Free Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.03-CV-02073-WDM-PAC ROBERTA PULSE, TONYA. HOUSE, Plaintiffs, v. THE LARRY H. MILLER GROUP, Defendant. _____________________________________________________________________ PLAINTIFFS' SUBMISSION REGARDING COURT'S REQUEST FOR INFORMATION REGARDING PROPER PARTY ______________________________________________________________________ Plaintiffs respectfully submit this response to the Court's request regarding additional information as to the proper party, and state as follows: Introduction During the trial preparation conference held on December 22, 2005, the Court asked Plaintiffs for additional information regarding the proper party for purposes of subject matter jurisdiction over this case. Two issues are dispositive of this matter: 1. Whether Defendant Larry H. Miller Group was Plaintiffs "employer" for purposes of Title VII liability; and Whether there is sufficient evidence that Defendant Larry H. Miller Group had the statutory requisite of 15-employees for purposes of subject matter jurisdiction.

2.

The answer to both of these questions is yes ­ Defendant was their employer, and the evidence demonstrates that Defendant had 15-employees at all times relevant

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to this case. For these reasons, and those stated below and in this Court's prior rulings, this Court has subject matter jurisdiction over The Larry H. Miller Group. A. This Court Has Ruled that Plaintiffs Have Produced Sufficient Evidence that The Larry H. Miller Group Was Their Employer for Purposes of Title VII Liability. 1. Defendant is Part of an Integrated Enterprise.

Separate entities that form an integrated enterprise are treated as a "single employer" for purposes of both Title VII coverage and liability. EEOC Compliance Manual, § 2-III(B)(1)(a)(iii)(a). Cf Knowlton v. Teltrust, Inc., 189 F.3d 1177, 1184 & n.8 (10th Cir. 1999). If a charge is filed against one of the entities, relief can be obtained from any of the entities that form part of the integrated enterprise. EEOC Compliance Manual, § 2-III(B)(1)(a)(iii)(a).1 This Court has applied Knowlton and found that Plaintiffs have presented evidence in support of the factors to show identity of interest between Defendant Larry H. Miller Group ("LHM Group"), Larry H. Miller Corp.-Denver ("Denver LHM dealerships"), and Larry H. Miller Management Co. ("LHM Management Co.) sufficient to deny Defendant's motion to dismiss Defendant Larry H. Miller Group based on subject matter jurisdiction.2

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Citing Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1069 (10th Cir. 1998); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391 (8th Cir. 1977); Lyes v. City of Riviera Beach, 166 F.3d 1332, 1342 (11th Cir. 1999) (en banc); Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240-41 (2d Cir. 1995); Garcia v. Elf Atochem N. Am., 28 F.3d 446, 450 (5th Cir. 1994). See Recommendation of United States Magistrate Judge, Doc. 113-1, 6/20/05, pp. 8-15 (applying 4factor test of: 1) interrelation of operations; 2) centralized control over labor relations; 3) common management; and 4) common ownership or financial control. See also, Order on Recommendation of Magistrate Judge, Doc. 132, 9/30/05, p. 5.
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Plaintiffs agree with Defendant's contention that there is only one named Defendant in this lawsuit ­ The Larry H. Miller Group. Under Knowlton and the EEOC Compliance Manual, "relief can be obtained from any of the entities that form the integrated enterprise." EEOC Compliance Manual, §2-III(B)(1)(a)(iii)(a)(citations

omitted). In this case, Plaintiffs seek relief from Defendant Larry H. Miller Group. 2. The Holder of a Trade Name is Capable of Being Sued and Satisfying a Judgment

Defendant contends that The Larry H. Miller Group is not a legal entity capable of being sued. It does not, however, dispute that it is a trade name used on behalf of a legal entity. It cannot, since the State of Utah has issued a "Certificate of Existence" confirming that it is a d/b/a, as well as a "Certificate of Fact" confirming that the only principal holder of the d/b/a is Landcar Management, Ltd. See Ex. 1 & 2, attached; See also, Ex. 3, Utah Department of Commerce Business Entity Search. Using a trade name does not insulate a company from liability for its actions, especially for violations of important civil rights statutes like Title VII which are to be liberally construed. Cf Wheeler v. Hurdman, 825 F.2d 257, 262 (10th Cir. 1987)("In our review of the antidiscrimination laws we must be mindful of their remedial purposes, and liberally interpret their provisions to that end"). Such liberal construction is also to be given to the definition of `employer.'" Owens v. Rush, 636 F.2d 183, 187 (10th Cir. 1980). Under FED.R.CIV.P. 17(b), the capacity to be sued shall be determined by the law in which the district court is held, where the entity is not an individual, corporation, or receiver. Additionally, a partnership or other unincorporated association may be sued in 3

