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Kurdyla v. Pinkerton Security

October 13, 2000

CHRISTINE KURDYLA, PLAINTIFF,
v.
PINKERTON SECURITY, A CALIFORNIA CORPORATION; EXXON RESEARCH, A NEW JERSEY CORPORATION, DARYL SWINISKI AND JOHN DOES 1-3, EMPLOYEES OF PINKERTON AND EXXON, DEFENDANTS.



The opinion of the court was delivered by: Cooper, District Judge

FOR PUBLICATION

MEMORANDUM OPINION

Attorneys for Defendants Exxon Research and Daryl Swiniski This matter comes before the Court on the motion of defendants Exxon Research *fn1 and Daryl Swiniski *fn2 under Federal Rule of Civil Procedure Rule 12(b)(6) to dismiss Counts I through IV of plaintiff Christine Kurdyla's Second Amended Complaint insofar as the counts contain claims against Exxon Research and Daryl Swiniski. Plaintiff asserts claims against Pinkerton Security ("Pinkerton"), Exxon Research, Daryl Swiniski, and unknown employees of Pinkerton and Exxon Research under the New Jersey Law Against Discrimination ("NJLAD"). Exxon Research and Daryl Swiniski seek the dismissal of these claims on the grounds that plaintiff is not an employee of Exxon Research and therefore is not protected by the NJLAD. For the reasons expressed below, this motion to dismiss is denied.

BACKGROUND

Christine Kurdyla began working for "Exxon/Pinkerton" on October 1, 1995 as a "life safety operator,"(Second Am. Compl. Count I, ¶ 3.), or security guard. *fn3 (Pl.'s Br. in Opp. at 4.) While working as a guard, plaintiff allegedly suffered from sexual harassment, (Second Amended Complaint Counts I-III), gender discrimination, (id. Count IV), and a Federal Family and Medical Leave Act violation, (id. Count V). "After working at Exxon/Pinkerton for two (2) years," plaintiff was terminated. (Id. Count IV, ¶ 2.)

Christine Kurdyla originally filed her action in the Superior Court of New Jersey, Law Division, Somerset County on or about October 9, 1999. (Not. of Removal ¶ 1.) In her Second Amended Complaint filed on or about April 19, 2000, Christine Kurdyla for the first time asserted a claim under federal law, specifically the Federal Family and Medical Leave Act. *fn4 (Id. ¶ 3). In response, Pinkerton, with the consent of the attorney for Exxon Research and Daryl Swiniski, filed a Notice of Removal with this Court on or about May 17, 2000.

Plaintiff's Second Amended Complaint contains a number of allegations concerning her relationship with Exxon Research. Plaintiff worked at "Exxon/Pinkerton as a life safety operator." (Second Am. Compl. Count I, ¶ 3.) Daryl Swiniski and the unknown defendants are also "employees of Pinkerton & Exxon." (Id. ¶ 6.) Plaintiff further alleges that Exxon Research is "the ultimate parent corporation of Pinkerton." (Id. ¶ 2.) She asserts that "[u]pon information and belief, Exxon maintains control over the operations, business and practices of Pinkerton." (Id.) Both Pinkerton and Exxon Research are allegedly "employers" as defined by the NJLAD. (Id. ¶¶ 4-5.)

Exxon Research and Daryl Swiniski argue that dismissal is required because Christine Kurdyla is not an employee of Exxon Research and therefore cannot sue the company under the NJLAD. They contend that the NJLAD only protects employees and not independent contractors. (Def.'s Br. in Supp. at 11.) Relying almost exclusively on materials other than the pleadings, (id. at 13-16), defendants argue that "[p]laintiff simply cannot set forth any set of facts that would render her an employee" of Exxon Research or Swiniski, (id. at 18). Therefore, a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) must be granted because plaintiff can never make out a claim entitling her to relief under the NJLAD. (Id.)

Also relying heavily on materials outside of the pleadings, (Pl.'s Br. in Opp. at 8-14), Christine Kurdyla responds that: (1) the evidence to date at least establishes "a genuine material issue" of fact on the question of whether an employer-employee relationship existed between herself and Exxon Research and Daryl Swiniski,(id. at 13.); and (2), because she has yet to begin discovery, granting this motion would be inappropriate considering the likelihood that she may uncover even more materials, such as insurance, tax, and health benefits evidence, indicating the existence of an employer-employee relationship, *fn5 (Id. at 1-2, 11-12).

DISCUSSION

A. Rule 12(b)(6) Motions to Dismiss and Reference to Mattters Outside the Pleadings

When confronted with a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, a court generally may only consider allegations in the complaint, exhibits attached to the complaint, and public records. See, e.g., Beverly Enters., Inc. v. Trump, 182 F.3d 183, 190 n.3 (1999), cert. denied, 120 S. Ct. 795 (2000); Childs v. Meadowlands Basketball Assocs., 954 F. Supp. 994, 997 (D.N.J. 1997) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)). A court has discretion to convert a Rule 12(b)(6) motion into a motion for summary judgment by considering materials extrinsic to the pleadings. *fn6 See Fed. R. Civ. Pro. 12(b); see also Childs, 954 F. Supp. at 997 (citing Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992)). A court should not convert a motion, however, when little or no discovery has occurred. See, e.g., id.; Brennan v. National Tel. Directory Corp., 850 F. Supp. 331, 335-36 (E.D. Pa. 1994) (citations omitted).

Christine Kurdyla clearly asserts in her brief that she "has not even begun the discovery process," and she further claims that she may "uncover additional and various insurance, tax and health benefit issues" indicating the existence of an employer-employee relationship between herself, Exxon Research, and Daryl Swiniski. (Pl.'s Br. in Opp. at 11.) While certain facts do support a conversion of this motion to a motion for summary judgment, *fn7 this case is at the beginning of the discovery process. Even the parties' use of materials other than the pleadings does not mandate a conversion. See, e.g., Childs, 954 F. Supp. at 997 (refusing to convert motion to dismiss to motion for summary judgment even though both parties submitted affidavits); Morris v. Azzi, 866 F. Supp. 149, 149 (D.N.J. 1994); Brennan, 850 F. Supp. at 335-36. Therefore, the Court will not convert the motion to a motion for summary judgment, and it will not consider the additional materials submitted by the parties. *fn8

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court "accept[s] as true all the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view[s] them in the light most favorable to the nonmoving party." Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Dismissal is inappropriate unless it clearly appears that plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Robb v. Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). In order to survive a Rule 12(b)(6) motion, "it is not necessary for the plaintiff to plead evidence, and it is not ...


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