IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MELISSA MULLER,

Plaintiff,

v.

RICH MORGAN, CHELSEA KLINKE,

RHYTHM MANANA, BELLUS ALC

INVESTMENTS 1, LLC d/b/a

AMERICAN LASER SKINCARE,

Defendants.

Case No. 12 C 1815

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Chelsea Klinke’s Motion to

Strike and Dismiss the Remainder of the Complaint (ECF No. 55). 

For the reasons stated herein, the Defendant’s Motion to Dismiss is

granted in part and denied in part.

I. BACKGROUND

Defendant Chelsea Klinke (“Klinke”) has filed a second Motion

to Dismiss Plaintiff Melissa Muller’s (hereinafter, “Plaintiff” or

“Muller”) Amended Complaint. As the Court already described the

facts of this case in its December 27, 2012 Order (the “December

Order”) on Defendant’s first Motion to Dismiss, ECF No. 52, only a

cursory review is provided here. 

Plaintiff was employed as a Regional Manager at American Laser

Skincare (“ALS”). Plaintiff alleges several instances in which

ALS’s former CEO, Rich Morgan (“Morgan”), engaged in sexually
harassing behavior. This behavior led to ALS conducting an

investigation into Morgan, for which Plaintiff was interviewed. 

Klinke, ALS’s Vice-President of Sales and Clinic Manager, allegedly

sought to determine and influence what Muller would tell the

investigators. Klinke called Muller after the interview and

grilled her about what she said, which caused Klinke to “freak

out.” Am. Compl. ¶ 37. Apparently as a result of the interview,

Morgan was removed as CEO. 

In the fall of 2010, Muller became pregnant. She informed

Klinke, who was unenthusiastic and responded that they could not

have everyone getting pregnant at the same time. In January 2011,

Muller was informed that she was being placed on a Performance

Improvement Plan (“PIP”) even though her work had never been

criticized. Klinke later told Muller that she needed to step down

as Regional Manager and assume the position of Clinic Manager. 

Later that month, and prior to her maternity leave, she was demoted

to Clinic Manager at greatly reduced pay.

Plaintiff took her maternity leave in May 2011 and returned in

July 2011. In August 2011, she filed a charge of discrimination

with the Equal Employment Opportunity Commission (“EEOC”). She

then received warning that she had 90 days to improve her

performance, during which time Klinke fired Muller’s assistant and

refused to let her hire another. Klinke then visited Muller’s

clinic and criticized her performance.

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Muller received a Right-to-Sue letter from the EEOC in

November 2011, but in December 2011 ALS filed for bankruptcy and

Plaintiff could not file suit against it. In January 2012, ALS

received bankruptcy court approval to sell its assets free of

liabilities, which were to be purchased by Bellus ALC

Investments 1, LLC (“Bellus”). The day before closing, Plaintiff

was terminated.

Plaintiff brought this action on March 12, 2012. She alleges

various causes of action stemming from the alleged sexual

harassment and retaliation she suffered at ALS. The original

Defendants included Morgan, ALS, Klinke, Bellus, and Rhythm Manani

(“Manani”), General Counsel and Vice-President of Human Resources

of ALS.

Plaintiff filed an Amended Complaint on June 8, 2012. ECF

No. 33. Klinke, Manani and Bellus moved to dismiss Plaintiff’s

claims on two grounds. See Defs.’ Mot. to Dismiss, ECF No. 35. 

First, Defendants argued that they should be dismissed pursuant to

Rule 12(b)(2) because this Court lacked personal jurisdiction over

them. Second, Defendants claimed that the Court should dismiss

Counts I, II, III, V, VI, VII, and VIII for failure to state a

claim pursuant to Rule 12(b)(6). 

In its December Order, the Court sought to address both of

Defendants’ arguments. The Court dismissed the case against Manani

and Bellus for want of jurisdiction. While the Court determined

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that it had jurisdiction over Klinke, it found Plaintiff’s

Complaint failed to state a claim against Klinke under all counts

except for her retaliation claims pursuant to the Illinois Human

Rights Act (“IHRA”) and the Family Medical Leave Act (“FMLA”). 

