PER CURIAM.
On March 7, 1985 plaintiff Rogers filed an age discrimination in employment case against the defendants (hereinafter Stratton), his former employer. This litigation was instituted pursuant to the provisions of Tenn.Code Ann. §§ 4-21-101, et seq., in the Chancery Court for Davidson County, Tennessee. Since complete diversity existed between the parties, the case was removed to the United States District Court for the Middle District of Tennessee on April 10, 1985.
Stratton did not file an answer after removal but, instead, on April 10, 1985, filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), alleging lack of subject matter jurisdiction. The motion was predicated upon an affidavit of the personnel manager of Stratton setting forth that at no time did Stratton ever employ eight or more employees within the State of Tennessee. Tennessee Code Annotated § 4-21-102(4) defines "Employer" as anyone "employing eight (8) or more persons within the state...."
Rogers initially filed no response to the motion to dismiss. Rule 8(b)(3) of the Local Rules for the Middle District of Tennessee provides:
Despite no timely response being filed, the district court, on May 2, 1985, set this motion for oral argument on June 6, 1985. Stratton filed a motion to ascertain status of case.
On appeal, Rogers makes three arguments: (1) the district court had subject matter jurisdiction; (2) Rogers' affidavit gave notice to the court that he opposed Stratton's motion to dismiss; and (3) if jurisdiction was not present, the case should have been remanded to state court. Since all of these arguments revolve around the procedural history of this litigation and are interrelated, we will discuss them together rather than seriatim.
Under Tennessee law, a victim of alleged employment discrimination may proceed either administratively through the Tennessee Human Rights Commission followed by judicial review, or he may file a direct action in chancery court. Hoge v. Roy H. Park Broadcasting of Tenn., Inc., 673 S.W.2d 157 (Tenn.Ct.App.1984); Tenn.Code Ann. § 4-21-311 (1985). Plaintiff here chose to bring a direct action in chancery court. It is axiomatic that a federal court sitting in a case removed under diversity jurisdiction can exercise no more or no less jurisdiction than the court from which the case was removed. Thus, the initial question raised by plaintiff translates into the question of whether the Davidson County, Tennessee, Chancery Court would have had subject matter jurisdiction over plaintiff's claim. Although deceptively easy to frame, the resolution of this issue is far from problem free.
There is no doubt that the Tennessee chancery courts generally have subject matter jurisdiction over claims of age discrimination brought pursuant to the applicable Tennessee statute. Plaintiff would argue no further than this. Inherent in plaintiff's argument is that if a motion under Fed.R.Civ.P. 12(b) was appropriate at all, it should have been one brought under Rule 12(b)(6) for failure to state a claim on which relief can be granted. Defendants, however, would argue that Tennessee chancery courts are limited in age discrimination in employment cases to those brought against employers who employ "eight (8) or more persons within the state." Tenn.Code Ann. § 4-21-102. Defendants' argument is that having eight or more employees is the jurisdictional threshold in this type of case and since they did not have eight employees within the State of Tennessee, the court had no subject matter jurisdiction.
The disagreement between the parties has ramifications which extend beyond this dispute being a mere "battle of labels." For example, in a Rule 12(b)(6) motion in which matters outside the record are relied upon as they were here,
If the defendants are correct, as a matter of Tennessee law, that the number of employees is a jurisdictional element, the district court would certainly be justified in resolving that jurisdictional question on the basis of the affidavits, with the burden on the plaintiff to establish jurisdiction. There are apparently no reported appellate decisions in Tennessee interpreting in this context that section of the Tennessee employment discrimination statute which defines "employer" as one with eight or more employees.
The next closest analogy to the Tennessee statute would be Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., which defines "employer" as a "person ... who has 15 or more employees...." Although this definition also has been the subject of litigation, that litigation has not specifically raised the question of whether a case brought against an employer who does not meet the statutory definition results in no subject matter jurisdiction for the court. It is clear, however, that courts have granted motions to dismiss based on lack of subject matter jurisdiction in cases where the employer did not fit the statutory definition. See, e.g., Fike v. Gold Kist, Inc., 514 F.Supp. 722 (N.D.Ala.1981).
