Gallagher v. VisitDays Corp.

Background

Jessica Gallagher sued VisitDays Corp. and other defendants under Title VII, the Americans with Disabilities Act, the Equal Pay Act, and the Family and Medical Leave Act. On December 6, 2022, the defendants moved to dismiss for lack of subject-matter jurisdiction. Their principal argument was that VisitDays Corp. did not have the required number of employees when Gallagher worked there. They supported that argument with evidence outside the complaint, including an employee “head count.”

The court had previously described the initial motion as “plainly frivolous.” Citing the Supreme Court’s decision in Arbaugh v. Y & H Corp., the court explained that Title VII’s employee-number requirement is an element of a plaintiff’s claim, not a jurisdictional requirement. The court noted that other courts had reached the same conclusion for the Americans with Disabilities Act and the Family and Medical Leave Act. It also stated that the Equal Pay Act did not appear to contain any numerical employee threshold. After a conference, the court denied the initial motion and allowed Gallagher to file an amended complaint.

Second motion to dismiss

After Gallagher filed her First Amended Complaint, the defendants moved to dismiss again on the same employee-number grounds. The opinion states that the second motion was filed late. The court said that, because the defendants filed the second motion after receiving the court’s earlier order and discussing the issue at a conference, the motion was “arguably sanctionable.”

The defendants also argued that some claims failed for other reasons, including that Gallagher was not discriminated against based on sex or a physical or mental condition, was not subjected to a hostile work environment, and was treated and paid equally with a male counterpart. The court characterized those arguments as largely conclusory and “entirely meritless.” It further stated that the arguments substantially relied on documentary evidence and affidavits outside the complaint, which generally may not be considered when deciding a motion to dismiss for failure to state a claim.

Ruling

Judge Jesse M. Furman denied the defendants’ motion, except to the extent it sought dismissal of Gallagher’s claims against Sujoy Roy and Jose Flores under Rule 4(m) of the Federal Rules of Civil Procedure. As to that Rule 4(m) issue, the court reserved judgment rather than granting or denying the request. Gallagher was ordered to respond to that argument, and that argument alone, by January 19, 2023; the defendants could not file a reply without the court’s permission.

Classification

This is a procedural order because it rules on motions to dismiss based on jurisdictional and pleading arguments without deciding whether Gallagher ultimately proved her employment-law claims. The opinion does not state a final ruling on the Rule 4(m) service issue.

Name and judge note

The supplied case metadata lists Barbara Moses as the judge, but the opinion text identifies and is signed by Jesse M. Furman. This summary follows the judge named in the opinion.