Opinion
01 Civ. 10592 (DAB)(FM)
December 10, 2002
REPORT AND RECOMMENDATION
I. Introduction
This action arises out of an alleged sexual assault in Florida in September 2001. The following month, Plaintiff Patricia Wilson ("Wilson") instituted a lawsuit against Ronald Hale ("Hale"), the alleged aggressor, and Danka Corporation ("Danka"), which employs both Wilson and Hale. The action was commenced in Supreme Court, New York County, by the filing of a summons with notice. (See Def.'s Not. of Removal Ex. A (Summons with Notice)).
On or about November 21, 2001, the defendants removed the state court action to this Court pursuant to 28 U.S.C. § 1441(a). Thereafter, Wilson filed a complaint, (Docket No. 3), which Hale has now moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and (b)(6) for lack of personal jurisdiction and failure to state a claim upon which relief may be granted. Danka also has moved to dismiss the complaint on the latter ground. For the reasons set forth below, both motions should be granted, but Wilson should be granted leave to replead two of her claims against Danka if the facts warrant the renewal of those claims.
II. Background A. Facts
According to the complaint, Wilson and Hale are both employees of Danka, a corporation that sells office supplies. (See Compl. ¶¶ 2, 3). Defendant Hale is a regional sales manager and, as such, is one of Wilson's superiors. (Id. ¶ 3).
In September 2001, Danka officials in New York instructed Wilson to attend a convention of sales managers and directors in Tampa, Florida. (Id. ¶ 9). The attendees were expected to socialize and mingle with other participants, including supervisors, both "during and after scheduled meetings." (Id.).
During the convention, Hale made sexual advances toward Wilson which she rejected. (Id. ¶ 14). Wilson contends that her refusal angered Hale, who later sexually and physically assaulted her in a taxi cab in the presence of other men. (Id. ¶¶ 15, 16). Hale also threatened Wilson with further abuse. (Id. ¶ 17). As a result, Wilson feared for her safety and felt forced to leave the convention and return to New York. (Id. ¶ 20).
Danka was aware that Hale had previously assaulted another Danka employee, but did nothing in response to the prior assault and failed to "punish, reprimand or in any way rebuke" Hale for his attack on Wilson. (Id. ¶¶ 11, 12, 19).
B. Complaint
Wilson's complaint contains four claims arising out of the Florida incident.
In her first claim for relief, Wilson seeks to recover dam ages from Hale for the assault and battery and to hold Danka responsible for Hale's misconduct on a respondeat superior theory. (Id. ¶¶ 2-22). Wilson's second claim alleges that both Defendants negligently violated their duty to protect her safety during her employment. (Id. ¶¶ 23-26). Wilson's third claim is that the Defendants created a hostile work environment in violation of Section 296 of the New York Executive Law ("Human Rights Law"). (Id. ¶¶ 27-31).
Finally, in her fourth claim, Wilson alleges that both Defendants breached her "employment contract" with Danka by endangering her safety and failing to respond in a meaningful way to the Florida incident. (Id. ¶¶ 32-35). For these alleged wrongs, Wilson seeks compensatory and punitive damages of more than $380,000. (Id. ¶ 22).
III. Discussion A. Personal Jurisdiction 1. Standard of Review
A plaintiff opposing a motion to dismiss a complaint pursuant to Rule 12(b)(2) for lack of personal jurisdiction "bears the burden of establishing that the court has jurisdiction over the defendant." DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001) (quoting Bank Brussels Lambert v. Fiddler Gonzalez Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999)); Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 2d 3 Cir. 1994); Marsalis v. Schachner, 2002 WL 1268006, at * 2 (S.D.N.Y. June 6, 2002); Kahn Lucas Lancaster, Inc. v. Lark Int'l Ltd., 956 F. Supp. 1131, 1134 (S.D.N.Y. 1997).