Thus, only Counts III and V, those retaliation claims, survived. 

Around the time the Court issued its December Order, Klinke’s

previous counsel withdrew from the case and she substituted present

counsel. Following the ruling, Klinke’s new attorney requested an

opportunity to put forth a second Motion to Dismiss to assert

arguments that she believed previous counsel should have made. The

Court allowed Klinke to file this second Motion to Dismiss, which

is now before the Court. 

II. LEGAL STANDARD

To survive a motion to dismiss, the complaint must comply with

Rule 8(a) by providing a short plain statement of the claim showing

that the pleader is entitled to relief while providing defendants

fair notice of what the claim is and the grounds upon which it

rests. Chi. Police Sergeants Ass’n v. City of Chicago, No. 08-cv4214, 2011 U.S. Dist. LEXIS 72424 at *7 (N.D. Ill. July 6, 2011).

In ruling on a motion to dismiss under Rule 12(b)(6), courts accept

as true all of the plaintiff’s well-pleaded factual allegations and

any inferences reasonably drawn from them. Id. Also pertinent at

the Rule 12(b)(6) stage are exhibits attached to the complaint and

exhibits attached to the parties’ briefs that are referred in the

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complaint or central to a plaintiff’s claims. O’Connell v. Cont’l

Elec. Constr. Co., No. 11 C 2291, 2011 U.S. Dist. LEXIS 119921 at

*2 (N.D. Ill. Oct. 17, 2011) (quotations omitted).

III. ANALYSIS

A. Local Rule 7.1

The Court first notes that Plaintiff’s response to Klinke’s

motion to dismiss exceeded the 15-page limit established by Local

Rule 7.1. Pursuant to this rule, any party seeking to file a brief

in excess of fifteen pages can only do so with the Court’s

permission. While the Court will consider Plaintiff’s present

brief, the parties are warned that failure to comply with the Local

Rules in the future may lead to their briefs being stricken.

B. Successive Rule 12(b)(6) Motions

Plaintiff argues that because the Court already ruled

Plaintiff’s pleadings satisfied the requirements of Rule 8 that

Klinke’s second motion is prohibited. Plaintiff relies on

Rule 12(g)(2), which states “[e]xcept as provided in Rule 12(h)(2)

or (3), a party that makes a motion under this rule must not make

another motion under this rule raising a defense or objection that

was available to the party but omitted from its earlier motion.” 

FED. R. CIV. P. 12(g)(2). Thus, Rule 12(g) generally precludes a

defendant from bringing successive motions to dismiss raising

arguments that the defendant failed to raise at the first available

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opportunity. Makor Issues & Rights, Ltd. v. Tellabs, Inc., No. 02

C 4356, 2008 U.S. Dist. LEXIS at *9 (N.D. Ill. May 22, 2008).

Rule 12(h)(2), however, preserves a party’s ability to make a

failure to state a claim argument in three situations: in a

pleading under Rule 7(a), in a 12(c) motion, or at trial. FED. R.

CIV. P. 12(h)(2). Klinke, however, has presented her arguments in

a Rule 12(b)(6) motion, so they do not fall into any of the three

exceptions outlined in Rule 12(h)(2). Klinke’s argument is thus

technically waived, “in the limited context of a 12(b)(6) motion,”

if the argument was available to her at the time of her original

motion to dismiss. Klinke does not contend that she could not have

made the arguments previously, nor could she. 

As stated above, though, there is a second exception to

Rule 12(g)(2). Rule 12(h)(3) provides that “[i]f the Court

determines at any time that it lacks subject-matter jurisdiction,

the court must dismiss the action.” FED. R. CIV. P. 12(h)(3). 

Klinke claims that Plaintiff’s IHRA retaliation claim must be

dismissed because the Court lacks jurisdiction over it. Based on

Plaintiff’s Amended Complaint and the materials submitted with her

response brief, it appears Klinke is correct.

