Opinion
CV 01-663-BR
August 15, 2001
CRAIG A. CRISPIN, SHELLEY D. RUSSELL, MARLEE BUCKSON, Crispin Associates, for Plaintiff.
DAVID P.R. SYMES, Perkins Coie LLP, for Defendants.
OPINION AND ORDER
This matter comes before the Court on Defendants' Motion to Dismiss for Lack of Personal Jurisdiction (#7). Although both Defendants join in the Motion, they move to dismiss only Defendant Young. For the reasons that follow, the Court DENIES Defendants' Motion.
FACTUAL BACKGROUND
Plaintiff worked as a Structural Plans Examiner for Defendant BJY, Inc., in its Tualatin, Oregon, office from October 7, 1998, through April 7, 2000. Plaintiff is a native of Egypt, of Arab descent, and practices the Muslim religion. BJY is identified in the pleadings only as "a foreign corporation," with no indication of its state of incorporation or principal place of business. Defendant Gregg Young was BJY's CEO during Plaintiff's employment. Young's place of residence is not set forth in the pleadings. Plaintiff signed an employment contract with BJY. Defendant Young signed Plaintiff's contract on behalf of BJY at an undisclosed location, but asserts he was not personally involved in hiring Plaintiff. Young contends he has never traveled to Oregon and has never met Plaintiff in person.
Plaintiff alleges Defendants ordered him not to use his actual name but instead to use a "Western" name or nickname during his employment. Plaintiff objected and refused to select a different name on "racial, cultural, and religious grounds, and he so advised defendant." Plaintiff states Young ordered him to use a Western name and referred to Plaintiff as "Manny" during telephone conferences and in e-mail messages.
Plaintiff also states he had several telephone conversations with Young regarding his employment with BJY, exchanged voicemails regarding pay issues, and complained directly to Young about "BJY's failure to properly pay" him. Young asserts he did not supervise Plaintiff and does not recall ever initiating a telephone call or e-mail to Plaintiff. Young recalls receiving two or three telephone calls from Plaintiff regarding Plaintiff's compensation and replying to several e-mails from Plaintiff regarding Plaintiff's resignation. Plaintiff contends he did not resign, but was wrongfully discharged by BJY.
Plaintiff alleges claims for violations of his civil rights under 42 U.S.C. § 1981 and 42 U.S.C. § 2000e. Plaintiff also brings various state and federal statutory wage and hour claims, including failure to pay overtime wages and failure to pay minimum wages. Plaintiff also alleges he was retaliated against and wrongfully discharged for reporting these alleged wage and hour violations to the Oregon Bureau of Labor and Industries and for objecting to Defendants' alleged discriminatory practices. Of Plaintiff's 13 Claims, only five are directed at both BJY and Young. The remaining claims are brought against BJY only. The claims against Young and BJY include race discrimination under 42 U.S.C. § 1981, violation of 42 U.S.C. § 206(a) (federal minimum wage), violation of Or. Rev. Stat. § 653.261 (overtime wages under state law), violation of 42.U.S.C. § 207 (overtime wages under federal law), violation of 42 U.S.C. § 215(a)(3) (retaliatory discharge), and wrongful discharge.
ANALYSIS
I. Standards Under Fed.R.Civ.P. 12(b)(2)
Pursuant to Fed.R.Civ.P. 12(b)(2), Defendants move to dismiss Plaintiff's Complaint against Young for lack of personal jurisdiction. Plaintiff has the burden of establishing personal jurisdiction. Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995). When a motion to dismiss is made as a defendant's initial response to a complaint and the court decides the jurisdictional issue based on affidavits and written discovery materials, the plaintiff is only required to make a prima facie showing of jurisdictional facts to defeat the motion to dismiss. Myers v. The Bennett Law Offices, 238 F.3d 1068, 1071 (9th Cir. 2001). See also Farmers Ins. Ex. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). "[T]he plaintiff need only demonstrate facts that if true would support jurisdiction over the defendant." Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001). Unless directly controverted, the plaintiff's version of the facts is taken as true for purposes of a Rule 12(b)(2) motion to dismiss. Id. Conflicts in the evidence set forth in the parties' affidavits must be resolved in the plaintiff's favor. Id.
