Davenport v. Hansaworld, USA et al

Filing 45

MEMORANDUM OPINION AND ORDER denying 30 Motion to Dismiss, Motion to Change Venue. Counsel shall contact the chambers of U.S. Magistrate Judge Michael T. Parker within 7 days of the entry of this Order to schedule a case management conference. Signed by District Judge Keith Starrett on 9/25/2013 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
KIMBERLEE DAVENPORT

PLAINTIFF

V.

CIVIL ACTION NO. 2:12-CV-233-KS-MTP

HANSAWORLD USA;
HANSAWORLD UK LTD;
HANSAWORLD IRELAND; and
KARL BOHLIN

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Defendant HansaWorld USA, Inc.’s Motion
to Dismiss or, in the Alternative, to Transfer Venue [30]. Having considered the parties’
submissions, the record and the applicable law, the Court finds that the motion should be
denied.
I. BACKGROUND
Plaintiff Kimberlee Davenport asserts several federal and state law claims against
her former employer, HansaWorld USA, Inc. (“HansaWorld”), in this action. Davenport
was employed by HansaWorld as a sales manager through a written Contract of
Employment (the “Contract”) [13-4] from January of 2011 to October of 2012. Davenport
worked for HansaWorld Ireland, a related entity of HansaWorld, before that time, and the
Contract specifies that Davenport’s “period of employment with the Company is counted
from 25 May 2009.” (Contract [13-4] at ¶ 1.2.) Davenport was also HansaWorld’s
corporate secretary prior to her termination.
It appears that HansaWorld is a software company. HansaWorld was
incorporated in California in July of 2009, and maintains its principal offices in Florida.
HansaWorld was registered to do business in Mississippi from February of 2010 to
December of 2011. HansaWorld’s filings with the Mississippi Secretary of State’s
(“MSOS”) office identify Davenport as its registered agent for service of process in

Mississippi.
Davenport alleges that HansaWorld is the alter ego and subsidiary of Defendants
HansaWorld UK Ltd. and HansaWorld Ireland. Davenport further asserts that the
HansaWorld companies are simply namesakes and that the companies share the same
board of directors and country manager.
Defendant Karl Bohlin is an adult resident citizen of Sweden. Davenport contends
that Bohlin was her direct and immediate supervisor at all times relevant to her
employment with HansaWorld.
On December 13, 2012, Davenport filed suit against HansaWorld and Karl Bohlin
in this Court. (See Compl. [1].) Subject matter jurisdiction is asserted under Title 28
U.S.C. §§ 1331 (federal question) and 1343 (civil rights). Davenport alleges that she
experienced sexual harassment by officers, directors and employees of HansaWorld, and
that Bohlin was the primary perpetrator of the harassment. Davenport further contends
that as one of the few U.S. employees of HansaWorld, she “was often singled out and
ridiculed for her national origin as being an ‘American.’” (Compl. [1] at ¶ 15.) Davenport
claims that she was wrongfully terminated after complaining to HansaWorld’s board of
directors about the purported sexual harassment and about HansaWorld’s alleged
disregard of U.S. tax and immigration laws pertaining to employee pay. Based on these
and other allegations, the Complaint asserts liability under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), for discrimination based on sex and
national origin, retaliation, and hostile work environment. The following supplemental
state law claims are also pled: defamation; malicious interference with employment;
intentional and negligent infliction of emotional distress; discharge in violation of public
policy; breach of contract; breach of good faith and fair dealing; and negligent supervision
and training.
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On March 18, 2013, HansaWorld filed its Motion to Dismiss or, in the Alternative,
to Transfer Venue [6]. Davenport opposed the motion and moved to strike certain
affidavits submitted by HansaWorld in support of its requested relief. On April 16, 2013,
Davenport filed her Amended Complaint [28], joining HansaWorld UK Ltd. and
HansaWorld Ireland as Defendants. No new causes of action are alleged in the
Amended Complaint [28].
On April 23, 2013, HansaWorld filed its second Motion to Dismiss or, in the
Alternative, to Transfer Venue (“Motion to Dismiss”) [30]. On April 30, 2013, the Court
denied HansaWorld’s original dismissal motion as moot due to the filing of the Amended
Complaint [28] and the second dismissal motion. (See Order [34].) Briefing on the
Motion to Dismiss [30] is now complete, with the parties having adopted and incorporated
by reference their prior filings on the original dismissal motion and having presented
some additional facts and arguments in support of their respective positions. As of the
date of this Order, there is no indication on the Court’s docket that service of process has
been made on Bohlin, HansaWorld UK Ltd. or HansaWorld Ireland.
II. DISCUSSION
HansaWorld’s Motion to Dismiss [30] seeks dismissal on the following grounds:
(1) Davenport’s Complaint should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6) because she fails to plausibly allege that HansaWorld is subject to
personal jurisdiction in Mississippi; (2) Davenport has failed to establish that HansaWorld
is subject to Mississippi’s long-arm statute or that it has constitutional minimal contacts
with Mississippi, i.e., the Court lacks personal jurisdiction over HansaWorld; and (3)
venue is improper in the Southern District of Mississippi. In the alternative, HansaWorld
argues that this action should be transferred to the United States District Court for the
Southern District of Florida pursuant to 28 U.S.C. § 1404(a). Each of these matters will
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be addressed in turn.

