnie Walls. Count V against Defendant Ronnie Walls is DISMISSED, without prejudice. If, on or before March 14, 2012, Plaintiff Diehl fails to amend his complaint to cure the defects in Count V, Count V will automatically be dismised with prejudice and Defendant Walls will be terminated as a defendant in this action. Signed by Judge Michael J. Reagan on 2/29/2012. (mmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JEFF DIEHL,
Plaintiff(s),
vs.
URS ENERGY & CONSTRUCTION, INC.,
and RONNIE WALLS,
Defendant(s).

)
)
)
)
)
)
)
)
)
)

Case No. 11-cv-0600-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Before the Court is Defendant Ronnie Walls’ motion to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), and supporting memorandum (Docs. 10, 11).
Plaintiff Jeff Diehl has filed a response (Doc. 15), to which Defendant Wall has filed a reply (Doc.
24).
1. Introduction
On June 3, 2011, Plaintiff Jeff Diehl filed suit against Defendants URS Energy &
Construction, Inc., and Ronnie Walls in the Circuit Court of the Third Judicial Circuit, Madison
County, Illinois. Defendants subsequently removed the action to this federal court pursuant to 28
U.S.C. §§ 1331 and 1441, based on federal question jurisdiction.
According to the Complaint (Doc. 2-1), Plaintiff Diehl, an active member of the
Illinois Army National Guard, worked for URS, and Defendant Walls was his supervisor.
Plaintiff Diehl was allegedly discharged from his job after returning from his annual two-week
National Guard training session. Diehl alerted Defendants that his firing was illegal, and he
1

brought the matter to the attention of authorities, including the Department of Labor. Diehl was
then brought back to work for a short period of time, only to be terminated several days later. The
five-count Complaint asserts claims under the Uniformed Services Employment and
Re-employment Rights Act of 1994, 38 U.S.C. § 4301, et seq., Veterans Re-employment Rights
Act, 38 U.S.C. § 4301, et seq., the Family Military Leave Act, 820 ILCS 151/1, et seq., the Illinois
Service Member’s Employment Tenure Act, 330 ILCS 60/3, et seq., as well as a common law
claim of tortious interference with the business expectancy of continued employment.
For purposes of Defendant Walls’ motion, only Count V of the Complaint is
relevant; it is the only claim against Walls. In pertinent part, Count V alleges:
14.

Ronnie Walls terminated Diehl.

15.
Diehl had
employment with URS.

a

reasonable

expectation

of

continued

16.
Ronnie Walls knew of Diehl’s expectation of continued
employment with URS.
17.
Walls terminated Diehl and therefore interfered with Diehl’s
economic relationship with URS for the purpose of defeating Diehl’s
expectations of continued employment with URS.
18.
Walls acted maliciously with personal animosity against
Diehl and Walls acted for his own personal interest contrary to those of
URS when he terminated Diehl.
19.
As a direct and proximate result of Walls’s actions described
herein, Diehl has suffered from a loss of past and future income and
benefits, severe emotional distress and mental anxiety and other
non-pecuniary losses, for all of which he should be compensated.
21.
Walls acted with malice or reckless indifference and Diehl is
entitled to punitive damages.
Doc. 2-1, p. 10.
2

2. Issues Presented
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Walls moves to
dismiss Count V, asserting that Plaintiff has failed to state a viable, prima facie claim. More
specifically, Walls argues that Plaintiff failed to plead specific factual allegations that would
support the conclusion that Walls acted solely for his own personal interests, unrelated to the
interests of his employer, URS. Walls further argues that Plaintiff has not alleged that he, Walls,
induced a third party to terminate Plaintiff, which Walls contends is indispensable to a claims for
tortious interference with a business expectancy. See Docs. 11 and 24.
Plaintiff Diehl counters that Count V comports with the notice pleading standard
prescribed under Federal Rule of Civil Procedure 8(a). Plaintiff further asserts that under Federal
Rule of Civil Procedure 9(b) mental state may be pleaded generally. See Doc. 15.
3. Analysis
When ruling on a Rule 12(b)(6) motion, all well-pleaded allegations of the
complaint are taken as true and are viewed in the light most favorable to the plaintiff. Santiago v.
Walls, 599 F.3d 749, 756 (7th Cir. 2010). The federal notice pleading standard requires only that
the complaint provide a Ashort and plain statement of the claim showing that the pleader is entitled
to relief.@ Fed.R.Civ.P. 8(a)(2). In other words, the plaintiff's complaint must be sufficient to
provide the defendant with Afair notice@ of the plaintiff's claim and its basis. Erickson v. Pardus,
551 U.S. 89, 93 (2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The Supreme Court has construed the notice pleading standard as requiring that the
complaint state a Aplausible@ claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949 (2009). To survive a motion to dismiss, the complaint Amust contain sufficient factual
3

