Stone v. NHS Human Services

Filing 55

ORDER Denying Defendants' Motion To Dismiss Complaint and Transferring Case re 23 .On the basis of the foregoing, Defendants Motion to Dismiss Complaint, filed May 25, 2018, is HEREBY DENIED. The Court HEREBY TRANSFERS this case to the United States District Court for the Eastern District of Pennsylvania. The denial of the Motion is WITHOUT PREJUDICE to the consideration of the jurisdictional issues by the district court in Pennsylvania after transfer.The Clerk's Offic e is DIRECTED to effectuate the transfer on November 13, 2018, unless Plaintiff files a motion for reconsideration of this Order before the deadline established in the Local Rules for the District of Hawai`i. Signed by JUDGE LESLIE E. KOBAYASHI on 10/29/2018. (cib, )COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NANETTE STONE,

)
)
Plaintiff,
)
)
vs.
)
)
NHS HUMAN SERVICES, The
)
Association for Independent
)
Growth,
)
)
)
Defendant.
_____________________________ )

CIVIL 17-00601 LEK-KSC

ORDER DENYING DEFENDANTS’ MOTION TO
DISMISS COMPLAINT AND TRANSFERRING CASE
Before the Court is Defendants NHS Human Services
(“NHS”) and The Association for Independent Growth’s (“AIG,”
collectively “Defendants”) Motion to Dismiss Complaint
(“Motion”), filed on May 25, 2018.

[Dkt. no. 23.]

Pro se

Plaintiff Nanette Stone (“Plaintiff”), filed her memorandum in
opposition on July 30, 2018, and Defendants filed their reply on
August 6, 2018.

[Dkt. nos. 46, 49.]

The Court finds this matter

suitable for disposition without a hearing pursuant to Rule
LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
Defendants’ Motion is hereby denied without prejudice, and the
case is transferred to the United States District Court for the
Eastern District of Pennsylvania, for the reasons below.

BACKGROUND
I.

Plaintiff’s Complaint
On December 20, 2017, Plaintiff filed her Employment

Discrimination Complaint (“Complaint”) against Defendants, who
she refers to as her employers.1

[Dkt. no. 1 at pgs. 1-2.2]

Plaintiff alleges federal question and possibly diversity
jurisdiction.3

[Id.]

Plaintiff alleges that, between 2013 to 2014, her
employer4 implied that she was disabled and required counseling,
and openly discussed Plaintiff’s medical diagnoses with her.5
[Id. at pg. 8.]

Plaintiff asserts she was sexually assaulted

1

Defendants submitted evidence that Plaintiff was employed
at NHS’s office in Lafayette Hill, Pennsylvania (“Lafayette
Office”) from December 10, 2012 to August 26, 2014 as a quality
and performance manager, and she was never employed by AIG.
[Motion, Decl. of Jill Garfinkle Weitz (“Weitz Decl.”) at ¶¶ 1920.] Jill Garfinkle Weitz is NHS’s general counsel. [Id. at
¶ 1.]
2

The Complaint consists of multiple documents that are not
consecutively paginated. All citations to the Complaint and
sections therein refer to the page numbers assigned by the
district court’s electronic case filing system.
3

Plaintiff appears to have been a Hawai`i resident at the
time of filing as she maintained a Honolulu, Hawai`i mailing
address. [Complaint at pg. 1.]
4

Plaintiff does not identify any individual with regard to
this allegation.
5

The Complaint does not specifically state what disability
Plaintiff may be suffering from, or is perceived to suffer from.
However, Plaintiff states in her memorandum in opposition that
she suffers from hearing loss. [Mem. in Opp. at 5.]
2

and/or harassed on or about February or March 2013, while at the
NHS office building at 4700 Wissahickon Avenue (“Wissahickon
Building”), during a certified investigators class.

An unknown

man from “AVS” sat next to her and touched her repeatedly on the
leg, and would not stop until she moved away from him.
pgs. 6, 10.]