A.

Personal Jurisdiction Viewed Under Rule 12(b)(6)

The Amended Complaint asserts that “[a]t all times relevant Defendant
HansaWorld was authorized to do business in the State of Mississippi by way of its
Certificate of Authority.” (Am. Compl. [28] at ¶ 7.) HansaWorld argues that this
“conclusory allegation” fails to state a valid basis for personal jurisdiction over it, and
thus, dismissal is warranted under Rule 12(b)(6). (See HansaWorld’s Mem. in Supp. of
Mot. to Dismiss [31] at pp. 7-8.) HansaWorld’s argument is not well taken.
Federal Rule of Civil Procedure 8 requires that a pleading stating a claim for relief
include “a short and plain statement of the grounds for the court’s jurisdiction . . . .” Fed.
R. Civ. P. 8(a)(1). Several authorities have found that Rule 8’s jurisdictional pleading
requirement only pertains to subject matter jurisdiction, and not to personal jurisdiction.
See, e.g., Stirling Homex Corp. v. Homasote Co., 437 F.2d 87, 88 (2d Cir. 1971)
(reversing the district court’s dismissal of a complaint that failed to allege personal
jurisdiction); Cox v. Sherman Capital LLC, No. 1:12cv01654, 2013 WL 1826380, at *1
(S.D. Ind. Apr. 30, 2013) (“[T]he Rules do not require that personal jurisdiction be
specifically alleged in the pleadings.”); Polar Molecular Corp. v. Amway Corp., No.
1:07cv460, 2007 WL 3473112, at *8 (W.D. Mich. Nov. 14, 2007) (denying the
defendants’ Rule 12(b)(6) motion to dismiss based on the complaint’s failure to allege
facts supporting the existence of personal jurisdiction); 5 Charles Alan Wright et al.,
Federal Practice and Procedure § 1206 (3d ed.) (“It should be emphasized that Rule
8(a)(1) only deals with subject matter jurisdiction.”).
The absence of any requirement under the Federal Rules that a complaint allege
grounds for personal jurisdiction is made clear by Form 7 of the Rules, which only
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addresses subject matter jurisdiction in its statement of jurisdiction. Furthermore, the
Fifth Circuit has held that “a court is not restricted to a review of the plaintiff’s pleadings”
in determining personal jurisdiction, and that this issue of jurisdiction may be resolved
through affidavits, oral testimony, depositions or any other form of discovery. Adams v.
Unione Mediterranea Di Sicurta, 220 F.3d 659, 667 (5th Cir. 2000). Dismissal under
Rule 12(b)(6) “is appropriate only if the complaint fails to plead enough facts to state a
claim to relief that is plausible on its face.” Turner v. Pleasant, 663 F.3d 770, 775 (5th
Cir. 2011) (citation and internal quotation marks omitted). Since the Court may look to
documents other than Davenport’s Complaint in determining personal jurisdiction and
since the Rules do not require the Complaint to allege grounds for the Court’s exercise of
personal jurisdiction, HansaWorld’s reliance on Rule 12(b)(6) in support of dismissal is
misplaced.
HansaWorld’s citation to Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009) and Dell, Inc. v. This Old Store, Inc., No. H-07-0561, 2007 WL
1958609 (S.D. Tex. July 2, 2007) in support of dismissal is unavailing. Ashcroft says
nothing about personal jurisdiction. With all due respect to the district court in Dell, Inc.,
this Court is unpersuaded by the footnote discussion resulting in Dell, Inc. being required
to file an amended complaint alleging sufficient foundational facts as to subject matter
jurisdiction and personal jurisdiction. See 2007 WL 1958609, at *1 n.2. Accordingly,
HansaWorld’s first basis for dismissal is rejected.
B.

