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Zuber v. Boscov's

United States District Court, E.D. Pennsylvania

May 3, 2018

CRAIG ZUBER, Plaintiff,
v.
BOSCOV'S, Defendant.

          MEMORANDUM OPINION

          Schmehl, J.

         Before the Court is the second motion to dismiss of Defendant, Boscov's, as well as Plaintiff's Motion for Leave to File Amended Complaint. Both motions have been fully briefed. Having read the parties' briefs, I will deny Defendant's motion to dismiss, and grant Plaintiff's Motion to Amend.

         I. BACKGROUND

         Plaintiff filed this action against Defendant for alleged interference with his FMLA rights. (See Compl.) Plaintiff's Complaint was originally dismissed in response to Defendant's Motion to Dismiss, and Plaintiff appealed. After appellate argument, this case was returned to me, and Defendant filed yet another Motion to Dismiss, this time asserting for the first time that Plaintiff's employer was not Boscov's, but rather was ADE Associates, LP (“ADE”), and because ADE had less than 50 employees, it could not be held liable to Plaintiff under the FMLA.

         II. STATEMENT OF FACTS

         Plaintiff was employed by Defendant as a manager at the Fairgrounds Farmers Market in Reading, Pennsylvania. (Compl. ¶¶ 11, 28.) On August 12, 2014, Plaintiff suffered an eye injury while at work which required medical attention. (Id., ¶12.) Plaintiff returned to work on August 14, 2014, but the next day, he began to suffer from complications due to the eye injury and was given a doctor's note for a leave of absence from work from August 17, 2014 to August 24, 2014. (Id., ¶¶ 18-22.) On August 26, 2014, Plaintiff returned to work, and was fired on September 10, 2014, for an alleged security breach. (Id. ¶¶ 27-29.)

         III. MOTION TO DISMISS

         A. STANDARD OF REVIEW

         To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must allege facts that “ ‘raise a right to relief above the speculative level.' ” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007.) In determining whether a complaint is sufficient, the court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

         Although “conclusory” or “bare-bones allegations” will not survive a motion to dismiss, Fowler, 578 F.3d at 210, a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits. Phillips, 515 F.3d at 231. Nonetheless, to survive a Rule 12(b)(6) motion, the complaint must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234 (quoting Twombly, 550 U.S. at 556) (internal quotations omitted).

         Further, “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d).

         B. DISCUSSION

         Defendant moves to dismiss Plaintiff's Complaint due to the fact that Plaintiff was not employed by Defendant Boscov's, but was allegedly employed by ADE Associates, LP, a legal entity that had no more than 12 employees and therefore does not fall under the FMLA. (Docket No. 32, p. 1.) In support of that argument, Defendant attaches to its brief copies of Plaintiff's paystubs for 2012 to 2014, a payroll register for 2010 and 2011 and an Affidavit of Russel Diehm, a vice-president of ADE. (See Docket No. 32, Exs. A, B and C.) In response, Plaintiff argues that the Diehm affidavit is improper because it is outside the pleadings and should not be considered.

         To decide a motion to dismiss, courts consider only the allegations contained in the complaint, exhibits attached to the complaint, matters of public record, and where appropriate, “an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on that document.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). A plaintiff's claims are based on a document if the document is ...


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