1. Illinois Human Rights Act

Klinke argues that Plaintiff failed to satisfy or plead the

administrative prerequisites for her to proceed with an IHRA claim

before this Court. Plaintiff responds that she need not do so. 

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There is support in this District for both positions. Compare

Volling v. Antioch Rescue Squad, No. 11 04920, 2012 U.S. Dist.

LEXIS 171623 at *36 (N.D. Ill. Dec. 4, 2012) (refusing to dismiss

Plaintiff’s IHRA claims due to failure to plead exhaustion of

administrative remedies) with Marron v. Eby-Brown Co., LLC, No. 11-

CV-2584, 2012 U.S. Dist. LEXIS 7298 at *13-15 (N.D. Ill. Jan. 23,

2012) (granting dismissal of IHRA claim for failure to plead

exhaustion of administrative remedies).

The Court need not address at length the parties arguments

here with respect to what Plaintiff needed to plead or whether she

met the requirements. That is because in responding to Defendant’s

assertions that Plaintiff failed to exhaust her administrative

remedies, she established (albeit accidentally) that the Court

lacks jurisdiction over her IHRA claim. 

The IHRA is intended to secure individuals in Illinois freedom

from unlawful discrimination in connection with employment. 

O’Connell, 2011 U.S. Dist. LEXIS 119921 at *31. “The IHRA limits

the court’s jurisdiction to claims that have first been raised

through the administrative procedures set forth in the statute.” 

Hankins v. Best Buy Co., No. 10 CV 4508, 2011 U.S. Dist. LEXIS

139037 at *14 (N.D. Ill. Dec. 2, 2011). The statute provides that

“[e]xcept as otherwise provided by law, no court of this state

shall have jurisdiction over the subject of an alleged civil rights

violation other than as set forth in this Act.” 775 Ill. Comp.

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Stat. 5/8-111(D). The statute sets out what steps are needed to

confer jurisdiction over an IHRA claim to a court.

The version of the IHRA in effect when Plaintiff filed her

charge with the EEOC provides that the charge was deemed filed with

the Illinois Department of Human Rights (“IDHR”) the same day she

filed it with the EEOC. 775 Ill. Comp. Stat. 5/7A-102(A-1). Upon

receipt of a charge filed with the EEOC, the IDHR was required to

notify Plaintiff that she might also proceed with her charge before

the IDHR. 775 Ill. Comp. Stat. 5/7A-102(A-1). The statute states

that the complainant must notify the IDHR of her decision within 35

days of receipt of the IDHR’s notice, otherwise the IDHR would

close the case. Id. The IDHR would take no action until the EEOC

made a determination of the charge. Id. After the EEOC reached

its decision, the IDHR would either adopt the EEOC’s determination

or process the charge pursuant to the IHRA. Id. A claimant could

bring suit 90 days after (1) being notified of the IDHR report’s

findings, or (2) the IDHR failing to issue a report within 365

days. Id.; 775 Ill. Comp. Stat. 5/7A-102(D), (G). It is the

failure to comply with either of those filing restrictions that

dooms Plaintiff’s IHRA claim.

It is undisputed that Plaintiff received no Right-to-Sue

letter from the IDHR. In responding to Klinke’s Motion,

Plaintiff’s counsel submitted an “Affirmation in Opposition to

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Defendant Chelsea Klinke’s Second 12(b) Motion to Dismiss.” ECF

No. 59. In it, Plaintiff’s counsel states:

Additionally, I personally contacted the Illinois

Department of Human Rights in connection with Plaintiff

Melissa Muller’s charges in late January 2013, to inquire

about the status of her charges: I was instructed to

forward Plaintiff Melissa Muller’s EEOC right-to-sue

letters to the Illinois Department of Human Rights, and

have forwarded the EEOC right-to-sue letters in

connection with those charges to the Illinois Department

of Human Rights, and believe that the Illinois Department

of Human Rights right-to-sue letter(s) should therefore

be forthcoming.