Personal Jurisdiction on the Merits

“When a federal question case is based upon a federal statute that is silent as to
service of process,” the district court must determine if the defendant is subject to the
jurisdiction of the courts of the forum state. Aviles v. Kunkle, 978 F.2d 201, 203-04 (5th
Cir. 1992) (citation omitted). Title VII, under which Davenport asserts her federal claims,
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is such a statute. See Willshire v. HK Mgmt., No. Civ.A. 3:04cv0090, 2004 WL 2974082,
at *2 (N.D. Tex. Dec. 16, 2004) (determining if Texas courts would have jurisdiction over
the defendant in an action alleging Title VII violations). Therefore, this Court must
determine if HansaWorld is subject to suit in a Mississippi state court.
A non-resident defendant is amenable to being sued in Mississippi if: (1)
Mississippi’s long-arm statute confers jurisdiction over the defendant; and (2) the
exercise of personal jurisdiction comports with the requirements of federal due process.
See Stripling v. Jordan Prod. Co., 234 F.3d 863, 869 (5th Cir. 2000) (citation omitted).
Both inquiries will be addressed since “Mississippi’s long-arm statute is not coextensive
with due process.” Id. at 869 n.7. The plaintiff must establish personal jurisdiction, but
need only present a prima facie case to meet his burden. See Luv n’ care, Ltd. v. InstaMix, Inc., 438 F.3d 465, 469 (5th Cir. 2006) (citing Wyatt v. Kaplan, 686 F.2d 276, 280
(5th Cir. 1982)). “This court must resolve all undisputed facts submitted by the plaintiff,
as well as all facts contested in the affidavits, in favor of jurisdiction.” Id.
1.

Long-Arm Statute

Mississippi’s long-arm statute states in pertinent part:
Any nonresident . . . who shall make a contract with a resident of this state to
be performed in whole or in part by any party in this state, or who shall commit
a tort in whole or in part in this state against a resident or nonresident of this
state, or who shall do any business or perform any character of work or
service in this state, shall by such act or acts be deemed to be doing business
in Mississippi and shall thereby be subjected to the jurisdiction of the courts
of this state.
Miss. Code Ann. § 13-3-57. “The three prongs of the long-arm statute are commonly
referred to as the contract prong, the tort prong, and the doing-business prong.” ITL Int’l
Inc. v. Constenla, S.A., 669 F.3d 493, 497 (5th Cir. 2012). HansaWorld argues that the
Court’s exercise of personal jurisdiction over it is improper under any prong. Davenport
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argues otherwise. The Court determines that the doing-business prong of the long-arm
statute is clearly met. Thus, no discussion of the tort or contract prong is necessary.
HansaWorld relies on a three-part test in arguing that the “doing-business” prong
of Mississippi’s long-arm statute is inoperative. This is “an out-dated test that does not
pertain to the current version of . . . [the] statute.” ITL Int’l Inc., 669 F.3d at 498. Prior to
1991, “the long-arm statute required the cause of action to be connected with the
business or work or service in this state.” Estate of Jones v. Phillips, 992 So. 2d 1131,
1139 (¶ 14) (Miss. 2008) (citing Mladinich v. Kohn, 250 Miss. 138, 147, 164 So. 2d 785,
790 (Miss. 1964)). This requirement was removed by the Mississippi Legislature in 1991.
Id. “As it stands now, the long-arm statute, by its plain terms, applies to any person or
corporation performing any character of work in this state.” Id.
The following circumstances evidence HansaWorld’s business activities in the
State of Mississippi:
(i)

