SMITH v. PENSKE CHEVROLET
ENTRY Discussing Motion for Judgment on the Pleadings: Penske's motion for judgment on the pleadings 13 is granted. No partial final judgment shall issue at this time as to the claims resolved in this Entry. The parties shall submit a propose d case management plan not later than July 20, 2011, and shall incorporate in such document the deadline of October 14, 2011, for the filing of any further dispositive motions. Other deadlines shall be proposed consistent with the Octob er 14th deadline. Penske shall be correctly identified in the caption as D. Young Chevrolet, LLC, dba Penske Chevrolet, and the docket and future filings shall reflect this correction ***SEE ENTRY***. Signed by Judge William T. Lawrence on 6/23/2011.(DWH)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
Entry Discussing Motion for Judgment on the Pleadings
For the reasons explained in this Entry, the motion for judgment on the pleadings
of defendant D. Young Chevrolet, LLC, dba Penske Chevrolet, hereafter referred to as
“Penske,” must be granted.
Penske seeks judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
Courts apply the Fed.R.Civ.P. 12(b)(6) standard when ruling on 12(c) motions. Guise
v. BMW Mortg., LLC, 377 F.3d 795, 798 (7th Cir. 2004). “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.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting
Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). Dismissal under Rule 12(b)(6) is proper
“when the allegations in a complaint, however true, could not raise a claim of entitlement
to relief.” Twombly, 550 U.S. at 558; see also Hefferman v. Bass, 467 F.3d 596, 600 (7th
Cir. 2006) (if a plaintiff pleads facts which preclude recovery, then he has pled himself out
Smith’s complaint is filed pursuant to various discrimination statutes, including a
claim of retaliation pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e-5, and pursuant to 42 U.S.C. § 1981(a). Penske’s motion for judgment on
the pleadings seeks resolution of only these claims and Penske is correct that these claims
are subject to dismissal based on the fact of the complaint.
The claim of retaliation in the lawsuit was not asserted in, nor is it within the scope
of the charge of discrimination filed with the Equal Employment Opportunity Commission.
Accordingly, that claim cannot be maintained here. Geldon v. South Milwaukee School
Dist., 414 F.3d 817, 819 (7th Cir. 2005)(“A Title VII plaintiff may bring only those claims that
were included in her EEOC charge, or that are ‘like or reasonably related to the allegations
of the charge and growing out of such allegations.’)(quoting McKenzie v. Illinois Department
of Transportation, 92 F.3d 473, 481 (7th Cir. 1996).
As to the claim pursuant to section 1981, a plausible claim must include the
allegation that he is a member of a protected class. Fane v. Locke Reynolds, LLP, 480 F.3d
534, 538 (7th Cir. 2007). Smith’s charge of discrimination attached to his complaint
identifies his race as “white.” This disclosure is incompatible with a viable claim under
Conclusion and Further Proceedings
Penske’s motion for judgment on the pleadings  is granted. No partial final
judgment shall issue at this time as to the claims resolved in this Entry.
The parties shall submit a proposed case management plan not later than July 20,
2011, and shall incorporate in such document the deadline of October 14, 2011, for the
filing of any further dispositive motions. Other deadlines shall be proposed consistent
with the October 14th deadline.
Penske shall be correctly identified in the caption as D. Young Chevrolet, LLC, dba
Penske Chevrolet, and the docket and future filings shall reflect this correction.
IT IS SO ORDERED.
13156 Dekoven Drive
Fishers, IN 46037
Jeffrey B. Halbert
STEWART & IRWIN, P.C.
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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