Opinion
Case No. 1:13-cv-399
04-17-2014
LISA CHAMBERS, Plaintiff, v. SUN WEST MORTGAGE, COMPANY INC., et al., Defendants.
Spiegel, J.
Litkovitz, M.J.
ORDER AND REPORT
AND RECOMMENDATION
This matter is before the Court on (1) a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12 or, in the alternative, stay this matter pending arbitration filed by defendant Sun West Mortgage Company Inc. ("Sun West") (Doc. 11), and (2) a motion to dismiss the complaint for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) filed by defendants Pavan Agarwal, Kenneth Crider, and Todd Valland (collectively, the "individual defendants") (Doc. 12). Plaintiff has filed a memorandum in opposition to the motions. (Doc. 19). Defendants have filed a consolidated reply brief in support of their motions to dismiss (Doc. 20), and plaintiff has filed supplemental memoranda in opposition to the motions to dismiss. (Docs. 23, 24).
The memorandum is styled as a "Motion for Jury Demand-Jury Demand Endorsed Hereon."
The memoranda are duplicates of each other. They are each styled as a "Motion for Jury Demand-Jury Demand Endorsed Hereon."
I. Plaintiff's complaint
Plaintiff, a citizen and resident of Ohio, filed the pro se complaint in this action against Sun West and the individual defendants on June 7, 2013, alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (Title VII) and Ohio Rev. Code § 4112.01, et seq. (Doc. 3). Plaintiff claims that defendants discriminated against her based on
her gender and terminated her employment with Sun West in retaliation for her complaints of gender discrimination.
Plaintiff makes the following allegations in the complaint: Defendant Sun West is a corporation which conducts business throughout Ohio. (Id., ¶ 6). Defendant Agarwal is the owner of Sun West who exercised supervisory powers over plaintiff at all relevant times. (Id., ¶ 7). Defendant Crider is Southeast Area Sales Manager for Sun West and defendant Valland is National Retail Vice-President of Operations for Sun West. (Id., ¶ 8). Both Crider and Valland exercised direct supervisory power over plaintiff. (Id.). Crider was an employee of Sun West and all other defendants qualified as an "employer" as defined under the anti-discrimination statutes. (Id.,¶¶ 7, 8).
Defendant Sun West recruited and hired plaintiff away from her previous employer in January 2012 for the positions of Area Sales Manager and Regional Branch Manager. (Id., ¶ 8). She came to the company with certain expectations and assurances, including acquisition of a physical space for conducting company business and the provision of certain training opportunities and intense marketing support. (Id.). Shortly after being hired, plaintiff attended a training program for all Sun West national managers near the company's corporate offices in California, where she learned she was the only female in her position at Sun West. (Id., ¶ 9). At a mandatory corporate meeting in California in February 2012, the individual defendants and other Sun West employees became aware of plaintiff's "possible past EEOC actions taken against a former employer, including her refusal to work outside of strict Governmental Compliance[.]" (Id.). Defendants Crider and Valland and other Sun West employees then began to subject plaintiff to verbal harassment and threats, including by refusing to provide her equal treatment in every area of work-related support as her male peers and refusing to provide her all
internal support in an attempt to force her to resign her position knowing that she was "disliked and unwanted" by Valland and other Sun West employees. (Id.). The individual defendants and other Sun West employees also subjected plaintiff to ongoing "sexually and intellectually demoralizing attacks, harassment [and] threats" and forced her to perform her job without receiving the same support provided her male peers. (Id.).
Upon returning home, plaintiff began to inquire into assurances that had been made to her at the training program. (Id., ¶ 10). Unlike other managers who had attended the training program and were provided with Sun West office space, and despite repeated requests to defendants, plaintiff was never provided with office space for conducting business; she was warned to quit inquiring about the matter and threatened with future consequences if she did not do so; and she was forced to conduct business from her home and use it as an "FHA listing," thereby exposing her to personal liability. (Id., ¶¶ 10, 11). Plaintiff made direct inquiries to Crider, Agarwal, Valland and other Sun West employees about several other support services and materials which were necessary for her to perform her job effectively. (Id., ¶ 12). "Noting she was a woman and had other 'tools' at her disposal, all her requests were denied and/or ignored." (Id.).
