HALL et al v. MEMPHIS MEAT PROCESSING, LLC

Filing 10

ORDER ON MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT (DKT. 7 ) - The motion to dismiss or for summary judgment (Dkt. 7 ) is DENIED WITHOUT PREJUDICE with leave to refile, if appropriate, following an opportunity for discovery. The magistrate judge will schedule a pretrial conference to address the schedule for this and other deadlines necessary for this case. See Order for details. Signed by Judge Tanya Walton Pratt on 9/1/2017. (MAT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
THOMAS HALL,
RICHARD MILLER,
Plaintiffs,
v.
MEMPHIS MEAT PROCESSING, LLC,
Defendant.

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Case No. 4:17-cv-00127-TWP-DML

ORDER ON MOTION TO DISMISS OR IN THE ALTERNATIVE
FOR SUMMARY JUDGMENT (DKT. 7)
Plaintiffs Thomas Hall and Richard Miller filed this action on June 20, 2017, against their
former employer, Memphis Meat Processing, LLC, (“Memphis Meat”) alleging that it terminated
them on the basis of their age, in violation of the Age Discrimination in Employment Act
(“ADEA”). On August 14, Memphis Meat filed a motion to dismiss, or in the alternative, for
summary judgment, in which it maintains that it does not have the requisite number of employees
to be an “employer” subject to the ADEA. 1
Memphis Meat filed in support of its motion the affidavit of the CFO of the company that
provides payroll services for Memphis Meat. He testifies that during the relevant times, Memphis
Meat “did not have twenty or more employees for each working day in each of twenty or more
calendar weeks,” and he provides a chart of employees. Dkt. 8-1 ¶¶ 5-8. Mr. Hall and Mr. Thomas
filed a response to Memphis Meat’s motion on August 28, 2017. They argue that Memphis Meat
has relied on matters outside the pleadings, thereby implicating the standard and procedures of

1

Memphis Meat also asserts that the plaintiffs cannot meet other elements of their prima facie case, but the
court finds they have clearly alleged them.

Rule 56, and that they have had no opportunity to take discovery, including discovery directed at
this particular assertion of Memphis Meat. Indeed, plaintiffs cannot yet take discovery under the
requirements of Rule 26, and the Court has not yet conducted an initial pretrial conference or
entered a case management order.
Beyond that, the plaintiffs have raised specific questions about the “payroll services
company” that supplied the above affidavit, noting that it is solely owned by the same two
individuals who own Memphis Meats, suggesting that the two entities’ employees should be
aggregated for purposes of the ADEA threshold. They also question the reliability of the chart
Memphis Meat has submitted, noting that it does not identify the employees or their positions.
Two things are clear: First, Memphis Meat has relied on matters outside the pleadings to
support its motion under Rule 12(b)(6), and the Court would have to consider them to rule on the
issue it has raised. Therefore, the court should proceed under Rule 56. Second, Memphis Meat’s
motion is premature. Mr. Hall and Mr. Thomas have the right to conduct discovery on the factual
assertions on which Memphis Meat has premised its argument.
Accordingly, the motion to dismiss or for summary judgment (Dkt. 7) is DENIED
WITHOUT PREJUDICE with leave to refile, if appropriate, following an opportunity for
discovery.
The magistrate judge will schedule a pretrial conference to address the schedule for this
and other deadlines necessary for this case.
SO ORDERED:
Date: 9/1/2017

Distribution:
P. Stewart Abney
ABNEY & MCCARTY PLLC
[e-mail]
Amanda Warford Edge
WYATT TARRANT & COMBS
[e-mail]