Opinion
Case No. 2:01-CV-873
August 16, 2002
OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss (Doc. #13) filed by three of four Defendants in this case. For the reasons that follow, the motion is denied.
I.
Plaintiffs James D. Beckner and David Smith ["Plaintiffs"] bring this action under the Railway Labor Act, 45 U.S.C. § 152 (second, third and fourth), for violation of their right to organize and join a labor union. The Defendants in this case are Ohio Central Systems, a holding company which allegedly owns shares in and/or controls companies which provide freight and/or passenger rail services, and the following railroad companies: Ohio Central Railroad, Inc., Ohio Southern Railroad, Inc., and The Columbus Ohio River Railroad Company. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
Defendants Ohio Central Systems, Ohio Southern Railroad, Inc. and The Columbus Ohio River Railroad Company [collectively referred to as "the Railroad Defendants"] move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Plaintiffs' claims on the basis that they are not proper parties to this lawsuit. Defendants' motion is accompanied with a four paragraph memorandum in support. The Defendants state that, "[a]s evidenced by the attached Affidavit of William A. Strawn, II, for all times relevant to this matter Defendant Central Ohio Railroad, Inc. was the employer of Plaintiffs James D. Becker and David Smith. Thus, Central Ohio Railroad, Inc. is the only proper Defendant in this lawsuit." ( Memorandum in Support of Motion at 2). The Railroad Defendants argue that because they did not employ Plaintiffs, that they are not proper parties to this action.
In response, Plaintiffs point out that, since the Defendants have submitted an affidavit in connection with their 12(b)(6) motion, the motion should be treated as one for summary judgment under Rule 56. Plaintiffs request, however, that the matter be resolved once the discovery period has ended so that Plaintiffs' can properly respond to the merits of the Railroad Defendants' argument.
II.
Rule 12 provides, in pertinent part:
(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion . . . (6) failure to state a claim upon which relief can be granted. . . . If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
The Sixth Circuit holds that if an affidavit submitted in connection with a Rule 12(b)(6) motion does nothing more than verify the allegations contained in the complaint, then the same does not constitute a "matter outside the pleading" for purposes of the Rule and the motion need not be treated as one for summary judgment. Song v. City of Elyria, Ohio, 985 F.2d 840, 841 (6th Cir. 1993), citing 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1366 n. 23 (1990).
In this case, however, the affidavit contains allegations that directly contradict an allegation contained in Plaintiffs' complaint, i.e., that Plaintiffs were employed by the Railroad Defendants. ( Complaint at ¶ 11). Thus, the affidavit submitted by the Railroad Defendants constitutes a matter outside the pleadings for purposes of Rule 12. Under the Rule, the Defendants' motion must be treated as one for summary judgment.
Since discovery in this case is ongoing, the Court concludes that it is premature to consider the merits of the Railroad Defendants' argument. Further, the granting of the motion would not, in any significant way, limit the scope or expense of discovery. Defendants may present their argument in the context of a motion for summary judgment at a later time.
III.
In light of the foregoing, the Defendants' Motion to Dismiss ( Doc. #13) is DENIED.