Plaintiff was able to secure potential mortgage business and several client quotes despite the lack of internal support, but she was required to submit the quotes to Sun West's in-house support staff because she was not provided the proper company software until just prior to her retaliatory termination. (Id., ¶ 13). The client quotes were mishandled, costing plaintiff over $1 million in potential income. Plaintiff was also discouraged from securing certain additional accounts and was told to "stay in a woman's place" and "discuss nothing but retail with clientele." (Id.). Plaintiff was denied several other business opportunities by Sun West, Crider, Valland and others after securing enforceable agreements with clients due to defendants' failure to provide the necessary support services needed to do her job, and she was harassed for requesting these tools while her male peers were provided the necessary tools. (Id., ¶¶ 14, 15).
In mid-March 2012, plaintiff inexplicably began to receive internal correspondence noting that her job performance was lacking and she would need to improve her production. (Id., ¶ 16). Although plaintiff had submitted client application options that exceeded $1.5 million for January-March 2012 to defendant Crider for computer input, Crider instead placed these options under his personal employee account number. (Id.). Defendants Crider, Valland and other Sun West employees also refused to credit plaintiff for a completed loan application submitted in March 2012 in the amount of $300,000.00, and they refused to sign her new employee's compensation contract (Schedule 1 A). (Id.).
Concerned that she was not being treated fairly, on March 27, 2012, plaintiff contacted the individual defendants, the human resources department, and other staff and noted her concerns, requested certain support, and asked that she not be forced to use her home as an FHA office. (Id., ¶ 17). Three days later, plaintiff was informed that she was terminated. (Id., ¶ 18). Plaintiff was able to ascertain the decision to terminate her was made less than 24 hours after she voiced her concerns to Crider in her telephone call to him on March 27. (Id.). Plaintiff's termination was based on her gender and was in retaliation for protesting discriminatory acts by Sun West, Crider, Valland and other Sun West employees. (Id., ¶ 19).
II. Defendants' motions to dismiss
A. Sun West's motion to dismiss or, in the alternative, stay this matter pending arbitration (Doc. 11)
Defendant Sun West moves to dismiss plaintiff's claims against it or, in the alternative, to stay this matter pending arbitration. Sun West argues that the complaint must be dismissed with prejudice because plaintiff's claims are time-barred by a one-year contractual limitations period set forth in a binding agreement between the parties. Sun West contends that when plaintiff began her employment with the company in January 2012, she entered into an arbitration agreement which contains a one-year limitations period. (Doc. 11 at 3, citing Exh. A, pp. 3-4). Sun West argues that plaintiff's discrimination claims are time-barred under the arbitration agreement, which is valid and enforceable, because she filed this lawsuit on June 7, 2013, more than one year after her employment was terminated on March 30, 2012. (Doc. 11 at 4). In the event the Court determines plaintiff's claims are not time-barred, Sun West argues that the Court must stay this action because plaintiff agreed to arbitrate any dispute arising out of her employment with Sun West by entering into the arbitration agreement. (Id. at 4-9).
Sun West has attached a copy of the arbitration agreement to the motion to dismiss.