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its common name for the purpose of enforcing for or against it a substantive right existing under Title VII. Id. corporation or receiver. Defendant Larry H. Miller Group is not an individual,

It is a trade name for Landcar Management, Ltd. Thus,

Colorado statutory law applies here. It is black letter law that in Colorado: An entity transacting business under a trade name shall be liable in connection therewith to the same extent and in the same manner as if that business were transacted under its true name or entity name. The entity may be sued in connection therewith either under its true name, its entity name, or its trade name. C.R.S. §7-71-101(4)(Emphasis supplied). A suit by or against a company may be brought under the name in which it transacts business, including an assumed or fictitious name. Cf. Millers Super Markets v. Hobart, 482 P.2d 413 (Colo. Ct. App. 1971)(corporation operating a store may be sued under the store name which appears in the store's newspaper advertisements). If a corporation is sued under the name it does business, process is sufficient to bring it within the jurisdiction of the court. Sam's Wholesale Club v. Riley, 241 Ga App 693, 527 SE2d 293 (1999). A judgment obtained against a corporation in its assumed or trade name may be enforced against it in its legal name. American Exp. Travel Related Services Co. v. Berlye, 202 Ga App 358, 414 SE2d 499 (1991); See Also Mcall v. IKON et al, 363 S.C. 646, 654 (S.C.App. 2005)(affirming default judgment, court ruled that use of corporation's trade name did not invalidate service); Lifestar Response of Alabama, Inc. v Lemuel, 908 So.2d 207, 217 (Ala.2004)(default judgment against trade name holder affirmed).

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In IKON (as in the case at bar), appellant/defendant asserted that the entity named in the complaint, "IKON Education Services," was "merely a division of IKON Office Solutions Technology Services, LLC," and that it was "not a legal entity capable of being sued." The Court rejected the company's argument, affirmed default judgment, and reasoned that defendant's argument would require a "technical analysis" of when a corporation may be said to "exist." Further the court found that the company was painting itself as a "hapless victim of mistaken identity, going about its business and never imagining that anyone would attempt to sue them under a name that is not officially or legally `recognized' as a corporation that `exists'" in that state. Id. The court recognized that: "a suit at law is not a children's game, but a serious effort on the part of adult human beings to administer justice; and the purpose of process is to bring parties into court. If it names them in such terms that every intelligent person understands who is meant, as is the case here, it has fulfilled its purpose." Id. The court found that the company was neither misled nor otherwise prejudiced by the use of the trade name. Id. In this case, the holder of the trade name, Landcar Management, Ltd. prominently held itself out as The Larry H. Miller Group such that a General Manager used the names interchangeably during the course of this legal proceeding.3 Even the Operations Manager for the Larry H. Miller Group used the

A: ". . . like I said, that's why I addressed her immediately, said "Look, if there's something we need to address, let's do it right now. Let's call HR and address it right now . . . I remember calling Landcar . . . " Q: Who did you speak with at Landcar? A: You know, I guess if I had to guess it would be Tony. I spoke to Tony most of the time about the day-to-day operational issues. Tony and I talked quite frequently, as I did with most of the Larry Miller Group. . . I spoke to them on a pretty regular basis, probably, I would say, two to three times as day. Q: You spoke with Tony Schnurr two to three times a day with regard to operational issues? A. No with

