E.E.O.C. v. Fpm Group, Ltd.

Decision Date28 September 2009
Docket NumberNo. 3:08-CV-380.,3:08-CV-380.
Citation657 F.Supp.2d 957
PartiesEQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. FPM GROUP, LTD, Defendant.
CourtU.S. District Court — Eastern District of Tennessee

Deidre Smith, Faye A. Williams, United States of America, Equal Employment Opportunity Commission, Memphis, TN, Sally Ramsey, United States of America, Equal Employment Opportunity Commission, Nashville, TN, for Plaintiff.

FPM Geophysical and UXO Services, Inc., Ronkonkoma, NY, pro se.

MEMORANDUM AND ORDER

THOMAS A. VARLAN, District Judge.

This civil action is before the Court on defendant FPM Group LTD's ("FPM's"), Motion to Dismiss the Amended Complaint Due to Defective Venue, Jurisdiction, Complaint and Failure to State a Claim [Doc. 11]. Plaintiff Equal Employment Opportunity Commission ("the Commission") has filed a Response in Opposition to Motion to Dismiss the Amended Complaint [Doc. 12]. FPM has not filed a reply. Thus, the matter is now ripe for determination. The Court has carefully considered the pending motion and the related pleadings in light of the applicable law and, for the reasons set forth below, the Court will deny FPM's Motion to Dismiss the Amended Complaint Due to Defective Venue, Jurisdiction, Complaint and Failure to State a Claim [Doc. 11].

I. Relevant Facts and Procedural History

The Commission filed a Complaint [Doc. 1] against FPM on September 17, 2008, alleging claims of unlawful employment practices on the basis of age pursuant to § 7(b) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) ("the ADEA"), which incorporates by reference §§ 16(c) and 17 of the Fair Labor Standards Act of 1938 ("the FLSA"), as amended, 29 U.S.C. §§ 216(c) and 217. The Commission alleged that on or around June 26, 2007, Richard Bennington (hereinafter, "Bennington"), then sixty (60) years of age, contacted the Oak Ridge, Tennessee office of FPM seeking a position in the Unexploded Ordnance industry, a position for which Bennington was qualified. Bennington submitted a resume and certification to FPM and the company responded, by email, that it preferred not to hire someone of [Bennington's] experience into a Tech II position because "it is a young T2 sport down here...." [See Docs. 1, ¶ 14, 9, ¶ 14]. The Commission alleges that this failure to consider Bennington for this position and other future positions was because of his age and that FPM continued to fill positions at the Oak Ridge location, including issuing a contract to a younger employee.

Prior to the initiation of this action, Bennington filed a charge of age discrimination with the Commission. The Commission found cause to believe that discrimination had occurred and attempted, to no avail, to effect voluntary compliance with FPM. The Commission then filed the Complaint [Doc. 1], to which FPM filed a Motion to Dismiss Due to Defective Waiver of Service and Defective Complaint [Doc. 4]. The Commission then filed a response in opposition to the motion [Doc. 6] and FPM filed a reply [Doc. 8].

On November 13, 2008, the Commission filed an Amended Complaint [Doc. 9] to correct the caption name of FMP. FPM returned the waiver of service [Doc. 10] and filed a Motion to Dismiss the Amended Complaint Due to Defective Venue, Jurisdiction, Complaint, and Failure to State a Claim [Doc. 11]. The Commission responded [Doc. 12] and FPM has not filed a reply. On September 21, 2009, this Court entered an Order [Doc. 21] denying as moot FPM's Motion to Dismiss Due to Defective Waiver of Service and Defective Complaint [Doc. 4] in light of the Amended Complaint [Doc. 9] and the parties' subsequent filings.

II. Analysis

In FPM's Motion to Dismiss the Amended Complaint Due to Defective Venue, Jurisdiction, Complaint and Failure to State a Claim [Doc. 11], FPM moves to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b), pursuant to four theories: (1) defective venue; (2) defective jurisdiction; (3) defective complaint; and (4) failure to state a claim. In light of FPM's arguments and the Commission's response, the Court will treat FPM's motion [Doc. 11] as a motion falling under the following Federal Rule of Civil Procedure 12(b) theories: a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction; a Rule 12(b)(3) motion to dismiss for improper venue; and a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. See Fed. R. Civ. Pro. 12(b)(1), (3), (6).