Plaintiff opposes defendant Sun West's motion to dismiss or to stay this matter pending arbitration. (Doc. 19). Plaintiff acknowledges she signed a Sales Management Employee Agreement on January 1, 2012 (Doc. 19 at 3, citing Exh. 1) "with Arbitration agreement" (Id., citing Exh. 1-B, "Agreement to Individually Arbitrate Any Disputes ("Arbitration Policy")). However, plaintiff contends she clearly did not sign the arbitration agreement attached to the Sales Management Employee Agreement, but instead someone else signed and initialed the pages of the arbitration agreement without her consent. (Id. at 3). Plaintiff alleges that when defendants demanded that she sign a new Branch Manager Employee Agreement-Arbitration Agreement issued on January 23, 2012 (Doc. 19, Exh. 2), she refused to do so. (Doc. 19 at 3-4). Plaintiff alleges that defendants nonetheless placed her in the position of Sun West Branch Manager and filed paperwork with HUD/FHA on February 17, 2012, designating her personal residence as a Sun West Ohio branch. (Id. at 3-4, 9-10, citing Exhs. 2, 3). Plaintiff also alleges that she met with an Equal Employment Opportunity Commission ("EEOC") representative and defendants' legal counsel in August 2012 in an unsuccessful effort to arbitrate this matter. (Id. at 5).
In reply, Sun West denies plaintiff's allegation that it forged her signature on the arbitration agreement and alleges that plaintiff signed several copies of the arbitration agreement both by hand and electronically during the course of her employment. (Doc. 20 at 2; Doc. 21, Second Declaration of Luke Aoe). Sun West argues that assuming, arguendo, plaintiff did not sign the arbitration agreement, she is nonetheless bound by the agreement. Defendant contends there is no dispute plaintiff received a copy of the arbitration agreement, and under controlling law she agreed to be bound by the agreement by entering into and continuing an employment relationship with Sun West. (Doc. 20 at 2-3). Sun West argues that because the arbitration agreement is enforceable, plaintiff's claims are time-barred by the one-year limitations period set forth in the agreement. Finally, in response to plaintiff's assertion that she attempted to arbitrate this matter before the EEOC, Sun West notes that the parties engaged in mediation, not arbitration, before the EEOC in August 2012. (Id. at 2, n. 2).
1. The Court will convert Sun West's Rule 12 motion to one for summary judgment.
Defendant Sun West brings its motion to dismiss pursuant to Fed. R. Civ. P. 12 and does not specify the subsection of Rule 12 under which the motion is brought. (Doc. 11). The Court finds that defendant's motion to dismiss based on the existence of an arbitration agreement is
appropriately brought under Rule 12(b)(6). The issue raised by the motion is not whether the Court has subject matter jurisdiction over plaintiff's claims; rather, the issues are whether Sun West and plaintiff contractually agreed to have their dispute determined in another forum and whether plaintiff's complaint is time-barred under the arbitration agreement. See Dental Associates, P.C. v. Am. Dental Partners of Michigan, LLC, No. 11-11624, 2011 WL 6122779, at *1 (E.D. Mich. Dec. 9, 2011) aff'd, 520 F. App'x 349 (6th Cir.), cert. denied, 134 S. Ct. 425 (2013) (finding motion to dismiss based on arbitration clause is properly brought under Rule 12(b)(6) because the "existence of a valid arbitration clause does not technically deprive the Court of subject matter jurisdiction"; instead, "[a]n arbitration agreement 'requires the Court to forego the exercise of jurisdiction in deference to the parties' contractual agreement to address in another forum those disputes which fall within the scope of the agreement to arbitrate."') (citing Moore v. Ferrellgas, Inc., 533 F. Supp.2d 740, 744 (W.D. Mich. 2008) (quoting Liveware Publishing, Inc. v. Best Software, Inc., 252 F. Supp.2d 74, 78 (D. Del. 2003)). Accordingly, the Court will treat Sun West's motion to dismiss as a motion brought under Rule 12(b)(6).
