Opinion
03 C 3240
October 30, 2003
MEMORANDUM OPINION AND ORDER
It is alleged that plaintiffs Augustina Smith and Sharon Moore were employed by three defendants identified as Chem-Plate Industries, Inc.; MWFI f/k/a Chicago Heat Treat. Both plaintiffs bring claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiffs contend they were sexually harassed by the same supervisor, Robert Sheehan. Smith alleges she was harassed from February 1997 until June 1999. Moore alleges she was harassed from March 1999 until June 1999. Additionally both plaintiffs allege that they were retaliated against after filing administrative complaints in June 1999. Smith alleges retaliation in the form of improper discipline and denial of overtime that occurred between October and December 1999. Moore alleges similar retaliation occurring between August and December 1999.
The complaint does not specify whether either plaintiff is still employed by any of the defendants.
As to both plaintiffs, it is unclear if the denial of overtime is alleged to have occurred outside these dates as well.
Defendants, all of whom are represented by the same counsel, contend that they are actually five separate entities, that is the alleged formerly known as names are actually distinct entities. The three principally named defendants (that is Chem-Plate, MWFI, and Steel Sale) all contend they are inappropriate defendants. They contend that transfer of assets and sales that occurred over time did not leave any of these three defendants liable for any possible liability of the other two defendants. These defendants move to dismiss or alternatively for summary judgment.
The complaint alleges that each defendant was an employer of each plaintiff during the pertinent time period. That is a sufficient basis for liability for the alleged harassment and retaliation that occurred. Additional contentions regarding transfers of assets and changes of ownership are not included in the allegations of the complaint. Consideration of those issues would require consideration of documents and facts outside the complaint. Therefore, those issues may only be considered on summary judgment. The motion to dismiss will be denied.
The motion for summary judgment will not be addressed on its merits. First, defendants have not provided a statement of uncontested facts as required by Local Rule 56.1. Second, plaintiffs have not yet had an opportunity for discovery. Plaintiffs' Federal Rules of Civil Procedure Rule 56(f) affidavit explains plaintiffs' need for discovery as to issues involving defendants' transfers and sales. Plaintiffs are entitled to discovery before responding to this issue. Moreover, since all defendants are represented by the same counsel, no otherwise unnecessary expenses are being incurred by having all defendants remain in the case for the time being.
The parties' pleadings make passing reference to possible discovery issues. It would, however, be inappropriate to resolve any discovery issues prior to an appropriate conference between the parties, see L.R. 37.2, and the filing of any appropriate motion to compel. It is noted, however, that it appears unnecessary to serve separate discovery requests on each party since all are represented by the same counsel. To the extent some of the questions do not apply to particular defendants or documents for a particular time period are irrelevant as to a particular defendant, defendants must first meet with plaintiffs in an attempt to agree to narrow certain document requests or interrogatories.
Defendants also suggest that any discovery should be presently limited to the issue of who is an appropriate defendant. No such limitation is being placed on discovery. Even if some defendants are ultimately dismissed out, there is no contention that two of the defendants should not be in the case so the discovery is going to occur regardless.
To the extent discovery reveals that certain defendants should not be named as defendants or other defendants should be added, plaintiffs should promptly amend the complaint.
IT IS THEREFORE ORDERED that defendants' motion to dismiss [5-1] is denied and defendants' motion for summary judgment [5-2] is denied without prejudice. Within two weeks, defendants shall answer the complaint. All discovery is to be completed by February 27, 2004. Status hearing set for January 14, 2004 at 11:00 a.m.