Szplett v. Kenco Logistic Servs.

LEONARD A. SZPLETT, Plaintiff, v. KENCO LOGISTIC SERVICES, LLC, MARS, INC., THE HARTFORD, DAVID JABALEY,MARIO LOPEZ, TAMMI FOWLER, PAULA HISE, TRACE SPIER, ROBERT COFFEY,TODD MOORE, JAY ELLIOTT, DAVID CAINES, MICHAEL MANZELLO,DAVID CRAWLEY, and KELVIN WALSH, Defendants.

19 C 2500

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

April 22, 2020

Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

Leonard Szplett, proceeding pro se, filed this suit against Kenco Logistics Services, LLC and its employees Kelvin Walsh, Paula Hise, Tammi Fowler, David Jabaley, Mario Lopez, Michael (Mike) Manzello, David Caines, Trace Spier, Jay Elliott, and David (Dwight) Crawley ("Kenco Defendants"); Mars, Inc. and its employees Robert Coffey and Todd Moore ("Mars Defendants"); and Hartford Life and Accident Insurance Company. Doc. 1. Szplett sought and was given leave to file an amended complaint. Docs. 21-22. The court dismissed the amended complaint without prejudice under Civil Rule 8(a)(2) due to its length and disorganization. Doc. 52. Szplett filed a second amended complaint, Doc. 53, which Defendants move to dismiss for failure to state a claim under Rule 12(b)(6), Docs. 55, 58, 61. The motions are granted.

Background

In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice," along with additional facts set forth in Szplett's briefs opposing dismissal, so long as those additional facts "are consistent with the pleadings." Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013) (internal quotation marks omitted). The facts are set forth as favorably to Szplett as those materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United States, 881 F.3d 529, 531 (7th Cir. 2018).

The operative complaint is difficult to parse. The relevant facts are set forth as best the court can understand them.

Mars employed Szplett from 2001 until his termination on, at the latest, March 29, 2015. Id. at ¶¶ 2-3, 31-36, 89, 124, 493, 604. Szplett was also employed by Kenco, the property manager for the Mars facility where he worked, from April 2013 until his March 29, 2015 termination. Id. at ¶¶ 2-3, 6-7. The individual defendants held officer or supervisory positions with either Mars or Kenco. Id. at ¶¶ 10-21. Hartford is the third-party administrator for Mars's and Kenco's employee benefits programs. Id. at ¶ 22.

Szplett observed during his employment that Mars and Kenco had discriminatory corporate cultures and employment practices. Id. at ¶¶ 53-77, 255-276, 303-351, 390-392, 547-560. Szplett complained to management about discrimination, assisted other employees with discrimination issues, and acted as a witness in legal matters. Id. at ¶¶ 88, 129-133. As a result, Szplett was subjected to retaliation, including uneven discipline, harsher scrutiny, unwarranted suspensions, reduced overtime opportunities, reductions in duties, disciplinary actions, public humiliation, and psychological warfare. Id. at ¶¶ 89, 134-135, 142-145.

The retaliation culminated with his termination, which was made effective March 29, 2015. Id. at ¶¶ 89, 604. In late February 2015, Szplett was told that he would be terminated and was given a severance offer under which he would receive his severance pay and March salary if he agreed to waive certain claims that he might have against Defendants. Id. at ¶¶ 111-112; 116; 282-283; 688-690. At that time, Szplett's short-term disability benefits were stopped. Id. at ¶ 111. It appears that all this occurred while Szplett was on medical leave. Id. at ¶¶ 127, 364, 629, 702-703; Doc. 67 at 8-9. Szplett ultimately did not receive his March salary or severance pay. Doc. 53 at ¶¶ 119, 226. The decision to deprive Szplett of his March salary and severance pay became final sometime in April 2015, when he failed to timely accept or deny the severance offer. Id. at ¶¶ 116, 690. Szplett received a letter around April 9, 2015 from Hartford stating that his disability benefits had been retroactively denied as of February 28, 2015. Doc. 67 at 9.

In late August 2015, several months after his termination, Szplett learned that he had been demoted while on medical leave. Id. at ¶¶ 95, 615, 702. He does not allege that the demotion had any impact on his pay or other terms and conditions of his employment.

As for Hartford, the complaint alleges only that it assisted Mars Defendants and Kenco Defendants in their allegedly discriminatory actions by denying Szplett his benefits. Id. at ¶ 78.