HansaWorld was registered to do business in Mississippi from February of
2010 to December of 2011. (See Doc. No. [13-2]; Jay Aff. [30-1] at ¶ 9.)

(ii)

HansaWorld leased an apartment located at 29 Park Place # 1303,
Hattiesburg, Mississippi (the “Apartment”) from August 25, 2009 to August
31, 2010. (See Davenport Aff. [13-3] at ¶ 10; Jay Aff. [30-1] at ¶ 9.)
HansaWorld used the Apartment to house two employees of HW BA
S.R.L., its Argentinian sister company. (See Jay Aff. [30-1] at ¶ 9.) In
addition, the Apartment was used as an office for making and receiving

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customer support calls and for invoicing U.S. customers. (See Davenport
Aff. [13-3] at ¶ 10.)1
(iii)

HansaWorld funneled thousands of dollars through Davenport’s personal
banking account at a bank branch located in Hattiesburg during the period
of time it did not have a U.S. banking account. (See Davenport Aff. [13-3]
at ¶ 15.)

(iv)

HansaWorld ordered notepads and stationary from Copy Cats Printing in
Hattiesburg. (See Doc. No. [14-9].)

(v)

Davenport performed approximately 33% of her work as a sales manager
for HansaWorld from Mississippi. (See HansaWorld’s Reply [21] at p. 9
n.2.)2 Davenport continued to carry out work for HansaWorld, from her
home in Mississippi, after its lease on the Apartment office expired in
August of 2010 and after it was administratively dissolved by the MSOS in
December of 2011. (See Davenport Aff. [13-3] at ¶¶ 20-21; Jay Aff. [30-1]
at ¶ 9.)

1

There are some conflicts between the affidavits submitted by Davenport and
Stephen Jay, HansaWorld’s country manager. Furthermore, Davenport has moved to
strike the affidavits executed by Stephen Jay on the basis that they misrepresent facts
and are not based upon his personal knowledge. The Court need not rule on
Davenport’s motions to strike since it must resolve in her “favor all conflicts between the
[jurisdictional] facts contained in the parties’ affidavits and other documentation.”
Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 650 (5th Cir. 2004) (citations
omitted).
2

HansaWorld asserts that Davenport was required to travel outside of Mississippi
approximately 66% of the time in meeting her responsibilities as its sales manager for
the United States and Canada. (See HansaWorld’s Mem. in Supp. of Mot. to Dismiss
[31] at p. 3.)
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As a result, HansaWorld was “doing business” in Mississippi for purposes of establishing
personal jurisdiction under section 13-3-57. The Court next considers whether its
assertion of jurisdiction under the long-arm statute violates the Fourteenth Amendment’s
Due Process Clause.
2.

Due Process

Due process requires that a defendant “have certain minimum contacts with . . .
[the forum state] such that the maintenance of the suit does not offend traditional notions
of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66
S. Ct. 154, 90 L. Ed. 95 (1945) (citations and internal quotation marks omitted). The
defendant’s minimum contacts may give rise to general or specific personal jurisdiction.
See Luv n’ care, Ltd., 438 F.3d at 469. “‘Where the plaintiff alleges specific jurisdiction,
as here, due process requires (1) minimum contacts by the defendant purposefully
directed at the forum state, (2) a nexus between the defendant's contacts and the
plaintiff's claims, and (3) that the exercise of jurisdiction over the defendant be fair and
reasonable.’” Ainsworth v. Moffett Eng’g, Ltd., 716 F.3d 174, 177 (5th Cir. 2013) (quoting
ITL Int’l Inc., 669 F.3d at 498).3
Minimum contacts are established “by actions, or even just a single act, by which
3

