Fuller v. Wal-Mart Stores, Inc. et al

Filing 22

MEMORANDUM OPINION AND ORDER DENYING Defendants' request that the pleadings be amended to reflect the only proper defendant, Wal-Mart Stores East, LP employed the Plaintiff and only that entity and not the other Defendants, Wal-Mart Stores, Inc., Wal-Mart Stores East, Inc., could possibly be liable. Signed by Judge Virginia Emerson Hopkins on 8/9/213. (JLC)

Fuller v. Wal-Mart Stores, Inc. et al

Doc. 22

FILED
2013 Aug-09 PM 02:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
SHELIA DIANNE FULLER,
Plaintiff,
v.
WAL-MART STORES, INC., et al,
Defendants.

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) Case No.: 4:13-CV-444-VEH
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MEMORANDUM OPINION AND ORDER
This is an age discrimination action filed by the plaintiff, Shelia Dianne Fuller,
against the defendants, Wal-Mart Stores, Inc., Wal-Mart Stores East, Inc., and WalMart Stores East, L.P. (collectively “Wal-Mart”). (Doc. 1.) The complaint alleges
disparate treatment and disparate impact age discrimination in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”). Both claims
arise out of the plaintiff’s employment with Wal-Mart.
On June 28, 2013, this court entered an order noting that “the defendant has
requested that ‘the pleadings be amended to reflect the only proper Defendant, WalMart Stores East, LP as neither Wal-Mart Associates, Inc. nor Wal-Mart Stores []East
Inc. employed [p]laintiff.’” (Doc. 18 at 16) (quoting doc. 10 at 1, n. 1). The court

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ordered the plaintiff to show cause why the motion should not be granted. (Doc. 18
at 16). The plaintiff filed a response to that order on July 5, 2013, attaching
documents outside the pleadings for the court’s consideration. (Doc. 20). The court
allowed the defendants to reply and they did so on July 15, 2013. (Doc. 21). Their
response also included a document outside of the pleadings for the court to consider.
(Doc. 21-1).
In the defendants’ reply they argue that only Wal-Mart Stores East, LP
employed the plaintiff and only that entity, and not the other defendants, could
possibly be liable. In other words, the request is really a motion, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, to dismiss for failure to state a claim
upon which relief may be granted. “If, on a motion under Rule 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).
Rule 12(d) also requires that “[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ.
P. 12(d). The defendants submit the declaration of Geoffrey W. Edwards, a Senior
Associate General Counsel for Wal-Mart Stores, Inc. (Doc. 21-1). In that declaration
he states that only Wal-Mart Stores East, LP “exercised control and directed the
operations and the [employees] of [the plaintiff’s store].” (Doc. 21-1 at 2). Without
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commenting on the evidence submitted by the plaintiff, it is unclear as to whether,
with the discovery deadline still months away, the plaintiff has had a reasonable
opportunity to discover evidence, if it exists, to rebut Edwards’s statement. Under the
circumstances, the court will exclude the matters outside the pleadings and treat this
request as only a motion to dismiss.
The complaint alleges that, beginning in October of 2010, the plaintiff was
employed by all of the defendants as an Assistant Manager at its Attalla, Alabama
location. (Doc. 1 at 4). At this stage of the litigation that is sufficient.
The defendants’ request is DENIED.
DONE and ORDERED this 9th day of August, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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