The showing required varies depending upon the procedural posture of the case. Prior to discovery, the plaintiff need only make a prima facie showing of facts which, if proved, would be sufficient to establish personal jurisdiction over the defendant, and any pleadings and affidavits considered by the Court must be interpreted in the light most favorable to the plaintiff. See Bank Brussels, 171 F.3d at 784; PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997); A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993); First Wall Street Capital Corp. v. Int'l Prop. Corp., 1998 WL 338105, at *3 (S.D.N.Y. June 24, 1998). On the other hand, if an evidentiary hearing is held after jurisdictional discovery has been taken, a plaintiff must demonstrate the existence of personal jurisdiction over the defendant by a preponderance of the evidence.
Metro. Life, 84 F.3d at 567; Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir. 1984). Under either alternative, in assessing whether there is a basis for personal jurisdiction, courts must be "mindful that personal jurisdiction inquiries are 'necessarily fact sensitive because each case is dependent upon its own particular circumstances.'" PDK Labs, 103 F.3d at 1108 (quoting Landoil Res. Corp. v. Alexander Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1991)).
2. Applicable Law
Subject matter jurisdiction in this case is predicated on diversity of citizenship. (See Compl. ¶ 1). In a diversity action, the Court must first apply the "long-arm" jurisdiction statute of the forum state to determine whether it has personal jurisdiction over a non-resident defendant. See Agency Rent A Car Sys., Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir. 1996); Savin v. Ranier, 898 F.2d 304, 306 (2d Cir. 1990); Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir. 1963); Stevens v. Mad River Holdings, LLC, 2002 WL 826959, at *2 (S.D.N.Y. May 1, 2002); PaineWebber Inc. v. WHV, Inc., 1995 WL 296398, at *2 (S.D.N.Y. May 16, 1995).
Here, the relevant New York long arm statutes are Sections 302(a)(2) and (a)(3) of the New York Civil Practice Law and Rules ("CPLR"). Thereafter, even if the Defendants' activities are found to meet the statutory requirements, the Court must determine whether the exercise of jurisdiction comports with the requirements of due process. Met. Life, 84 F.3d at 567.
In this case, Hale has not raised any constitutional concern that his contacts with New York State are so attenuated as to offend the "minimum contacts" test of Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).
Consequently, the only issue to be addressed is whether the statutory requirements for long-arm jurisdiction have been met. See Kahn Lucas, 956 F. Supp. at 1134.
a. CPLR § 302(a)(2)
CPLR § 302(a)(2) permits this Court to exercise jurisdiction over a non-domiciliary who commits a tortious act within the State of New York. "At minimum, to qualify for jurisdiction under this subsection, 'a defendant's act or omission [must have] occur[red] within the State.'" Bank Brussels, 171 F.3d at 789-90 (brackets in original) (quoting Kramer v. Vogl, 17 N.Y.2d 27, 31, 267 N.Y.S.2d 900, 903 (1966)).
In her opposition papers, Wilson suggests that Hale's wrongful conduct occurred not only in Florida, where he allegedly had her ejected from the convention, but also in New York because she was reprimanded upon her return there. (See Wilson Mem. at 8). Hale's alleged assault on Wilson and his subsequent "expulsion" of her from the convention, however, unquestionably took place in Florida. The fact that the consequences of these alleged acts may have continued in New York does not make New York the site of the tort. See, e.g., Barricade Books, Inc. v. Langberg, 2000 WL 1863764, at *3 (S.D.N.Y. Dec. 19, 2000) ("As a general matter, personal jurisdiction under § 302(a)(2) only exists for torts physically committed in New York state."); Longines-Wittnauer Watch Co. v. Barnes Reinecke, Inc., 15 N.Y.2d 443, 464, 261 N.Y.S.o.2d 8, 24 (1965) ("[§ 302(a)(2)] covers only a tortious act committed (by a nondomiciliary) in this State"). Wilson therefore has failed to demonstrate that this Court may exercise jurisdiction over Hale pursuant to CPLR § 302(a)(2).
b. CPLR § 302(a)(3)
For this court to exercise jurisdiction over a nondomiciliary under CPLR § 302(a)(3), several conditions must be met: first, the defendant must commit a tortious act outside of New York; second, the plaintiff must sustain an injury in New York as a result of the tortious act; and third, the defendant must either (a) solicit business, engage in persistent conduct, or derive substantial revenue from goods or services used or consumed in the state; or (b) derive substantial revenue from interstate commerce and reasonably expect his tortious act to have consequences in New York. In this case, Wilson has failed to show that Hale either engages in regular business in New York or derives a substantial portion of his revenue from interstate or international commerce.