[Id. at

Plaintiff alleges that, after she reported the

incident in June 2013, one of her supervisors, Brian Hancock,6
threatened her in retaliation for her report when he told her
“Don’t Ask, Don’t Tell” in the parking lot outside of the
Wissahickon Building.

[Id. at pgs. 3, 9.]

In 2014, a coworker Plaintiff refers to as “Sheree”
would speak in a low voice so that Plaintiff could not hear her,
and at other times would ignore her completely.7

[Id. at pg. 8.]

On another occasion, she alleges a male coworker attempted to
humiliate her in the presence of two other female coworkers, by
standing close behind her with his “frontal” near her backside.
[Id. at pg. 10.]

Plaintiff also alleges staff followed her to

restrooms, break rooms, meetings, and going to and from work.
[Id. at pgs. 3, 4, 9, 10.]

6

According to the Complaint, Mr. Hancock oversaw one of the
programs that Plaintiff managed for “Performance and Quality”
review. [Complaint at pg. 3.]
7

Plaintiff also states “Sheree would ignore Our direct
supervisor Alex Canavan.” [Id. at pg. 8.]
3

Plaintiff believes and alleges she: was filmed on a
number of occasions by her coworkers; [id. at pg. 4;] was offered
a sham “promotion” that she perceived as a demotion from her
current position; [id.;] had a male coworker “ram[] into [her]
arm,” in retaliation;8 [id. at pg. 2;] had her work sabotaged by
other coworkers who infected her computer and personal electronic
devices with “malware viruses”; [id. at pg. 8;] and received
threats from her coworkers and her superiors, [id. at pgs. 2, 3,
8].

Plaintiff alleges her pay was reduced on a date between 2013

and 2014, which her supervisors and payroll allegedly indicated
she was “due” for.

[Id. at pg. 10.]

Another coworker approached

her and implied that Plaintiff deserved the pay reduction.
Plaintiff resigned from NHS in August 2014.
pgs. 3, 7.]

[Id.]

[Id. at

Plaintiff alleges she continued to experience

negative backlash following her resignation.

Between the dates

of 2014 to 2016, Plaintiff was approached by NHS staff on several
occasions in Philadelphia and Montgomery County, Pennsylvania.9
[Id. at pg. 7.]

On or about March or April 2017, Plaintiff

unsuccessfully applied to the Columbia University Disability
Services Department; Plaintiff alleges NHS sabotaged her

8

Plaintiff does not indicate in her Complaint what the
retaliation was in response to.
9

Plaintiff alleges that in 2014, a person named “Kamilla
Abdul Malik” approached her at the “Nile Café,” and another
unidentified person approached her twice at a “WAWA.” [Complaint
at pg. 7.]
4

application by lying about the quality of her work product and
implying that she had been terminated from NHS.

[Id. at pg. 9.]

Plaintiff generally alleges NHS has blacklisted her from future
employment by “defaming [her] ‘good’ record of service . . . at
NHS[.]”

[Id. at pg. 2.]
Plaintiff filed a charge of discrimination with the

United States Equal Employment Opportunity Commission (“EEOC”) in
Honolulu, Hawai`i, and the EEOC issued a right-to-sue letter to
Plaintiff on October 31, 2017.

[Complaint, Exh. A (EEOC right-

to-sue letter).]
Plaintiff’s Complaint alleges employment discrimination
based on her gender (female) in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e,
et seq.

[Complaint at pg. 2.]

Plaintiff also appears to allege

disability discrimination, pursuant to the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., in addition
to unsafe working conditions, retaliation, sexual harassment,
assault, slander, and defamation, among other unclear
allegations.

[Id.]

Plaintiff seeks compensation for back pay

and loss of future income, attorney’s fees and costs, and any
other appropriate relief.
II.

[Id. at pgs. 5, 7.]

