When a motion to dismiss has been granted by a district court against two out-of-state sales representatives, what is the relevant issue of material fact?

Therefore, if a genuine issue of material fact exists, the motion to dismiss should have been denied and the question presented to the jury. Id. Otherwise, where "a statutory right is pursued and the defense raised that the defendant does not come within the statute, judicial acceptance of the statutory defense is the death knell of the litigation and is the same as dismissal on the merits." Rogers v. Stratton Indus., Inc., 798 F.2d 913, 916 (6th Cir.1986). Thus, it was improper for the district court to grant the motion to dismiss unless relevant facts as to the status of the out-of-state sales representatives were not in dispute. ²