II. Personal Jurisdiction Analysis
None of the parties argue this Court has general personal jurisdiction over Defendant Young. Consequently, the Court addresses only the issue whether the Court has specific personal jurisdiction over him for purposes of this case.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution permits personal jurisdiction over a defendant in any State with which the defendant has "certain minimum contacts . . . such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" In judging minimum contacts, a court properly focuses on "the relationship among the defendants, the forum, and the litigation."
Calder v. Jones, 465 U.S. 783, 788 (1984) (citations omitted). When, "as here, there is no applicable federal statute governing personal jurisdiction, the law of the state in which the district court sits applies." Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1484 (9th Cir. 1993). "Oregon's long-arm statute confers jurisdiction to the extent permitted by due process." Gray Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990). See Or. R. Civ. P. 4L. Consequently, the only question for the Court is whether the exercise of jurisdiction over Young comports with constitutional due process requirements. See Core-Vent, 11 F.3d at 1482.
The Ninth Circuit applies a three-part test to determine whether a district court constitutionally may exercise specific jurisdiction over a nonresident defendant.
(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant's forum-related activities; and (3) exercise of jurisdiction must be reasonable.
Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998) (quoting Omeluk v. Langsten Slip Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir. 1995)).
A. Young Purposefully Availed Himself of the Privilege of Conducting Business in Oregon.
The first prong of the three-part test requires a showing that Defendant Young purposefully availed himself of the privilege of conducting activities in the forum. The purposeful availment requirement ensures that a nonresident defendant will not be haled into court based upon "random, fortuitous or attenuated" contacts with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). In a tort case, the purposeful availment requirement may be satisfied if the nonresident defendant "engages in conduct aimed at, and having effect in, the situs state." Ziegler v. Indian River County, 64 F.3d at 473. See also Panavision, 141 F.3d at 1321; Bancroft Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1089 (9th Cir. 2000). This "effects" test is based on the Supreme Court's holding in Calder v. Jones, 465 U.S. 783 (1984), in which the Court held a Florida defendant could be sued in California for defamation of a California resident in a newspaper widely distributed in California.
Plaintiff's race discrimination claim and wage claims are more similar to tort claims than contract claims. The Court, therefore, analyzes the question of purposeful availment using the tort standard. See Zeigler, 64 F.3d at 474.
The Ninth Circuit has further explained the "effects test" first articulated in Calder.
In Calder, the Supreme Court held that a foreign act that is both aimed at and has effect in the forum state satisfies the purposeful availment prong of the specific jurisdiction analysis. . . . Subsequent cases have struggled with Calder's import, recognizing that the case cannot stand for the broad proposition that a foreign act with foreseeable effects in the forum state always gives rise to specific jurisdiction. We have said that there must be `something more,' but have not spelled out what the something more must be.
We now conclude that `something more' is what the Supreme Court described as `express aiming' at the forum state. Express aiming is a concept that in the jurisdictional context hardly defines itself. From the available cases, we deduce that the requirement is satisfied when the defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state.
Bancroft Masters, Inc. v. Augusta National Inc., 223 F.3d 1082, 1087 (9th Cir. 2000) (citations omitted, emphasis added). Under this analysis, the Court must determine whether Plaintiff has made a prima facie showing that Young knew his allegedly wrongful acts were aimed at an Oregon resident. See Myers, 238 F.3d at 1072. Plaintiff has satisfied this test.
Plaintiff has made a prima facie showing that Young knew Plaintiff resided in Oregon, and Young's conduct was "expressly aimed" at Plaintiff. Young was CEO of a company that maintained an office in Tualatin, Oregon. Plaintiff was hired to work in the Tualatin office, and Young signed Plaintiff's employment contract. Plaintiff alleges Young acted intentionally when he instructed Plaintiff to use a Western name, and not to use his actual name. This conduct occurred both during telephone conversations and in e-mail correspondence with Plaintiff in Oregon. Plaintiff also alleges Young is jointly and severally liable with BJY for violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. These allegations, if proven, are adequate to subject Young to the jurisdiction of this Court.
Defendants argue the Court has no personal jurisdiction over Young because he acted only in his capacity as CEO of BJY. Defendants rely on the Ninth Circuit's statement in Forsythe v. Overmyer, 576 F.2d 779, 783-84 (9th Cir.), cert. denied, 439 U.S. 864 (1978), that "a corporate officer who has contact with a forum only with regard to the performance of his official duties is not subject to personal jurisdiction in that forum." Forsythe is distinguishable, however, on a number of grounds and does not preclude the exercise of jurisdiction on the facts currently before the Court.
