The opinion of the court was delivered by: Reagan, District Judge:
Plaintiff Connie Harrelson, was terminated from her job as a dietary manager at Parkway Manor nursing home, which is operated by Defendant Unlimited Development, Inc. ("UDI"). According to the complaint (Doc. 2), in accord with the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., Harrelson was granted leave from September 10, 2010, through October 29, 2010, to care for a "family member" suffering from a serious medical illness; when she did not report for work on October 28, 2010, her employment was terminated. Harrelson brings suit under the FMLA for retaliatory discharge (Count I), and she also asserts a common law claim for intentional infliction of emotional distress (Count II).
Before the Court is Defendant UDI's motion to dismiss the FMLA claim (Count I) for lack of subject-matter jurisdiction, and to then decline supplemental jurisdiction over the intentional infliction of emotional distress claim (Count II). Plaintiff Harrelson has filed a response (Doc. 12), to which UDI filed a reply (Doc. 13).
The legal test for a motion to dismiss for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) is dependent upon whether the motion presents a facial or factual challenge. See Apex Digital Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-444 (7th Cir. 2009); Steven Baicker-McKee, William M. Janssen and John B. Corr, Federal Civil Rules Handbook 2010, pp. 428-429 (2010). "Facial challenges require only that the court look to the complaint and see if the plaintiff has sufficiently alleged a basis of subject-matter jurisdiction." Apex, 572 F.3d at 443. In contrast, when considering a factual attack against jurisdiction,
"'[t]he district 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.' " Evers v. Astrue, 536 F.3d 651, 656-57 (7th Cir.2008) (quoting St. John's United Church of Christ v. City of Chi., 502 F.3d 616, 625 (7thCir.2007)); see also, e.g., United Phosphorus, 322 F.3d at 946; Hay v. Ind. State Bd. of Tax Comm'rs, 312 F.3d 876, 879 n. 2 (7th Cir.2002); Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir.1999).
Id. at 444. See also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.1995) (in determining whether subject-matter jurisdiction exists, a court "may properly look beyond the jurisdictional allegations of the compliant and view whatever evidence has been submitted on the issue."). In any event, Plaintiff bears the burden of establishing subject-matter jurisdiction. Muscarello v. Ogle County Bd. of Com'rs, 610 F.3d 416, 425 (7th Cir. 2010) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 809 n. 6 (1986).
UDI presents a factual challenge to subject-matter jurisdiction, contending that the "family member" referenced in the complaint is Plaintiff Harrelson's adult brother, who is not a family member covered by the FMLA. Therefore, the Court rejects Plaintiff's principal argument that the liberal notice pleading controls and the Court need not look beyond the complaint. In analyzing UDI's motion, the Court will look the language of the FMLA and the evidence and argument presented by Plaintiff in support of subject-matter jurisdiction.
Insofar as the Court's analysis may delve into the merits of the FMLA claim:
[W]hen the defendant challenges the veracity of the facts underpinning subject matter jurisdiction, the trial court may go beyond the complaint, conduct evidentiary proceedings, and resolve the disputed jurisdictional facts. And when the jurisdictional facts are inextricably intertwined with those central to the merits, the court should resolve the relevant factual disputes only after appropriate discovery, unless the jurisdictional allegations are clearly immaterial or wholly unsubstantial and frivolous.
Kerns v. U.S., 585 F.3d 187, 193 (4th Cir. 2009) (citing Bell v. Hood, 327 U.S. 678, 682 (1946)).
The stated purpose of the FMLA is, "to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition. 29 U.S.C. § 2601(b)(2) (2006). Covered family members include a spouse, son, daughter and parent. 29 U.S.C. § 2612(a).
The complaint and Plaintiff Harrelson's response to the motion to dismiss only refer to "family member," without further specificity. Harrelson contends that the doctrines of detrimental reliance and equitable estoppel should preclude UDI from terminating her, because UDI approved her leave. See Doc. 12-1, pp. 1-2. In support of her response (and presumably in an attempt to fulfill her burden of establishing subject matter jurisdiction), Harrelson submits a copy of her application for FMLA leave, which states that she needed to take leave to care for her "Brother raised as son." Doc. 12-1, p. 3. Thus, it is ...