Opinion
No. 02cv1449 PJK/JHG.
April 29, 2003.
ORDER
THIS MATTER comes on for consideration of Defendant David Johst's Motion to Dismiss for Lack of Personal Jurisdiction, or, Alternatively, for Failure to State a Claim filed April 2, 2003 (Doc. 16). Upon consideration whereof,
(1) Defendant Charles River Laboratories, Inc. ("Charles River") is the parent company of the Alamogordo Primate Facility ("APF") located on Holloman Air Force Base in Otero County, New Mexico. Charles River is a Delaware corporation with its principal place of business in Wilmington, Massachusetts. Plaintiff, a New Mexico resident, was employed by Charles River as an Associate Director and Attending Veterinarian at the APF. Plaintiff's immediate supervisor was Defendant Dr. Rick Lee. Defendant Andrea Sommerfield was the on-site human resources director at the APF. Defendant David Johst, as Senior Vice President of Human Resources and Administration of Charles River, worked at the principal office in Massachusetts. Amended Complaint, Doc. 2 at 2-4.
(2) While employed at the APF, Plaintiff claims that Defendants Lee and Sommerfield made inappropriate comments to and about him, that Ms. Sommerfield touched him in an inappropriate and unwelcome manner, and that other employees and management at the APF either witnessed such conduct or were aware of it. Id. at 4. Plaintiff alleges that he complained of the incidents in person to Dr. Lee and to Dr. Hobson and by letter to Mr. Johst. Id. at 4-5. Plaintiff claims that Mr. Johst "knew or should have known of the problems at [APF], and when he knew, he failed to enforce [Charles River's] Standards of Conduct." Id. at 2. Plaintiff alleges that although he was fired "under pretext of not getting along with management and failure to do the work," he was actually dismissed because of the actions of Ms. Sommerfield, Dr. Lee and Mr. Johst. Id. at 5. As a result of these incidents, Plaintiff sued Defendants under Title VII, the New Mexico Human Rights Act and state law for sexual harassment, retaliatory discharge, negligent supervision and retention, breach of actual and implied contract of employment, assault and battery, and interference with contractual/employment relations.
(3) Mr. Johst seeks dismissal of the complaint on the basis of lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2), and failure to state a claim on which relief can be granted, Fed.R.Civ.P. 12(b)(6). Plaintiff has not filed a response which "constitutes consent to grant the motion." D.N.M. LR-Civ. 7.5(b). Moreover, the first ground is dispositive.
(4) The plaintiff bears the burden of establishing personal jurisdiction over the defendant. Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1075 (10th Cir. 1995). In the preliminary stages of litigation, however, the plaintiff's burden is light. Where there has been no evidentiary hearing and the motion is decided on the basis of affidavits and other written material, the plaintiff need only make a prima facie showing that jurisdiction exists. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). The well-pled facts in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits. Ten Mile Indus. Park v. Western Plains Serv. Corp., 810 F.2d 1518, 1524 (10th Cir. 1987). If the parties present conflicting affidavits, all factual disputes must be resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the defendant. Wenz, 55 F.3d at 1505.
(5) "Where federal statutes governing the claims in a federal question case do not specifically provide for national service of process, the court applies the law of the forum state — here, New Mexico — to determine whether it has personal jurisdiction over a nonresident defendant." Sunwest Silver v. Int'l Connection, 4 F. Supp.2d 1284, 1286 (N.M. 1998) (citing Omni Capital Int'l v. Rudolf Wolff Co., 484 U.S. 97, 104-05 (1987)). Because New Mexico has equated its long-arm-statute jurisdiction as being coextensive with the requirements of due process, FDIC v. Hiatt, 872 P.2d 879, 881 (N.M. 1994), the court need only analyze whether maintenance of the suit against the defendant would offend the constitution. See Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 455 (10th Cir. 1996).
(6) A forum state may constitutionally exercise personal jurisdiction over a non-resident defendant only if there are "minimum contacts" between the defendant and the forum state.International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The contacts must be enough so that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Id. A defendant will be found to have sufficient minimum contacts, satisfying due process, where the defendant has a connection with the forum state and has acted in the state in such a manner that they "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). "[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State." Hanson v. Denckla, 357 U.S. 235, 253 (1958). In New Mexico, the key focus in analyzing minimum contacts issues is the purposeful availment test.Hiatt, 872 P.2d at 882.
(7) Accepting as true both the well-pled facts in the complaint and the non-conflicting facts alleged in Mr. Johst's affidavit, the following are the relevant facts. Mr. Johst lives and works in Massachusetts. Doc. 17 at 1; Doc. 2 at 2. He has never resided in New Mexico, has not owned real or personal property there, has never had personal business interests there, has never maintained an office or agents there, has never been listed in a New Mexico telephone directory, and has never litigated there except for being named as a defendant in this and another related case. Doc. 17 at 1-2. Mr. Johst has visited New Mexico twice in connection with his employment at Charles River; each visit was to the APF, and each lasted two days or less. Id. at 2. Mr. Johst did not meet or speak with Plaintiff during either visit. Id. All of Mr. Johst's communications regarding the subject of Plaintiff's claim have been conducted by telephone, mail or electronic mail exclusively from his office in Massachusetts. Id. Mr. Johst claims that these facts demonstrate that he does not have the minimum contacts with New Mexico necessary to establish personal jurisdiction over him. Doc. 16 at 6.