Defendant Sun West has submitted several documents in support of its motion to dismiss, including copies of an arbitration agreement and declarations stating that these documents were signed by plaintiff on various dates. (Doc. 20-1, Decl. of Luke Aoe; Doc. 21, Second Aoe Deck, Exhs. A-F). Also before the Court are a number of documents submitted by plaintiff in opposition to Sun West's motion to dismiss, including signed and unsigned copies of employment agreements with Sun West and copies of an arbitration agreement. (Doc. 19, Exhs. 1-5). However, plaintiff's complaint does not reference any employment or arbitration agreements with Sun West, and plaintiff did not attach copies of any such documents to the complaint. (Doc. 3). The Court therefore may not consider the documents submitted by the
parties in connection with Sun West's motion to dismiss. See Bassett v. Nat 7 Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008) ("When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to [the] defendant's motion to dismiss, so long as they are referred to in the Complaint and are central to the claims contained therein." (emphasis added). See also Mediacom Southeast LLC v. BellSouth Telecommunications, Inc., 672 F.3d 396, 399 (6th Cir. 2012).
In a case such as this where matters outside the pleadings are presented with a motion to dismiss, the Court has two options: first, the Court may exclude the additional material and decide the motion to dismiss based only on the complaint; or second, the Court may treat the motion to dismiss as a motion for summary judgment and rule on the motion as provided in Fed. R. Civ. P. 56. Bracken v. DASCO Home Medical Equipment, Inc., 954 F. Supp.2d 686, 694 (S.D. Ohio 2013) (citations omitted). If matters outside the complaint are not excluded by the Court on a motion to dismiss under Rule 12(b)(6), the motion must be treated as a motion for summary judgment under Rule 56. Fed. R. Civ. P. 12(d); Bracken, 954 F. Supp.2d at 694. Where the Court converts a motion to dismiss into a motion for summary judgment, "all parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d). See also Tackett v.M&G Polymers, USA, LLC, 561 F.3d 478, 487 (6th Cir. 2009). If the plaintiff shows "by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Fed. R. Civ. P. 56.
The Court finds that the appropriate procedure here is to treat defendant Sun West's motion to dismiss as a motion for summary judgment. The employment and arbitration agreements and other documents submitted by the parties are material to the determination of whether plaintiff agreed to arbitrate her employment discrimination and retaliation claims asserted in this lawsuit and whether such claims are time-barred under an arbitration agreement. The Court will therefore convert the Rule 12(b)(6) motion to dismiss the complaint based on the existence of an arbitration agreement into a motion for summary judgment under Fed. R. Civ. P. 56. Accord Kovac v. Superior Dairy, Inc., 930 F. Supp.2d 857, 863 (N.D. Ohio 2013) (converting Rule 12(b)(6) motion to dismiss claims on issue of whether the plaintiff consented to arbitrate claims to motion for summary judgment based on submission of documents outside the complaint). The Court will allow the parties "a reasonable opportunity to present all material that is pertinent" to the Rule 56 motion before ruling on the motion. Fed. R. Civ. P. 12(d).
B. The individual defendants' Rule 12(b)(2) motion to dismiss the complaint (Doc. 12)
The individual defendants move to dismiss the claims against them pursuant to Fed. R. Civ. P. 12(b)(2) on the ground personal jurisdiction over them is lacking. Defendant Agarwal moves to dismiss the claims against him on the additional ground that the claims are barred by the fiduciary shield doctrine. In the alternative, the individual defendants move to dismiss the complaint based on the existence of an arbitration agreement, which they allege binds plaintiff to pursue her claims against them in an arbitration proceeding. Each individual defendant has submitted his declaration in support of the motion to dismiss for lack of personal jurisdiction. (Docs. 12-2, 12-3, 12-4). In opposition to defendants' motion, plaintiff has submitted copies of employment documents and a letter to defendants' counsel dated September 22, 2013, outlining an offer of settlement to defendants. (Doc. 19, Exhs. 1-5).
1. Personal jurisdiction
Where a defendant has moved to dismiss a case under Rule 12(b)(2) for lack of personal jurisdiction and the district court rules on the motion without an evidentiary hearing, the plaintiff need only make a "prima facie" showing that the court has personal jurisdiction. Conn v. Zakharov, 667 F.3d 705, 711 (6th Cir. 2012) (citing Kroger Co. v. Malease Foods Corp., 437 F.3d 506, 510 (6th Cir. 2006)). The court considers the pleadings in the light most favorable to the plaintiff and does not weigh the disputed facts, although the court may consider the defendant's undisputed factual assertions. Id. (citing Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 153 (6th Cir. 1997); CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1261-62 (6th Cir. 1996)).