matter, accepted as true, to >state a claim to relief that is plausible on its face=.... 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.@ Id., quoting Twombly, 550 U.S.
at 570. The complaint Amust actually suggest that the plaintiff has a right to relief, by providing
allegations that raise a right to relief above the speculative level.@ Windy City Metal Fabricators &
Supply, Inc. v. CIT Technology Financing Services, 536 F.3d 663, 668 (7th Cir. 2008) (emphasis in
the original), quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008). But a
plaintiff's claim need not be probable, only plausible: A[A] well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is
very remote and unlikely.@ Twombly, 550 U.S. at 556 (internal quotation marks omitted). The
complaint must include Aenough fact to raise a reasonable expectation that discovery will reveal
evidence@ supporting the plaintiff's allegations. Id. See also Independent Trust Corp. v. Stewart
Information Services Corp., 665 F.3d 930, 934 -935 (7th Cir. 2012).
Count V of Plaintiff Diehl’s Complaint asserts a claim of tortious interference with
a business expectancy, namely continued employment. In Fellhauer v. City of Geneva, 568
N.E.2d 870 (Ill. 1991), the Illinois Supreme Court recognized that at-will employees may have an
expectation of continued employment—falling within a longstanding rubric of “prospective
economic advantage.” Id. at 877-878.

According to Fellhauer, in order to state a prima facie

case of tortious interference with a business expectation of continued employment, the plaintiff
must prove: (1) his reasonable expectation of entering into a valid business relationship; (2) the
defendant's knowledge of the plaintiff's expectancy; (3) purposeful interference by the defendant
that prevents the plaintiff's legitimate expectancy from ripening into a valid business relationship;
4

and (4) damages to the plaintiff resulting from such interference. Id. at 878; see also Delloma v.
Consolidation Coal Co., 996 F.2d 168, 170-171 (7th Cir. 1993) (reiterating the prima facie case
prescribed by Fellhauer).
Citing Fellhauer and Otterbacher v. Northwestern University, 838 F.Supp. 1256
(N.D. Ill. 1993), a federal district court case construing Fellhauer, Defendant Walls asserts that
“this tort is appropriate only in the context of interference by a third party” (Doc. 11, pp. 3-4). In
response, Plaintiff Diehl contends that a claim against a co-worker will not be defeated if the
co-worker acted with personal animosity and for his own personal interests, contrary to the
interests of the employer (Doc. 15, p. 2 (with a vague, confusing citation to Fellhauer).
A review of Fellhauer and Otterbacher (which is not a controlling precedent) does
not reveal a clear dictate that a claim of tortious interference with a business expectation can only
be brought against a third party. In Fellhauer, the Illinois Supreme Court specifically found that
the defendant in that case was not an outsider meddling in the affairs of other parties; rather, the
plaintiff was discharged by an official with the authority to do so. Fullhauer, 568 N.E.2d at 879.
The plaintiff’s claim was dismissed because the allegations were not sufficiently specific. Id.
And, Otterbacher only stated that tortious interference claims “usually lie against third parties,”
and not against the employer or agent who terminates the employee.” Otterbacher, 838 F.Supp.
at 1260-1261 (emphasis added). Otterbacher actually recognizes that liability may attach if a
supervisor acts solely for his own personal interests, unrelated to or antagonistic of the interests of
the employer. Id. at 1261.
Wall actually recognizes that an employer’s agent may be liable under a tortious
interference theory, if another party was the decision-maker, and the decision-maker relied on false
5