CPLR § 302(a)(3) provides, in pertinent part, that:
As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent:
3. commits a tortious act without the state causing injury to person or property within the state . . . if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.
Even if Wilson had alleged a sufficient nexus between Hale and the State of New York, her claim against Hale would fail because Hale's tortious act did not cause an injury in New York. To determine whether an injury occurred in New York for the purposes of CPLR § 302(a)(3), courts apply a "situs of injury" test, "which asks them to locate the original event which caused the injury." DiStefano, 286 F.3d at 84 (quoting Bank Brussels, 171 F.3d at 791) (internal quotations omitted). "The situs of injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff." Hermann v. Sharon Hosp., Inc., 135 A.D.2d 682, 683, 522 N.Y.S.2d 581, 583 (2d Dep't 1987). The Second Circuit has held that the original event is distinct from the tortious act, and occurs "where the first effect of the tort . . . that ultimately produced the final economic injury is located." DiStefano, 286 F.3d at 84-85 (quoting Bank Brussels, 171 F.3d at 792) (internal quotations omitted).
As noted earlier, Wilson contends that she was "battered" during the assault and was forced to leave the Florida convention and return to New York. (See Compl. ¶ 20; Wilson Mem. at 3). Thus, the first effect of Hale's assault against Wilson occurred in Florida, which is the situs of the injury. Consequently, even if Wilson could demonstrate that Hale had sufficient contacts with New York, this Court could not exercise jurisdiction over her claims against him pursuant to § 302(a)(3) because the injury that he allegedly caused did not occur in New York.
In sum, because this Court lacks a basis for exercising long-arm jurisdiction over Hale, the claims against him must be dismissed.
Wilson obviously is not precluded from instituting a further action against Hale in a jurisdiction which would have personal jurisdiction over him.
B. Failure to State a Claim Against Danka Corp.
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court must accept as true all factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. See Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999); Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). The Court may grant the motion only when "it appears beyond doubt . . . that the plaintiff can prove no set of facts [in support of his claim] which would entitle him to relief." Secs. Investor Prot. Corp. v. BDO Seidman, LLP, 222 F.3d 63, 68 (2d Cir. 2000) (quoting Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992).1. First Claim — Respondeat Superior
Under New York law, an employer is vicariously liable for the tortious acts of its employee only when those acts were committed "in furtherance of the employer's business and within the scope of employment." N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 351 (2002). Accord Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (citing Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 302-03 (1979)), Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). It follows that an employer cannot be held liable for "torts committed by the employee for personal motives unrelated to the furtherance of the employer's business." Salvatore v. KLM Royal Dutch Airlines, 1999 WL 796172, at *4 (S.D.N.Y. Sept. 30, 1999) (citing Tomka, 66 F.3d at 1317). The determination as to whether an employee's actions fall within the scope of his employment "is so heavily dependent on factual considerations [that] the question is ordinarily one for the jury." Corson v. City of New York, 290 A.D.2d 408, 410, 736 N.Y.S.2d 71, 73 (2d Dep't 2002) (quoting Riviello, 47 N.Y.2d at 303, 418 N.Y.S.2d at 303). Nonetheless, it is well-settled that "sexual misconduct and related tortious behavior arise from personal motives and do not further an employer's business, even when committed within the employment context."