Where the district court's subject matter jurisdiction stems from the existence of a federal question, the plaintiff must satisfy the state law requirements for personal jurisdiction. Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002). This is likewise true where the federal court's jurisdiction is premised on diversity of citizenship. Schneider v. Hardesty, 669 F.3d 693, 699 (6th Cir. 2012); Conn, 667 F.3d at 711. Under Ohio law, personal jurisdiction over non-resident defendants exists only if: (1) Ohio's long-arm statute confers jurisdiction, and (2) the requirements of the federal due process clause are met. Schneider, 669 F.3d at 699; Conn, 667 F.3d at 712 (citing Kauffman Racing Equip., L.L.C. v. Roberts, 930 N.E.2d 784, 790 (Ohio 2010); Goldstein v. Christiansen, 638 N.E.2d 541, 543 (Ohio 1994)).
Plaintiff apparently premises jurisdiction of her state law claims under Ohio Rev. Code § 4112.02 on diversity of citizenship as she is a resident and citizen of Ohio (Doc. 3, ¶ 3) and each of the defendants is a citizen of a state other than Ohio.
Ohio's long-arm statute grants the court personal jurisdiction over a non-resident if his conduct falls within one of the nine bases for jurisdiction listed under the statute. See Ohio Rev. Code § 2307.382(A). The federal due process clause requires that the defendant have sufficient "minimum contact[s]" with the forum state such that a finding of personal jurisdiction does not "offend traditional notions of fair play and substantial justice." Conn, 667 F.3d at 712 (citing Third Nat'l Bank v. WEDGE Group, Inc., 882 F.2d 1087, 1089 (6th Cir. 1989) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Two types of personal jurisdiction exist under the due process clause: general jurisdiction, when the suit does not arise from defendant's contacts with the forum state; and specific jurisdiction, where the suit does arise from the defendant's contacts with the forum state. Id. at 712-13 (citing Third Nat'l Bank, 882 F.2d at 1089) (citing Burger King Corp. v. Rudzewicz, All U.S. 462, 472-73 & n. 15 (1985)). Anon-resident defendant may be subject to the general jurisdiction of the forum state only where his contacts with that state are "continuous and systematic." Id. at 713 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16 & n. 9 (1984)). A finding of specific jurisdiction requires that three elements be satisfied:
Section § 2307.382(A) states: "A Court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's: (1) Transacting any business in this state;
(2) Contracting to supply services or goods in this state;
(3) Causing tortious injury by an act or omission in this state;
(4) Causing tortious injury . . . by an act or omission outside this state . . .;
(5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state . . .;
(6) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons . . .;
(7) Causing tortious injury to any person by a criminal act ...;
(8) Having an interest in, using, or possessing real property in this state;
(9) Contracting to insure any person, property, or risk located within this state at the time of contracting."
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First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause ofId. (citing Bird, 289 F.3d at 874) (quoting S. Machine Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968)).
action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.
2. Plaintiff has not made a prima facie showing of personal jurisdiction over the individual defendants.
A determination as to whether personal jurisdiction exists over the individual defendants is properly made in this case without an evidentiary hearing because the essential facts underlying the issue of personal jurisdiction are not disputed. See Conti v. Pneumatic Products Corp., 977 F.2d 978, 980 (6th Cir. 1992). Accordingly, plaintiff need only make a prima facie showing of personal jurisdiction over these defendants.