Since there are no decided cases dealing directly with the question of whether meeting the Tennessee statutory definition of employer is a jurisdictional issue and since the analogous cases are only of marginal assistance, we potentially are left with the proposition of addressing a question of first impression under Tennessee law. Since we would prefer to leave such questions to the Tennessee courts initially, if possible, the question arises as to whether this appeal can be disposed of without addressing this issue directly. We conclude that it can.
Where the issue raised in a Rule 12(b) motion in an employment discrimination case is plaintiff's compliance with the statute, — for example, timely filing of a complaint — this type of issue is better raised as
There remains the question of whether the affidavit filed by the plaintiff was sufficient
675 F.2d at 362-63, n. 18 (Robinson, J., concurring).
Thus, where a court considers factual issues outside the record on a Rule 12(b)(1) motion, it must do so in a manner that is fair to the non-moving party. It cannot be overlooked, however, that with an appropriate Rule 12(b)(1) motion a court can and should resolve factual disputes.
As stated earlier, however, we choose not to resolve the jurisdictional issue as it relates to the Tennessee statute and will, instead, review this issue as if plaintiff had filed a Rule 12(b)(6) motion to ascertain if the district court erroneously proceeded to final resolution in the face of genuine issues as to material facts. We thus give plaintiff on review the benefit of the more favorable rules applicable to Rule 12(b)(6) motions as they relate to the determination of factual disputes. The issue thus must be resolvable within the four corners of the affidavits filed by the parties.
Defendant Stratton's affidavit is clear and unequivocal. Stratton's personnel manager sets forth that Stratton employs no employees in the State of Tennessee but does have one sales agent who covers part of Tennessee as part of his sales territory. Furthermore, at no time in the past has Stratton serviced Tennessee with more than one sales agent, and has never had eight or more employees within Tennessee (App. 18).
Plaintiff's counter affidavit,
We thus conclude that plaintiff's affidavit was insufficient to raise a genuine issue as to a material fact, and the complaint was properly dismissed even under the Rule 12(b)(6) and Rule 56 standards. Our conclusion that plaintiff's affidavit is deficient is further buttressed by the fact that initially
Since Stratton, employing fewer than eight persons in Tennessee, does not come within the purview of the Tennessee employment discrimination statute, we AFFIRM the trial judge's dismissal of the complaint.
FootNotes
1. I am a citizen and resident of Davidson County, Tennessee.
2. Matters contained in this Affidavit, I would testify to the same as if called in open court and it would be of my own personal knowledge.
3. I am competent to give this Affidavit.
4. At all times relevant, I was employed by Stratton Industries.
5. From my own personal knowledge, Stratton Industries has caused or required more than eight (8) of its employees or agents to be within the State of Tennessee in the course of their business.
6. At the time of my termination, Stratton Industries was doing approximately One Million Dollars worth of business within the State of Tennessee.
7. Stratton Industries sold and serviced products within the State of Tennessee.
FURTHER AFFIANT SAITH NOT.
Weeks is on point, however, and does state that if a removed case is resolved on the basis of no state court jurisdiction then the case should be remanded since if the state court has no jurisdiction the removal was improvident. We reject the holding in Weeks, however, for three reasons. First, as was stated in Plicer v. Asiatic Petroleum Co. (Texas), Ltd., 197 F.Supp. 212 (S.D.Texas 1961), the holding in Weeks was dicta since the case was actually remanded due to an untimely removal and "this dictum yields to the Fifth Circuit's later decision in Digby [v. United States Fidelity & Guaranty Co., 239 F.2d 569 (5th Cir.1957)]."
Second, both Moore and Wright, Miller, Cooper, in their treatises on federal practice, disagree with the Weeks holding:
14A C. Wright, A. Miller, E. Cooper, Federal Practice & Procedure § 3739 at 571.
Similarly, in 1A Moore's Federal Practice § 0.169(1) (2d ed.), it is stated:
Id. at 678-79.
Third, this circuit has at least by affirmance of a district court holding adopted a view contrary to Weeks. In Wamp v. Chattanooga Housing Authority, 384 F.Supp. 251 (E.D.Tenn.1974), the district court held that dismissal rather than remand — was the proper remedy in a removed case where the state court lacked jurisdiction. This holding was affirmed, albeit without informative discussion, by this court in a decision reported at 527 F.2d 595.
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