Townsend v. Fleischmann's Vinegar et al
MEMORANDUM. Signed by Judge Catherine C. Blake on 9/9/2021. (c/m) (hmls, Deputy Clerk)
Case 1:21-cv-00386-CCB Document 25 Filed 09/09/21 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ROSE M. TOWNSEND
FLEISCHMANN’S VINEGAR, et al.
Civil Action No. CCB-21-0386
This employment dispute concerns the discharge of the plaintiff Rose M. Townsend.
Townsend raises claims against Fleischmann’s Vinegar (“Fleischmann’s”), Green Plains Inc. 1
(“GPI”), Kerry Inc. (“Kerry”), Angela Campbell, Matthew Krosche, and Terri Winfrey. (ECF 1,
Compl. at 1). Now pending before the court is a motion to dismiss (ECF 9) filed by GPI and
Winfrey (collectively, “the GPI defendants”), a motion to dismiss (ECF 16) filed by Campbell and
Krosche, and a motion to compel arbitration and to dismiss (ECF 17) filed by Fleischmann’s and
Kerry (collectively, “the Fleischmann’s defendants”). The matter has been fully briefed, and no
hearing is required. See Local Rule 105.6 (D. Md. 2021). For the reasons discussed herein, the
court will grant each of the pending motions.
Townsend, who represents herself, alleges that between July 20, 2018, and February 5,
2019, she was discriminated against because of health issues, harassed with demands to step down
GPI was erroneously named as “Green Plains Trade Group LLC” (“GPTG”) in the complaint
(See ECF 9-3, Mapes Decl. at ¶ 3). GPTG is a wholly owned subsidiary of GPI, a holding
company which also owned Fleischmann’s—until November 2018, when Fleischmann’s was
acquired by Kerry. (See id. at ¶¶ 6, 7, 18). The Clerk will be instructed to adjust the docket
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from her position, retaliated against for raising concerns with human resources, intimidated with
“writeups by Angela Campbell and Matthew Krosche,” demoted, and ultimately terminated by
Winfrey, Fleischmann’s, GPI, and Kerry. (ECF 2, Compl. at 1). On September 19, 2018, she filed
a complaint with the Equal Employment Opportunity Commission (“EEOC”), alleging that
Fleischmann’s, Campbell, Krosche, and Winfrey discriminated against her on the basis of
disability in violation of the Americans with Disabilities Act. (Id.). On August 17, 2019, she
amended her EEOC complaint to allege that GPI and Kerry also are liable. (Id.). As relief,
Townsend seeks compensatory and punitive damages. (Id.).
STANDARD OF REVIEW
A plaintiff bears the burden of establishing personal jurisdiction over the defendants.
Carefirst of Md. v. Carefirst Pregnancy, 334 F.3d 390, 396 (4th Cir. 2003). When the existence of
jurisdiction “turns on disputed factual questions the court may resolve the [jurisdictional]
challenge on the basis of a separate evidentiary hearing, or may defer ruling pending receipt at trial
of evidence relevant to the jurisdictional question.” Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.
1989). In its discretion, a court may permit limited discovery as to the jurisdictional
issue. See Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 64 (4th Cir. 1993). Alternatively, the court
may rule based solely on the motion papers, supporting legal memoranda, affidavits, and the
allegations in the complaint. Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir. 2016); Consulting
Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009). In that circumstance, the
“plaintiff need only make ‘a prima facie showing of personal jurisdiction to survive the
jurisdictional challenge.’” Grayson, 816 F.3d at 268 (quoting Combs, 886 F.2d at 676). However,
“‘[a] threshold prima facie finding that personal jurisdiction is proper does not finally settle the
issue; plaintiff must eventually prove the existence of personal jurisdiction by a preponderance of
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the evidence, either at trial or at a pretrial evidentiary hearing.’” New Wellington Fin. Corp. v.
Flagship Resort Dev. Corp., 416 F.3d 290, 294 n.5 (4th Cir. 2005) (citation omitted).
To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), the factual allegations of a complaint “must be enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). “To satisfy this standard, a plaintiff need not ‘forecast’ evidence sufficient to prove the
elements of the claim. However, the complaint must allege sufficient facts to establish those
elements.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). “Thus, while
a plaintiff does not need to demonstrate in a complaint that the right to relief is ‘probable,’ the
complaint must advance the plaintiff’s claim ‘across the line from conceivable to plausible.’” Id.
(quoting Twombly, 550 U.S. at 570). Additionally, although courts “must view the facts alleged in
the light most favorable to the plaintiff,” they “will not accept ‘legal conclusions couched as facts
or unwarranted inferences, unreasonable conclusions, or arguments’” in deciding whether a case
should survive a motion to dismiss. U.S. ex rel. Nathan v. Takeda Pharm. North Am., Inc., 707
F.3d 451, 455 (4th Cir. 2013) (quoting Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th
A motion to dismiss based on an arbitration clause is like one based on a forum selection
clause and should be construed, even when brought under Rule 12(b)(6), as a challenge to the
sufficiency of the plaintiff’s choice of venue under Rule 12(b)(3). See Sucampo Pharms., Inc. v.
