Curtis v. Stein Steel Mill Services, Inc. et al

Filing 35

MEMORANDUM AND ORDER, plaintiff's Motion (Doc. 28 ) for Leave to Amended is DENIED as the proposed third amended complaint is futile as it would not survive a motion to dismiss for failure to state a claim. The Court finds Plaintiffs Third Motion to Remand (Doc. 29 ) moot. Signed by Judge J. Phil Gilbert on 6/29/2016. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARSHALL CURTIS,
Plaintiff,
vs.
STEIN STEEL MILL SERVICES, INC.,
et al.,
Defendants.

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Case No. 16-cv-00139-JPG-SCW

MEMORANDUM AND ORDER
This matter is once again before the Court on Plaintiff’s Motion (Doc. 28) for Leave to
Amend Pleadings and Third1 Motion to Remand (Doc. 29).
District courts have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum of $75,000 and is between citizens of different States. 28 U.S.C. §
1332(a)(1).

Plaintiff moves to amend his complaint and add defendants Alan Medford

(“Medford”) and Dennis Beasly (“Beasly”) who are citizens of Illinois. If the Court allows the
plaintiff to file the amended complaint and add these defendants, then this Court would lack
diversity jurisdiction because the Plaintiff is also a citizen of Illinois.
1. Background.
As the Court has previously set out:
This is a retaliatory discharge claim commenced on December 18, 2015,
in the Circuit Court, Third Judicial Circuit, Madison County, Illinois. Plaintiff
alleges2 that he was employed by Stein Steel Mill Services, Inc. (“Stein”) from
July 2013, until February 19, 2015, and was discharged after he voiced his
1

Plaintiff’s motion is titled “Second Amended,” but plaintiff has filed two previous motions (Docs. 15 & 26) for
remand. As such, this is plaintiff’s third motion for remand.
2
Allegations are taken from the plaintiff’s complaint (Doc. 1-1).
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concern about his supervisors’ instructions to input the improper grade of steel
when weighing it in order to increase the value. (Memorandum and Order of May
11, 2016, Doc. 25).
In addition to the above, plaintiff’s proposed third amended complaint alleges that
the defendants made, “false statements that Plaintiff was violent and could cause harm to
people at the job site.” (Doc. 28-1).
2. Motion to Amend.
The Court must first address Plaintiff’s Motion (Doc. 29) for Leave to Amend as
Plaintiff’s motion to remand hinges on whether he is granted leave to amend and rejoin the nondiverse defendants. The Court has previously set out the standard for amendment.
The time for amendment as a matter of right has passed.

Whether the

plaintiff should be allowed to amend his complaint is governed by Federal Rule of
Civil Procedure 15(a)(2), which provides that a plaintiff may amend his pleading
only with the opposing parties= written consent, which the plaintiff has not
obtained, or leave of court, which the Court should freely give when justice
requires. Generally, the decision whether to grant a party leave to amend the
pleadings is a matter left to the discretion of the district court. Orix Credit
Alliance v. Taylor Mach. Works, 125 F.3d 468, 480 (7th Cir. 1997); Sanders v.
Venture Stores, 56 F.3d 771, 773 (7th Cir. 1995).
A court should allow amendment of a pleading except where there is
undue delay, bad faith, dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, or futility of the

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amendment. Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010) (citing
Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th
Cir. 2007)). An amendment is futile if it would not survive a motion to dismiss
for failure to state a claim. General Elec. Capital Corp. v. Lease Resolution
Corp., 128 F.3d 1074, 1085 (7th Cir. 1997). (Memorandum and Order of May
11, 2016, Doc. 25).
Under Illinois law, a retaliatory discharge action may only be brought
against an employer.

“The purpose underlying the recognition of retaliatory

discharge actions is therefore fully served by allowing actions only against the
employer.” Buckner v. Atl. Plant Maint., Inc., 182 Ill. 2d 12, 21, 694 N.E.2d 565,
569-70 (1998).