To demonstrate personal jurisdiction exists over the individual defendants, plaintiff appears to rely on the first five subsections of the Ohio long-arm statute and specifically subsection (A)(2), which provides that the Court may exercise personal jurisdiction over "a person who acts directly or by an agent, as to a cause of action arising from the person's . . . [c]ontracting to supply services or goods in this state[.]" Ohio Rev. Code § 2307.382(A)(2). (Doc. 19 at 7-8). However, plaintiff has not shown that her claims for discrimination and retaliation arise out of a contract with any of the individual defendants to supply goods or services in Ohio. Rather, insofar as plaintiff's claims have any connection to a contractual agreement, that agreement was a contractual agreement between plaintiff and Sun West. Moreover, plaintiff's allegations and the defendants' unrefuted assertions set forth in their declarations make clear that the individual defendants' contacts with Ohio do not satisfy any
other provision of the Ohio long-arm statute or the requirements of the federal due process clause for the exercise of personal jurisdiction.
Defendant Agarwal has submitted a declaration stating that at all relevant times, he was the Chief Executive Officer of Sun West and he resided in California. (Doc. 12-2, 1-2). To the best of his recollection, he has never been in Ohio. (Id., ¶ 4). He had no role in the decision to hire plaintiff and he did not directly supervise her. (Id., ¶¶ 5, 6). The only time he met plaintiff was at a meeting at company headquarters in California. (Id., ¶ 7). He did not speak with plaintiff by telephone during her employment, and he did not correspond with plaintiff by email or fax. (Id., ¶¶ 8-10).
Defendant Crider states in his declaration that he is a resident of Tennessee who has resided there since 2001. (Doc. 12-4, ¶ 1). He is employed by Sun West as an Area Sales Manager and he generally performs his duties from within the state of Tennessee. (Id., ¶ 2). He has never travelled to Ohio on business for Sun West. (Id., ¶¶ 2, 4). He contacted plaintiff about the position with Sun West and interviewed her by phone. (Id., ¶ 6). He was plaintiff's direct supervisor during her employment, and the only time he personally met with her while she was employed by Sun West was at a company meeting in California. (Id., ¶ 7). All of their other communications were by email and telephone. (Id.). He and defendant Valland recommended that Sun West terminate plaintiff and that Sun West withdraw from the Ohio retail mortgage market. (Id., ¶ 8). The termination decision was made by Crider in Tennessee and Valland in Arizona, and it was approved by human resources personnel at the company's headquarters in California. (Id., ¶ 9). Since that time, Sun West has not made any effort to re-enter the Ohio retail mortgage market or hire anyone to replace plaintiff in Ohio. (Id.).
Defendant Valland states in his declaration that he was employed by Sun West as a Regional Sales Manager until March 2013, and he lived and worked in Arizona throughout his employment with the company. (Doc. 12-3, ¶¶ 1, 2). He alleges that he has never lived in Ohio, owned property in Ohio, or to the best of his recollection been in Ohio. (Id., ¶¶ 3, 4). The only time defendant Valland personally met plaintiff was at a company meeting in California. (Id.). He states that he exchanged five or six emails with plaintiff during the course of her employment and spoke with her on the telephone. (Id., ¶ 7). Defendant Valland asserts that the decision to terminate plaintiff was made by him in Arizona and defendant Crider in Tennessee, and the decision was approved by the company's human resources department in California. (Id., ¶ 8).
Plaintiff does not dispute by affidavit or otherwise these allegations set forth in defendants' declarations. Nor has plaintiff made specific allegations concerning the activities of any individual defendant which show either that the requirements for long-arm jurisdiction have been met under the Ohio statute or that the individual defendant had sufficient "minimum contact[s]" with the forum state such that a finding of personal jurisdiction does not "offend traditional notions of fair play and substantial justice." See Conn, 667 F.3d at 712 (citing Third Nat 7 Bank v. WEDGE Group, Inc., 882 F.2d at 1089) (quoting Int'l Shoe Co., 326 U.S. at 316). Plaintiff generally alleges in the complaint that the individual defendants verbally harassed and threatened her at a meeting in California in February 2012 and denied her support services which were provided to her male peers in retaliation for "possible past EEOC" actions she had taken against a former employer. (Doc. 3, ¶ 9). Plaintiff alleges that following the meeting, defendants continued to deny her support services, and that she has "numerous recorded telephone conversations with SunWest Mortgage, Defendants, providing proof of facts stated where plaintiff requested on numerous telephone calls and in person meeting with Defendants
requesting her personal residence be removed as the legal HUD/FHA Branch" and that she be provided a brick and mortal retail office as promised at the time of hire. (Doc. 19 at 4).
