Opinion
Civil Action No. 10C-03-262-JOH.
Submitted: August 23, 2010.
Decided: December 22, 2010.
Upon Motions of Defendants to Dismiss.
DENIEDGlenn A. Brown, Esquire, of Real World Law, PC, Wilmington, Delaware, Attorney for Avril E. Lettman.
Colin M. Shalk, Esquire, of Casarino Christman Shalk Ransom Doss, Wilmignton, Delaware, Attorney for Greenwood Gaming and Entertainment, Greenwood GE Holding, Inc., and Greenwood Racing, Inc.
MEMORANDUM OPINION
Before the Court are two motions to dismiss plaintiff Avril E. Lettman's action against defendants Greenwood Gaming and Entertainment, Inc. ("GGE"). GGE is allegedly doing business as Philadelphia Park Casino and Racetrack, Greenwood GE Holding, Inc. ("GE Holding") and Greenwood Racing, Inc. ("GRI"). All are Delaware corporations. Defendants first moved to dismiss under Superior Court Civil Rule 12(b)(3), pursuant to the doctrine of forum non conveniens. Defendants later moved to dismiss under Superior Court Civil Rules 12(b)(2), lack of personal jurisdiction, and 12(b)(7), failure to join an indispensable party. For the reasons stated herein, defendants' motions to dismiss are DENIED.
Defs.' M. atl.
Facts
Defendants or their subsidiaries or affiliates employed Avril E. Lettman ("Lettman") as a Player Services Representative at the Philadelphia Park Casino and Racetrack in Bensalem, Pennsylvania. Lettman alleges the discrimination occurred because of her religious beliefs and her Jamaican national origin. After an alleged disagreement with a supervisor, her hours were reduced, her schedule was changed, and she was required to work on Sunday. On December 10, 2008, Lettman filed a complaint with both the Pennsylvania Human Rights Commission ("PHRC") and the United States Equal Employment Opportunity Commission ("EEOC"). Lettman was terminated on January 30, 2009. Lettman filed a second complaint with the PHRC and the EEOC on February 20, 2009. The PHRC issued a right to sue on the first complaint on December 10, 2009. On January 11, 2010, the PHRC issued a right to sue on the second complaint.
Compl. at ¶ 21 and ¶ 45.
Compl. at¶ ¶¶ 78-91.
Lettman filed suit in this Court alleging violation of Title VII of the U.S. Civil Rights Act, of the Pennsylvania Human Relations Act, Wrongful Termination, Vicarious Liability for actions of all defendants against each other, and Breach of Contract.
Parties' Contentions
In the first motion to dismiss, defendants argue that the case should be dismissed under Superior Court Civil Rule 12(b)(3) and the doctrine of forum non conveniens. They allege that nonparty Greenwood Gaming Services Co. ("GGS"), a Pennsylvania corporation, is actually Lettman's employer. Since all the allegations arise solely from conduct between Pennsylvania parties, they will suffer overwhelming hardship under General Food Corp. v. Cryo-Maid, Inc. (" Cryo-Maid") if required to litigate in Delaware.
198 A.2d 681 (Del. 1964).
In their second motion to dismiss, defendants argue under Superior Court Civil Rule 12(b)(7) for failure to join an indispensable party and 12(b)(2) for lack of personal jurisdiction. Defendant's rely upon an affidavit by Francis McDonnell. He claims that GGS is a Pennsylvania corporation. Defendants assert that since it is a Pennsylvania corporation, Delaware has no jurisdiction over it. They also argue that even if jurisdiction was found, GGS has not been joined as a party in the action, and therefore the claim must be dismissed for failure to join an indispensable party.
Lettman argues in response that defendants have failed to meet the burden of proof in establishing overwhelming hardship under Cryo-Maid, particularly considering the close proximity of Delaware to Pennsylvania. In response to defendants' second motion, plaintiff submits evidence to show that she was in fact an employee of GGE, a Delaware corporation which is doing business under the fictitious name of Philadelphia Park Casino and Racetrack.
Discussion
In a motion to dismiss, all well-pled allegations are taken as true. All reasonable inferences shall be in favor of the non-moving party. The court need not blindly accept as true all allegations nor draw all inferences in plaintiff's favor unless reasonable.
Lord v. Souder, 748 A.2d 383, 398 (Del. 2000).
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896 (Del. 2002).
White v. Panic, 738 A.2d 543, 549 (Del. 2001).
Defendants' First Motion to Dismiss
Defendants' claim that their motion to dismiss should be granted under 12(b)(3) because they will suffer overwhelming hardship when the Court considers the six relevant factors under Cryo-Maid. The factors are:
(1) The relative ease of access to proof;
(2) The availability of compulsory process for witnesses;
(3) The possibility of the view of the premises, if appropriate;
(4) Whether the controversy is dependent upon application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction;
(5) The pendency or nonpendency of a similar action or actions in another jurisdiction; and
(6) All other practice problems that would make trial of the case easy, expeditious, and inexpensive.
