United States District Court, N.D. Indiana, Hammond Division
MARIA G. DEL REAL, Plaintiff,
LaCOSTA, INC., Defendant.
OPINION AND ORDER
RUDY LOZANO, District Judge.
This matter is before the Court on Defendant's Motion to Dismiss Counts IV and V, filed on August 27, 2013. For the reasons set forth below, this motion is GRANTED. Accordingly, Counts IV and V of the complaint are dismissed.
Plaintiff, Maria G. Del Real, brought suit against her former employer, Defendant, LaCosta, Inc., alleging that she was sexually harassed, discriminated against based on her sex, retaliated against for asserting her rights, was not paid for all of the work she performed, and was assaulted and battered, while employed at LaCosta. Pertinent to the instant motion are Count IV, which alleges LaCosta did not pay Del Real for all the work she performed, and Count V, which alleges that Del Real's supervisor assaulted and battered her. During the briefing, Del Real has voluntarily withdrawn Count IV of her complaint, leaving only the viability of Count V at issue. (DE# 12). LaCosta seeks dismissal of Count V for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Thus, the remaining question is, "has Plaintiff alleged an assault and battery claim against LaCosta upon which relief can be granted?"
According to the complaint:
On Thursday, September 15, 2011, between 10:30 and 11:00 a.m. Plaintiff was cleaning an office when Supervisor John came in that office and closed the blinds. Then Supervisor John went behind Plaintiff and started touching and massaging Plaintiff - he was physically touching, battering and attacking Plaintiff. Supervisor John told Plaintiff to "Just relax." Plaintiff told Supervisor John to stop but he would not. Plaintiff was very afraid because there was no one else around and Supervisor John had closed the blinds so no one could witness his attack. Plaintiff kept telling Supervisor John to "Stop!", but Supervisor John just kept telling Plaintiff, "Come on. Relax... relax."
(Cmpt. ¶ 18).
Despite Plaintiff telling Supervisor John to stop, he continued to grab, touch and rub Plaintiff's body. Finally, Plaintiff broke loose and escaped. She immediately walked out of the office. Since Plaintiff was aware of Supervisor John's similar physical attack and sexual harassment of [another female employee] several weeks before, Plaintiff was extremely frightened
(Cmplt. ¶ 19).
In determining the propriety of dismissal under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all facts alleged in the complaint as true and draw all reasonable inferences in the light most favorable to the plaintiff. Johnson v. Rivera, 272 F.3d 519, 520 (7th Cir. 2001). A complaint is not required to contain detailed factual allegations, but it is not enough merely that there might be some conceivable set of facts that entitles the plaintiff to relief. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007), abrogating in part Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A plaintiff has an obligation under Rule 8(a)(2) to provide grounds of his entitlement to relief, which requires more than labels and conclusions. Id. at 1965. Factual allegations, taken as true, must be enough to raise a right to relief above the speculative level. Id. Moreover, a plaintiff may plead himself out of court if the complaint includes allegations that show he cannot possibly be entitled to the relief sought. Jefferson v. Ambroz , 90 F.3d 1291, 1296-97 (7th Cir. 1996).
The Complaint Adequately Pleads the Elements of Assault and Battery
The Indiana Supreme Court, citing the Restatement (Second) of Torts has stated, "[a]n actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the other person..., or an imminent apprehension of such contact, and (b) a harmful contact with the person of the other directly or indirectly results." Mullins v. Parkview Hosp., Inc., 865 N.E.2d 608, 610 (Ind. 2007). Moreover, "[a] touching, ...