Boyd v. Yellow Roadway Corporation

Filing 19

ORDER signed by Judge Lynn Adelman on 6/28/13 denying 5 Motion to Dismiss; denying 7 Amended Motion to Dismiss; denying as moot 10 Motion to Dismiss and 17 Motion for Order. Further ordering that the Clerk of Court enter the default of YRC Inc. and also modify the docket to reflect that the name of the proper defendant is YRC Inc. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ROBERT L. BOYD,
Plaintiff,
v.

Case No. 13-C-0021

YRC INC.,
Defendant.

DECISION AND ORDER
Robert L. Boyd, proceeding pro se, filed a complaint against his former employer
alleging disability discrimination in violation of the Americans with Disabilities Act. In
drafting his complaint, Boyd used a form complaint that this court makes available to pro
se litigants. On the caption of that form, Boyd identified the defendant as “Y.R.C.
Yellow/Roadway Corporation.” However, in a section of the form that asks the plaintiff to
identify the parties, Boyd identified the defendant as “Y.R.C. Inc.” and indicated that the
defendant’s address was 6880 South Howell Avenue, Oak Creek, Wisconsin. On March
11, 2013, Boyd filed an affidavit from his process server indicating that a copy of the
summons and complaint had been personally served on Kent Adams as the person
apparently in charge of the offices of “Yellow Roadway” located on South Howell Avenue.
The affidavit indicated that service was completed on January 29, 2013, and thus the
defendant’s response to the complaint was due on February 19, 2013. See Fed. R. Civ.
P. 12(a)(1)(A)(I). No responsive pleading was filed by that date.
On March 11, 2013, however, a motion to dismiss the complaint under Federal Rule
of Civil Procedure 12(b)(6) was filed on behalf of the defendant. The defendant argued

that Boyd’s claim was barred by the statute of limitations because Boyd did not file his
complaint within 90 days of his receipt of the right-to-sue letter from the EEOC. In its brief
in support of that motion, the defendant identified itself as “Yellow Roadway Corporation
(presently known as YRC Freight).” See ECF No. 8, at 1. In his response to this motion,
Boyd pointed out that the defendant’s response to the complaint was not filed within 21
days and that therefore the defendant was in default. See Fed. R. Civ. P. 55(a).
In its reply brief, the defendant for the first time asserted that the “proper” defendant
in this case is an entity known as YRC Worldwide Inc. The defendant then asserted that
because Boyd never served a copy of the summons and complaint on YRC Worldwide
Inc., he had failed to serve the proper defendant. The defendant argued that Boyd’s
complaint should be dismissed for insufficient service of process. See Fed. R. Civ. P.
12(b)(5).
I am not sure why YRC Worldwide Inc. thinks that it is the proper defendant in this
case. According to the defendant, YRC Inc. and YRC Worldwide Inc. are two distinct legal
entities, with YRC Worldwide Inc. being the parent company of YRC Inc. See Decl. of
Paula E. Day ¶ 5. However, YRC Worldwide Inc. admits that Boyd worked for YRC Inc.
rather than YRC Worldwide Inc. Id. ¶ 4. Since Boyd alleges that the defendant is liable
for employment discrimination, the only reasonable inference is that he intended to sue
YRC Inc. rather than YRC Worldwide Inc. Although, as noted, Boyd describes the
defendant slightly differently in the caption of the complaint than he does in the body of the
complaint, he nowhere uses the word “Worldwide” or otherwise indicates that he really
meant to sue YRC Inc.’s parent company, and he does identify the defendant precisely as
“YRC Inc.” in the body of the complaint. Moreover, Boyd identifies the address of the
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defendant as 6880 South Howell Avenue, Oak Creek, Wisconsin, which is the address of
YRC Inc. rather than YRC Worldwide. See Decl. of Kent Adams ¶¶ 1, 3. Thus, it is clear
that the “proper” defendant is YRC Inc. rather than YRC Worldwide Inc. See Tremps v.
Ascot Oils, Inc., 561 F.2d 41, 44 (7th Cir. 1977).
Given that the proper defendant is YRC Inc. rather than YRC Worldwide, I will deny
YRC Worldwide’s motions on the ground that it is not a party to this case and has no
standing to assert defenses on behalf of YRC Inc. Moreover, since it appears that the
actual defendant, YRC Inc., has failed to plead or otherwise defend, I will instruct the Clerk
of Court to enter its default. If the plaintiff wishes, he may move for a default judgment
under Federal Rule of Civil Procedure 55(b). If YRC Inc. chooses to appear in this case
and believes that there is good cause for setting aside its default, it may file a motion to set
aside the default. See Fed. R. Civ. P. 55(c).
Accordingly, IT IS ORDERED that defendant’s motion to dismiss (ECF Nos. 5 & 7)
is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to dismiss the defendant’s motion
to dismiss (ECF No. 10), and his motion for equity and tolling (ECF No. 17) are DENIED
as MOOT.
FINALLY, IT IS ORDERED that Clerk of Court enter the default of YRC Inc. The
Clerk of Court should also modify the docket to reflect that the name of the proper
defendant is YRC Inc.
Dated at Milwaukee, Wisconsin, this 28th day of June 2013.
s/ Lynn Adelman
_____________________
LYNN ADELMAN
District Judge

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