(8) Plaintiff admits that all "events that gave rise to this cause of action occurred in Otero County, New Mexico." Doc. 2 at 3. Plaintiff further admits that Mr. Johst was, "at all times material hereto . . . located in the principal office." Id. at 2. As the Senior Vice President of Human Resources and Administration for parent Charles River, Mr. Johst was three supervisory levels removed from Plaintiff, who was employed at the APF. Id. at 4-5, 10 (Plaintiff complained to immediate supervisor Dr. Lee and then to supervisor Dr. Hobson before contacting Mr. Johst via letter); Doc. 16 at 9-10. Plaintiff does not allege any personal involvement by Mr. Johst in the activity giving rise to his claims except that he "knew or should have known of the problems at [APF], and when he knew, he failed to enforce [Charles River's] Standards of Conduct." Doc. 2 at 2.
(9) Although employees who act in their official capacity are not shielded from suit in their individual capacity, "jurisdiction over an employee does not automatically follow from jurisdiction over the corporation which employs him. Each defendant's contacts with the forum State must be assessed individually." Keeton v. Hustler Magazine. Inc., 465 U.S. 770, 781 n. 13 (1984) (emphasis added); Calder v. Jones, 465 U.S. 783, 790 (1984). In Calder, the Supreme Court concluded that the employees there were "primary participants in an alleged wrongdoing intentionally directed at [an out-of-state] resident, and jurisdiction over them [was] proper on that basis." 465 U.S. at 789-90 (noting that the employees in question were "not charged with mere untargeted negligence. Rather, their intentional, and allegedly tortious, actions were expressly aimed [out-of-state]."). Likewise, the Tenth Circuit has recognized that "employees . . . may themselves be subject to jurisdiction if [they] were primary participants in the activities forming the basis of jurisdiction over the corporation." SEC v. Knowles, 87 F.3d 413, 418 (10th Cir. 1996) (citing Calder); see also, e.g., Wiggins v. Equifax Inc., 853 F. Supp. 500, 503 (D.C. 1994) ("Personal jurisdiction over the employees or officers of a corporation in their individual capacities must be based on their personal contacts with the forum and not their acts and contacts carried out solely in a corporate capacity. Thus, the corporation ordinarily insulates the individual employee from the court's personal jurisdiction." (first emphasis added)); Richard v. Bell Atl. Corp., 946 F. Supp. 54, 73-74 (D.C. 1996).
(10) Given these standards and Plaintiff's failure to supplement the facts contained in the complaint, the court concludes that Mr. Johst's contacts with New Mexico are insufficient to satisfy the minimal requirements of due process. For the following reasons, Plaintiff has failed to satisfy even the light burden to make a prima facie showing of jurisdiction over Mr. Johst.
(11) Plaintiff has not alleged sufficient facts that Mr. Johst ever made a purposeful decision to avail himself of the privilege of conducting activities in New Mexico. Nor has Plaintiff shown how Mr. Johst deliberately created a relationship with New Mexico that would serve to make New Mexico's exercise of jurisdiction over him either foreseeable or fair. The facts as alleged simply do not support a conclusion that Mr. Johst was a primary participant in alleged wrongdoing intentionally directed at Plaintiff in New Mexico. See Calder, 465 U.S. at 790. The complaint does not allege that Mr. Johst actually committed any specific act of sexual harassment, retaliatory discharge, breach of contract, assault, battery, interference with contractual relations or negligent supervision or retention in New Mexico. It claims only that he failed to act at all in New Mexico if and when he became aware of problems at the APF. Mr. Johst was not the face of either the APF or Charles River in New Mexico.
(12) Although Mr. Johst visited New Mexico twice on Charles River business, those visits are not alleged to have any connection at all to the circumstances of this case and do not establish minimum contacts. See, e.g., Shaffer v. Heitner, 433 U.S. 186, 204 (1977) (noting that the relationship among the defendant, the forum, and the litigation is the central concern of the due process inquiry); Pelton v. Methodist Hosp., 989 F. Supp. 1392, 1394 (N.M. 1997) (noting the requirement of a close relationship between the conduct and the cause of action to support a finding of personal jurisdiction). Likewise, Mr. Johst's "few" interactions with Plaintiff or others at APF via telephone, mail or electronic mail pertaining to this action were all conducted exclusively from his office in Massachusetts and are likewise not sufficient to establish minimum contacts.See, e.g., CABA Ltd. Liab. Co. v. Mustang Software, Inc., 984 P.2d 803, 810-11 (N.M.Ct.App. 1999) (noting that such contacts are ordinarily insufficient). In short, Plaintiff failed to satisfy the "essential" minimum contacts requirement that "there be some act by which the defendant purposefully avails [him]self of the privilege of conducting activities within the forum State." Hanson, 357 U.S. at 253.
NOW, THEREFORE, IT IS ORDERED that Defendant David Johst's Motion to Dismiss for Lack of Personal Jurisdiction, or, Alternatively, for Failure to State a Claim filed April 2, 2003 (Doc. 16), is granted and this action against him is dismissed for lack of jurisdiction over the person.