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names interchangeably and confused the entities. Pat Kroneberger testified that he works for the Automotive Division of the Larry H. Miller Group, that the Automotive Division is part of "Larry Miller," and that Landcar is a division or subsidiary.4 See Kroneberger Depo, at p. 12, ll 1, p. 13, ll 1-21. Moreover, just as in IKON, this Court has found on more than one occasion that the confusion as to the proper parties has been created by the company.5 Because this Court has ruled that Plaintiffs have adduced enough evidence to satisfy the "single employer" test for the purposes of liability of Defendant Larry H. Miller Group, and because Colorado law holds an entity transacting business under a trade name liable to the same extent as if it were transacted under its true name, The Larry H. Miller Group is a proper party to this lawsuit, and this Court has subject matter jurisdiction. The Court should not permit these entities to avoid Title VII liability by allowing corporate shell games.
people in the corporate office in some form or fashion. One of the things that the Larry Miller Group is really great about is you can always just pick up a phone and get some sort of help with whatever kind of issue that you have." See Cockerham depo Doc. 192, p. 33, ll 6-12; 18-25; p. 34, ll 1-13, 12/21/05.
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Q: What is your current position? A: Operations manager. Q: For what entity? A: For the automotive division, and I also am the finance director. Q: For what entity? A: The automotive division. Q: The automotive division is part of what entity? A. It's -- that is the division. Q. It's a division of a company? A. Well, there are two separate divisions in Larry Miller, sports and entertainment, and automotive. So it's -you have the car side and you have the Jazz and concerts. Q. You work for the automotive division of the Larry H. Miller Group? A. Yes. Q. Do you work for Landcar? A. No. Well, no, I work for Larry H. Miller Management. Landcar is a division -- once again, it's a division of the automotive, say, subsidiary, if you will.

"Plaintiffs were misled by respondent LHM Management Co.'s statement in response to Plaintiff House's EEOC Charge that she was employed by the LHM Group." Recommendation, Doc. 113-1, 6/20/05, p. 28. See also Order on Recommendation, ("As discussed below and in the Recommendation, there is dispute as to the status of Larry H. Miller Corp. ­ Denver as a defendant. The defendant has greatly complicated this issue by filing some motions listing both LHM Group and LHM Corp. in the caption and referring to "defendants" in the plural"). Order, Doc. 132, 9/30/05, p. 1, n. 1.

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2.

Sufficient Evidence Confirms 15-Employee Requirement

In addition to meeting the definition of "employer" under the "single employer test" applied by this Court at summary judgment, Defendant Larry H. Miller Group meets the statutory requirements of 15-employees by virtue of Defendant's own admissions, sworn testimony by Plaintiffs, and application of the "single-employer" test for purposes of counting employees. An employer is covered under Title VII if it has 15 or more employees for each working day in each of 20 or more calendar weeks in the same calendar year as, or in the calendar year prior to when, the alleged discrimination occurred. 42 U.S.C.§ 2000e(b); EEOC Compliance Manual, § 2-III(B)(1)(a)(i). If an employer does not have the minimum number of employees to meet the statutory requirement, it is still covered if it is part of an "integrated enterprise" that, overall, meets the requirement by adding the employees of the related entities. See EEOC Compliance Manual, § 2-III(B)(1)(a)(iii)(a). As noted above, this Court has

applied Knowlton and found that Plaintiffs have presented evidence in support of the factors to show an integrated enterprise/single employer. With respect to the 15-employee requirement, Defendant Larry H. Miller Group admitted in its Answer: "The Defendant admits that at all material times it was doing business in Colorado and had over 15 employees." Defendant's Answer, p. 2, ¶5, 11/5/04. Defendant also admits that it engaged in commerce. Id. at p. 2, ¶6. By presenting these facts to the Court in a pleading, Defendant and its counsel certified their veracity under Rule 11. See FED.R.CIV.P. 11. 7

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Additionally, Plaintiff Roberta Pulse served as Comptroller/Office Manager at the Denver dealerships, where she was responsible for supervising payroll. See Pulse Exhibit, attached, Ex. 4, at ¶ 1. Her sworn testimony confirms that during the relevant time periods, between 80 ­ 100 employees worked at the Denver LHM dealerships. Id. at ¶ 4. At no time during her employment did the Denver LHM dealerships employ fewer than 15 employees. Id. As noted above, under the "integrated enterprise"/"single employer" doctrine, the employees of the Denver dealerships may be added to the employees of The Larry H. Miller Group to meet the 15-employee statutory requirement. See EEOC Compliance Manual, § 2-III(B)(1)(a)(iii)(a)(citations omitted). According to the sworn testimony of Plaintiff Tonya House, who served as Finance Manager at the Denver LHM dealerships, between January 1999 and June 2001, there were, on average, 90 employees at any given time, and there were never fewer than 15 employees during her employment. See House Affidavit, Ex 5, ¶ 2. Ms. House has listed by name several employees, as well as a list of corporate employees to whom department managers reported directly. Id. Vice President Pat Kroneberger testified that the "corporate management team" is comprised as follows: 1) Pat Kroneberger, Vice President of Operations; 2) Richard Nelson, COO; 3) Bryant Henry, Vice President of Operations; 4) Tony Schnurr, Vice President of Operations; 5) Clark Whitworth, CFO, 6) Jack Muterspaugh, Service Departments; 7) Dan Ware, Parts Department; 8) Linda Jeppeson, Human Resources; 9) Carolyn Ashburn, Special Projects; 10) Dan Curtis, Head of Landcar; 11) Robert 8

