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BROWN v. MESIROW STEIN REAL ESTATE

June 19, 1998

Lori G. Brown, Plaintiff,
v.
Mesirow Stein Real Estate, Inc., Richard Stein, and Richard Hanson, Defendants.



The opinion of the court was delivered by: NORGLE

OPINION AND ORDER

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Defendants' Motion for Reconsideration or, Alternatively, for Certification for Interlocutory Appeal. For the following reasons, Defendants' motion is denied.

 I. BACKGROUND

 On October 2, 1997, Plaintiff, Lori Brown, filed a complaint, alleging a claim for gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, et seq., and several state claims. On December 1, 1997, Defendants, Mesirow Stein Real Estate, Inc. ("Mesirow Stein"), Richard Stein, and Richard Hanson, moved to dismiss Plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

 Specifically, Defendants argued that the court lacks subject matter jurisdiction over Plaintiff's Title VII claim because Mesirow Stein was not Plaintiff's employer. In support of their argument, Defendants presented evidence to show that Plaintiff was an independent contractor, and not an employee. In response, Plaintiff presented evidence to show that she was in fact an employee for Mesirow Stein.

 On April 20, 1998, the court found that the parties erroneously assumed that Mesirow Stein must meet the definition of "employer" for federal subject matter jurisdiction to exist under Title VII. Accordingly, the court converted Defendants' 12(b)(1) motion to dismiss into a 12(b)(6) motion to dismiss, and denied that motion.

 On May 4, 1998, Defendants filed the present motion for reconsideration or, alternatively, for a certificate for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

 II. DISCUSSION

 A. Motion for Reconsideration

 "'Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.'" Caisse Nationale De Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996) (citations omitted).

 On April 20, 1998, the court concluded that Plaintiff was not required to show that Mesirow Stein qualified as her employer for subject matter jurisdiction to exist, and converted Defendants' 12(b)(1) motion into a 12(b)(6) motion. Plaintiff did not argue that Defendants mischaracterized the issue of whether Mesirow Stein was an employer as a jurisdictional issue. Nonetheless, the court did not find it prudent to proceed to the merits of Defendants' 12(b)(1) motion given the importance of "giving a full hearing to those who are attempting to raise claims in federal court, even if those claims are eventually unsuccessful." LaSalle Nat'l Trust, N.A. v. ECM Motor Co., 76 F.3d 140, 144 (7th Cir. 1996). "From the more pragmatic side, the way in which the facts are handled under Fed. R. Civ. P. 12(b)(1) differs significantly from the correct approach for purposes of Rule 12(b)(6)" and Rule 56. Id.

 In converting Plaintiff's 12(b)(1) motion into a 12(b)(6) motion, the court relied on Ost v. West Suburban Travelers Limousine, 88 F.3d 435 (7th Cir. 1996). In Ost, the Seventh Circuit recognized that it has previously "characterized the issue of whether a defendant is an 'employer' as a matter of a federal court's subject matter jurisdiction." Id. at 438, n.1 (citing Rogers v. Sugar Tree Prods., Inc., 7 F.3d 577, 579 (7th Cir. 1993)). However, the Seventh Circuit stated that it is clear after its recent decision in EEOC v. Chicago Club, 86 F.3d 1423 (7th Cir. 1996), that "a plaintiff's failure to establish that a defendant is an 'employer' does not divest federal courts of the power to hear the plaintiff's case. Rather, even when the defendant's status as an employer is in dispute, the case 'is well within the statutory grant of federal question jurisdiction.'" Id. (quoting Chicago Club, 86 F.3d at 1428); see also Burnett v. Intercon Sec. Ltd., 1998 U.S. Dist. LEXIS 3648, No. 97 C 3385, 1998 WL 142395, at *1 (N.D. Ill. March 24, 1998) (J. Norgle) ("As a preliminary matter, the court notes that contrary to [defendant's] assertion, [plaintiff's] failure to establish defendant as an 'employer' under the ADEA does not divest the court of subject matter jurisdiction.").

 Plaintiff argues that the court erroneously relied on Ost, and erroneously characterized the issue of whether Defendant is an "employer" as a non-jurisdictional issue. Plaintiff argues that it is well settled that one panel of the Seventh Circuit cannot overrule another panel of the Seventh Circuit; the court agrees. See Williams v. Chrans, 50 F.3d 1356, 1358 (7th Cir. 1995) ("The members of this panel are precluded by the doctrines of stare decisis and precedent from taking a position different from that articulated by [other] panels."). Plaintiff further argues that the Seventh Circuit's decision in Rogers, 7 F.3d at 579, which held ...


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