Frazer v. Johnson Controls Inc et al

Filing 71

MEMORANDUM OPINION AND ORDER adopting in part and rejecting in part the R&R; denying #37 Motion to Dismiss; ; denying #11 Motion to Dismiss; the time for perfecting service on dft Ediasa is extended 60 days from this date. Signed by Chief Judge Sharon Lovelace Blackburn on 9/29/2013. (KAM, )

FILED
2013 Sep-30 AM 08:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
COURTNEY FRAZER,
Plaintiff,
vs.
JOHNSON CONTROLS, INC.; ANM
SERVICES, LLC; EDIASA; GENOT’S
AZ QUALITY SERVICES, INC., d/b/a/
AZ Quality; WILLIAM YEE,
Defendants.

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CASE NO. 7:11-CV-3956-JHE

MEMORANDUM OPINION AND ORDER
On December 20, 2012, the Magistrate Judge filed his Report and Recommendation,
(doc. 55),1 recommending that defendant Ediasa’s Motions to Dismiss, (docs. 11 and 37), “be
denied on the ground that the service rules were substantially [complied] with, or, if it is
determined that service should be quashed, . . . recommend[ing] that the motion[s] to dismiss
be denied on the ground that the plaintiff should be allowed more time to effect proper
service,” (doc. 55 at 8). Defendant Ediasa filed Objections to Report and Recommendation,
(doc. 57), to which plaintiff Courtney Frazer has responded, (doc. 58). Based upon the
court’s consideration of all the materials in its file, including the Report and
Recommendation, defendant Ediasa’s Objections, (doc. 57), are OVERRULED IN PART
and SUSTAINED IN PART, and defendant Ediasa’s Motions to Dismiss, (docs. 11 and 37),

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Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

are DENIED.

The time for perfecting service of process on defendant Ediasa is

EXTENDED 60 days from the date of this Memorandum Opinion and Order.
I. STANDARD OF REVIEW OF THE REPORT AND RECOMMENDATION
The district court reviews de novo those parts of the Report and Recommendation to
which a party objects. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3)(“The district
judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.”).

The court may review the other parts of the Report and

Recommendation for plain error or manifest injustice. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983)(citing Nettles v. Wainwright, 677 F.2d 404, 410 (11th Cir. 1982)).
“The district judge may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ.
P. 72(b)(3).
II. STATEMENT OF FACTS
In an Opinion and Reasons entered in response to a Report and Recommendation
entered in this case, Judge Smith set forth the following facts gleaned from the plaintiff’s
Complaint and proposed Amended Complaint. These facts are quoted below only as a means
of providing background information in this case.
Plaintiff alleges a complex relationship among the four entities that she
has named as defendants – i.e., Johnson Controls, Inc. (“JCI”); Ediasa; Genot’s
AZ Quality Services, Inc., doing business as AZ Quality (“AZ Quality”); and
ANM Services, LLC (“ANM”) – all of whom allegedly employed her jointly
from January 4 to February 2, 2011. Johnson Controls, Inc. (“JCI”)
manufactured automotive components, and owned and operated a
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manufacturing facility in Cottondale, Alabama. The Cottondale facility
obtained its parts from Ediasa. In turn, the Ediasa parts were quality controlled
by a full-time liaison based at the Cottondale facility and employed by Genot’s
AZ Quality Services, Inc., doing business as AZ Quality (“AZ Quality”). The
liaison was authorized to supervise other Cottondale facility workers who
addressed issues in the quality of the Ediasa parts.
Gino Arenas, a liaison employed by AZ Quality, hired plaintiff to work
in the quality department at the Cottondale facility on a temporary basis
beginning on or around January 4, 2011, as part of a formal quality review
program regarding the parts Ediasa supplied. Plaintiff received her paycheck
from ANM Services, LLC (“ANM”). However, plaintiff was directly
supervised by the liaison employed by AZ Quality, Gino Arenas, and, later, by
Pete Arenas, his replacement. Further, plaintiff was directly supervised by
management employees of JCI, including Human Resources Representative
Elvira White and Second Shift Production Manager David Nelson. Finally,
plaintiff was directly or indirectly supervised by employees of Ediasa,
including Quality Superintendent William Yee.
In late 2010 and early 2011, Ediasa assigned Yee to work at the
Cottondale facility as part of the formal quality review program regarding the
parts Ediasa supplied. During plaintiff’s first week of employment, Yee told
her that she needed to come to his hotel and dance for him if she wanted to
become a permanent employee. Plaintiff went to Yee’s hotel, where he made
it clear to her that if she had sex with him, she would have a permanent job.
Yee then left the state of Alabama. During his absence, plaintiff
learned that she was pregnant. When Yee returned to Alabama, he insisted
that plaintiff have sex with him. Plaintiff refused to do so, and told him that
she was pregnant. However, Yee continued to insist that plaintiff had sex with
him. Further, Jose Farmerio, a lead person employed by ANM, continuously
asked plaintiff to have sex with him in crude terms, and touched her private
parts against her will.
Plaintiff reported the sexual harassment by Yee and Farmerio to human
resources personnel and managers, including ANM Second Shift Supervisor
Saul Allen. Plaintiff also informed Allen about her pregnancy. Allen referred
her to JCI Human Resources Representative Elvira White, who in turn referred
her to JCI Second Shift Production Manager David Nelson.

