UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BRYAN CLARKE, as Husband and 

Administrator of the Estate of Tracie 

Clarke

Plaintiff,

v.

DPWN HOLDINGS (USA), INC.,

Defendant.

Case No. 20 C 05130

Judge Martha M. Pacold

MEMORANDUM OPINION AND ORDER

Tracie Clarke applied for life insurance benefits under the insurance policy of 

her employer DPWN Holdings (USA), Inc. (“DHL”). The operative complaint (the 

amended complaint) alleges that DHL informed Tracie that DHL had to 

administratively terminate her employment in order for the insurer (Hartford) to 

act, and that Tracie acquiesced in the termination based on DHL’s representation, 

ultimately resulting in DHL ending Tracie’s employment. The insurer, however,

denied Tracie’s claim for benefits due to her termination from DHL. Tracie later 

passed away. Tracie’s husband Bryan Clarke, acting as administrator of her estate 

(the “Estate”), filed this lawsuit against DHL. Earlier in this litigation, the court 

granted DHL’s motion to dismiss the Estate’s initial complaint that alleged claims 

for wrongful termination, violation of the Illinois Consumer Fraud and Deceptive 

Business Practices Act, fraud, and unjust enrichment. [38].1 The Estate filed an 

amended complaint alleging a single claim for negligent misrepresentation. [42]. 

DHL has again moved to dismiss. [43]. For the reasons that follow, DHL’s motion 

to dismiss is granted and the Estate’s amended complaint is dismissed with 

prejudice. 

BACKGROUND

The following facts are taken from the amended complaint. “DHL is part of a 

world-wide delivery service industry,” and Tracie was employed by DHL until 

August 15, 2017. [42] ¶¶ 5–6. Tracie received employment benefits and was a 

beneficiary of DHL’s individual employee life insurance policy (the “Policy”). Id. ¶ 9. 

The insurer was Hartford. [42-1] at 7. In 2016, Tracie applied for the Policy’s 

1 Bracketed numbers refer to docket entries and are followed by page and / or paragraph 

number citations. Page numbers refer to the CM/ECF page number.

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“Premium Waiver” and “Accelerated Death Benefit.” [42] ¶ 10. “Tracie timely 

completed and submitted the necessary Benefit application forms as directed and 

prescribed by [DHL’s] human resources benefits centers.” Id.

Tracie had problems with DHL’s benefits department submitting the 

necessary forms to the insurer in order for her to obtain the benefits she had 

applied for. Id. ¶¶ 11–12. On at least four different occasions DHL either failed to 

submit or lost the forms that needed to be sent to the insurer for Tracie to receive 

her benefits. Id. ¶ 12. The Estate alleges that: 

As a direct result of [DHL] losing the Forms and/or failure to account for 

the Forms, [DHL’s] negligent or reckless conduct in failing to obtain or 

negligently or carelessly misunderstanding the correct information 

and/or procedures for obtaining the Benefits, [DHL] negligently or 

recklessly advised and induced Tracie to terminate her employment 

with [DHL] and [DHL] negligently represented to [Tracie] that the 

termination of her employment would result in her obtaining the 

Benefits.

Id. ¶ 15. Relying upon DHL’s representation, “Tracie thereafter terminated or 

acquiesced in the termination of her employment with [DHL].” Id. ¶¶ 16–17. The 

insurer subsequently denied Tracie’s request for benefits because she had been 

terminated by DHL. Id. ¶ 19.

The Estate now alleges that DHL’s conduct amounts to negligent 

misrepresentation. The Estate asserts that, while Tracie was still employed, DHL 

and its employees “were each responsible for and undertook duties of working with 

and advising DHL’s employees on matters pertaining to insurance policies, plans, 

benefits, objectives, compensation, and [DHL] provided guidance and advice to 

[DHL’s] employees, including Tracie, concerning DHL’s employee’s benefits, 

compensation, and human resource policies and procedures.” Id. ¶ 13. 

DHL moved to dismiss with prejudice, arguing that the amended complaint 

fails to state a claim under Illinois law and is preempted by the Employee 

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq.

LEGAL STANDARD

When reviewing a motion to dismiss under Rule 12(b)(6), the court “accept[s]

as true all factual allegations in the complaint and draw[s] all permissible 

inferences in plaintiff[’s] favor.” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 

362, 365 (7th Cir. 2018). “To survive a motion to dismiss, a plaintiff must allege 

‘enough facts to state a claim to relief that is plausible on its face.’” Id. at 365–66 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.” 

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Id. at 366 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Federal pleading 

standards do “not require detailed factual allegations, but [they] demand[] more 

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 

U.S. at 678 (internal quotation marks omitted). “[N]aked assertion[s] devoid of 

further factual enhancement” are insufficient. Id. (second alteration in original, 

internal quotation marks omitted).