Id. ¶ 4. Thus, Plaintiff acknowledges that she filed her IHRA

claim before this Court without having been issued any Right-to-Sue

letter from the IDHR. While Plaintiff did receive a Right-to-Sue

letter from the EEOC, the fact that she received a Right-to-Sue

notice from the EEOC does not establish that she may bring suit

under the IHRA. Hankins, 2011 U.S. Dist. LEXIS 139037 at *16-17.

With respect to filing a lawsuit following the failure to

receive a report after 365 days, the statute does not say whether

the 365-day period commences when the complainant files the charge

with the EEOC or when the IDHR files the charge after receiving the

EEOC’s determination. O’Connell, 2011 U.S. Dist. LEXIS 119921 at

*35. It does not matter, however, because under either scenario,

Plaintiff admits she filed her Complaint too early.

The Amended Complaint alleges that Plaintiff filed her initial

charge with the EEOC (and thus with the IDHR) on August 11, 2011. 

Am. Compl. ¶ 59. Plaintiff argues that her initial charge was

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filed “well over 365 days ago,” on August 11, 2011. Pl.’s Resp. to

Klinke’s Mot. to Dismiss at 6; Am. Compl. ¶ 59. But the question

is not simply whether she filed her charge with the EEOC more than

a year ago. The question is whether she filed her Complaint within

the 90-day window provided by the statute subsequent to the 365-day

period.

If the 365-day period commenced when Plaintiff filed her

initial EEOC charge on August 11, 2011, then she was required to

file this suit between August 10, 2012 and November 8, 2012. 

Plaintiff, however, filed her initial Complaint asserting claims

under the IHRA on March 12, 2012. See ECF No. 1. As such, she

filed her IHRA claim six months too early. If the 365-day period

commenced when the EEOC made its determination and issued its

Right-to-Sue letter in November 2011, see Am. Compl. ¶ 68, then

Plaintiff filed suit approximately nine months too early. Thus,

even assuming Plaintiff exhausted all of her administrative

remedies (which is questionable), her IHRA claim must be dismissed

because she filed it too early under any circumstances. See

O’Connell, 2011 U.S. Dist. LEXIS 119921 at *36 (dismissing IHRA

claim regardless of whether administrative remedies had been

exhausted because it had been filed either too early or too late);

McCarrell v. Wirtz Bev. Ill, Inc., No. 10 C 1530, 2010 U.S. Dist.

LEXIS 92634 at *3-4 (N.D. Ill. Sept. 7, 2010) (IHRA claim filed

prematurely must be dismissed under Illinois law). Dismissal is

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appropriate, because filing too early creates a lack of subject

matter jurisdiction. See Davis v. Ill. Human Rights Comm’n, 676

N.E.2d 315, 322-24 (Ill. App. Ct. 1997). Under Rule 12(h)(3), if

the Court determines it lacks subject matter jurisdiction, it must

dismiss the action. FED. R. CIV. P. 12(h)(3).

The Court is aware that Plaintiff’s window for filing her IHRA

claim has passed under 775 Ill. Comp. Stat. 5/7A-102(G)(2). 

However, as stated above, Plaintiff indicated she was awaiting

right-to-sue letters, which would grant her another window to file

her claim. As it is thus possible that Plaintiff could still file

a timely IHRA cause of action, Count III is dismissed without

prejudice. 

As guidance for Plaintiff if she chooses to amend her

Complaint, the Court believes that those cases holding that a

plaintiff must plead that she exhausted her administrative remedies

have the better side of the argument. See, e.g., Marron, 2012 U.S.