Defendants’ Motion
The instant Motion asserts the Complaint should be

dismissed as this Court lacks personal jurisdiction over

5

Defendants, who are both Pennsylvania entities and do not conduct
business in the forum.

NHS is a non-profit corporation,

organized and incorporated in the State of Pennsylvania, and
currently operating under the new name of Merakey USA.
Decl. at ¶¶ 1, 5-6.]

[Weitz

AIG is a Pennsylvania corporation now known

as Merakey IDD Philadelphia, and is a wholly owned subsidiary of
Merakey USA.
Pennsylvania.

[Id. at ¶¶ 3, 7.]
[Id. at ¶ 7.]

AIG has operations only in

NHS is a service organization that

operates in Pennsylvania, New Jersey, Virginia, New York,
Maryland, Delaware, Louisiana, and Michigan.

[Id. at ¶¶ 10-11.]

Defendants have employed no person and conducted no business in
Hawai`i.

[Id. at ¶¶ 12, 17.]

Defendants neither own/rent any

personal or real property in Hawai`i, nor do they hold any bank
accounts in Hawai`i.

[Id. at ¶¶ 14-16.]

Defendants do not

advertise or hold any licenses or registrations to conduct
business in Hawai`i.

[Id. at ¶¶ 13, 18.]

Defendants were unable to serve copies of the Motion on
Plaintiff at her residence in Honolulu, Hawai`i, but were later
successful in serving Plaintiff at her new address in
Philadelphia, Pennsylvania.

[EO: Court Order Regarding Defs.’

Motion to Dismiss Complaint and Pltf.’s Duty to File a Notice
Regarding Any Change in Her Address, filed 6/14/18 (dkt. no. 33)
(“6/14/18 EO”).]

In the 6/14/18 EO, the Court reminded Plaintiff

that she must file a notice informing the district court and the

6

parties of her change of address, the effective date of said
change, and to include her telephone and email address in the
notice.

Plaintiff was also reminded that the deadline to file

any opposition to the Motion was July 2, 2018.

[Id. at 2.]

Although Plaintiff was subsequently reminded on three
separate occasions to file a notice, Plaintiff has not done so.
See Minutes, filed 6/16/18 (dkt. no. 38); Minutes, filed 7/2/18
(dkt. no. 39); EO: Order Vacating Hearing Scheduled for July 23,
2018, and Resetting Hearing for August 27, 2018, at 9:45 A.M.,
filed 7/9/18 (dkt. no. 42).

Plaintiff’s memorandum in opposition

reflects her Philadelphia, Pennsylvania address.

[Mem. in Opp.

at 1.]
DISCUSSION
I.

Materials Beyond the Pleadings
Defendants have filed their Motion pursuant to Fed. R.

Civ. P. 12(b)(2), and move to dismiss the Complaint for lack of
personal jurisdiction.

Generally, this Court’s scope of review

in considering a motion to dismiss is limited to the allegations
in the complaint.

See, e.g., Daniels-Hall v. Nat’l Educ. Ass’n.,

629 F.3d 992, 998 (9th Cir. 2010) (“[A] court may consider
evidence on which the complaint necessarily relies if: (1) the
complaint refers to the document; (2) the document is central to
the plaintiff's claim; and (3) no party questions the
authenticity of the copy attached to the 12(b)(6) motion.”
7

(citations and internal quotation marks omitted)).

However,

“courts may ‘consider certain materials - documents attached to
the complaint, documents incorporated by reference in the
complaint, or matters of judicial notice - without converting the
motion to dismiss into a motion for summary judgment.’”

Haw.

Reg’l Council of Carpenters v. Yoshimura, Civ. No. 16-00198 ACKKSC, 2016 WL 4745169, at *2 (D. Hawai`i Sept. 12, 2016) (quoting
United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)).
When, as here, the Court considers a motion to dismiss for lack
of personal jurisdiction, the Court may consider evidence outside
the pleadings.