information given by the defendant, and the defendant acted solely for his own personal interest,
totally unrelated or antagonistic to the interest of the employer. See Doc. 11, p. 4. See also
Citylink Group, Ltd. v. Hyatt Corp., 729 N.E.2d 869, 840-841 (Ill.App. 1st Dist. 2000) (corporate
agents are normally privileged from tortious interference claims unless the defendant acted in his
own interests, unrelated or antagonistic of the principal). Therefore, the Complaint must be
scrutinized more closely.
Paragraph 17 of Count V offers the conclusory statement:
Walls terminated Diehl and therefore interfered with Diehl’s economic
relationship with URS for the purpose of defeating Diehl’s expectations of
continued employment URS.
However, paragraph 18 further alleges:
Walls acted maliciously with personal animosity against Diehl and Walls
acted for his own personal interest contrary to those of URS when he
terminated Diehl.
Plaintiff Diehl cites Federal Rule of Civil Procedure 9(b), which “requires
particularity when pleading ‘fraud or mistake,’ while allowing ‘[m]alice, intent, knowledge, and
other conditions of a person's mind [to] be alleged generally.’” Iqbal, 556 US 662, 129 S.Ct. at
1954. In reply, Defendant Walls argues that Plaintiff Diehl’s Complaint does not state anything
suggesting Walls misused his supervisory powers or induced another to wrongfully terminate
Plaintiff (Doc. 24, p. 5).
In Iqbal, the Supreme Court explained that the term “generally,” as it is used in
Rule 9(b), relative to pleading mental condition, “is to be compared to the particularity
requirement applicable to fraud or mistake. Rule 9 merely excuses a party from pleading
discriminatory intent under an elevated pleading standard. It does not give him license to evade the
6

less rigidCthough still operativeCstrictures of Rule 8.” Iqbal, 556 US 662, 129 S.Ct. at 1954.
Thus, the Court must return to the “facial plausibility” standard enunciated in Twombly and Iqbal.1
Although paragraph 18 of Count V establishes that Plaintiff Diehl is proceeding
against Defendant Walls under the theory that Walls was acting in his own self-interest when he
terminated Diehl’s employment, like paragraph 17, paragraph 18 is merely a conclusory statement.
Count V (and the Complaint as a whole), does not set forth any factual content from which the
Court can reasonably draw the inference that Diehl was acting maliciously and in his own
self-interest. The Court recognizes that the discovery process is usually used to gather evidence,
but Twombly still requires the complaint to include Aenough fact to raise a reasonable expectation
that discovery will reveal evidence@ supporting the plaintiff's allegations. Twombly, 550 U.S. at
556. The Complaint offers only conclusory statements.
4. Conclusion
For the reasons stated, Defendant Walls’ Motion to Dismiss (Doc. 10) is
GRANTED; Count V, the claim against Defendant Ronnie Walls for tortious interference with a
business expectancy, is DISMISSED, without prejudice.
Counts I-IV against Defendant URS Energy & Construction, Inc., remain. This
case is set for trial on September 7, 2012; therefore, time is of the essence because the Court’s
congested trial calendar does not permit extending a trial setting except in the compelling
circumstances. If Plaintiff Diehl elects to attempt to re-plead Count V against Defendant Walls, he

1

Judge Hamilton of the Seventh Circuit Court of Appeals has opined that Iqbal is “in serious
tension” with other precedents regarding the Rule 8 pleading standard. McCaulley v. City of
Chicago, 2011 WL 4975644 *10 (7th Cir. Oct. 20, 2011). Judge Hamilton has also stated that the
Supreme Court’s statement in Iqbal regarding Rule 9 “does not solve the problem of give practical
guidance to district courts.” Id. at * 11. Nevertheless, this Court is bound to follow Iqbal.
7

must file his motion to amend and submit his proposed amended complaint on or before March
14, 2012. In the event Plaintiff does not meet this deadline for amendment, the dismissal of
Count V will automatically ripen into dismissal with prejudice and Defendant Ronnie Walls will
be terminated as a defendant (as Walls is only named in Count V).
IT IS SO ORDERED.
DATED: February 29, 2012
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

8