Salvatore, 1999 WL 796172, at *4 (quoting Ross v. Mitsui Fudosan, Inc., 2 F. Supp.2d 522, 531 (S.D.N.Y. 1998)). See also N.X., 97 N.Y.2d at 251, 739 N.Y.S.2d at 351 (sexual assault by hospital employee not within the scope of employment); Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933, 693 N.Y.S.2d 67, 68 (1999) (same); Paul J.H. v. Lum, 291 A.D.2d 894, 895, 736 N.Y.S.2d 561, 562 (4th Dep't 2002) (priest's alleged sexual assault of child not within scope of employment); Koran I. v. N.Y.C. Bd. of Educ., 256 A.D.2d 189, 191, 683 N.Y.S.2d 228, 230 (1st Dep't 1998) (volunteer teacher's molestation of student not within scope of employment).
Therefore, as a matter of law, Danka cannot be held liable for Hale's sexual assault against Wilson, or any related conduct, on a theory of respondeat superior.
2. Human Rights Law Claim
Wilson also alleges that Danka created a hostile work environment claim in violation of the Human Rights Law. This claim must be dismissed because it does not meet the statute's jurisdictional requirements.
Pursuant to Sections 298-a(1) and (2) of the New York Executive Law, the coverage of the Human Rights Law extends to acts occurring outside New York provided that they are committed (i) against New York residents or corporations, or (ii) by New York residents or domestic corporations. Here, both parties evidently agree that Wilson is not a resident of New York. (See Wilson Mem. at 9 n. 1; Danka Mem. at 3). Moreover, the undisputed facts show that Hale is not a New York resident. (See Hale Decl., dated Mar. 6, 2002, ¶¶ 3-4) ("I have only been to New York on one occasion . . . [a]pproxi-mately seven (7) years ago"). Wilson nevertheless seeks to pursue her Human Rights Law claim on the theory that Danka should be considered a domestic corporation under Section 298-a(2). (See Wilson Mem. at 5). To the extent that Wilson is basing this claim on the theory that any American corporation is a "domestic" corporation, she plainly is wrong.
Originally, in the notice of removal and Wilson's state court summons, the parties represented that Wilson was a resident of New York. (See Not. of Removal ¶ 5 Ex. A). More recently, in their respective memoranda, Wilson and Hale both state that Wilson is, in fact, a resident of New Jersey. (See Wilson Mem. at 9 n. 1; Danka Mem. at 3). Although the latter representation is not set forth within the four corners of the complaint, or any attachments thereto, since it evidently is undisputed, I have assumed that it is true.
At the outset, although the New York Executive Law does not define a "domestic corporation," CPLR § 105 indicates that the term is applicable to "a corporation created by or under the laws of the state, or a corporation located in the state and created by or under the laws of the United States." In keeping with that definition, state courts in New York have consistently viewed corporations chartered by Congress as corporations "created by or under the laws of the United States" and, therefore, as domestic corporations. See, e.g., Grossman, Inc. v. David W. Gentile Post No. 618 of Am. Legion, 262 N.Y.S. 806 (1st Dep't 1933) (American Legion post "occupies the status of a domestic corporation"); Home Owners' Loan Corp. v. Barrone, 298 N.Y.S. 531, 534 (Sup.Ct. 1937) ("a corporation duly formed by an act of Congress is not a foreign corporation, any more than an act of Congress is a foreign law"); In re Keene's Estate, 273 N.Y.S. 532, 534 (Surr.Ct. 1934) (Bank of America National Association, having been created by an act of Congress, is a domestic corporation).
In this case, Wilson has not alleged that Danka was incorporated in New York or under the laws of the United States. Consequently, because: (1) the alleged incident occurred outside of New York, (2) Wilson is not a New York resident, and (3) there has been no showing that Danka is incorporated in New York, Wilson has not shown, as she must, that the conduct complained of meets the jurisdictional requirements of the Human Rights Law.