See Wood v. Nw. Airlines, Inc., No. CV 09-00481

DAE-LEK, 2010 WL 2485946, at *2 n.2 (D. Hawai`i June 16, 2010)
(citing Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1108 (9th
Cir. 2002)).
The Court has considered the Weitz Declaration in
ruling on the Motion.

However, since Defendants seek dismissal

of the Complaint based on lack of personal jurisdiction, the
Court need not convert Defendants’ motion to dismiss into a
motion for summary judgment.
II.

See id.

Jurisdiction
Defendants argue Plaintiff’s Complaint should be

dismissed as this Court lacks personal jurisdiction over both
nonresident Defendants.

[Motion at 2.]

When faced with an

attack on personal jurisdiction, Plaintiff has the burden of

8

establishing that jurisdiction is appropriate.

See

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th
Cir. 2004).

As the Court has decided to rule on the Motion

without an evidentiary hearing, Plaintiff is only required to
make a prima facie showing of “jurisdictional facts to withstand
the motion to dismiss.”

See Barranco v. 3D Sys. Corp.,

6 F. Supp. 3d 1068, 1076 (D. Hawai`i 2014) (citing Love v.
Associated Newspapers, Ltd., 611 F.3d 601, 608 (9th Cir. 2010);
Schwarzenegger, 374 F.3d at 800).

A plaintiff may not simply

rest on the bare allegations of the complaint; however,
“uncontroverted allegations in the complaint must be taken as
true, and conflicts between the parties over statements contained
in affidavits or declarations must be resolved in the plaintiff’s
favor.”

Id. (citing Love, 611 F.3d at 608; Schwarzenegger, 374

F.3d at 800).

Further, “[p]ersonal jurisdiction must exist for

each claim asserted against a defendant.”

Action Embroidery

Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th
Cir. 2004) (citing Data Disc, Inc. v. Sys. Tech. Assocs., Inc.,
557 F.2d 1280, 1289 n.8 (9th Cir. 1977)).
This Court has previously stated with regard to
establishing personal jurisdiction:
The district court considers two factors
before exercising personal jurisdiction over a
nonresident defendant in a diversity of
citizenship case: “(1) whether an applicable state
rule or statute potentially confers jurisdiction
over the defendant; and (2) whether assertion of
9

such jurisdiction accords with constitutional
principles of due process.” Flynt Distrib. Co. v.
Harvey, 734 F.2d 1389, 1392 (9th Cir. 1984). “The
jurisdictional inquiries under state law and
federal due process merge into one analysis” when,
as here, the state’s long-arm statute is
“co-extensive with federal due process
requirements.” Roth v. Garcia Marquez, 942 F.2d
617, 620 (9th Cir. 1991). See Cowan v. First Ins.
Co. of Hawaii, 61 Haw. 644, 649, 608 P.2d 394, 399
(1980) (Hawaii’s long-arm statute, Haw. Rev. Stat.
§ 634–35, was adopted to expand the jurisdiction
of Hawaii’s courts to the extent permitted by the
due process clause of the Fourteenth
Amendment). . . .
The Due Process Clause protects a person’s
“liberty interest in not being subject to the
binding judgments of a forum with which he has
established no meaningful ‘contacts, ties, or
relations.’” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 471–72, 105 S. Ct. 2174, 85 L. Ed. 2d
528 (1985) (quoting Int’l Shoe Co. v. Washington,
326 U.S. 310, 319, 66 S. Ct. 154, 90 L.Ed. 95
(1945)). The Due Process Clause requires that
defendants have “certain minimum contacts with
[Hawaii] such that the maintenance of the suit
does not offend traditional notions of fair play
and substantial justice.” Int’l Shoe, 326 U.S. at
316, 66 S. Ct. 154; Data Disc, Inc. v. Systems
Tech. Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir.
1977). The minimum contacts required mean that
the defendant must have purposefully availed
itself of the privilege of conducting activities
within the foreign jurisdiction, thereby invoking
the benefits and protections of the foreign
jurisdiction’s laws. See Asahi Metal Indus. Co.
v. Sup. Court of Cal., 480 U.S. 102, 109,
107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987). In
applying Due Process Clause requirements, courts
have created two jurisdictional concepts — general
and specific jurisdiction.
Barranco, 6 F. Supp. 3d at 1077 (alterations in Barranco) (some
citations omitted).