Dist. LEXIS 7298 at *13-15; Hankins, 2011 U.S. Dist. LEXIS 139037

at *15-17; O’Connell, 2011 U.S. Dist. LEXIS 119921 at *36; Peters

v. Fansteel, Inc., 736 F.Supp. 198, 201 (N.D. Ill. 1990). The

Court notes the recent decision of Robinson v. Village of Oak Park,

No. 1-12-1220, 2013 Ill. App LEXIS 234 (Ill. Ct. App. Apr. 16,

2013), in which the court suggested:

that plaintiffs who exercise their right to file a

circuit court case alleging a violation of the Illinois

Human Rights Act attach a copy of the Illinois Human

Rights Commissions’ final agency action to their circuit

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court complaint or otherwise allege sufficient facts with

supporting dates in the body of the complaint sufficient

to demonstrate that he/she did, in fact, timely exhaust

all available administrative remedies at all stages.

Id. at *4-5. The reason it is necessary to plead exhaustion of

remedies is because such facts are necessary for a court to

determine whether it has jurisdiction over the IHRA claim.

For the reasons stated above, Plaintiff’s IHRA retaliation

claim is dismissed without prejudice.

2. Family Medical Leave Act Claim

Klinke also argued that Plaintiff’s FMLA retaliation count

failed to state a claim. However, her arguments could have been

brought during her first motion to dismiss, so her motion fails

under Rule 12(g)(2). The Court notes, however, that even if her

motion was proper, her arguments still would have failed. To state

a claim for FMLA retaliation, a plaintiff must allege:

(1)he or she engaged in a statutorily protected activity;

(2) he or she suffered an adverse action; and (3) a

causal link between the protected activity and the

adverse action.

Mattern v. Panduit Corp., No. 11 C 984, 2011 U.S. Dist. LEXIS

118057 at *20-21 (N.D. Ill. Oct. 11 2011). The Court found

previously that Plaintiff’s allegations were sufficient to state a

cause of action for retaliation under FMLA. See 12/27/12 Order at

10-11. Klinke’s new Motion to Dismiss does nothing to change that

conclusion, as Plaintiff pled the necessary elements. Klinke’s

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Motion to Dismiss Count V, for retaliation in violation of FMLA, is

denied.

3. Motion to Strike

In the alternative to her Motion to Dismiss, Klinke seeks to

strike the opening paragraphs of Plaintiff’s Complaint. Klinke

contends that these paragraphs violate Rule 8(a) and Rule 10(b). 

In addition, Klinke asks that these paragraphs be struck under

Rule 12(f) as “immaterial, impertinent or scandalous.” See FED. R.

CIV. P. 12(f). Klinke is concerned particularly with allegations

regarding a rumored affair between Morgan and herself. Plaintiff

responds that the factual allegations in the opening paragraphs are

relevant to the causes of action advanced, and that Klinke is

seeking to “rule in limine that certain allegations are

inadmissible.” Pls. Resp. to Mot. to Dismiss at 16.

The opening paragraphs clearly violate Rule 10(b), as they are

not in numbered paragraphs. They also violate Rule 8(a), in that

they are certainly more detailed than a “short and plain statement

of the claim.” FED. R. CIV. P. 8(a). Those violations alone would

not lead this Court to strike them. However, these paragraphs, as

written, are more appropriate for an argumentative brief than a

pleading. See Mutuelle Generale Francaise Vie v. Life Assurance

Co., 688 F.Supp. 386, 391 (N.D. Ill. 1988). For example, Plaintiff

states that Klinke “served as an enforcer for a misogynist

corporate culture” and that she was “more than just muscle for a

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known sexual harasser.” Am. Compl. at 1. It is inappropriate for

Plaintiff to engage in such argument in its Complaint. 

Although Klinke’s Motion to Strike pursuant to 12(f) also

should have been brought with the original Motion to Dismiss, and

is thus improper under Rule 12(g)(2). Thus, the Court may act on

its own under the Rule. See Rule 12(f)(1). As such, the Court

strikes the first three paragraphs of the Amended Complaint. 

IV. CONCLUSION

For the reasons stated herein, the Court grants in part and

denies in part Defendant’s Motion to Strike and Dismiss (ECF

No. 55).

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Date:6/3/2013

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