Forsythe is a contract action decided seven years before the Supreme Court's decision in Calder. It does not, therefore, address the Calder Court's holding that different jurisdictional analyses apply to tort and contract claims. Forsythe, moreover, is factually distinguishable from this case. In Forsythe, the Ninth Circuit considered whether Overmyer, a New York resident, was subject to the jurisdiction of California courts. Overmyer personally guaranteed a lease containing a provision that the lease was subject to the jurisdiction of California courts. The court held Overmyer participated personally in the negotiations of the lease "to secure a benefit for his corporation and, indirectly, himself." The court ruled Overmyer was, therefore, subject to the jurisdiction of the California court.
The Ninth Circuit's analysis of the contract action in Forsythe does not apply to this Court's analysis of the discrimination and wage claims brought by Plaintiff against Young.
B. Plaintiff's Claims Arise Out of or Result From Young's Oregon Contacts
The second prong of the specific jurisdiction test requires that Plaintiff's claims arise out of or result from Young's contacts with the forum state. See Panavision, 141 F.3d at 1320. The Ninth Circuit uses a "but for" test to determine whether this requirement is met. See Zeigler, 64 F.3d at 474. The question is: But for the defendant's contacts with the forum state, would the plaintiff's claims against the defendant still have arisen? Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995). Plaintiff has met this requirement as well. But for Young's alleged instruction to Plaintiff to use a Western name rather than his actual name, Plaintiff would have no claim against Young for race discrimination.
Plaintiff further alleges Young is jointly and severally liable for Plaintiff's claims under the Fair Labor Standards Act, 42 U.S.C. § 201, et seq. The FLSA defines an employer as including "any person acting directly or indirectly in the interest of an employer in relation to an employee." 42 U.S.C. § 203(d). Plaintiff contends he received his compensation in Oregon and Young "acted to cause and participate in the decision to not pay plaintiff compensation due and owing."
Defendants do not address the specifics of any of Plaintiff's claims and do not offer any evidence to controvert allegations that Young participated in decisions regarding Plaintiff's compensation. Young has not yet filed an Answer denying Plaintiff's allegations. For purposes of this Motion, the Court must accept Plaintiff's allegations as true. The Court finds, therefore, on the record currently before it, Plaintiff's wage claims arise from Young's conduct directed at Plaintiff in Oregon.
C. The Exercise of Personal Jurisdiction Over Young is Reasonable
Finally, due process requires the exercise of jurisdiction over a nonresident defendant be reasonable. For jurisdiction to be reasonable, it must comport with fair play and substantial justice. See Burger King, 471 U.S. at 476.
The reasonableness determination requires the consideration of several factors: (1) the extent of the defendant's purposeful interjection into the forum state, (2) the burden on the defendant in defending in the forum, (3) the extent of the conflict with the sovereignty of the defendant's state, (4) the forum state's interest in adjudicating the dispute, (5) the most efficient judicial resolution of the controversy, (6) the importance of the forum to the plaintiff's interest in convenient and effective relief, and (7) the existence of an alternative forum.
Bancroft Masters, Inc., 223 F.3d at 1088 (citing Burger King, 471 U.S. at 476-77). Defendant has the burden of demonstrating unreasonableness and must put on a "compelling case." Burger King, 471 U.S. at 476-77.
Defendants have made no factual showing regarding the Burger King factors. Instead, Defendants assert Plaintiff has failed to carry his burden to establish the Court's jurisdiction over Young, and this Court's exercise of jurisdiction over Young would be unfair. This is inadequate to sustain Defendants' burden under Burger King to demonstrate a "compelling case" addressing the seven factors set forth above. Defendants have not demonstrated any hardship or any other specific factor that suggests jurisdiction in Oregon would be unreasonable as to Young. This Court, therefore, concludes the reasonableness requirement is met.
CONCLUSION
The Court finds, based on the record before it, Plaintiff has made a prima facie showing that Young is subject to the jurisdiction of this Court. This, however, does not end Plaintiff's burden to establish jurisdiction. Plaintiff will be required to prove the jurisdictional facts at trial by a preponderance of the evidence. Data Disc, Inc. v. Systems Technology Associates, Inc. 557 F.2d 1280, 1285 n. 2 (9th Cir. 1977).
For the reasons set forth above, Defendants' Motion to Dismiss for Lack of Personal Jurisdiction (#7) as to Defendant Young is DENIED.
IT IS SO ORDERED.