10

A.

General Jurisdiction
“A court may exercise general jurisdiction over the

defendant when the defendant is a resident or domiciliary of the
forum state, or the defendant’s contacts with the forum state are
continuous, systematic, and substantial.”

Maui Elec. Co. v.

Chromalloy Gas Turbine, LLC, 942 F. Supp. 2d 1035, 1041
(D. Hawai`i 2013) (some citations omitted) (citing Helicopteros
Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-16, 104
S. Ct. 1868, 80 L. E. 2d 404 (1984)).

Plaintiff has not set

forth any facts to defeat Defendants’ arguments that this Court
may not exercise general jurisdiction over Defendants.

In light

of the uncontroverted statements of Defendants’ general counsel,
Defendants do not have sufficient minimum contacts with Hawai`i
that are so continuous and systematic that would constitute a
physical presence in the State of Hawai`i.
U.S. at 414-16.

See Helicopteros, 466

Neither Plaintiff nor Defendants assert NHS

provides any services, has employees, or conducts business in
Hawai`i.

Defendants also do not own or lease property, maintain

any bank accounts, hold licenses/registrations, or advertise in
the forum.

[Weitz Decl. at ¶¶ 12-18.]

Instead, Plaintiff

asserts she filed her claim with this district court to “seek
fresh eyes” and escape what she perceives to be a corrupt system
in Philadelphia.

[Mem. in Opp. at 1.]

11

Thus, this Court turns to whether specific jurisdiction
exists as to each of the Defendants.

See Kukui Gardens Corp. v.

Holco Capital Grp., Inc., 664 F. Supp. 2d 1103, 1111 (D. Hawai`i
2008).

To the extent that Plaintiff does not distinguish whether

NHS, AIG, or both Defendants committed a specific act, the Court
will consolidate its analysis as appropriate.
B.

Specific Jurisdiction
The Ninth Circuit follows a three-part test to analyze

a claim for specific personal jurisdiction:
(1) The non-resident defendant must
purposefully direct his activities or
consummate some transaction with the forum or
resident thereof; 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 relates to the defendant’s forum-related
activities; and
(3) the exercise of jurisdiction must comport
with fair play and substantial justice, i.e.
it must be reasonable.
Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987).
The plaintiff bears the burden of satisfying the
first two prongs of the test. Sher [v. Johnson],
911 F.2d [1357,] 1361 [(9th Cir. 1990)]. If the
plaintiff fails to satisfy either of these prongs,
personal jurisdiction is not established in the
forum state. If the plaintiff succeeds in
satisfying both of the first two prongs, the
burden then shifts to the defendant to “present a
compelling case” that the exercise of jurisdiction
would not be reasonable. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 476–78, 105 S. Ct. 2174,
85 L. Ed. 2d 528 (1985). . . .
12

Schwarzenegger, 374 F.3d at 802.
1.

Purposeful Direction

In an action sounding in tort, the Ninth Circuit
applies a “purposeful direction” analysis rather than “purposeful
availment.”

See id. at 802-03 (citations omitted).

In

evaluating purposeful direction, the Ninth Circuit uses a threepart “effects” test derived from the United States Supreme
Court’s decision in Calder v. Jones, 465 U.S. 783 (1984).10

See

Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002).
“[T]he Calder ‘effects’ test requires that the defendant
allegedly have (1) committed an intentional act, (2) expressly
aimed at the forum state, (3) causing harm that the defendant
knows is likely to be suffered in the forum state.”