In its motion, FPM also moves this Court to strike all references in the Amended Complaint pertaining to FPM's alleged "past, present and ongoing age discrimination policies or `willful' unlawful employment practices." [Doc. 11, p. 7]. The Court will treat this part of FPM's motion as a Federal Rule of Civil Procedure 12(f) motion to strike. See Fed. R. Civ. Pro. 12(f). Finally, FPM moves this Court to order the Commission to file a more definitive statement pursuant to Federal Rule of Civil Procedure 12(e) [Doc. 11, p. 8]. See Fed. R. Civ. Pro. 12(e).

1. Lack of Subject Matter Jurisdiction

FPM argues that the jurisdiction invoked in the Commission's Amended Complaint is questionable and "improperly stated as to fact and law." [Doc. 11, p. 5]. FPM presents two arguments in support of this assertion. First, FPM argues that this Court does not have jurisdiction over the Commission's claims because the Commission has improperly invoked the ADEA in bringing this action. Second, FPM argues that the Commission has not met the jurisdictional requirement of an amount in controversy pursuant to 28 U.S.C. § 1337. The Court will treat these arguments as arguments pursuant to a motion to dismiss for lack of subject matter jurisdiction. See Fed. R. of Civ. Pro. 12(b)(1). In response to a Rule 12(b)(1) motion, the plaintiff bears the burden of proving jurisdiction and a court is empowered to resolve factual disputes when subject matter jurisdiction is challenged. Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 224 (6th Cir.2007) (quoting Moir v. Greater Cleveland Reg'l Transit. Auth., 895 F.2d 266, 269 (6th Cir.1990)).

FPM's first argument is that the Commission should not have brought its claims under the ADEA because FPM had only "5 employees at the time of the alleged incident in its Oak Ridge branch office." [Doc. 11, p. 5]. FPM asserts that this is a fact known by the Commission and in the Commission's record [Id.]. In response, the Commission asserts that it has filed suit against FPM Group, LTD, the parent company of the Oak Ridge, Tennessee branch office and that FPM admitted, in the "FPM Group's Reply to U.S. Equal Employment Opportunity Commission Request for Information," that it employed fifty-eight (58) full time employees and sixteen (16) part time employees [See Doc. 13-1, "Declaration and Certification of Katharine W. Kores"].

For an employer to be subject to suit under the ADEA, that employer must be "a person engaged in commerce who has twenty (20) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calender year." See 29 U.S.C. § 630(b). The Court first notes that the Commission named FPM Group, LTD as defendant in the Amended Complaint and that receipt of the Amended Complaint was acknowledged by FPM in its waiver of service of summons [See Docs. 9, 10]. The Commission has also attached the Declaration of Katherine W. Kores, Director of the Memphis District Office of the Equal Employment Opportunity Commission, to support its assertion that FPM had more than twenty (20) employees [See Doc. 13-1, "Declaration and Certification of Katharine W. Kores"]. FPM, on the other hand, has not attached any affidavits or indicated any facts supporting the assertion that it only has five (5) employees [See Doc. 11, p. 5]. Thus, in light of the relevant filings and the Court's standard of review regarding a Rule 12(b)(1) motion to dismiss, the Court determines that the Amended Complaint is sufficient to bring a claim under the ADEA. See 29 U.S.C. § 630(b). Thus, FPM's motion to dismiss for defective jurisdiction in this regard is denied.

FPM's second argument as to subject matter jurisdiction is that the Commission has not meet the jurisdictional requirement of an amount in controversy pursuant to 28 U.S.C. § 1337. In opposition, the Commission asserts that jurisdiction in this Court is proper pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. Section 451 defines the terms used in Title 28. See 28 U.S.C. § 451. Section 1331 provides that "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." See id. § 1331. Section 1337(a) states that "[t]he district court shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce...." See id. § 1337(a). Section 1343 provides that "district courts shall have original jurisdiction" over civil actions regarding acts of Congress protecting civil rights. See id. § 1343. Finally, section 1345 states that "the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by an Act of Congress." See id. § 1345.

A federal question refers to "civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Whether a claim arises under federal law is determined under the "well-pleaded complaint" rule, which generally looks only to the plaintiff's complaint. See Palkow v. CSX Transp., Inc., 431 F.3d 543, 552 (6th Cir.2005). Federal question jurisdiction extends over "only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends...

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