DISCUSSION

DHL argues that the Estate’s negligent misrepresentation claim should be 

dismissed because the Estate has not alleged that DHL owed a duty to Tracie and 

the claim is preempted by ERISA. Under Illinois law, to state a claim for negligent 

misrepresentation, a plaintiff must allege, among other elements, “a duty on the 

party making the statement to communicate accurate information.” Parker v. Chi. 

Transit Auth., No. 18 C 2806, 2019 WL 13078783, at *1 (N.D. Ill. Sept. 11, 2019) 

(quoting First Midwest Bank, N.A. v. Stewart Title Guar. Co., 218 Ill. 2d 326, 334–

35 (2006)). “Illinois recognizes a duty to communicate accurate information in only 

two circumstances: (1) where ‘negligently conveying false information results in 

physical injury to a person or harm to property,’ and (2) ‘where one is in the 

business of supplying information for the guidance of others in their business 

transactions.’” Id. (footnote omitted) (quoting Brogan v. Mitchell Int’l, Inc., 181 Ill. 

2d 178, 183–84 (1998)). “[F]ederal courts in this district uniformly hold that ‘Illinois 

has not expanded the duty requirement in a negligent misrepresentation claim to 

include the employment context.’” Id. (quoting Raquet v. Allstate Corp., 348 F. 

Supp. 3d 775, 783 (N.D. Ill. 2018)). 

Here, the amended complaint contains no factual allegations that would give 

rise to a duty for DHL to communicate accurate information to Tracie. The Estate 

relies solely upon the allegations that DHL had a duty as Tracie’s employer, [42] 

¶¶ 13–14, but the Estate cites no case where a court has held that an employer owes 

a duty to provide accurate information to its employees. And, as already mentioned, 

federal courts have repeatedly held that employers owe no such duty under Illinois 

law. See, e.g., Martin v. Cent. State Constr. Inc., No. 20-CV-00276, 2021 WL 

3722807, at *9 (S.D. Ill. Aug. 23, 2021) (“Martin attempts to argue the Central State 

was in the business of providing information/guidance to its employee, Martin, and 

thus can maintain a negligent misrepresentation claim. But Martin offers no legal 

authority to support the position that a heating and cooling company can be in the 

business of providing information to its own employees.”); Jones v. W.S. Darley & 

Co., No. 14-cv-8873, 2015 WL 4100295, *4 (N.D. Ill. July 7, 2015) (“Illinois has not 

expanded the duty requirement in a negligent misrepresentation claim to include 

the employment context.”); Dargo v. Clear Channel Commc’ns, Inc., No. 07 C 5026, 

2008 WL 2225812, at *4 (N.D. Ill. May 28, 2008) (“Dargo cannot allege any facts 

that establish that Clear Channel, as her employer, owed her a duty to convey 

accurate information.”). 

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The Estate argues that federal courts have misread the Illinois Supreme 

Court’s decision in Brogan v. Michell International, Inc., but Brogan expressly 

states that “this court has recognized a duty to communicate accurate information 

in only two circumstances”: where “negligently conveying false information . . . 

results in physical injury to a person or harm to property” and “where one is in the 

business of supplying information for the guidance of others in their business 

transactions.” 181 Ill. 2d at 184 (emphasis added). The amended complaint does 

not allege either such circumstance exists here. Brogan also observed that, 

although “[o]ther states have recognized a duty to avoid negligent 

misrepresentations in the employment context,” there was “no argument [before the 

court] for expanding negligent misrepresentation liability beyond its present scope.” 

Id. at 185–86 (emphasis added). This court is bound by the Illinois Supreme Court’s 

interpretation of Illinois law and cannot expand negligent misrepresentation claims 

beyond their current bounds.2 See In re Emerald Casino, Inc., 867 F.3d 743, 765 

(7th Cir. 2017) (“When applying state law, federal courts are bound by the decisions 

of the state’s highest court.”). Although the circumstances alleged are unfortunate, 

the amended complaint does not state a claim as a matter of law.

In short, the Estate does not adequately allege that DHL owed a duty to 

Tracie and the amended complaint does not state a claim for negligent 

misrepresentation. The court does not address whether the claim is also preempted 

under ERISA. 

The Estate’s amended complaint is dismissed with prejudice. The Estate has 

already been afforded one opportunity to amend its complaint, and the court 

discerns no basis on which the Estate could correct the deficiencies in its negligent 

misrepresentation claim. Further, DHL’s motion to dismiss expressly sought 

dismissal with prejudice and the Estate presented no reason why, if the motion was 

granted, the dismissal should be without prejudice. Dismissal with prejudice is 

therefore appropriate. See, e.g., Raquet, 348 F. Supp. 3d at 784 (dismissing 

negligent misrepresentation claim against employer with prejudice). 

CONCLUSION 

The motion to dismiss is granted, and the amended complaint is dismissed 

with prejudice. 

Dated: July 22, 2022 /s/ Martha M. Pacold

2 The Estate does not argue in its opposition that, if this issue were to come before the 

Illinois Supreme Court, the Court would now decide to expand the duty to convey accurate 

information into the employment context.

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