Morrison v. Amway Corp.

Decision Date05 March 2003
Docket NumberNo. 02-11690.,02-11690.
Citation323 F.3d 920
PartiesDavid L. MORRISON, Plaintiff-Appellant, v. AMWAY CORPORATION, n.k.a. Alticor, Inc., a Michigan Corporation, Magic Carpet Aviation, a Delaware Corporation, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Daniel J. O'Malley, Orlando, FL, for Plaintiff-Appellant.

Brian Douglas DeGailler, Donald E. Christopher, Litchford & Christopher, P.A., Orlando, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT and BLACK, Circuit Judges, and NANGLE*, District Judge.

BLACK, Circuit Judge:

Appellant David L. Morrison appeals the district court's order dismissing his action under the Family Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-2654, for lack of subject matter jurisdiction. We write to address a single issue: when reviewing a defendant's motion to dismiss an FMLA action on grounds that the plaintiff was not an "eligible employee" under the Act, should the district court review the motion using the standards applicable for Rule 12(b)(1) of the Federal Rules of Civil Procedure or Rule 56? The district court in this case used the 12(b)(1) standard, which is far less deferential to the plaintiff. We conclude the court should have used Rule 56, and we reverse and remand.


Appellant was employed by Magic Carpet Aviation (Magic Carpet) as a charter pilot based in Orlando, Florida, from September 1997 through March 2000. Magic Carpet, which is owned by Amway Corporation (Amway)1, is an air charter service whose clientele includes a number of professional sports franchises. One such franchise is Orlando Magic, Ltd., which owns and operates the Orlando Magic basketball team. One of Appellant's main job responsibilities at Magic Carpet was piloting charter flights for the Orlando Magic. Orlando Magic, Ltd., is a unit of RDV Sports, Inc. (RDV). Amway and RDV are both owned by Richard DeVos or his family.2

Appellant alleges that, throughout the duration of his employment with Magic Carpet, he was suffering from clinical depression. In October 1999, Appellant met with Harry Mitchel, who was Magic Carpet's Director of Aviation and Appellant's supervisor, and requested four weeks' time off from work in order to treat his illness. He also submitted a written request for time off. Despite the requests, Mitchel would only agree to allow Appellant two weeks off. About a month later, Appellant again asked Mitchel for time off. This time, Mitchel allegedly denied the request altogether.

In March 2000, Mitchel confronted Appellant in regard to pornographic images found on Appellant's office computer in violation of Magic Carpet's company policy. Appellant indicated he was depressed and asked for time off "to deal with" his depression. Rather than giving Appellant time off, Magic Carpet terminated Appellant's employment. Appellant maintains that Magic Carpet's stated reason for firing him — storing pornography on his computer — was a pretext for unlawful retaliation for asserting his FMLA rights.


On June 22, 2001, Appellant filed this action against Amway, Magic Carpet, RDV, and Mitchel, claiming unlawful retaliation in violation of the FMLA. His complaint asserted that, during the relevant time period, he had been employed by "Amway, RDV, and/or Magic Carpet." Alternatively, he alleged Amway, RDV, and Magic Carpet were his "joint employer" and/or his "integrated employer." On August 10, 2001, Appellees moved to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. The motion argued the district court lacked subject matter jurisdiction because Appellant was not an "eligible employee" under the FMLA. The district court agreed and dismissed the action. Appellant then commenced this appeal.


The FMLA entitles an eligible employee to take up to 12 weeks of leave in a 12-month period for the birth or adoption of a child, or the serious health condition of the employee or the employee's child, spouse, or parent. 29 U.S.C. § 2612(a)(1). To protect this right, the FMLA prohibits an employer from interfering with an employee's attempt to take leave or retaliating against an employee for opposing practices made unlawful under the FMLA. Id. § 2615. The FMLA authorizes an aggrieved eligible employee to sue for monetary and equitable relief from an employer who violates § 2615. Id. § 2617(a).

