Opinion
Case No. CIV 01-541-S-BLW.
August 16, 2002
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Before the Court is Defendant Robert Rice, individually and d.b.a. the Rice Agency's (Rice) motion to dismiss for failure to state a claim upon which relief may be granted and for lack of subject matter jurisdiction. Fed.R.Civ. 12(b)(1), 12(b)(2). At oral argument on June 27, 2002, the parties represented that the matter would be resolved by stipulation, and the Court took the matter off calendar. No stipulation has been forthcoming and the parties report a problem to the Court. After reviewing the moving and opposing papers, and for the reasons set forth below, the Court GRANTS the motion.
I. BACKGROUND
Plaintiff filed its complaint on October 22, 2001 alleging workplace discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and the Idaho Human Rights Act, Idaho Code § 67-5901, and various state law contract claims. Plaintiffs alleged jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and over the state law claims pursuant to 28 U.S.C. § 1367.Plaintiff alleges that Defendant Rice is a "general agent" for Defendant Northwestern Mutual Financial Network (NMFN), and that NMFN conducts business through Defendant Rice. According to the complaint, Plaintiff was employed by Defendant Rice for nearly four years from October 1996 to September 2000. In July 2000, Plaintiff was offered the position with Defendant Rice of "Certified Agency Trainer" which also carried a salary increase of $800 per month. According to Plaintiff, she performed her duties as a Certified Agency Trainer, but Defendant Rice instead placed a male employee in that position. According to Plaintiff's complaint, she was thereafter ignored, laughed at, treated poorly, and harassed by Defendant Rice and his employees. Plaintiff filed a complaint with the Idaho Human Rights Commission and the Equal Employment Opportunity Commission (EEOC), and received a right to sue letter within 90 days of filing this case.
Plaintiff served Defendant Rice on January 14, 2002, but has not yet served NMFN. On February 26, 2002, a week after she was required to serve NMFN, see Fed.R.Civ.P. 4(m), Plaintiff requested an extension of time to effect service of process. On April 4, 2002, Chief Judge Winmil granted Plaintiff an extension of time to serve NMFN until April 30, 2002. Plaintiff has not yet served the complaint on NMFN.
Both parties acknowledge that if Plaintiff cannot state a claim under the Federal Civil Rights Act, then the Court is lacking jurisdiction over the remaining state law claims and must dismiss the case. Likewise, if Plaintiff has stated a claim under the Civil Rights Act, this Court does have supplemental jurisdiction over the remaining claims under 28 U.S.C. § 1367.
II. DISCUSSION
Under Title VII, a party is only liable if it is an "employer" meaning "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. . . ." 42 U.S.C. § 2000e. Whether a person is a covered "employer" for purposes of Title VII is a jurisdictional issue that the Court may decide by going beyond the pleadings. Childs v. Local 18, Int'l Bhd. of Elec. Workers, 719 F.2d 1379, 1382-83 (9th Cir. 1983).Here, Defendant Rice provides W-3 Tax forms that indicate that he has employed between five and nine employees between 1996 and the present. Defendant Rice is therefore not an employer subject to Title VII of the Civil Rights Act.
Plaintiff does not seriously contest the number of employees that work for Defendant Rice. Instead, she argues that Defendant Rice and NMFN may be considered "one employer" under the "one entity" or "joint employer" rule. In Title VII cases, two different entities may be considered a single employer depending on the inter-relation of their operations, co-management, centralized control of labor, and common ownership or financial control. Herman v. United Bhd. of Carpenters and Joiners of Am., Local Union No. 971, 60 F.3d 1375, 1383 (9th Cir. 1995). In its February 26, 2002 memorandum in opposition, Plaintiff indicated that it would be able to determine within forty-five days whether NMFN and Defendant Rice qualified as a single employer. No additional papers have been filed since that time, and Plaintiff has still yet to serve NMFN. The record before the Court demonstrates that Defendant Rice is not an employer covered under Title VII, and therefore no claim can be stated under the Federal Civil Rights Act. Because there is no claim stated under federal law, this Court has no subject matter jurisdiction over this case.
III. CONCLUSION
Accordingly, Defendant's motion to dismiss for lack of subject matter jurisdiction is GRANTED.IT IS SO ORDERED.