Opinion
IP 00-0821-C T/G.
December 8, 2000.
ENTRY ON DEFENDANT'S MOTION TO DISMISS, DEFENDANT'S MOTION TO STRIKE AND PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT
Though this entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this entry will govern the case presently before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the entry or the subsequent citation of it in other proceedings.
Plaintiff, Randy Kinsey, filed a Complaint against Defendant, E G Pizza Corporation d/b/a Luca Pizza Castleton Square, alleging that Defendant violated the Americans with Disabilities Act ("ADA"), the Family and Medical Leave Act ("FMLA"), and Indiana law when it terminated Plaintiff's employment. Defendant moved to dismiss the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Subsequently, Defendant moved to strike Plaintiff's Response to Defendant's Reply Brief, and Plaintiff moved for leave to amend the Complaint.
I. Background
Plaintiff's Complaint sets forth the following facts. Plaintiff was employed by Defendant from October 1983 until July 17, 1999. (See Complaint ¶¶ 5, 11.) On June 23, 1999, Plaintiff began an emergency leave of absence, which was approved by Defendant, for a surgical procedure. (See id. ¶¶ 6, 7.) On July 12, 1999, Plaintiff returned to work. (See id. ¶ 8.) Upon his return to work, Plaintiff notified Defendant that he had a follow-up appointment with his surgeon scheduled on July 15, 1999, and that additional surgery may be necessary. (See id. ¶ 9.) On July 16, 1999, Plaintiff's supervisor informed Plaintiff that additional time off would not be a problem. (See id. ¶ 10.) On July 17, 1999, Plaintiff's employment was terminated. (See id. ¶ 11.)
II. Discussion
Defendant moved to dismiss, for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), Plaintiff's claims under the ADA and the FMLA on the ground that Defendant is not an "employer" as defined by either the ADA or the FMLA. As an initial matter, Defendant's motion will be treated as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) and not as a Rule 12(b)(1) motion. The issue presented by Defendant in its motion is not jurisdictional. See Papa v. Katy Indus., Inc., 166 F.3d 937, 943 (7th Cir. 1999) (citing Sharpe v. Jefferson Distrib. Co., 148 F.3d 676, 677 (7th Cir. 1998) ("Surely the number of employees is not the sort of question a court . . . must raise on its own, which a `jurisdictional' characterization would entail.")). Thus, Defendant's motion to dismiss will be granted if "no relief could be granted under any set of facts that could be proved consistent with the allegations." Head v. Chicago Reform Bd. of Trustees, 225 F.3d 794, 801 (7th Cir. 2000) (quotations omitted).
"The Seventh Circuit subsequently rejected Sharpe's method of ascertaining whether the fifteen-employee threshold was met, see Papa . . ., but reaffirmed its ruling that the threshold is not jurisdiction, see id. at 943." Da Silva v. Kinsho Int'l Corp., No. 00-7055, 2000 WL 1476320, at *7 n. 6 (2nd Cir. Oct. 5, 2000).
A. Motion To Dismiss
As stated above, Defendant moved to dismiss Plaintiff's federal claims on the ground that Defendant did not satisfy the requirements necessary for classification as an "employer" under the ADA or the FMLA. Under the ADA, at 42 U.S.C. § 12111(5)(A), an "employer" is defined as:
a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this subchapter, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.
Under the FMLA, at 29 U.S.C. § 2611(4)(A)(i), an "employer" is defined as:
any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year[.]
Defendant argues that it did not meet the requirements of these statutes and is thus not subject to either the ADA or the FMLA. In support of its argument, Defendant relies upon the affidavit of Antonio DiMizio which states that E G Pizza Corporation d/b/a Luca Pizza Castleton Square "has never had fifteen (15) or more employees for each working day in each of twenty (20) or more calendar weeks during 1998 or 1999." (DiMizio Aff. ¶ 4).
Plaintiff responds to Defendant's motion by requesting that the court allow discovery on the number of employees employed by E G Pizza Corporation in order to determine whether Defendant is subject to the ADA and the FMLA. Plaintiff suggests that evidence may exist which will prove that E G Pizza Corporation owned more than one restaurant at the time of Plaintiff's termination.
It is interesting to note that Defendant E G Pizza Corporation d/b/a Luca Pizza Castleton Square has failed to comply with this court's Corporate Disclosure Statement requirement. See Local Rule 81.2. That Defendant is ORDERED to file its statement within ten (10) days of this date.
Defendant may be subject to the ADA and the FMLA even despite DiMizio's affidavit indicating that Defendant falls below the employee threshold for coverage. Defendant may be covered under the ADA and the FMLA if "it is part of an affiliated group of corporations that has in the aggregate the minimum number of employees." Papa, 166 F.3d at 939.