Id. (citing

Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082,
1087 (9th Cir. 2000); Caruth v. Int’l Psychoanalytical Ass’n, 59
F.3d 126, 128 (9th Cir. 1995)).
Even if this Court assumes that Defendants committed
the alleged acts, the last two factors are dispositive.

First,

Plaintiff has failed to plead any factual allegation in her
Complaint to show that Defendants expressly aimed their
intentional acts at the forum state.

10

Second, Plaintiff’s

In Calder, the Supreme Court held that the California
court could exercise jurisdiction over two Florida newspapermen
who “expressly aimed” their conduct in Florida to allegedly cause
injuries to a resident in California. 465 U.S. at 783, 789.
13

Complaint and memorandum in opposition lack any assertions that
Defendants knew the effects of their harmful actions were likely
to be suffered in the forum state.

Here, “[i]n order to

expressly aim an act at the State of Hawai`i, Defendant[s] must
have known that Plaintiff was a resident of Hawai`i and must have
actually targeted the forum state.
Plaintiff lives in Hawai`i.”
(citations omitted).

It is not enough that

See Wood, 2010 WL 2485946, at *4

Plaintiff fails to indicate that Defendants

had any knowledge of her residence in Hawai`i, until the filing
of the instant action.

See id.

Plaintiff does not identify the precise geographical
location in which each occurrence in the Complaint took place.
However, it is undisputed that Plaintiff’s Complaint does not
allege any of the occurrences took place in the State of Hawai`i.
Accordingly, “[w]hen both the alleged acts and injury occurs
outside the forum state, a court may find that there are
insufficient minimum contacts for specific jurisdiction.”

See

id. (citations omitted).
To the extent Plaintiff alleges she suffers the
resultant injuries from Defendants’ bad actions in the forum
state - i.e., emotional distress, loss of income from deductions
to her pay - the Ninth Circuit distinguishes between the
consequences of the injury and the actual injury itself.

See

Jones Enters., Inc. v. Atlas Serv. Corp., 442 F.2d 1136, 1139

14

(9th Cir. 1971) (“the existence of an effect in a forum state
cannot, without more, subject its cause to in personam
jurisdiction in that state”).
Defendants’ acts as pled by Plaintiff were not aimed at
the forum state; therefore, the Court concludes Plaintiff cannot
demonstrate that Defendants expressly aimed their acts toward
Hawai`i.

Thus, Plaintiff cannot meet the purposeful direction

prong of the specific jurisdiction test.
Since the specific jurisdiction test requires
satisfaction of all three prongs, and Plaintiff cannot show
Defendants expressly aimed their acts toward the forum state,
this Court declines to exercise personal jurisdiction over the
Defendants.

See Quilala v. Sun Power, CIV. NO. 15-00080 JMS-BMK,

2015 WL 4986012, at *6 (D. Hawai`i Aug. 20, 2015) (“All three
prongs must be satisfied before the court can exercise specific
jurisdiction over a nonresident defendant.” (some citations
omitted) (citing Doe v. Am. Nat’l Red Cross, 112 F.3d 1048, 1051
(9th Cir. 1997))).

However, for the sake of completeness, this

Court will address the other prongs of the test.
2.

Defendants’ Forum-Related Activities

Even assuming Plaintiff had met the purposeful
direction prong, Plaintiff fails to satisfy the forum-related
activity prong of the test.

The Ninth Circuit applies the “‘but

for’ test to determine whether a claim arises out of forum-

15

related activities.”

Trade West, Inc. v. Dollar Tree, Inc.,

Civ. No. 12-00606 ACK-BMK, 2013 WL 1856302, at *7 (D. Hawai`i
Apr. 30, 2013) (citing Menken v. Emm, 503 F.3d 1050, 1058 (9th
Cir. 2007)).

Here, the Complaint fails to allege any of the

events occurred in Hawai`i, or that Defendants have any contacts
with Hawai`i.

While Plaintiff believes Defendants’ conduct

prevented her from obtaining employment in Hawai`i, [Mem. in Opp.
at 2,] the Court finds no factual allegations in the Complaint to
support this conclusory argument.

