Miller v. Intervarsity Christian Fellowship

Filing 66

ORDER denying defendant's motion to dismiss and staying defendant's motion for summary judgment (dkt 48 ); denying 47 defendant's motion to stay further proceedings pending a ruling on summary judgment; denying as moot 54 plaintif f's motion for an extension of time to respond to defendant's pending summary judgment motion ; and denying without prejudice 60 plaintiff's motion to compel. The telephone motion hearing set for 9/22/10 is canceled. A telephone status and scheduling conference is set for 9/29/10 at 2:00 pm. Submissions for the conference are due 9/27/10. Signed by Magistrate Judge Stephen L. Crocker on 9/20/10. (rep)

M i l l e r v. Intervarsity Christian Fellowship

D o c . 66

IN THE UNITED STATES DISTRICT COURT F O R THE W E S T E R N DISTRICT OF W I S C O N S I N

ELIZABETH M I L L E R , P la in t if f, v. I N T E R V A R S I T Y CHRISTIAN FELLOW S H I P /U S A , D efen d an t. ORD ER 0 9 -c v -6 8 0 -s lc

This civil ADEA lawsuit has not advanced very far since being filed last November. In a recent series of motions, defendant InterVarsity Christian Fellowship/USA continues to claim t h a t it is exempt from suit under the ministerial exception applicable to religious institution e m p lo y e r s . Due to the manner in which InterVarsity has approached its claim, we are past the p o in t of staying discovery; we are moving forward with discovery and motions practice and r e s c h e d u l i n g all dates and deadlines in this case. On December 16, 2009, InterVarsity invoked the ministerial exception doctrine and m o v e d to dismiss plaintiff Elizabeth M ille r 's complaint for lack of subject matter jurisdiction u n d e r Fed. R. Civ. P. 12(b)(1) and failure to state a claim under Rule 12(b)(6). See dkt. 16. At a December 29, 2009 telephonic conference, after discussing the nuances of the ministerial e x c e p t io n doctrine with both sides, I gave the parties until April 1, 2010 to conduct limited d is c o v e r y on the issues raised in the motion related to the exception and directed M ille r to r e s p o n d to the motion to dismiss by that date if InterVarsity chose not to replace or supplement t h e m o t i o n with a motion for summary judgment. See Hearing transcript, dkt. 31.

N o t w i t h s t a n d i n g the court's discussion of the perils of standing pat, InterVarsity chose to rely o n its motion to dismiss as filed and not to replace it with a motion for summary judgment.

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O n July 14, 2010, I denied InterVarsity's motion to dismiss on the ground that M i l l e r ' s c o m p l a i n t clearly invoked the court's federal question jurisdiction. See dkt. 37. Although

I n t e r V a r s it y asked that I consider evidence outside the pleadings showing it was subject to the e x c e p t io n , I refused because doing so would have converted the motion to dismiss to a motion f o r summary judgment, for which InterVarsity had failed to provide proper notice to M i l l e r . After answering the complaint, InterVarsity has filed yet another motion to dismiss, this t i m e under Rule 12(h)(3), which requires the court to dismiss an action if it at any time d e t e r m i n e s that it lacks subject matter jurisdiction. See dkt. 48. Alternatively, in the same d o c u m e n t , InterVarsity has moved for summary judgment on the ground that it is immune from s u it under the ministerial exception. In a separate motion, Intervarsity requests that the court a g a i n stay all proceedings on the merits of the age discrimination claim until the "threshold j u r i s d i c t i o n a l issue" is resolved. See dkt. 47. Plaintiff opposes virtually every aspect of

d e f e n d a n t ' s approach, see dkts. 53 and 54, and has moved to compel discovery, see dkt. 60. A l t h o u g h InterVaristy seems confused by this fact, I resolved the threshold jurisdictional is s u e in the July 14 order. As explained at length in the earlier order, the Court of Appeals for t h e Seventh Circuit has held that jurisdiction is determined by what the plaintiff claims rather t h a n by what may come into the litigation by way of defense, and a defendant seeking to invoke t h e ministers' exception should move to dismiss an employment case under Rule 12(c) (judgment o n the pleadings), and if evidence is presented, the motion must be treated as one for summary j u d g m e n t under Rule 56. ( in t e r n a l citations omitted). Schleicher v. Salvation Army, 518 F.3d 472, 478 (7th Cir. 2008) Although InterVarsity apparently disagrees, Schleicher makes

c le a r that it is error to grant a dismissal for lack of subject matter jurisdiction based on the m in is t e r ia l exception. Accordingly, I am denying InterVarsity's latest motion to dismiss under R u l e 12(h)(3).

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T h i s leaves InterVarsity's fallback motion for summary judgment. This is the motion that I n t e r V a r s it y should have filed after the December 29, 2009 telephonic conference while the d i s c o v e r y stay was in place, but InterVarsity squandered this opportunity. There was no logical r e a s o n for InterVarsity to proceed as it has, which leads me to conclude that InterVarsity should n o t rewarded with another stay of discovery while we revisit its ministerial exception claim in the R u le 56 context. T h is leaves the current schedule in shambles, with the general dispositive motions d e a d l in e having passed at the end of August and trial currently scheduled for January 10, 2011, w it h virtually no discovery having taken place. So here's what we shall do: the remainder of the c u r r e n t schedule is stricken because it is unrealistic under the circumstances. I am denying I n t e r v a r s it y ' s motion for a discovery stay and denying without prejudice M ille r ' s motion to c o m p e l discovery because it is moot, at least for a while, maybe forever. Here's why: T h e September 22, 2010 telephonic motion hearing is postponed to September 29, 2010 a t 2:00 p.m. and it is converted to a status and scheduling conference. The parties are to meet a n d confer before then and if they cannot agree on a new proposed schedule for this case, then t h e y are to present to the court their separate and competing scheduling proposals. In either e v e n t , they must file their proposal(s) not later than September 27, 2010. In approaching s c h e d u l in g , the parties are to keep in mind that there shall be no more discovery stays, and each s i d e now is limited to one summary judgment motion on any and all issues raised in this lawsuit. I n light of this, if InterVarsity wishes to withdraw or stay consideration of its current summary j u d g m e n t motion, it may do so.

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ORD ER I T IS ORDERED that: ( 1 ) Defendant InterVarsity Christian Fellowship/USA's motion to dismiss pursuant to F e d . R. Civ. P. 12(h)(3) is DENIED; ( 2 ) Defendant's motion for summary judgment is STAYED; ( 3 ) Defendant's motion to stay further proceedings in this case until the court rules on it s pending summary judgment motion is DENIED; ( 4 ) Plaintiff Elizabeth Miller's motion for an extension of time within which to respond t o defendant's pending summary judgment motion is DENIED as moot; ( 5 ) Plaintiff's motion to compel discovery is DENIED W I T H O U T PREJUDICE as moot; ( 6 ) The September 22, 2010 telephonic motion hearing is moved to September 29, 2010 a t 2:00 p.m. and is converted to a telephonic status and scheduling conference; and ( 7 ) Not later than September 27, 2010 the parties shall submit their new scheduling p r o p o s a l( s ) to the court.

E n t e r e d this 20 th day of September, 2010. B Y THE COURT: /s / S T E P H E N L. CROCKER M a g is tr a t e Judge

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