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On February 1, 2011, plaintiff reported the sexual harassment to White
and Nelson, and informed them that she was pregnant. The next day, the
liaison employed by AZ Quality, Pete Arenas, told plaintiff that she was fired
because Yee and Farmerio said they no longer wanted plaintiff working there.
Pete Arenas subsequently told plaintiff that Yee had instructed him to fire her.
(Doc. 53 at 3-7 [footnotes omitted; emphasis in original].)
Plaintiff filed an EEOC charge, and, after receiving a right-to-letter, she filed the
instant action. (Doc. 46 ¶ 2.) Thereafter, she attempted to serve defendant Ediasa, “a
Mexican limited liability company.” (Doc. 55 at 3 [citing doc. 12 at 3].) According to the
Report and Recommendation –
The record first reflects service on EDIASA on November 26, 2011.
(Doc. 6.) Service of the summons and complaint was attempted by certified
mail. The return demonstrates that service was addressed merely to
“EDIASA” at 1324 Goodyear Drive, El Paso, TX 79936. (Doc. 6.) The name
of the person who signed the receipt is illegible. The defendant, however, has
identified this person as “Fernando Compean Ortiz.” (Doc. 12-1, p. 2.)
Defendant JCI’s senior manager, Rodney DuBois, has issued an affidavit
which states that the address to which the article was sent is a warehouse
leased by JCI. (Doc. 12-1, p. 2.) DuBois also states that Ortiz “works in the
shipping and receiving department of the JCI El Paso facility” as a forklift
operator. (Doc. 12-1, p. 2.) According to the affidavit, Ortiz “is not a director
or agent of JCI, and is not authorized to accept service of process on behalf of
JCI or [EDIASA].” (Doc. 12-1, p. 2.) The plaintiff has not provided any
evidence to refute the DuBois affidavit.
The record reflects that service on EDIASA was attempted a second
time on January 13, 2012. (Doc. 26.) Again, process was sent by certified
mail, to the same address, but this time addressed to EDIASA in care of
William Yee.” (Doc. 26.) Again, the name of the person who signed the
receipt is illegible, and there is no evidence in the record identifying this
person. The defendant states again that the address to which process was sent
was a JCI facility, and that the signature is not William Yee’s, rather the
signature belongs to an employee of JCI “who has no authority [to] accept
service on behalf of [EDIASA] or William Yee.” (Doc. 37, p. 4.)
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The record last reflects service on EDIASA on January 12, 2012. (Doc.
30.) Again, process was sent by certified mail, this time addressed to
“EDIASA c/o Johnson Controls, Inc. c/o C.T. Corporation System.” (Doc.
37.) EDIASA concedes that JCI is its “parent company,” and that this attempt
placed service with JCI’s registered agent for service of process. (Doc. 37.)
(Doc. 55 at 1-2 [emphasis in original].)
The parties do not dispute the Magistrate Judge’s determination of these facts.
Therefore, the court ADOPTS the Report’s History of Service Attempts as set forth above.
III. DISCUSSION
Defendant Ediasa objects to the Magistrate Judge’s determination that plaintiff’s
service attempts “substantially complied” with Fed. R. Civ. P. 4 such that its Motions to
Dismiss should be granted. It also contends that plaintiff Frazer should not be allowed
additional opportunities to perfect service on Ediasa. For the reasons set forth below, the
court SUSTAINS Ediasa’s objection to the Magistrate Judge’s finding that Frazer has
substantially complied with Rule 4’s requirements for perfecting service. However, even
though Frazer’s attempts at service were insufficient, her claims against Ediasa should not
be dismissed at this time. Therefore, Ediasa’s remaining objections to the Report and
Recommendation are OVERRULED.
According to the Report and Recommendation, Frazer attempted to serve Ediasa by
serving the Summons and Complaint at a facility owned by Johnson Controls and on the
registered agent of Johnson Controls.
Service of the proper agent of a parent corporation can constitute valid
service [on a subsidiary corporation] and confer personal jurisdiction.
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Edwards v. Gulf Mississippi Marine Corp., 449 F. Supp. 1363 (S.D. Tex.
1978). A mere parent-subsidiary corporate relationship, however, does not
establish the necessary agency relationship. Cannon Mfg. Co. v. Cudahy
Packing Co., 267 U.S. 333, 336-37 (1925). In order to allow service on a
subsidiary company through a parent, one must establish a sufficient agency
relationship or that the two corporations are not really separate entities. Allan
v. Brown & Root, Inc., 491 F. Supp. 398, 403 (S.D. Tex. 1980).
John Scott, Inc. v. Munford, Inc., 670 F. Supp. 344, 345 (S.D. Fla. 1987)(parallel Supreme
Court cites omitted); see also Delta Constructors, Inc. v. Roediger Vacuum, GmbH, 259
F.R.D. 245, 249 (S.D. Miss. 2009)(“Generally, service on a parent, subsidiary, cosubsidiary,
or affiliate of a corporate defendant is not service on the defendant. While this is the general
rule, courts have consistently recognized that a subsidiary may be found to be a parent
corporation’s agent at law for service of process, or that a parent may be held a subsidiary’s
agent at law for service of process where the evidence shows that one is the agent or alter ego
of the other.” (internal quotations and citations omitted)).
Without a showing that Johnson Controls was Ediasa’s agent for purposes of
accepting service or that Johnson Controls and Ediasa are not truly two separate corporations,
the attempted service on Ediasa at the Johnson Controls facility and on Johnson Controls’s
registered agent does not constitute substantial compliance with Fed. R. Civ. P. 4. Therefore,
the Recommendation that defendant Ediasa’s “motion[s] to dismiss be denied on the ground
that the service rules were substantially complied with,” (doc. 55 at 8), is REJECTED.
This court “has broad discretion to dismiss the action or to quash service but retain
the case” when service of process in insufficient. Thermo-Cell Southeast, Inc. v. Technetic