The Seventh Circuit recently held that in three situations the "tiny employer" exception to the major federal antidiscrimination laws should not be applied to exclude affiliated corporations from the statutes' reaches. Id. at 940. "The first situation is where, the traditional conditions being present for `piercing the veil' to allow a creditor, voluntary or involuntary, of one corporation to sue a parent or other affiliate, the parent or affiliates of the plaintiff's employer would be liable for the employer's debts." Id. at 940-41 (internal citations omitted). Second, if an enterprise splits itself up "into a number of corporations, each with fewer than the statutory minimum number of employees, for the express purpose of avoiding liability under the discrimination laws[,]" then "the corporations should be aggregated to determine how many employees each corporation had." Id. at 941. The court opined, "The privilege of separate incorporation is not intended to allow enterprises to duck their statutory duties." Id. (citations omitted). And third, if the parent corporation "directed the discriminatory act, practice, or policy of which the employee of its subsidiary was complaining[,]" then "the parent, provided that the sum of its employees and those of the subsidiary employing the plaintiff exceeded the statutory minimum, would be the violator." Id. (citations omitted).
If one of these three exceptions applies to this case, the tiny employer exception to the ADA and the FMLA would not apply, and Defendant's Rule 12(b)(6) motion would not be proper. However, Plaintiff suggests that there has been no time during which discovery has occurred in this regard. As a result, Defendant's motion to dismiss Plaintiff's federal law claims will be reserved in order to allow discovery on these issues.
Note that this court has broad discretion in matters related to discovery. See FED. R. CIV. P. 26; Satter v. Motorola, Inc., 138 F.3d 1164, 1171 (7th Cir. 1998).
Defendant also moves to dismiss Plaintiff's pendent state law claim on the ground that should this court dismiss Plaintiff's federal law claims, no reasons exist for which this court should retain jurisdiction over the state law claim. However, as discussed above, this court has not decided to dismiss Plaintiff's federal law claims. Therefore, this court will reserve its decision whether to dismiss Plaintiff's state law claim until the court renders a decision on Defendant's motion to dismiss Plaintiff's federal law claims.
B. Motion To Strike
Defendant moved to strike Plaintiff's Response to Defendant's Reply Brief and all documents filed therewith pursuant to Local Rule 7.1. Local Rule 7.1 does not permit a party to file a surreply brief, as Plaintiff has done. See S.D.Ind.L.R. 7.1. Local Rule 7.1 only permits a brief in support of the motion to dismiss, an answer brief and a reply brief. See id. Plaintiff's surreply brief, thus, is in violation of Local Rule 7.1. Therefore, Defendant's motion to strike will be granted and Plaintiff's Response to Defendant's Reply Brief and all documents filed therewith will be stricken.
C. Motion For Leave To Amend Complaint
Plaintiff moved for leave to amend the Complaint to name E G Corporation as a defendant separate from E G Pizza Corporation d/b/a Luca Pizza Castleton Square. However, in its proposed amended Complaint, Plaintiff has amended more that just the named defendants. Plaintiff also corrected errors that appeared in the allegations listed under the heading "Second Claim." As Defendant points out, Plaintiff's Complaint indicates that the "Second Claim" arises under 29 U.S.C. ¶¶ 2601, et seq., but in the allegations falling under the "Second Claim" Plaintiff cites to the ADA rather than the FMLA. In its proposed amended Complaint, Plaintiff has corrected this error. As a result, Plaintiff's motion for leave to amend the Complaint will be construed to include a request to amend the Complaint in this regard.
Federal Rule of Civil Procedure 15(a) states that leave to amend a Complaint shall be freely given by the court when justice so requires. See FED. R. CIV. P. 15(a). It is highly likely that Plaintiff's citations to the ADA rather than the FMLA in the allegations under the "Second Claim" were inadvertent, typographical errors. Thus, justice requires allowing Plaintiff the opportunity to amend this section of the Complaint. The motion for leave to amend the Complaint is GRANTED. Plaintiff will be required to serve process on the new defendant, though.
III. Conclusion
For the foregoing reasons, Defendant's motion to dismiss will be RESERVED until completion of discovery on this issue. Discovery shall be allowed for a reasonable period of time, not to exceed forty five (45) days from the date of this order, on questions relating to whether Defendant is covered under the American with Disabilities Act and the Family and Medical Leave Act. Once this aspect of discovery is complete, Plaintiff will have fifteen (15) days to file a supplemental response to Defendant's motion to dismiss, and Defendant will then have fifteen (15) days in which to file a second reply. Defendant's motion to strike is GRANTED, and Plaintiff's motion for leave to amend the Complaint is GRANTED.
ALL OF WHICH IS ORDERED.