Rohde v. Rippy Surveying Co ( 1997 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-50324
(Summary Calendar)
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GEOFFREY E ROHDE,
Plaintiff-Appellant,
versus
RIPPY SURVEYING COMPANY; C P RIPPY, President;
CLINTON LAMONT RIPPY; VERNON HILTON KIRBY,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Texas
(A-97-CV-14)
November 19, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
The plaintiff, Geoffrey Rohde, appeals the district court’s
dismissal of his employment discrimination claim brought under
Title VII of the 1964 Civil Rights Act. 42 U.S.C. §§ 2000e to
2000e-17. Rohde appeals only that portion of the district court’s
judgment dismissing his claim against Rippy Surveying Company, the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
corporate defendant; he does not appeal the district court’s
dismissal against the individual defendants.
The district court dismissed Rohde’s claim against Rippy
Surveying Company under FED. R. CIV. P. 12(b)(1) because Rohde
failed to produce competent evidence that Rippy Surveying Company
had at least 15 employees))a necessary requirement for subject
matter jurisdiction in a Title VII claim. The only evidence before
the district court relating to its subject matter jurisdiction
consisted of affidavits submitted by the defendants with their
motion to dismiss, attesting to the fact that Rippy Surveying
Company employed fewer than 15 employees.
In Rohde’s response to the defendants’ motion to dismiss, he
did not dispute that Rippy Surveying Company had less than 15
employees; he claimed instead that Rippy Surveying Company and
several other companies should be considered a “single entity” for
Title VII purposes. See Trevino v. Celanese Corp., 701 F.2d 397,
403-04 (5th Cir. 1983) (setting forth a four-part test for deciding
when different companies should be considered a “single integrated
enterprise” under Title VII). In his motion, Rohde discussed and
made reference to several exhibits and affidavits that allegedly
supported his “single entity” theory. He incorrectly assumed that
those exhibits were in the record, and he did not attach them to
his motion or in any way put them before the district court in this
action.1 Consequently, on the evidence before it, the district
1
Instead, the referenced exhibits were attached to a
complaint in an earlier proceeding that had been dismissed for
failure to exhaust administrative remedies and that was before a
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court correctly dismissed this action for lack of subject matter
jurisdiction under FED. R. CIV. P. 12(b)(1).2
We AFFIRM.
different judge. The district court correctly concluded that the
exhibits were not in the record and not properly before the court.
FED. R. CIV. P. 8, 10. Moreover, although Rohde reattached his
original exhibits to his brief on appeal, they are not part of the
record on appeal and we cannot consider them. See FED. R. APP. P.
10(a); Topalian v. Ehrman, 954 F.2d 1125, 1132 & n.10 (5th Cir.
1992); Munoz v. International Alliance of Theatrical Stage
Employees and Moving Picture Mach. Operators, 563 F.2d 205, 209
(5th Cir. 1977).
2
While the district court did not explicitly state that
the dismissal was without prejudice, a dismissal under FED. R. CIV.
P. 12(b)(1) is not a decision on the merits, and in this case,
permits the plaintiff to pursue his claim in the same or another
forum if he can establish the facts that give the court subject
matter jurisdiction. See Hitt v. City of Pasadena, 561 F.2d 606,
608 (5th Cir. 1977); 5A CHARLES ALAN WRIGHT AND ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1350 at 225 (2d ed. 1990); see also Williamson
v. Tucker, 645 F.2d 404, 414 (5th Cir. 1981) (“Insofar as the
defendant’s motion to dismiss raises factual issues, the plaintiff
should have an opportunity to develop and argue the facts in a
manner that is adequate in the context of the disputed issues and
evidence.”).
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