JOSEPH H. McKINLEY, Jr., Chief District Judge.
This matter is before the Court on Defendants' Motion to Dismiss [DN 35], Defendants' Motion for Leave to File a Reply Brief Outside of the Authorized Time Period [DN 44], and Plaintiff's Motion to Strike [DN 65]. Fully briefed, these matters are ripe for decision.
Plaintiff filed its Second Amended Complaint [DN 29] on or about September 6, 2016 alleging claims under Title I of the Civil Rights Act of 1991. Prior to the institution of the instant action, Rickesha L. Jones filed a charge with Plaintiff, the Equal Employment Opportunity Commission, alleging violations of Title VII by her employer, Defendant Indi's Fast Food Restaurant, Inc. (hereinafter "Indi's Restaurant"). (Second Am. Comp. [DN 29] ¶ 8.) Beginning at the latest in 2011, Plaintiff alleges that Defendant Indi's Restaurant "has engaged in unlawful employment practices at its Louisville, Kentucky restaurants in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000(e)-2(a)(1), by subjecting Jones and a class of similarly situated female employees to a hostile work environment created by male manages." (
Plaintiff purports that Defendant Indi's Restaurant knew or should have known about these unlawful employment practices because despite Jones and other similarly situated female employees complaining about the hostile work environment, the male managers' conduct allegedly occurred on a frequent and routine basis. (
As a result of these complaints, on or about June 9, 2015, Plaintiff sent Defendant Indi's Restaurant a Letter of Determination finding reasonable cause to believe that Defendant violated Title VII when Jones and a class of similarly situated female employees were subject to a sexually hostile work environment. (
Because of this inability to come to an agreement, Plaintiff filed suit in this Court originally against Defendant Indi's Restaurant. (Compl. [DN 1] at 1.) Later, Plaintiff added Defendant Evanczyk Brothers, LLC in the Second Amended Complaint and asserted similar claims against both Defendants. (Second Am. Comp. [DN 29] at 1.) Plaintiff alleges that Defendants together "have operated as a single employer and/or integrated enterprise" because of several factors indicating an interrelated enterprise. (
On or about September 29, 2016, Defendants filed their joint Motion to Dismiss denying these contentions and maintaining that the two Defendants operated distinct business entities and did not function as a single employer or integrated enterprise. (Mot. Dismiss [DN 35] ¶¶ 13-14.) Defendants do not specify the grounds on which they base their Motion to Dismiss; however, the Court will assume Defendants' Motion is premised upon Fed. R. Civ. P. 12(b)(6) for Plaintiff's "failure to state a claim upon which relief can be granted."
Upon a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), a court "must construe the complaint in the light most favorable to plaintiffs,"
If "matters outside the pleadings are presented to and not excluded by the court" when ruling upon a motion under Rule 12(b)(6), the Federal Rules require that "the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). This Rule does not require the Court to convert a motion to dismiss into a motion for summary judgment every time the Court reviews documents that are not attached to the complaint.
Defendants seek dismissal presumably under Rule 12(b)(6) because they insist that they did not operate together as a "single employer" or an "integrated enterprise," as they were both "completely separate corporations." (Mot. Dismiss [DN 25] ¶ 13.) Plaintiff contends that Defendants' Motion should be denied because Defendants did in fact operate together, or, alternatively that dismissal at this stage is inappropriate because the relationship between the Defendant entities can only be determined through discovery. (Resp. [DN 38] at 3-4.)
At issue is whether Plaintiff has sufficiently pled facts to plausibly give rise to a cause of action against Defendant Indi's Restaurant and Defendant Evanczyk Brothers under the "single employer" or "integrated enterprise" doctrine. The "single employer" or "integrated enterprise" doctrine allows two companies to be deemed "interrelated that they constitute a single employer subject to liability."
First, to demonstrate the operations of Defendant Indi's Restaurant and Defendant Evanczyk Brothers are interrelated, Plaintiff alleges the two entities share a central business office, (Second Am. Compl. [DN 29] ¶ 6(e)), utilize the same advertising logo, (
Under prongs two and four, Plaintiff has alleged that Murchison Thomas owns Indi's Fast Food Restaurant, Inc., and Alexander Evanczyk and Indira Evanczyk own Evanczyk Brothers, LLC. (Second Am. Compl. [DN 29] ¶ 6(a), (b)). However, while Alexander Evanczyk is the sole director of Evanczyk Brothers, LLC, both Alexander and Indira Evanczyk are directors of Indi's Fast Food Restaurant, Inc. (
Finally, with respect to the third factor, Plaintiff alleges there is centralized control of labor relations and personnel. In support of this allegation, Plaintiff states that both Indi's Fast Food Restaurant, Inc. and Evanczyk Brothers, LLC utilize the same sexual harassment policy. (Resp. [DN 38] at 4.) Defendants concede that both entities "utilized the same language for their separate sexual harassment policies" and "use similarly-worded employee handbooks." (Mot. Dismiss [DN 35] ¶ 7, 14.) This policy instructs employees of both entities to direct complaints to either Alexander Evanczyk or Murchison Thomas. (Resp. [DN 38] at 4.) Generally, centralized control of labor relations and personnel relates to the ability to "hire, fire, or discipline an employee."
Plaintiff appropriately asserts that without the benefit of discovery, the Court does not have all the information relative to the factors to be considered, as most integrated enterprise questions are answered at the summary judgment stage. "Consideration of such matters necessarily involves review of evidence, not just the face of the complaint."