Astellas Pharma, Inc., 471 F.3d 544, 550 (4th Cir. 2006); Aggarao v. MOL Ship Mgmt. Co., Ltd.,
675 F.3d 355, 365 n.9 (4th Cir. 2012); Stone v. Wells Fargo, N.A., 361 F. Supp. 3d 539, 548
(D. Md. 2019). When a defendant raises a Rule 12(b)(3) venue challenge, the plaintiff bears the
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burden of demonstrating that venue is appropriate. Stone, 361 F. Supp. 3d at 549 (citing
Bartholomew v. Virginia Chiropractors Ass’n, 612 F.2d 812, 816 (4th Cir. 1979), cert. denied, 446
U.S. 938 (1980), overruled on other grounds by Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119,
102 (1982)). If the court does not hold an evidentiary hearing, “the plaintiff need only make a
prima facie showing that venue is proper.” Stone, 361 F. Supp. 3d at 549. “In assessing whether
there has been a prima facie venue showing, [the court views] the facts in the light most favorable
to the plaintiff.” Aggarao, 675 F.3d at 366. The court may “freely consider evidence outside the
pleadings” on a motion to dismiss under Rule 12(b)(3). Id. at 365–66.
The court will address each of the pending motions separately.
Campbell and Krosche
Campbell and Krosche argue that Townsend’s claims against them must be dismissed
because the Americans with Disabilities Act provides a remedy against employers but not against
supervisors or managers. “Because Title VII does not authorize a remedy against individuals for
violation of its provisions, and because Congress has made the remedies available in Title VII
applicable to ADA actions”, the ADA likewise “does not permit an action against individual
defendants[.]” Baird ex rel. Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999); see also Jones v.
Sternheimer, 387 F. App’x 366, 368 (4th Cir. 2010). Townsend has not opposed this motion, which
the court will grant.
Case 1:21-cv-00386-CCB Document 25 Filed 09/09/21 Page 5 of 9
The GPI Defendants
The GPI defendants argue that Townsend’s claims must be dismissed for lack of personal
jurisdiction, that repleading would be futile, and—as to Winfrey—that the ADA does not impute
liability against individuals.
Fed. R. Civ. P. 4(k)(1)(A) authorizes a federal district court to exercise personal jurisdiction
over a defendant in accordance with the law of the state in which the district court is
located. Carefirst, 334 F.3d at 397. Therefore, in Maryland, “to assert personal jurisdiction over a
nonresident defendant, two conditions must be satisfied: (1) the exercise of jurisdiction must be
authorized under the state's long-arm statute; and (2) the exercise of jurisdiction must comport
with the due process requirements of the Fourteenth Amendment.” Id. The Maryland Court of
Appeals has “consistently held that the reach of the long arm statute is coextensive with the limits
of personal jurisdiction delineated under the due process clause of the Federal Constitution” and
that the “statutory inquiry merges with [the] constitutional examination.” Beyond Sys., Inc. v.
Realtime Gaming Holding Co., 388 Md. 1, 22 (2005) (citing Mohamed v. Michael, 279 Md. 653,
657, 370 A.2d 551, 553 (1977)).
Due process requires that the defendants have sufficient minimum contacts with the forum
such that the maintenance of the suit does not offend traditional notions of fair play and substantial
justice. See Carefirst, 334 F.3d at 396 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)). If, as here, the non-resident defendants’ contacts with the forum state are the basis of the
suit, they may establish specific personal jurisdiction. 2 See id. The Fourth Circuit Court of Appeals
has developed a three-part test for asserting specific personal jurisdiction that considers: (1) the
Townsend does not assert, and the court sees no basis to conclude, that the court may exercise
general jurisdiction over the GPI defendants. Thus, the court’s analysis focuses on specific
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extent to which the defendant purposefully availed itself of the privilege of conducting activities
in the State; (2) whether the plaintiffs’ claims arise out of those activities or are directed at the
State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.”
Consulting Eng’rs Corp., 561 F.3d at 278. “[T]o justify the exercise of personal jurisdiction over
a non-resident defendant, the defendant’s contacts with the forum state must have been so
substantial that they ‘amount to a surrogate for presence and thus render the exercise of sovereignty
just.’” Id. at 277–78 (quoting ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir. 1997)).
In this case, Townsend’s complaint does not explicitly state the basis for this court’s
jurisdiction, but her response includes several exhibits intended to demonstrate the GPI
defendants’ contacts with the state of Maryland. (See ECF 20). This includes Green Plains Trade
Group LLC’s corporate charter approval sheet (ECF 20-1), Townsend’s employment offer letter
from Fleischmann’s indicating GPI is Fleischmann’s parent company (ECF 20-2), Townsend’s
paystub from Fleischmann’s, which includes GPI’s logo (ECF 20-3), and the results of an entity
search from the State of Maryland showing Green Plains Trade Group LLC is registered to do
business in Maryland (ECF 20-4).
