The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the renewed motion of
defendants, Agri-Best Foods, Inc., Doug Boadway, Bill Kulach,
Chris Koziol, and Kevin Davidson, to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1). For the
following reasons, the motion to dismiss is granted.
Plaintiff, Wayne Lestarczyck has filed a complaint against
Agri-Best Foods, Inc., Doug Boadway, Bill Kulach, Chris Koziol,
and Kevin Davidson, alleging unlawful interference and restraint
from exercising his leave rights under the Family and Medical
Leave Act (FMLA). On November 7, 2003, Plaintiff, who was the
president and co-owner of Agri-Best, sold Agri-Best in a stock
purchase transaction. As part of the transaction, Agri-Best,
under its new owners, entered into a five-year Employment
Agreement with Plaintiff, changing his position from president to
salesperson/consultant. About one week later, on November 13, 2003, Plaintiff sustained
serious injuries in a motorcycle accident. On November 17, 2003,
Plaintiff notified Agri-Best about his injuries, hospitalization,
and temporary inability to perform his duties as
salesperson/consultant. Plaintiff alleges that Agri-Best told him
that his absence was permissible and never gave him a deadline to
return to work. Plaintiff alleges that Agri-Best did not indicate
that Plaintiff's job was in jeopardy. On January 12, 2004, eight
weeks after Plaintiff began his leave of absence, Agri-Best
terminated his employment for failing to report to work and
perform his job duties under the Employment Agreement.
Defendants filed a motion to dismiss pursuant to Rule 12(b)(1).
They claim that Plaintiff is not an "eligible employee" under
FMLA and is, instead, specifically excluded from the Act's
protections. Given that the FMLA claim is Plaintiff's only
federal cause of action, Defendants seek to dismiss the entire
complaint for lack of subject matter jurisdiction.
In ruling on a motion to dismiss pursuant to Fed.R. Civ. Pro
12(b)(1), the court must accept as true all well-pleaded factual
allegations, and draw reasonable inferences in favor of the
plaintiff. Rueth v. United States Environmental Protection
Agency, 13 F.3d 227, 229 (7th Cir. 1993). For the purpose of
determining subject matter jurisdiction, the court "may properly
look beyond the jurisdictional allegations of the complaint and
view whatever evidence has been submitted on the issue to
determine whether in fact subject matter jurisdiction exists."
Ezekiel v. Michael, 66 F.3d 894 (7th Cir. 1995). The burden of proof on a 12(b)(1) issue is on the party asserting
jurisdiction. United States v. Phosphorus, Ltd., v. Angus
Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003).
On February 25, 2005, we denied defendants' original motion to
dismiss because the parties submitted conflicting evidence as to
how many employees Agri-Best employed during the pay period in
which Plaintiff gave notice of the need for medical leave. We
allowed discovery to proceed on the limited issue of how many
employees Defendants employed to determine whether Plaintiff
could state a cause of action under the FMLA. Defendants have now
renewed their motion to dismiss.
Discovery has revealed that it is undisputed that, during the
pay period encompassing November 17, 2003, the date Plaintiff
informed Agri-Best that he could not return to work due to
injuries, there were 36 employees, not 50 or more employees. In
order for the Act to apply, the employer must employ 50 or more
employees within 75 miles of the Plaintiff's worksite. See
29 U.S.C. § 2611(2)(B)(ii); 29 C.F.R. § 825.110(a);
29 C.F.R. § 825.110(f).
We find that Plaintiff is not an eligible employee for the
purposes of the FMLA because Agri-Best only employed 36 employees
at the time Plaintiff gave notice of the need for his leave.
Therefore, Plaintiff cannot maintain a claim pursuant to the
FMLA. See 29 U.S.C. § 2611(2)(B)(ii). Count I of Plaintiff's
Complaint is dismissed for lack of subject matter jurisdiction.
See 29 U.S.C. § 2611(2)(B)(ii); Bliss v. Jennifer Convertibles,
Inc., 2003 WL 22239655 (N.D. Ill. 2003); Weesner v. Glickman,
59 F. Supp.2d 783 (N.D. Ind. 1999).
Upon the dismissal of Count I, which constitutes the only claim
over which the Court has original jurisdiction, we decline to
exercise supplemental jurisdiction over, and accordingly dismiss, the remaining Counts II, III, and IV which
are based on state law. See 28 U.S.C. § 1367(c)(3).
For the foregoing reasons, we grant the renewed motion of
Defendants Agri-Best Foods, Inc., Doug Boadway, Bill Kulach,
Chris Koziol and Kevin ...