United States District Court, E.D. Pennsylvania
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.
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
STATEMENT OF FACTS
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.)
MOTION TO DISMISS
STANDARD OF REVIEW
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)).
“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).
“[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).
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
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 ...