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Tingey, Counsel; 12) Jim Shoenfeld, IS Director; 13) Al Fernelius, Accounting; 14) Brent Barrett, Accounting; 15) Richard Dickert, Accounting; 16) Paul Nygaard, LHM Advertising, 17) Erwin Ashenfelter, Real Estate Projects; 18) Dave Monson, Federal Programs; 19) Graham Litzbiley, "constantly out in the dealerships educating them." See Kroneberger Depo, Doc. 194, 12/21/05, at p. 30, ll 4-25; p. 31, ll 1-14. Adding these 19 corporate management employees with 80 or more employees at the Denver dealerships exceeds the statutory minimum employees for Title VII employer coverage. Accordingly, based on Defendant's Admission in its Answer, the sworn testimony of Ms. Pulse, Ms. House, General Manager Cockerham, and Vice President Kroneberger, the 15-employee requirement has been met and this Court has subject matter jurisdiction. The Jury Should Determine Any Disputed Factual Issues Alternatively, should this Court find that there is not enough evidence in the record to confirm that The Larry H. Miller Group was Plaintiffs' employer, either through the "single employer" test, or based on the 15-employee requirement, or should this Court find conflicting evidence, the proper procedure for a district court is to assume jurisdiction and utilize the standards associated with a 12(b)(6) motion or Rule 56 motion for summary judgment and permit the factual determinations to be decided by the jury. Garcia.v Copenhaver, Bell & Assoc., 104 F.3d 1256, 1273 (11th Cir. 1997). In Garcia, the Eleventh Circuit determined that the question of whether a company was an "employer" for purposes of the ADEA, was a question for the jury because the federal anti-discrimination law provided the basis for subject matter 9

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jurisdiction, and the determination of jurisdiction was "intertwined with the merits." Id. The court recognized that both Title VII and ADEA's definitions of "employee" are virtually identical. Id. Reversing the district court's summary judgment based on subject matter jurisdiction, the court relied on Tenth Circuit authority. Id., citing Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987) ("We find that the determination of whether [plaintiff] qualifies as an employee under the federal discrimination statutes is both a jurisdictional question and an aspect of the substantive claim in her discrimination action."). The court found that there were disputed issues of fact as to the definition of "employer," and concluded that because genuine issues of material fact exist, the motion to dismiss based on subject matter jurisdiction should have been denied and the question presented to the jury. Similarly, should this Court determine that insufficient evidence has been presented as to subject matter jurisdiction, because Title VII provides both the substantive law and jurisdiction in this matter, the Court should permit Plaintiffs to develop the record and present these issues to the jury. Dated this the 28th day of December, 2005.

RESEPECTFULLY SUBMITTED, Kimberlie K. Ryan s/ Kimberlie K. Ryan for Ryan Law Firm, LLC 283 Columbine St. #157 Denver, CO 80206 Tele: (303) 355-0639 Fax: (303) 355-3020 10

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E-mail: [email protected] Whitney C. Traylor W.C. Traylor & Associates, LLC 700 E. 24th Ave., #1 Denver, Colorado 80205 Office: (303) 321-1862 Fax: (303) 837-1214 Email: [email protected] ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE I certify that on the 28th day of December, 2005, I electronically filed the Plaintiffs Submission Regarding Court's Request for Information Regarding Proper Party with the Clerk of Court using the CM/ECF system, which will send notification to the following addresses to counsel of record; Judy Holmes, [email protected] Steven M. Gutierrez, [email protected] Christopher M. Leh, [email protected]

s/ Kimberlie K. Ryan

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