A retaliatory discharge action cannot be brought against an

employer’s agent or employee. Id. at 569-70.
Yet, Count I of plaintiff’s proposed third amended complaint is a retaliatory discharge
(compensatory damages) claim against the “Defendants.” Count II is a retaliatory discharge
(punitive damages) claim against the “Defendants.” Again, the defendants in the proposed third
amended complaint are: Stein – an employer, and Medford and Beasly - employees of defendant
Stein. The Court has ruled that a retaliatory discharge action may only be brought against an
employer and once again, the plaintiff is attempting to bring retaliation discharge claims against
employees.
The third count of the plaintiff’s proposed amended complaint is a defamation claim –
again, against all defendants. The only allegation3 pertaining to defamation is, “55. Defendants
made false statements that Plaintiff was violent and could cause harm to people at the job site.”
3

Paragraph 56 states that the statements that Plaintiff was violent and could harm people were false statements,
but since paragraph 55 already stated the statements were false, paragraph 56 simply repeats the allegation in
paragraph 55.
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“Defamation is the publication of a false statement that ‘tends to harm a person’s
reputation to the extent that it lowers that person in the eyes of the community or deters others
from associating with that person.’” Lott v. Levitt, 556 F.3d 564, 568 (7th Cir. 2009)(quoting
Tuite v. Corbitt, 866 N.E.2d 114,121 (2006)). “To bring a successful claim, a plaintiff must
normally show that the unprivileged communication of a false statement caused him harm. …
Some statements, however, are so obviously harmful that injury to the plaintiff’s reputation can
be presumed and are considered actionable per se.” Id.
Statements that impute, “an inability to perform or lack of integrity in one’s duties of
employment” and statements that, “impute a lack of ability, in his profession” are pro se
defamation actions. Id. “The Illinois courts have emphasized that the meaning of a statement is
not a fact for the jury to find, but a question of law to be resolved by the court. To discern the
meaning, courts must draw from the context of the statement and give the words their natural and
obvious meanings.” Id. (internal citations and quotations omitted.)
Further, courts are required to accept the facts alleged in the complaint as true and give
all reasonable inferences in favor of the plaintiff. However, the court is not required to take the
plaintiff’s interpretation of the statement as true and it is the court’s responsibility to determine
whether the meaning of a statement could be susceptible to an innocent construction. See
Tobacco Co. v. N.Atl. Trading Co., 381 F.3d 717, 727 (7th Cir. 2004); Lott v. Levitt, 556 F.3d
564, 568 (7th Cir. 2009); Madison v. Frazier, 539 F.3d 646, 654 (7th Cir. 2008).
The defendants argue that the plaintiff’s allegations are too vague and the Court agrees.
“To survive a motion to dismiss, a complaint must contain sufficient factual 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

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defendant is liable for the misconduct alleged. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's
liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)(internal
citations omitted.)
“Determining whether a complaint states a plausible claim for relief will, as the Court of
Appeals observed, be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense. But where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not
‘show[n]’-‘that the pleader is entitled to relief.’” Id. at 678-79 (internal citations omitted.)
Although federal courts do not require pleading of specifics, the pleadings must contain
enough information to take a claim from conceivable to plausible. It is conceivable that the
defendants Medford and Beasley made statements and that such statements could be constructed
to indicate that the plaintiff was “violent and could cause harm to people at the job site.”
However, it is not plausible that all defendants – which include a corporation – made the exact
same statements. The allegation that, “Plaintiff was violent and could cause harm to people at
the job site” appears to be the plaintiff’s construction of the statements made by plaintiff.

The

pleading must contain enough information for the Court to determine whether the statements are
susceptible to an innocent construction.
3. Conclusion.
Based on the above, plaintiff’s Motion (Doc. 28) for Leave to Amended is
DENIED as the proposed third amended complaint is futile as it would not survive a motion to

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dismiss for failure to state a claim. The Court finds Plaintiff’s Third Motion to Remand (Doc.
29) moot. Plaintiff is DIRECTED to review Local Rule 15.1 with regard to amended pleadings
and the Court WARNS the plaintiff that it will not entertain another proposed amended pleading
alleging retaliatory discharge against Alan Medford and/or Dennis Beasly.
IT IS SO ORDERED.
DATED: 6/29/2016
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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