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LESTARCZYK v. AGRI-BEST FOODS

United States District Court, N.D. Illinois, Eastern Division


August 24, 2005.

WAYNE LESTARCZYK, Plaintiff,
v.
AGRI-BEST FOODS, INC., an Illinois corporation, DOUG BOADWAY, individually, BILL KULACH, individually, CHRIS KOZIEL [sic], individually, and KEVIN DAVIDSON, individually, Defendants.

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.

BACKGROUND

  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.

  DISCUSSION

  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).

  CONCLUSION

  For the foregoing reasons, we grant the renewed motion of Defendants Agri-Best Foods, Inc., Doug Boadway, Bill Kulach, Chris Koziol and Kevin Davidson to dismiss Plaintiff's complaint.

  This case is hereby terminated. This is a final and appealable order.

20050824

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