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Industries, Inc., 605 F. Supp. 1122, 1124 (N.D. Ga. 1985)(citing 5 C. Wright & A. Miller,
FEDERAL PRACTICE AND PROCEDURE § 1354 (1969)). The recommendation of the Magistrate
Judge is that “the motion to dismiss be denied on the ground that the plaintiff should be
allowed more time to effect proper service.” (Doc. 55 at 8.) Because Ediasa is amenable to
service under Alabama’s long-arm statute, the court ADOPTS this Recommendation. See
Thermo-Cell Southeast, Inc., 605 F. Supp. at 1124; Jackson v. Vaughan Regional Medical
Center, Civil Action No. 09-203-S-B, 2009 WL 3242082, *3 (S.D. Ala. Oct. 6, 2009).
Pursuant to Rule 4(h) –
Unless federal law provides otherwise or the defendant’s waiver has been
filed, a domestic or foreign corporation . . . must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an
individual; or
(B) by delivering a copy of the summons and of the complaint
to an officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process and – if the agent is one authorized by statute and the
statute so requires – by also mailing a copy of each to the
defendant; or
(2) at a place not within any judicial district of the United States, in
any manner prescribed by Rule 4(f) for serving an individual, except
personal delivery under (f)(2)(C)(i).
Fed. R. Civ. P. 4(h)(emphasis added). Rule 4(f) provides:
Unless federal law provides otherwise, an individual – other than a minor, an
incompetent person, or a person whose waiver has been filed – may be served
at a place not within any judicial district of the United States:
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(1) by any internationally agreed means of service that is reasonably
calculated to give notice, such as those authorized by the Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Documents;
(2) if there is no internationally agreed means, or if an international
agreement allows but does not specify other means, by a method that
is reasonably calculated to give notice:
(A) as prescribed by the foreign country’s law for service in that
country in an action in its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter
rogatory or letter of request; or
(C) unless prohibited by the foreign country’s law, by:
(i) delivering a copy of the summons and of the
complaint to the individual personally; or
(ii) using any form of mail that the clerk addresses and
sends to the individual and that requires a signed receipt;
or
(3) by other means not prohibited by international agreement, as the
court orders.
Fed. R. Civ. P. 4(f)(emphasis added).
Ediasa is a Mexican corporation. Mexico is a signatory to the Hague Convention.
“[T]he only form of service available in Mexico under the Hague Convention is through the
Mexican Central Authority.” Forth v. Carnival Corp., No. 12-23770-CIV, 2013 WL
1840373, *2 (S.D. Fla. May 1, 2013)(citing Opella v. Rullan, No. 10-21134-CIV, 2011 WL
2600707, *5 (S.D. Fla. June 29, 2011); Mitchell v. Volkswagen Group of America, Inc., 753
F. Supp. 2d 1264, 1270-71 (N.D. Ga. 2010)); see generally Charles B. Campbell, No Sirve:
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the Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in
Mexico under the Hague Service Convention, 19 MINN. J. INT’L L. 107 (Winter 2010).
Based on the foregoing, the court finds that defendant Ediasa’s Motions to Dismiss,
(docs. 11 and 37), are DENIED. The time for perfecting service on defendant Ediasa is
EXTENDED 60 days from the date of this Memorandum and Opinion. Unless good cause
is shown, the court will dismiss plaintiff’s claims against defendant Ediasa if plaintiff fails
to perfect service within the additional time allowed.
Further motions related to service on defendant Ediasa, if any, will be referred directly
to the undersigned judge.
DONE, this 29th day of September, 2013.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

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