On or about July 21, 2016, Plaintiff filed a Motion for Leave to File a Second Amended Complaint [DN 24], in which Plaintiff added Defendant Evanczyk Brothers as a party. Finding that Defendant Indi's Restaurant "did not file a response or otherwise indicate opposition to Plaintiff's [M]otion," Magistrate Judge Lindsay granted Plaintiff's Motion for Leave [DN 28] and Plaintiff filed its Second Amended Complaint [DN 29] on September 6, 2016. Later that month, Defendant Indi's Restaurant and Defendant Evanczyk Brothers filed a joint Motion to Dismiss on or about September 29, 2016 [DN 35]. Plaintiff responded on October 18, 2016 [DN 38], and Defendants were to file any replies by November 4, 2016. Defendants failed to file a reply brief, and instead filed a Motion for Leave to File a Reply Brief Outside of the Authorized Period on December 5, 2016 [DN 44]. This Motion is now before the Court.
"When an act may or must be done within a specified time," Federal Rule of Civil Procedure 6(b)(1) permits the Court "for good cause" to extend the time: "(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect." Here, because Defendants filed their Motion for Leave after the original deadline for replies had expired, "the heightened standard in Rule 6(b)[(1)(B)] of the Federal Rules of Civil Procedure applies."
The Sixth Circuit has set forth five factors district courts should balance in determining excusable neglect, which include: "(1) the danger of prejudice to the nonmoving party; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay; (4) whether the delay was within the reasonable control of the moving party; and (5) whether the late-filing party acted in good faith."
Defendant Indi's Restaurant filed its short Motion for Leave on December 5, 2016 [DN 44]. This Motion was supported by one statement that Defendants' joint Motion to Dismiss was filed on September 29, 2016, and it "has not been adjudicated and evidence addressing this issue is still being adduced by discovery." (Mot. Leave [DN 44] at 1.) Defendant Indi's Restaurant failed to provide the Court with any reasons as to why the Court should grant Defendants leave and failed to show why Defendant's failure to follow scheduling deadlines was a product of excusable neglect. However, in Defendant Indi's Restaurant's Response to Plaintiff's Motion to Strike [DN 47], Defendant attempts to explain its failure to timely file a Reply. Defendant explains that on December 5, 2016, defense counsel discovered that his legal assistant was removed from receiving copies of all Court-related notices and emails after July 1, 2016. (Resp. [DN 47] at 2.) Further, defense counsel realized on December 9, 2016 that he did not receive any Court-related notices or emails because they were all sent to his "junk mail" folder. (
"[P]arties have an affirmative duty to monitor the dockets to keep apprised of the entry of orders. . . ."
Defense counsel's non-receipt of emails does not relieve his responsibility to monitor the Court's docket and keep apprised of developments within his active cases, which he failed to do here. Because Defendants can point to no actions constituting excusable neglect, the Court will deny their Motion for Leave.
Plaintiff's Motion to Strike asks the Court to strike docket numbers (hereinafter "DNs") 35 and 39 through 45 based on violations of the Federal Rules of Civil Procedure, Local Rules, and General Orders. DN 35 is Defendants' Motion to Dismiss, and DNs 39 through 42 are documents that Defendants' counsel refiled as DNs 43 through 45. DN 43 is Defendants' Motion for Extension of Time to File the Names of Witnesses and Exhibits by Defendant Indi's Fast Food Restaurant, Inc., DN 44 is Defendants' Motion for Leave to File a Reply Brief in Support of Defendants' Motion to Dismiss Outside of the Authorized Time Period, and DN 45 is Defendants' Reply Brief in Support of Defendants' Motion to Dismiss.
Under Federal Rule of Civil Procedure 12(f), the Court may "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "The purpose of a motion to strike is to avoid the expense of `litigating spurious issues' by dispensing with them before trial."
With respect to DN 35, Defendants' Motion to Dismiss, Plaintiff contends that Defendants failed to include a supporting memorandum of law, proposed orders, and excerpts of referenced depositions in violation of Local Rule 7.1(a), (e), (h). (Mem. Supp. Mot. Strike [DN 46-1] at 1-2.) Despite these procedural deficiencies, Plaintiff was able to adequately respond to the Motion. The Court considered the merits above, taking into account Plaintiff's Response, and denied Defendants' Motion. As such, Plaintiff's Motion to Strike DN 35 is denied.
With respect to DNs 39 through 42, Plaintiff contends that defense counsel failed to sign the original filings in violation of Federal Rule of Civil Procedure 11 ("[t]he court must strike an unsigned paper"), Local Rule 5.1(a), and General Order 16-03(11)(b). (
With respect to DN 43, Defendant's Motion for Extension of Time to File the Names of Witnesses and Exhibits for Defendant Indi's Fast Food Restaurant, Inc., Plaintiff asserts that the certificate of service is defective pursuant to General Order 16-03(4)(i). (Id. at 1, 3.) However, Magistrate Judge Lindsay reviewed this Motion for Extension of Time and has denied that Motion as moot because Defendant Indi's Restaurant "filed those documents in compliance with the operative deadline of 12/16/2016." (Text Order [DN 53].) As such, Plaintiff's Motion to Strike DN 43 is denied.
With respect to DN 44, Defendants' Motion for Leave to File a Brief in Support of Defendants' Motion to Dismiss outside of the Authorized Time Period, Plaintiff argues that the certificate of service is defective pursuant to General Order 16-03(4)(i). (Mem. Supp. Mot. Strike [DN 46-1] at 3.) Despite this slight procedural infirmity, the Court addressed the merits above and denied the Motion for Leave. As such, Plaintiff's Motion to Strike DN 44 is denied. However, because the Court has denied Defendants' Motion for Leave, the Court will strike DN 45, Defendant's Reply Brief in Support of Defendants' Motion to Dismiss, as it is now immaterial to this action.
For the reasons set forth above,