Although the complaint does not reveal Danka's state of incorporation, Danka's notice of removal states that the company was incorporated in Delaware and operates principally in Florida. (See Def.'s Not. of Removal ¶ 6). Evidently recognizing that Danka is not a New York corporation, Wilson argues, in the alternative, that the hostile work environment that she allegedly was subjected to in Florida also existed in New York by virtue of Danka's failure to warn her of Hale's propensities and its instruction that she attend the Florida convention. (See Wilson Mem. at 4).
To establish a hostile work environment, a plaintiff must show that her workplace is "permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986)) (internal brackets and quotation marks omitted). Title VII does not impose a general civility code.
See Farragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2283-84, 141 L.Ed.2d 662 (1998) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998)). Thus, occasional episodes of harassment do not reach the level of proof required to establish a hostile work environment claim.
Brennan v. Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999).
In this case, the two limited acts of Danka that Wilson relies on, even if established, plainly would not be sufficient to show that a violation of the Human Rights Law occurred in New York State. Accordingly, Wilson cannot avoid the operation of Section 298-a of the Executive Law, and her Human Rights Law complaint must be dismissed.
3. Negligence Claim
Wilson next contends that Danka acted negligently and breached its duty to provide her with a safe working environment by failing to warn her about Hale's past behavior. This claim is barred by Section 11 of the New York Workers' Compensation Law, which provides that Workers' Compensation is the exclusive remedy available to employees injured during the course of their employment. See Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997) (Workers' Compensation Law bars employee's negligence claim based on hostile work environment); Bass v. World Wrestling Fed'n Entm't, Inc., 129 F. Supp.2d 491, 510 (E.D.N.Y. 2001) (plaintiff's claim that employer negligently failed to maintain workplace free from sexual harassment is barred by exclusive remedy of Workers' Compensation).
4. Breach of Employment Contract
Wilson's fourth and final claim is for breach of contract. Specifically, she contends that Danka breached its employment contract with her by (i) forcing her to socialize with Hale despite its knowledge of his history of violence against women, and (ii) failing to respond appropriately after Hale's assault. (Compl. ¶¶ 34, 35).
To allege a breach of contract claim adequately, a plaintiff must set forth the material terms of the contract in the complaint or an attachment thereto. See N.F.L. Ins. Ltd. v. BB Holdings, 874 F. Supp. 606, 610-11 (S.D.N.Y. 1995); Sud v. Sud, 211 A.D.2d 423, 424, 621 N.Y.S.2d 37, 38 (1st Dep't 1995); Chrysler Capital Corp. v. Hilltop Egg Farms, 129 A.D.2d 927, 928, 514 N.Y.S.2d 1002, 1003 (3d Dep't 1987). Here, Wilson has not complied with this requirement. Indeed, it is unclear from the complaint whether the alleged employment contract that she relies upon is one which is written or implied. Therefore, as a matter of law, Wilson has not alleged facts sufficient to support her breach of contract claim.
C. Leave to Replead
The Second Circuit has cautioned that leave to replead should be freely granted unless it is clear that any amendment of a claim would be futile. See, e.g., Nerney v. Valente Sons Repair Shop, 66 F.3d 25, 29 (2d Cir. 1995); Stern v. Gen. Elec. Co., 924 F.2d 472, 477-78 (2d Cir. 1991). Based on the very limited information in Wilson's complaint, it is impossible to determine whether she will be able to allege facts sufficient to support a breach of contract claim against Danka. Moreover, although it appears unlikely, it is at least theoretically possible that Wilson could allege facts sufficient to establish that Danka was incorporated in New York State. Accordingly, Wilson should be given leave to serve and file an amended complaint against Danka setting forth facts sufficient to support (1) a breach of contract claim and (2) a Human Rights Law claim (but only if Danka is a New York corporation).
IV. Conclusion
For the foregoing reasons, Wilson's complaint should be dismissed as against both Hale and Danka. Wilson should, however, be granted leave to replead her breach of contract and Human Rights Law claims against Danka, provided that there is a factual basis for those claims and that she serves and files her amended complaint within thirty days.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Deborah A. Batts and to the chambers of the undersigned, at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Batts. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).