29 U.S.C. § 2611, which sets forth the scope of coverage for the FMLA, generally defines an "eligible employee" as one who has been employed for at least 12 months by the employer and for at least 1,250 hours of service with the employer during the previous 12-month period. 29 U.S.C. § 2611(2)(A). Excluded from the general definition of "eligible employee," however, is "any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50." Id. § 2611(2)(B). This is commonly known as the FMLA's "worksite" requirement.


The issue in this case is whether Appellant was precluded from being an "eligible employee" based on his alleged failure to satisfy the worksite requirement. In other words, the parties do not dispute that Appellant otherwise satisfied the FMLA's definition of "eligible employee." The only question is whether Appellant worked for an employer who employed 50 or more employees within 75 miles of his worksite. That question turns on whether RDV was Appellant's "employer," because neither Magic Carpet nor its parent corporation Amway3, individually or collectively, employed 50 or more employees within 75 miles of Appellant's worksite. RDV, however, did employ at least 50 employees within 75 miles of the worksite. Consequently, if RDV were Appellant's employer, then he would be an eligible employee under the FMLA.


In answering Appellees' motion to dismiss, Appellant produced his own deposition and those of both Mitchel and Lorisse Garcia, who was the Vice President of Human Resources for Orlando Magic, Ltd. Relying mainly on these depositions, Appellant noted a number of facts which he contended demonstrated his employment relationship with RDV.4

Additionally, Appellant opposed the motion to dismiss on procedural grounds. He argued that the motion, despite being styled as a motion to dismiss for lack of subject matter jurisdiction, was actually an attack on the merits because it challenged the existence of an underlying element of his FMLA cause of action, namely his status as an "eligible employee." Citing our decision in Garcia v. Copenhaver, Bell & Associates, 104 F.3d 1256 (11th Cir. 1997), he asserted the motion should be reviewed under the standards appropriate to motions to dismiss brought under Rule 56 or Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under either of those standards, the district court would not be permitted to weigh facts but would instead be required to resolve disputed factual issues in Appellant's favor.

The district court concluded Appellees' challenge to Appellant's status as an eligible employee was properly raised under Rule 12(b)(1) because it challenged only subject matter jurisdiction and not the merits of Appellant's underlying FMLA claim. As such, the court determined it could properly act as "a fact finder," and "weigh the evidence submitted by the parties." Then, after weighing the evidence before it, the district court found RDV was not Appellant's employer and thus concluded Appellant was not an eligible employee under the FMLA.


Appellant maintains the district court erred in relying on Rule 12(b)(1). He asserts that eligible-employee status under the FMLA is an element of the underlying cause of action rather than a purely jurisdictional issue. He therefore argues the district court should have relied on Rule 12(b)(6) or Rule 56, which govern motions to dismiss challenging the existence of an element of the underlying cause of action.

We begin by observing the district court could not have considered Appellees' motion under Rule 12(b)(6), because in rendering its decision the court relied on extrinsic evidence outside the pleadings. See Fed.R.Civ.P. 12(b); see also Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir.2002) ("Whenever a judge considers matters outside the pleadings in a 12(b)(6) motion, that motion is thereby converted into a Rule 56 Summary Judgment motion."). The more germane question is whether the district court should have reviewed the motion under Rule 56 instead of Rule 12(b)(1). As explained below, there are significantly different standards governing each type of motion.


The district court should only grant summary judgment under Rule 56 where the record evidence, viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). In ruling on a Rule 56 motion, the district court may not weigh the evidence or find facts. Instead, the court's role is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

Jurisdictional challenges,5 on the other hand, can be decided without reference to the merits of the underlying claim and lie within the exclusive province of the trial court. Consequently, when a defendant properly challenges subject matter jurisdiction under Rule 12(b)(1) the district court is free to independently weigh facts, and

may proceed as it never could under Rule 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial...

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