Grant v. Doctor's Associates, Inc. et al

Filing 51

MEMORANDUM AND ORDER: The Court hereby informs the parties that it intends to treat defendants motion 49 to dismiss as a motion for summary judgment under Rule 56. By February 9, 2015, the parties shall submit to the Court all pertinent materials directed to the question of whether defendants fall within the statutory definition of employer under Title VII of the Civil Rights Act. See 42 U.S.C. § 2000e; see also Perry v. Manocherian, 675 F. Supp. 1417, 1425 (S.D.N.Y. 1987) ([T]o maintain an action [under Title VII], plaintiffs must establish that defendants fall within the statutory definition of employer.). Ordered by Judge Frederic Block on 1/8/2015. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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COLEENIA GRANT,
Plaintiff,
-againstPEXIE ENTERPRISES, INC., and
CARL A. LASHLEY,

MEMORANDUM AND ORDER
13-CV-3584 (FB) (LB)

Defendants.
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Appearances:
For the Plaintiff:
ALEX UMANSKY
Phillips & Associates, PLLC
30 Broad Street, 35th Floor
New York, NY 10004

For the Defendants:
FREDERICK K. BREWINGTON
556 Peninsula Boulevard
Hempstead, NY 11550

BLOCK, Senior District Judge:
On May 23, 2014, defendants Pexie Enterprises, Inc., and Carl A. Lashley
(collectively, “defendants”) moved to dismiss this action pursuant to Federal Rule of
Civil Procedure 12(b)(6) on the grounds that they are not “employers” under Title VII
of the Civil Rights Act.1 See 42 U.S.C. § 2000e (“The term ‘employer’ means a person

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Defendants also moved to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1). However, “[t]he threshold number of employees for
application of Title VII is an element of a plaintiff’s claim for relief, not a
jurisdictional issue.” Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006).
Accordingly, the Court will consider defendants’ motion as a motion to dismiss
pursuant to Rule 12(b)(6).

engaged in an industry affecting commerce who has fifteen or more employees for each
working day in each of twenty or more calendar weeks in the current or preceding
calendar year.”). In support of their motion, defendants submitted various federal and
state tax returns, which they contend establish that they employed less than fifteen
employees at all times relevant to this action. See Docket Entry No. 49-4 (“Exhibits AE”).
As a general rule, a district court considering a motion to dismiss pursuant to
Rule 12(b)(6) “must limit itself to facts stated in the complaint or in documents attached
to the complaint as exhibits or incorporated in the complaint by reference,” in addition
to “matters of which judicial notice may be taken.” Kramer v. Time Warner Inc., 937
F.2d 767, 773 (2d Cir. 1991). Where, as here, the moving party submits extrinsic
evidence in support of a Rule 12(b)(6) motion, a district court may only consider that
evidence by treating the motion as one for summary judgment under Rule 56 and by
giving “[a]ll parties . . . a reasonable opportunity to present all the material that is
pertinent to the motion.” FED. R. CIV. P. 12(d); see also Groden v. Random House, Inc.,
61 F.3d 1045, 1052 (2d Cir. 1995) (“A district court may not convert a motion under
Fed. R. Civ. P. 12(b)(6) into a Rule 56 motion for summary judgment without sufficient
notice to an opposing party and an opportunity for that party to respond.”).
Accordingly, the Court hereby informs the parties that it intends to treat

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defendants’ motion to dismiss as a motion for summary judgment under Rule 56. By
February 9, 2015, the parties shall submit to the Court all pertinent materials directed
to the question of whether defendants fall within the statutory definition of “employer”
under Title VII of the Civil Rights Act. See 42 U.S.C. § 2000e; see also Perry v.
Manocherian, 675 F. Supp. 1417, 1425 (S.D.N.Y. 1987) (“[T]o maintain an action
[under Title VII], plaintiffs must establish that defendants fall within the statutory
definition of employer.”).
SO ORDERED.
/s/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
January 8, 2015

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