Plaintiff does not allege that defendant Agarwal was involved in the foregoing phone conversations, nor has she set forth any facts that even remotely connect Agarwal to Ohio. She does not allege that Agarwal was ever physically present in Ohio or that he ever contacted her in Ohio by email, telephone or other means. Defendant Agarwal's complete absence of contacts with Ohio precludes plaintiff from establishing a prima facie case of personal jurisdiction as to this individual defendant.
Nor has plaintiff made any specific allegations which establish a prima facie showing of personal jurisdiction over defendants Crider and Valland. Plaintiff alleges in the complaint that these individual defendants refused to credit her account for transactions she secured and to accept a refinance application and loan officer applications from her. (Doc. 3, ¶ 16). Plaintiff further alleges she had a telephone conversation with defendant Valland on March 30, 2012, during which he terminated her employment. (Id.). These limited contacts are insufficient to establish "minimum contacts" such as would make the exercise of personal jurisdiction reasonable. See Burger King Corp., 471 U.S. at 475. Plaintiff does not allege that either defendant Crider or defendant Valland ever met with her in Ohio, made decisions in Ohio to deny plaintiff support services or terminate her employment, or took any other action in Ohio related to her employment. The contacts with these individual defendants alleged by plaintiff, consisting of phone calls she instituted related to the designation of her home as a branch office, the phone call terminating her employment, and other unspecified correspondence, are insufficient to demonstrate a prima facie case of personal jurisdiction. See Reynolds v. Int'l Amateur Athletic Fed'n., 23 F.3d 1110, 1119 (6th Cir. 1994) ("[t]he use of interstate facilities
such as the telephone and mail is a 'secondary or ancillary' factor and 'cannot alone provide the minimum contacts required by due process.'"). Cf. Kepros v. Alcon Labs., Inc., No. 1:10cv1540, 2011 WL 2200526, at *4-5 (N.D. Ohio June 6, 2011) (court found personal jurisdiction was lacking over a Texas corporation and its officers and employees in wrongful termination case where the plaintiff lived in Ohio, worked from her home in Ohio, and was terminated by defendants at a meeting in Ohio, but all decisions related to investigation of plaintiff and her termination occurred in Texas). For these reasons, plaintiff's claims against the individual defendants should be dismissed pursuant to Fed. R. Civ. P. 12(b)(2).
IT IS THEREFORE ORDERED:
The motion to dismiss the complaint pursuant to Fed. R Civ. P. 12(b)(6) filed by defendant Sun West is converted into a motion for summary judgment under Fed. R. Civ. P. 56. The parties shall have twenty (20) days from the date of this Order to present any additional materials they deem to be pertinent to the arbitration issues raised in defendant Sun West's motion. The Court will defer ruling on the motion for summary judgment pending an opportunity by the parties to submit additional materials.
IT IS THEREFORE RECOMMENDED:
The motion to dismiss for lack of personal jurisdiction filed by defendants Valland, Crider and Agarwal (Doc. 12) should be GRANTED and the claims against the individual defendants be DISMISSED for lack of personal jurisdiction.
_________________
Karen L. Litkovitz
United States Magistrate Judge
LISA CHAMBERS, Plaintiff,
v. SUN WEST MORTGAGE, COMPANY INC., et al., Defendants.
Case No. 1:13-cv-399
Spiegel, J.
Litkovitz, M.J.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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