Even if Plaintiff had included

this allegation in her Complaint, the Court is not bound to
accept Plaintiff’s legal conclusion as true.

See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (“Although for the purposes of a
motion to dismiss we must take all of the factual allegations in
the complaint as true, we ‘are not bound to accept as true a
legal conclusion couched as a factual allegation.’” (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Plaintiff

has not submitted any evidence that she would not have been
injured “but for” Defendants’ forum-related activities.

Rather,

Plaintiff concedes she filed her claim with this district court
based on her belief that she would not be heard fairly in
Philadelphia.
3.

Fair Play and Substantial Justice

Finally, assuming Plaintiff satisfied the purposeful
direction prong and forum-related activity prong, the

16

reasonableness prong also weighs against specific jurisdiction.
When evaluating the reasonableness prong of the test, the
district court must balance seven factors:
(1) the extent of the defendant’s purposeful
interjection into the forum state’s affairs;
(2) the burden on the defendant of defending in
the forum; (3) the extent of conflict with the
sovereignty of the defendants’ 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.
Menken, 503 F.3d at 1058.
All events pled in the Complaint took place outside of
the forum state, and all parties now appear to reside in
Pennsylvania.11

Hawai`i has little interest in adjudicating a

dispute concerning all nonresident parties whose activities
occurred in a foreign jurisdiction.

Most (if not all) of the

witnesses and evidence needed to prove or disprove Plaintiff’s
claims will likely be found in Pennsylvania, and possibly
New York.

As a result, Defendants and potentially Plaintiff

could be burdened with significant expense and inconvenience if
forced to litigate in Hawai`i.

In sum, it does not appear

11

Plaintiff has yet to file notice of her change of address
to her residence in Philadelphia. However, Plaintiff’s last
representation to the Court was that she currently resides in,
and wishes all documents to be mailed to her new Philadelphia
residence. [Dkt. no. 35 (e-mail dated June 9, 2018 from
Plaintiff addressed to the “Honolulu District Court” indicating
Plaintiff’s change of address).]
17

reasonable or fair for this Court to assert specific jurisdiction
over the Defendants.
C.

Summary
Insofar as this Court has ruled that it has neither

general jurisdiction nor specific jurisdiction over Defendants,
this Court CONCLUDES that it does not have personal jurisdiction
over Defendants.
III. Transfer Versus Dismissal
This district court has previously held:
Pursuant to 28 U.S.C. § 1631, if a “court
finds that there is a want of jurisdiction, the
court shall, if it is in the interest of justice,
transfer such action or appeal to any other such
court in which the action or appeal could have
been brought at the time it was filed[.]” See
also Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466,
82 S. Ct. 913, 8 L. Ed. 2d 39 (1962) (Transfer is
permitted “however wrong the plaintiff may have
been in filing his case as to venue, whether the
court in which it was filed had personal
jurisdiction over the defendants or not.”). A
district court may transfer a case if: “(1) the
transferee court would have been able to exercise
its jurisdiction on the date the action was
misfiled; (2) the transferor court lacks
jurisdiction; and (3) the transfer serves the
interest of justice.” Garcia de Rincon v. Dep’t
of Homeland Sec., 539 F.3d 1133, 1140 (9th Cir.
2008).
Quilala, 2015 WL 4986012, at *8.
The Court finds that transfer of this action to the
Eastern District of Pennsylvania is appropriate as it would

18

resolve the problems with personal jurisdiction and venue.12

The

United States District Court for the Eastern District of
Pennsylvania would have been able to exercise both personal
jurisdiction and subject matter jurisdiction over the claims had
Plaintiff filed her Complaint there.

See, e.g., Souders v. S.C.