Discussion

The complaint attempts to state claims under 42 U.S.C. § 1981, id. at ¶¶ 150-399, 478-509 (Counts 1-9, 12); 18 U.S.C. § 1001, id. at ¶¶ 400-450 (Count 10); 18 U.S.C. §§ 1503, 1505, 1512, and 1621, id. at ¶¶ 451-477 (Count 11); 42 U.S.C. § 1985, id. at ¶¶ 478-509 (Count 12); and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962, id. at ¶¶ 654-781 (Count 21); and for defamation, id. at ¶¶ 510-528 (Count 13); negligence, id. at ¶¶ 529-541 (Count 14); breach of fiduciary duty, id. at ¶¶ 542-560 (Count 15); conspiracy tocommit breach of fiduciary duty, id. at ¶¶ 561-591 (Count 16); tortious interference with prospective economic advantage, id. at ¶¶ 592-605 (Count 17); intentional infliction of emotional distress, id. at ¶¶ 606-625 (Count 18); fraudulent concealment of adverse employment actions, id. at ¶¶ 626-637 (Count 19); and aiding and abetting, id. at ¶¶ 638-653 (Count 20). Because Szplett and some of the individual defendants are Illinois citizens, id. at ¶¶ 1, 10, 19-21, the state law claims fall under the court's supplemental jurisdiction, 28 U.S.C. § 1367(a), not under the diversity jurisdiction, 28 U.S.C. § 1332(a).

I. Claims with a One- or Two-Year Statute of Limitations

The last allegedly wrongful action identified in the complaint occurred in April 2015, Doc. 53 at ¶¶ 116, 691, and the latest point at which Szplett alleges he discovered relevant misconduct is August 2015, id. at ¶¶ 95, 615. Szplett filed this suit on April 12, 2019. Doc. 1.

Szplett's § 1985 (Count 12), defamation (Count 13), negligence (Count 14), and intentional infliction of emotional distress (Count 18) claims are subject to statutes of limitations of two years or less. See Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 923 (7th Cir. 2003) ("Illinois imposes a one-year statute of limitations on all defamation actions that begins to run when the defamatory statement was published."); Manley v. City of Chicago, 236 F.3d 392, 395 (7th Cir. 2001) ("[I]n Illinois, a two-year statute of limitations applies to claims brought under §§ 1983 and 1985."); Feltmeier v. Feltmeier, 798 N.E.2d 75, 85 (Ill. 2003) ("[T]he applicable statute of limitations for intentional infliction of emotional distress is two years, because the tort is a form of personal injury."); 735 ILCS 5/13-202 ("Actions for damages for an injury to the person ... shall be commenced within 2 years next after the cause of action accrued ... ."). The portion of the complaint addressing negligence, Doc. 53 at p. 90, refers to 735 ILCS 5/13-205, which provides for a longer statute of limitations, but that statute does notgovern negligence claims. See 735 ILCS 5/13-205 ("[A]ctions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued."). Because the wrongs alleged by Szplett occurred more than two years before he filed this suit, and because his tolling argument (addressed on the merits below) would extend the commencement of the limitations period to August 2015 at the latest, those claims are dismissed as time-barred.

II. Claims for Which There Is No Private Right of Action

The complaint purports to bring claims (Counts 10-11) under several criminal statutes that do not confer a private right of action. See GwanJun Kim v. Grand Valley State Univ., 2017 WL 8294004, at *1 (6th Cir. Dec. 22, 2017) ("18 U.S.C. § 1621 ... does not create a private right of action."); Lee v. U.S.A.I.D., 859 F.3d 74, 78 (D.C. Cir. 2017) ("18 U.S.C. § 1001 ... does not create a private cause of action."); Farzan v. Bridgewater Assocs., LP, 699 F. App'x 57, 58 (2d Cir. 2017) ("[O]bstruction of justice is a criminal charge, not a private cause of action."); Greenblatt v. Klein, 634 F. App'x 66, 69 (3d Cir. 2015) ("[T]here is no private cause of action under 18 U.S.C. § 1001."); Fuller v. Unknown Officials from the Justice Dep't Crime Div., 387 F. App'x 3, 4 (D.C. Cir. 2010) ("[T]here is no private cause of action for perjury, 18 U.S.C. § 1621 ... ."); Rowland v. Prudential Fin., Inc., 362 F. App'x 596, 596 (9th Cir. 2010) ("Dismissal of Rowland's claim[] brought under [18 U.S.C. § 1512] was proper because th[at] statute[] do[es] not provide a private right of action."); Banks v. Kramer, 2009 WL 5526780, at *1 (D.C. Cir. Dec. 30, 2009) ("Appellant alleges violations of 18 U.S.C. §§ 1001, 1503, 1505, 1621, and 241, but there is no private right of action under these criminal statutes."); Andrews v.Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007) ("18 U.S.C. §§ ... 1001 ... and 1503 ... are criminal statutes that do not provide for a private right of action and are thus not enforceable through a civil action."). Those claims accordingly are dismissed.

...