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ROBINS v. MARA

January 9, 1996

FRED ROBINS, Plaintiff,
v.
MAX MARA, U.S.A., INC., MAX MARA FASHION GROUP, SpA, JOSEPH PICONE, JULIA KAFERSTEIN, ORSETTA MANTOVANI, LUIGI MARAMOTI, and FERNANDO FORNACIARI, Defendants.



The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.

 I. Facts

 Plaintiff Fred Robins ("Robins") was hired by Defendant Max Mara U.S.A., Inc. ("Max Mara USA") as a vice president in January 1987. Amended Complaint ("Am. Cplt.") P 14; Affidavit of John Gleeson, Treasurer of Max Mara USA ("Gleeson Aff.") P 6. Max Mara USA is a Delaware corporation that imports and sells women's designer clothes and accessories. It is also a wholly owned subsidiary of Defendant Max Mara Fashion Group, SpA ("Fashion Group"), a corporation organized under the laws of Italy. Gleeson Aff. P 2; Am. Cplt. P 9. Plaintiff and Defendants agree that Robins' employment with Max Mara USA was terminated as of January 1, 1993. Am. Cplt. P 34; Gleeson Aff. P 6. However, Robins contends that because of his age, medical history, and national origin, Defendants denied him top positions in the company, reduced his responsibilities, interfered with the performance of his duties, and ultimately conspired to and did terminate his employment. Am. Cplt. PP 44, 45, 47, 52, 59.

 The remaining Defendants in this action include Luigi Maramoti, the president of Fashion Group and a director of Max Mara USA (Am. Cplt. PP 15, 18); Joseph Picone, Max Mara USA's chairman and CEO until March 31, 1992 (Gleeson Aff. P 4); Fernando Fornaciari, president of Max Mara USA beginning January 31, 1992 and an officer of Fashion Group (Gleeson Aff. P 4; Am. Cplt. P 19); Orsetta Mantovani, a sales and merchandising employee of Max Mara USA and/or Fashion Group (Am. Cplt. P 8); and Julia Kaferstein, a sales merchandising executive of another wholly owned subsidiary of Fashion Group (Am. Cplt. P 7).

 Robins has sued Defendants for employment discrimination, breach of contract, tortious interference with contract, and violations of 42 U.S.C. §§ 1985(3) and 1986, which impose liability for conspiring to deprive a person of the equal protection of the laws and for failing to prevent such a conspiracy. Robins' employment discrimination claims are based on the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. (West 1985 & Supp. 1995); the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. (West 1995); Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. (West 1994); the Human Rights Law of the State of New York ("NYHRL"), N.Y. Exec. Law § 296 (McKinney 1993); the Human Rights Law of the City of New York ("NYCHRL"), N.Y.C. Admin. Code § 8-502 (N.Y. Legal Publishing Corp. 1995); and the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. § 10:5-12 (West 1995). Defendants now move to dismiss Robins' amended complaint, filed on October 12, 1993.

 II. Motion to Dismiss

 Defendants offer numerous grounds in support of their motion to dismiss. However, as shown below, consideration of two of those grounds--lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and failure to state a claim under Rule 12(b)(6)--makes consideration of the other arguments unnecessary.

 When a party moves to dismiss a complaint for lack of subject matter jurisdiction, "the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 112 S. Ct. 3020 (1992); see also Dewey v. PTT Telecom Netherlands, U.S., Inc., 94 Civ. 5983, 1995 U.S. Dist. LEXIS 10028, *3, 1995 WL 425005 at *1 (S.D.N.Y. July 19, 1995). Both Plaintiff and Defendants have supplemented the record with affidavits in this case. "This supplementation does not convert the motion into a Rule 56 summary judgment motion." Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986). Thus the pleadings, affidavits and memoranda of law have all been considered.

 III. Jurisdiction Over Discrimination Claims

 A. Burden of Proof and Jurisdictional Requirements

 It is well established that the "burden of proving jurisdictional prerequisites lies on the party who seeks the exercise of jurisdiction in his favor." Kheel v. Port of New York Authority, 457 F.2d 46, 48 (2d Cir.), cert. denied, 409 U.S. 983, 34 L. Ed. 2d 248, 93 S. Ct. 324 (1972) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 80 L. Ed. 1135, 56 S. Ct. 780 (1936)); Fulani v. Brady, 809 F. Supp. 1112, 1118 (S.D.N.Y. 1993), aff'd, sub nom. Fulani v. Bentsen, 35 F.3d 49 (2d Cir. 1994). Defendants contend that Plaintiff's federal discrimination claims should be dismissed because the Court lacks subject matter jurisdiction over those claims. Defendants' Memorandum of Law in Support of Motion to Dismiss ("Def. Mem.") at 5. Each of the three federal anti-discrimination statutes under which Robins is suing applies only to employers who have a certain minimum number of employees. Under Title VII, the minimum number of employees is fifteen; under the ADEA, an employer must have twenty employees before it is covered by the law; and under the ADA, only employers with at least twenty-five employees are bound by the law. See 42 U.S.C. § 2000e(b); 29 U.S.C. § 630(b); 42 U.S.C. § 12111(5)(A). *fn1"

 Robins was an employee of Max Mara USA. Am. Cplt. P 14. According to Defendants, Max Mara USA employed fourteen or fewer people for 46 weeks in 1991 and for 41 weeks in 1992. Def. Mem. at 5 (citing Gleeson Aff. P 5). *fn2" Robins does not dispute these numbers. Rather, he argues that Max Mara USA and Fashion Group constitute an integrated enterprise, which would normally allow a plaintiff to aggregate the number of employees of the enterprises's components in order to meet jurisdictional requirements.

 B. Meeting Jurisdictional Requirements through a Finding that Corporations Constitute an ...


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