Opinion
No. 3-03-CV-2915-D.
April 6, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendants Alan Bender, Allyn Hebner, Brian Kirkpatrick, Bruce Brown, Cole Brodman, Cregg Baumbaugh, David Miller, Donald Guthrie, Jeffrey Hedberg, John Carney III, John Stanton, Julie Pollard Kelly, Patricia Miller, Robert Dotson, Robert Stapleton, and Timothy Wong have filed a motion to dismiss this pro se Title VII sexual harassment and retaliation case for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted. For the reasons stated herein, the motion to dismiss for lack of personal jurisdiction should be granted.
Defendants also moved to dismiss the case for insufficient service of process. However, on March 3, 2004, these defendants voluntarily entered an appearance through their counsel of record. This appearance effectively moots consideration of the motion to dismiss for insufficient service of process.
I.
On December 4, 2003, Plaintiff Angela R. Clark sued her former employer, T-Mobile USA, Inc., in federal district court for gender discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Also named as defendants are 19 corporate officers and directors. Sixteen of these defendants now move to dismiss the complaint for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted. Although plaintiff was ordered to file a written response to the motion and any supporting evidence by April 2, 2004, she has failed to do so. The parties have been given an opportunity to brief the issues and the motion is ripe for determination.
Plaintiff has not yet served three other directors named in her complaint, Kai-Uwe Ricke, Karl-Gerhard Eick and Max Hirchberger, all of whom live in Germany.
II.
The assumption of personal jurisdiction in a case "arising under" federal law involves a two-step inquiry. First, absent a controlling federal statute, the defendant must be amenable to service of process under the forum state's long-arm statute. Ham v. La Cienega Music Co., 4 F.3d 413, 415 (5th Cir. 1993). Second, the exercise of jurisdiction must comport with due process. Id. The Texas Supreme Court has determined that the state's long-arm statute reaches as far as the federal constitutional requirements of due process permit. Irving v. Owens-Corning Fiberglass Corp., 864 F.2d 383, 385 (5th Cir.), cert. denied, 110 S.Ct. 83 (1989); see also Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985). Accordingly, the court need only address the due process element of the inquiry.
Title VII does not authorize nationwide service of process. Therefore, personal jurisdiction over the defendants is appropriate to the extent permitted by state law. See Bass v. LifeCare Holdings, Inc., 1999 WL 977397 at *2 (E.D. La. Oct. 26, 1999).
Due process for jurisdictional purposes consists of two elements. First, the defendant must have sufficient "minimum contacts" with the forum state. International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Wilson v. Belin, 20 F.3d 644, 647 (5th Cir.), cert. denied, 115 S.Ct. 322 (1994). These "minimum contacts" may be analyzed in terms of specific jurisdiction or general jurisdiction. Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984); Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 418 (5th Cir. 1993). Specific jurisdiction is proper when the contacts with the forum state arise from, or are directly related to, the cause of action. Wilson, 20 F.3d at 647. General jurisdiction focuses on other "continuous and systematic" contacts with the forum. Id.
If a non-resident defendant has sufficient minimum contacts with the forum state, the court must then consider whether the exercise of personal jurisdiction would "offend traditional notions of fair play and substantial justice." Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 114, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987); Wilson, 20 F.3d at 647. This inquiry focuses on several factors, including: (1) the burden on the non-resident defendant; (2) the interests of the forum state; (3) the interest of the plaintiff in securing relief; (4) the interest of the judicial system in obtaining the most efficient resolution of controversies; and (5) the shared interests of the several states in furthering fundamental substantive social policies. Asahi Metal, 107 S.Ct. at 1033; Bearry v. Beech Aircraft Corp., 818 F.2d 370, 377 (5th Cir. 1987).