Pub. Serv. Auth., 497 F.3d 1303, 1307 (Fed. Cir. 2007) (“It is
well settled that transfer of a case to another court is only
permissible if the destination court has subject matter
jurisdiction to hear the case.” (footnote omitted) (some
citations omitted) (citing 28 U.S.C. § 1631)).
First, any federal district court has original
jurisdiction over “all civil actions arising under the
Constitution, laws, or treatises of the United States[,]” see 28
U.S.C. § 1331, including Plaintiff’s Title VII and ADA claims.
Plaintiff also timely filed her Complaint within the ninety-day
deadline after receiving her EEOC right-to-sue letter.
U.S.C. § 2000e-5(f)(1); Complaint, Exh. A.

See 42

Both Defendants are

Pennsylvania corporations with their principal places of business
in Pennsylvania, which makes them subject to personal
jurisdiction and service of process.
11, 19.]

[Weitz Decl. at ¶¶ 4, 5, 7,

The alleged unlawful employment practices occurred in

12

No party has raised the issue of venue; however, this
Court finds it entirely lacking based on the allegations of the
Complaint. To the extent Defendants have not yet filed their
answer, the Court does not address whether Defendants have
asserted or waived the affirmative defense of improper venue.
19

Pennsylvania, at either NHS’s Lafayette Office or the Wissahickon
Building.

[Weitz Decl. at ¶ 19; Complaint at pgs. 3, 6.]

Both

locations fall within the judicial district of the United States
District Court for the Eastern District of Pennsylvania.13
Second, this Court has already made clear that personal
jurisdiction is not proper in this district; therefore, transfer
is appropriate under the second Garcia factor.
Finally, transfer as opposed to dismissal would best
serve the interest of justice because “normally dismissal of an
action that could have been brought elsewhere is time-consuming
and justice-defeating.”

See Quilala, 2015 WL 4986012, at *8

(quoting Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990)
(citation omitted)).

Here, Plaintiff would also be time-barred

from refiling her Title VII claim if the Court dismissed, rather
than transferred, the case.

See, e.g., De Leon v. KBR, Inc.,

Civ. No. 11-00685 ACK-BMK, 2012 WL 1606068, at *43 (D. Hawai`i
May 8, 2012) (“In instances where a complaint is timely filed and
later dismissed, the timely filing of the complaint does not
‘toll’ or suspend the 90-day limitations period.” (quoting

13

Pursuant to Fed. R. Evid. 201, this Court takes judicial
notice of the fact that Lafayette Hill is located in Montgomery
County, Pennsylvania, and 4700 Wissahickon Avenue is located in
Philadelphia, Pennsylvania. Both Philadelphia and Montgomery
County are within the judicial district of the United States
District Court for the Eastern District of Pennsylvania.
28 U.S.C. § 118(a) (“The Eastern District comprises the counties
of Berks, Bucks, Chester, Delaware, Lancaster, Lehigh,
Montgomery, Northampton, and Philadelphia.”).
20

Minnette v. Time Warner, 997 F.2d 1023, 1026-27 (2d Cir. 1993))).
Accordingly, the Court concludes that transfer to the United
States District Court for the Eastern District of Pennsylvania is
appropriate in this case.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion to
Dismiss Complaint, filed May 25, 2018, is HEREBY DENIED.

The

Court HEREBY TRANSFERS this case to the United States District
Court for the Eastern District of Pennsylvania.

The denial of

the Motion is WITHOUT PREJUDICE to the consideration of the
jurisdictional issues by the district court in Pennsylvania after
transfer.
The Clerk’s Office is DIRECTED to effectuate the
transfer on November 13, 2018, unless Plaintiff files a motion
for reconsideration of this Order before the deadline established
in the Local Rules for the District of Hawai`i.
IT IS SO ORDERED.

21

DATED AT HONOLULU, HAWAII, October 29, 2018.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

NANETTE STONE VS. NHS HUMAN SERVICES, ET AL; CIVIL 17-00601 LEKKSC; ORDER DENYING DEFENDANTS’ MOTION TO DISMISS COMPLAINT AND
TRANSFERRING CASE

22