Davenport’s Response in Opposition [14] to HansaWorld’s original dismissal
motions asserts that the “court has general jurisdiction over the moving Defendant due
to the Defendant’s website pursuant to Mink v. AAAA Development LLC, 190 F.3d 333
(5th Cir. 1999).” However, Davenport never expounds on this assertion in her response
or motion briefing. The Court finds that Davenport’s unsupported allegation fails to
establish a prima facie case of general jurisdiction over HansaWorld. “‘[T]he prima
facie-case requirement does not require the court to credit conclusory allegations, even
if uncontraverted.’” Tellus Operating Group, L.L.C. v. R & D Pipe Co., 377 F. Supp. 2d
604, 606 (S.D. Miss. 2005) (quoting Panda Brandywine Corp. v. Potomac Elec. Power
Co., 253 F.3d 865, 868 (5th Cir. 2001)).
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the non-resident defendant purposefully avails itself of the privilege of conducting
activities within the forum state, thus invoking the benefits and protections of its laws.”
Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 419 (5th Cir. 1993) (citations
and internal quotation marks omitted). Neither the “unilateral activity of another party or a
third person”, nor “random, fortuitous, or attenuated contacts” are sufficient. Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)
(citations and internal quotation marks omitted). Yet, isolated or occasional contacts may
give rise to specific jurisdiction if the lawsuit arises out of or relates to those contacts.
See Luv n’ care, Ltd., 438 F.3d at 469. The crux of the matter “is whether the
defendant’s conduct shows that it reasonably anticipates being haled into court” in the
forum state. Vanderbilt Mortgage & Fin., Inc. v. Flores, 692 F.3d 358, 375 (5th Cir. 2012)
(citing McFadin v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009)).
HansaWorld’s Mississippi business activities listed in the prior section of this
opinion weigh in favor of the Court’s exercise of specific jurisdiction, and Hansaworld’s
attempt at downplaying or negating some of those activities falls short. HansaWorld
contends that it was registered with the MSOS “only for a short period of time and such
registration was solely for tax purposes related to the rental of an apartment in
Hattiesburg for one of its sister companies . . . .” (HansaWorld’s Reply [21] at p. 7.)
HansaWorld also points out that it was administratively dissolved approximately one year
prior to Davenport’s termination in October of 2012. First, HansaWorld’s administrative
dissolution by the MSOS in December of 2011 does not negate the fact that Davenport
continued to perform work on its behalf from her home in Mississippi until the time of her
termination. (See Davenport Aff. [13-3] at ¶¶ 20-21.) No assertion is made that
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Davenport’s actions in Mississippi, carried out before or after HansaWorld’s dissolution,
were unauthorized. Second, HansaWorld’s specious characterization of the approximate
one year and ten months it was registered to do business in Mississippi as “a short
period of time” ignores that “[a] single purposeful contact may confer jurisdiction.” Luv n’
care, Ltd., 438 F.3d at 470 n.3. Third, Davenport asserts that the Apartment in
Hattiesburg “was used as an office for HansaWorld, making and receiving customer
support calls, as well as billing and invoicing for HansaWorld US.” (Davenport Aff. [13-3]
at ¶ 10.) The Court must resolve the conflict in Davenport and HansaWorld’s positions
regarding the use of the Apartment in favor of Davenport at this stage of the proceedings.
See Adams, 364 F.3d at 650.4
HansaWorld also deems it important that its alleged business activities in
Mississippi all predated Davenport’s employment with HansaWorld, which began on
January 1, 2011. This view overlooks the fact that Davenport’s period of employment
with HansaWorld is counted from May of 2009 under the Contract [13-4], and that
Davenport was HansaWorld’s corporate secretary and registered agent at least as early
as February 15, 2010. (See Doc. No. [13-2].) Another problem with HansaWorld’s
narrow focus on this point is that Davenport was conducting business on its behalf in
4