The plaintiff has the burden to establish a prima facie case of personal jurisdiction over a non-resident defendant. Kelvin Services, Inc. v. Lexington State Bank, 46 F.3d 13, 14 (5th Cir. 1995). The court can make this determination without an evidentiary hearing based on the complaint, affidavits, and information obtained during discovery. Colwell Realty Investments, Inc. v. Triple T Inns of Arizona, Inc., 785 F.2d 1330, 1333 (5th Cir. 1986). The jurisdictional allegations set forth in the complaint must be taken as true and any conflicts in the evidence must be resolved in favor of the plaintiff. Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990).
III.
In support of their motion, defendants have submitted the affidavits of Alan Bender, Allyn Hebner, Brian Kirkpatrick, Bruce Brown, Cole Brodman, Cregg Baumbaugh, David Miller, Donald Guthrie, Jeffrey Hedberg, John Carney III, John Stanton, Julie Pollard Kelly, Patricia Miller, Robert Dotson, Robert Stapleton, and Timothy Wong. ( See Def. App. at 1-36). Bender, Hebner, Kirkpatrick, Brown, Brodman, Baumbaugh, David Miller, Carney, Kelly, Patricia Miller, Dotson, and Wong are all officers of T-Mobile USA, Inc. ( Id. at 1, ¶ 2; 4, ¶ 2; 6, ¶ 2; 8, ¶ 2; 10, ¶ 2; 13, ¶ 2; 16, ¶ 2; 23, ¶ 2; 27, ¶ 2; 29, ¶ 2; 31, ¶ 2; 35, ¶ 2). Guthrie, Hedberg, Stanton, and Stapleton serve on the T-Mobile Board of Directors. ( Id. at 18, ¶ 2; 20, ¶ 2; 25, ¶ 2; 33, ¶ 2). All defendants, except for Baumbaugh, Hedberg, Carney and Stapleton, live and work in the State of Washington. ( Id. at 1, ¶ 7; 4, ¶ 7; 6, ¶ 7; 8, ¶ 7; 10, ¶ 7; 16, ¶ 7; 18, ¶ 7; 25, ¶ 7; 27, ¶ 7; 29, ¶ 7; 31, ¶ 7; 35, ¶ 7). Baumbaugh and Stapleton own homes in California. ( Id. at 13, ¶ 7; 33, ¶ 7). Hedberg lives in Massachusetts. ( Id. at 20, ¶ 7). Carney resides in Colorado. ( Id. at 23, ¶ 7). None of the defendants own property in Texas, regularly engage in business in Texas, or have other sufficient "minimum contacts" with Texas. ( Id. at 1-2, ¶¶ 8-10; 4-5, ¶¶ 8-10; 6-7, ¶¶ 8-10; 8-9, ¶¶ 8-10; 10-11, ¶¶ 8-10; 13-14, ¶¶ 8-10; 16, ¶¶ 8-10; 18, ¶¶ 8-10; 20-21, ¶¶ 8-10; 23, ¶¶ 8-10; 25-26, ¶¶ 8-10; 27, ¶¶ 8-10; 29, ¶¶ 8-10; 31, ¶¶ 8-10; 33, ¶¶ 8-10; 35, ¶¶ 8-9).
Plaintiff has failed to adduce any evidence to support the exercise of general or specific jurisdiction over these defendants. Nor does her complaint contain any jurisdictional allegations. Having wholly failed to meet her burden of proof, the claims against these defendants must be dismissed for lack of personal jurisdiction.
RECOMMENDATION
Defendants' motion to dismiss for lack of personal jurisdiction should be granted. The claims against Alan Bender, Allyn Hebner, Brian Kirkpatrick, Bruce Brown, Cole Brodman, Cregg Baumbaugh, David Miller, Donald Guthrie, Jeffrey Hedberg, John Carney III, John Stanton, Julie Pollard Kelly, Patricia Miller, Robert Dotson, Robert Stapleton, and Timothy Wong should be dismissed without prejudice.
A copy of this report and recommendation shall be sent to plaintiff and all counsel of record. Any party may file written objections to this recommendation by April 20, 2004. The failure to file written objections shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).