United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
Rebecca Grady Jennings, District Judge United States District
matter is before the Court on Defendant SelecTrucks of
America, LLC's, d/b/a SelecTrucks of Louisville
(“SelecTrucks”), Partial Motion to Dismiss or, in
the Alternative, Motion for Partial Summary Judgment [DE 11];
Plaintiff Melissa Middleton's Motion for Leave to File an
Amended Complaint and Add New Parties [DE 16]; and
SelecTrucks's Objection to Notice of Withdrawal [DE 35].
Briefing is complete, and the Motions are ripe. For the
reasons below, the Court DENIES SelecTrucks's Partial
Motion to Dismiss, or in the alternative, for Partial Summary
Judgment, GRANTS Middleton's Motion to Amend, and
OVERRULES SelecTrucks's Objection to Notice of
filed a Complaint against SelecTrucks alleging unlawful
retaliation and sex discrimination in violation of the
Kentucky Civil Rights Act (“KCRA”), and unlawful
retaliation in violation of the Family Medical Leave Act
(“FMLA”). [DE 1, Compl.]. SelecTrucks responded
by filing a Partial Motion to Dismiss, or in the alternative,
Motion for Partial Summary Judgment. [DE 11]. SelecTrucks
argues that it is entitled to dismissal or summary judgment
because SelecTrucks does not meet the statutory definition of
an employer under the KCRA and Middleton was not an eligible
employee under the FMLA. Id. at 31. Middleton
requested an extension of time to respond [DE 12], which the
Court granted [DE 13]. Middleton then responded. [DE 14].
SelecTrucks filed a timely Reply. [DE 15].
months later, Middleton moved for leave to file an amended
complaint and add new parties. [DE 16]. Middleton's
proposed Amended Complaint adds Daimler Trucks North America,
LLC (“Daimler Trucks”) and Daimler North America
Corporation (“Daimler Corp.”) (together, the
“Daimler Companies”) as parties. Id. at
82. SelecTrucks is a wholly owned subsidiary of the Daimler
Companies, and thus Middleton asserts the Daimler Companies
may be liable as a joint employer. Id. at 83-84.
SelecTrucks opposed Middleton's Motion. [DE 17].
Middleton filed a timely Reply. [DE 20]. SelecTrucks moved
for leave to file a sur-reply [DE 24], which the Court
granted [DE 31; DE 32].
months later, Tyler Korus, one of Middleton's three
attorneys, filed a Notice of Withdrawal stating that he no
longer practices with Bishop Korus Friend, P.S.C.
(“Bishop”). [DE 34]. Two other Bishop attorneys,
John Friend and Robert Bishop, remain Middleton's
counsel. Id. SelecTrucks stated that while it does
not generally object to Korus's withdrawal from the case,
it does object if Korus's withdrawal “attempts to
absolve him from potential liability for fees and costs
against counsel” from his pre-withdrawal conduct. [DE
35 at 354, 356]. A timely Response [DE 36], and Reply were
filed. [DE 37].
SelecTrucks's Partial Motion to Dismiss or for Partial
Summary Judgment [DE 11].
first moves for dismissal or summary judgment on
Middleton's KCRA claims asserting that it did not have
fifteen or more employees within the Commonwealth during the
relevant period, and thus is not an employer under the KCRA.
[DE 11 at 31]. SelecTrucks also moves for dismissal or
summary judgment on Middleton's FMLA claims arguing that
Middleton was not an eligible employee under the FMLA because
SelecTrucks did not employ the required No. of individuals at
or within seventy-five miles of its Louisville worksite.
Id. Middleton responds that SelecTrucks is an
employer under the KCRA and argues that SelecTrucks misquotes
the statute. [DE 14 at 59]. Finally, Middleton argues that
SelecTrucks's Motion on the FMLA claim is premature
because there has been no discovery. Id. at 58.
Standard of Review.
moves to dismiss or, in the alternative, for partial summary
judgment. [DE 11]. The Motion includes materials outside the
pleadings-specifically, Bryan Howard's affidavit.
Id. at 30. The Federal Rules of Civil Procedure and
the Sixth Circuit have instructed that “[i]f, on a
motion under 12(b)(6) . . . 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.”
Fed.R.Civ.P. 12(d); see also Wysocki v. Int'l Bus.
Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010).
Consideration of affidavits not in the pleadings transforms a
motion to dismiss into one for summary judgment. Sequoyah
v. Tenn. Valley Auth., 620 F.2d 1159, 1161 (6th Cir.
1980). Thus, Howard's affidavit converts
SelecTrucks's Motion to one for partial summary judgment
on Middleton's KCRA and FMLA retaliation claims. See
Rule 56, summary judgment is required when “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The moving party bears the burden of specifying the
basis for its motion and showing the lack of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Once the moving party satisfies this burden,
the nonmoving party must produce specific facts showing a
material issue of fact for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986).
district court considering a motion for summary judgment may
not weigh evidence or make credibility determinations.
Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702
(6th Cir. 2008). The court must view the evidence and draw
all reasonable inferences in a light most favorable to the
nonmoving party. Williams v. Int'l Paper Co.,
227 F.3d 706, 710 (6th Cir. 2000). But the nonmoving party
must do more than show some “metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp.,475 U.S. 574, 586 (1986). Instead,
the nonmoving party must present specific facts showing that
a genuine factual issue exists by “citing to particular
parts of materials in the record” or by “showing
that the materials cited do not establish the absence . . .
of a genuine dispute[.]” Fed.R.Civ.P. 56(c)(1)(A), (B);
see also Shreve v. Franklin Cty.,743 F.3d 126, 132,
136 (6th Cir. 2014). ...