Even overlooking Davenport’s affidavit, HansaWorld’s assertion that it “did not have
any facilities in Mississippi” is a matter of semantics since it admits leasing the
Hattiesburg Apartment albeit for a sister company. (See HansaWorld’s Mem. in Supp.
of Mot. to Dismiss [31] at p. 13.) HansaWorld’s contention that it did not have any
employees in Mississippi other than Davenport also appears to fall into the category of
form over substance. Davenport states that Sabrina Dremaine was hired to assist the
Hattiesburg office and that Fabiana Villegas, an employee of HansaWorld Buenos Aires,
worked as an office manager in Hattiesburg for approximately three months, dealing
with HansaWorld’s U.S. operations. (See Davenport [13-3] at ¶¶ 11, 17-18.)
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Mississippi after the effective date of the Contract by “perform[ing] approximately 33% of
her work . . . from her home in Mississippi.” (HansaWorld’s Reply [21] at p. 9 n.2.)
Again, no allegation is made that Davenport’s Mississippi-based work was unauthorized.
Thus, the Court fails to discern why Davenport’s post-January 1, 2011 employment
actions should not count toward HansaWorld’s business activities in the forum.5
The Court is also unswayed by HansaWorld pointing out that the bank account
records produced by the Plaintiff evidence an account held by HansaWorld with CitiBank,
N.A. in Berkeley, California, as opposed to a Mississippi bank account. Notwithstanding
the physical location of HansaWorld’s bank account, it utilized checks and deposit tickets
listing its address as 29 Park Pl. #1303, Hattiesburg, Mississippi, 39402, in preprinted
text. (See Doc. Nos. [15-4], [15-6].) It is doubtful that someone drafting or receiving one
of these instruments could not reasonably anticipate the possibility of HansaWorld “being
haled into court in Mississippi.” Ainsworth, 716 F.3d at 179.
Davenport’s employment Contract [13-4] with HansaWorld also weighs in favor of
the Court’s exercise of jurisdiction. The Contract specifically provides that Davenport’s
“place of work is the Company’s office in Hattiesburg, USA.” (Contract [13-4] at ¶ 2.1.)
Although the January, 2011 Contract lists a Florida address for Davenport, she has

5

See, e.g., Piping Rock Partners, Inc. v. David Lerner Assocs., Inc., No. C 1204634, 2012 WL 5471143, at *8 (N.D. Cal. Nov. 9, 2012) (“On a vicarious liability
theory, minimum contacts of nonresident employer’s agent are normally imputed to the
employer.”); Nucor Corp. v. Bell, 482 F. Supp. 2d 714, 722 (D.S.C. 2007) (attributing the
actions of a non-resident defendant’s agent to the defendant itself for purposes of
specific personal jurisdiction); Alpine Plastics, Inc. v. Erlstedt, No. Civ.A. 03-1639, 2003
WL 22174288, at *6 (E.D. La. Sept. 17, 2003) (“[T]he Fifth Circuit has long held that the
actions of an agent are attributable to a non-resident principal for purposes of
establishing personal jurisdiction.”).
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sworn out that this is clerical error and that she had moved to 70 Bridgefield Turn,
Hattiesburg, Mississippi, 39402 with her husband as of August, 2009. (See Davenport
Aff. [13-3] at ¶ 9; Davenport Suppl. Aff. [35-1] at ¶ 6.) Davenport further states that her
home in Florida was foreclosed upon in August, 2010 and that HansaWorld was aware of
this development. (See Davenport Suppl. Aff. [35-1] at ¶¶ 3-5.) HansaWorld’s assertion,
“[u]pon information and belief,” that Davenport was a Florida resident when she executed
the Contract is not convincing. (Jay Aff. [30-1] at ¶ 5.) HansaWorld’s February, 2010
filings with the MSOS identify the Bridgefield Turn address as Davenport’s address in her
capacity as its registered agent and the Hattiesburg Apartment address under her title as
corporate secretary. (See Doc. No. [13-2].) HansaWorld’s position that it “never had an
office located at 70 Bridgefield Turn . . . and the word ‘office’ as used in Section 2.1 of the
Employment Contract is a misnomer” is also ineffective. (Jay Aff. [30-1] at ¶ 8.)
Davenport has established for purposes of the subject motion that the Hattiesburg
Apartment was used as an office for HansaWorld. (See Davenport Aff. [13-3] at ¶ 10.)
Moreover, HansaWorld has acknowledged that it expected Davenport to perform
approximately 33% of her work from Mississippi. (See HansaWorld’s Reply [21] at p. 9
n.2; Jay Aff. [30-1] at ¶ 7.) Resolving all of these facts in Davenport’s favor, the Court
finds that HansaWorld knowingly entered into an employment agreement with an
individual residing in Mississippi and that it foresaw the individual performing work for it in
Mississippi. These circumstances favor Davenport’s ability to seek redress from
HansaWorld in this Court.6
6