Taylor v. LSI Logic Corp., 689 A.2d 1196, 1198 (Del. 1997), citing, Cryo-Maid, 198 A.2d 681, 684 (Del. 1964).
A brief examination of these factors shows:
1. The casino which is the site of the dispute is in Bensalem. That is about an hour's drive from this courthouse. Any records would presumably be there or accessible to the defendants.
2. All the witnesses would appear to be in Pennsylvania. The defendants have not identified any problems or access to witnesses. Further, this Court is authorized to issue commissions to compel witnesses who are out of state to attend depositions in those states, even for trial depositions.
3. No premises view seems necessary.
4. The applicable laws are federal and Pennsylvania. Delaware courts have frequently applied both.
5. This was the first filed action and there is no other pending action.
6. There are not now any known problems.
The Supreme Court has cautioned against using 12(b)(3) too often when a suit, like the one here, is first-filed in Delaware:
[D]efendants moving to dismiss a first-filed suit on the ground of forum non conveniens must establish with particularity that they will be subjected to overwhelming hardship and inconvenience if required to litigate in Delaware. An action may not be dismissed upon bare allegations of inconvenience without a particularized showing of the hardships relied upon. "To do otherwise would put . . . `a powerful weapon into the hands of corporations alleged to have improperly conducted their affairs.'" Moreover, judicial discretion is to be exercised sparingly where, as here, there is no prior action pending elsewhere.
Taylor, 689 A.2d at 1199.
Defendants here have failed to make the required, particularized, showing of overwhelming hardship under Cryo-Maid. While it may be true that the most convenient forum for this action is Pennsylvania, Taylor instructs the Court to not rely too heavily on such an analysis. Delaware and Pennsylvania are geographically adjacent, and the casino which is the site of the allegation is about an hour's drive form the courthouse. Delaware Courts are competent at analyzing federal law and regularly apply Pennsylvania law . While it is true that Delaware courts cannot compel the production of witnesses from Pennsylvania into Delaware, it can compel production of documents from the parties and the appearance of directors of Delaware corporate defendants if the need arises.
Defendants have not sufficiently alleged overwhelming hardship, and therefore their first motion to dismiss under 12(b)(3) is DENIED.
Defendants' Second Motion to Dismiss
Defendants assert that their second motion to dismiss under Rule 12(b)(7), for failure to join an indispensable party and Rule 12(b)(2) for lack of personal jurisdiction. Their motion under Rule 12(b)(2) for lack of personal jurisdiction is without merit. The only entity with a colorable claim of non-jurisdiction is non-party GGS. The other three defendants are Delaware corporations over which this Court clearly has jurisdiction. The Court cannot dismiss an entity that is not a party, and therefore the Rule 12(b)(3) motion is moot.
The major dispute is over which corporation is Lettman's actual former employer. It is undisputed that Lettman was employed by Philadelphia Park Casino and Racetrack. Defendants' rely on the affidavit of Francis McDonnell, assistant general counsel and secretary to GGS, to prove that it was actually Lettman's employer. The affidavit clouds the issues of Lettman's employer. In the affidavit, he states "GGS employs the gaming employees who work at the Philadelphia Park Casino and Racetrack." He attaches an apparent corporate hierarchy of the same.
Defs.' Second M. to Dismiss at Ex. A, ¶ 3.
Id. at Ex. 2.
Lettman, however, has the more convincing documentary evidence. First, she produced a fictitious name registration for the pseudonym "Philadelphia Park Casino," registered to defendant GGE, and issued by the Pennsylvania Department of State. Second, she produced another fictitious name registration for "Philadelphia Park Casino and Racetrack," registered to defendant GRI. Finally, additional exhibits to the complaint shed the most light on the identity of Lettman's former employer. In Lettman's second PHRC complaint, entitled "Avril Lettman Complainant v. Philadelphia Park Casino and Racetrack, Respondant," she averred, "I have been employed by Respondant as a Player Service Representative since on or about December 1, 2006." GGE answered the complaint and as it relates to ¶ 4, it responded "Admitted."
Pl.'s Resp. to Defs.' Second M. to Dismiss at Ex. C.
Id. at Ex. D.
Compl. at Ex. C, ¶ 4.
Id. at Ex. D, ¶ 4.
The Court takes GGE's admission as proof that it was, in fact, Lettman's employer. Lettman was employed by GGE, a Delaware corporation. She was not employed by GGS, and therefore GGS is not an indispensable party. Because of this fact the defendants' motion is moot and it is DENIED.
Conclusion
For the reasons stated herein, defendants' motions to dismiss are DENIED.
IT IS SO ORDERED.