None of these exhibits can satisfy the second element of the Fourth Circuit’s test. As to
GPTG, even if these exhibits established contacts with the state of Maryland, they do nothing to
refute the evidence that GPTG never employed Townsend and could not have taken any actions
related to her employment claims. (See ECF 9-3, Mapes Decl. at p 22). Though Fleischmann’s and
GPTG appear both to have been subsidiaries of GPI at one point, there is no evidence that GPTG—
an LLC which sells ethanol—ever had any impact on Townsend’s employment or termination at
Fleischmann’s Vinegar Company, and thus GPTG’s contacts with the state of Maryland do not
give rise to Townsend’s claims.
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As to GPI, the documents likewise do not raise any plausible inference that GPI’s actions
gave rise to Townsend’s claims, which are related to discrimination, retaliation, and discharge at
her place of employment. Though the offer letter does “welcome” Townsend “[o]n behalf of” GPI
and all its other subsidiaries, “including Fleischmann’s Vinegar,” the letter is printed on
Fleischmann’s letterhead and does not indicate that GPI exercised any control over the terms or
conditions of Townsend’s employment. (See ECF 20-2). And though the top of the paystub does
bear GPI’s name and logo, the only address listed is that of Fleischmann’s Vinegar Company; the
stub likewise does not indicate that GPI exercised any control over the terms or conditions of
Townsend’s employment. Further, “the contacts of a corporate subsidiary cannot impute
jurisdiction to its parent entity.” Saudi v. Northrop Grumman Corp., 427 F.3d 271, 276 (4th Cir.
2005) (citing cases). Therefore, to the extent that Townsend may rely on the actions of
Fleischmann’s to demonstrate GPI’s contacts with the forum state, this argument is unavailing.
Finally, even if Townsend could establish personal jurisdiction against Winfrey, the ADA
does not permit actions against individual defendants, as explained previously with respect to
Campbell and Krosche. The claim against the GPI defendants will therefore be dismissed.
The Fleischmann’s Defendants
The Fleischmann’s defendants argue that Townsend’s complaint against them must be
dismissed because her employment contract contained a mandatory arbitration provision. They
attached to their motion a copy of Townsend’s employment contract, which states that “[a]ny
dispute or claim arising out of or in connection with” the contract “will be finally settled by
arbitration” except that the parties “may apply to any court of competent jurisdiction
for . . . equitable relief[.]” (ECF 17-2 at 2).
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If an issue is referable to arbitration under an agreement in writing, then a stay is mandatory
and a motion to compel arbitration must be granted. 3 See Adkins v. Labor Ready, Inc., 303 F.3d
496, 500 (4th Cir. 2002); see also 9 U.S.C. § 3. A litigant can compel arbitration if he can
demonstrate (1) the existence of a dispute between the parties, (2) a written agreement that includes
an arbitration provision purporting to cover the dispute, (3) the relationship of the transaction,
which is evidenced by the agreement, to interstate or foreign commerce, and (4) the failure,
neglect, or refusal of the opposing party to arbitrate the dispute. See Adkins, 303 F.3d at 500–01.
This court construes the Fleischmann’s defendants’ Rule 12(b)(6) motion to compel
arbitration and dismiss the suit as a motion challenging venue under Rule 12(b)(3) and finds a stay
for arbitration appropriate. A review of the pleadings and exhibits, done in the light most favorable
to Townsend, reveals that Townsend has failed to make a prima facie showing that venue is proper.
The defendants have produced a signed employment contract with a clear arbitration provision.
Townsend’s claims are for money damages, not for equitable relief, and they all arise out of her
employment at Fleischmann’s. The defendants have therefore established arbitrability, and though
Townsend opposes the motion, she does not contest the applicability of the arbitration provision 4
— crucial for her required venue showing. (See generally ECF 21, Opp’n). The court will therefore
grant the motion to compel arbitration and will stay the complaint as to the Fleischmann’s
Some courts have ruled that, in lieu of a stay, dismissal is proper when all the issues presented
in a lawsuit are arbitrable. See Choice Hotels Int’l, Inc. v. BSR Tropicana Resort, Inc., 252
F.3d 707, 709-10 (4th Cir. 2001); Stone v. Wells Fargo Bank, N.A., 361 F. Supp. 3d 529, 557–
58 (D. Md. 2019). The Fourth Circuit has acknowledged some “tension” in its decision
regarding whether a stay or dismissal is appropriate. Aggarao, 675 F.3d at 376 n.18.
The defendants have agreed to waive the requirement that arbitration occur in Nebraska; they
are willing to arbitrate in Baltimore, Maryland. (See ECF 17-1 at 2 n.3).
Case 1:21-cv-00386-CCB Document 25 Filed 09/09/21 Page 9 of 9
For the reasons stated herein, the court will grant the GPI defendants’ motion to dismiss
(ECF 9) and Campbell and Krosche’s motion to dismiss (ECF 16). The court will grant the
Fleischmann’s defendants’ motion to compel arbitration (ECF 17) but stay, rather than dismiss,
the claims against them. A separate Order follows.
September 9, 2021
Catherine C. Blake
United States District Judge
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