Cf. Stripling, 234 F.3d at 871-72 (finding that the district court erred in dismissing
the suit on personal jurisdiction grounds where the non-resident defendant entered into
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The two opinions principally relied on by HansaWorld in its “minimum contacts”
analysis are clearly distinguishable. See Seymour v. Scorpion Payroll, Ltd., No.
2:09cv189, 2010 WL 3239435 (S.D. Miss. Aug. 13, 2010); Peterson v. Test Int’l, E.C.,
904 F. Supp. 574 (S.D. Miss. 1995). There was never any contemplation between the
parties in those cases that the respective employment agreements were to “be
performed in whole or in part in Mississippi”. Seymour, 2010 WL 3239435, at *4;
Peterson, 904 F. Supp. at 577. Furthermore, unlike HansaWorld, the defendants in
those actions never registered to do business in Mississippi or otherwise availed
themselves of the privileges of doing business in the state.
Each of Davenport’s claims asserted in this action arises out of or relates to her
former employment with HansaWorld. Since HansaWorld specifically retained Davenport

a contract with a Mississippi resident that was to be performed in whole or in part in
Mississippi); Coats v. Penrod Drilling Corp., 5 F.3d 877, 880-81 (5th Cir. 1993)
(affirming the trial court’s holding that a foreign employer was subject to jurisdiction in
Mississippi since it recruited and hired the plaintiff in Mississippi; even though the
plaintiff worked on a drilling rig off the coast of the United Arab Emirates, the foreign
employer flew the plaintiff to Mississippi and began paying his medical bills in
Mississippi after he was injured); Hancock Fabrics, Inc. v. Rowdec, LLC, No. 1:12cv131,
2013 WL 866977, at *4-5 (N.D. Miss. Mar. 7, 2013) (denying the defendant’s motion to
dismiss where all of its contacts in the district were due to its underlying contract with
the plaintiff); Durham v. Katzman, Wasserman & Bennardini, 375 F. Supp. 2d 495, 498
(S.D. Miss. 2005) (finding plaintiff’s allegations that defendants “entered into a contract
while one party was in Mississippi, and that a material portion of the contract was
agreed to be performed in Mississippi” pertinent in denying dismissal); Med. Assurance
Co. of Miss. v. Jackson, 864 F. Supp. 576, 578-80 (S.D. Miss. 1994) (holding that
Alabama residents were subject to personal jurisdiction in Mississippi in a suit involving
the alleged breach of a settlement agreement that was negotiated via communications
between Mississippi and Alabama and that was to be partially performed in Mississippi);
Cirlot Agency, Inc. v. Sunny Delight Beverage Co., 85 So. 3d 329, 334 (¶ 27) (Miss. Ct.
App. 2012) (“Sunny Delight [over which personal jurisdiction was found to exist] initiated
contact with Cirlot in Mississippi, entered into an Agreement with Cirlot to be performed,
in whole or in part, in Mississippi and followed that with multiple written and telephone
communications with respect to the proposed advertising campaign.”).
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to work, at least in part, in Mississippi and since Davenport carried out business activities
in Mississippi on behalf of HansaWorld through her employment, the Court finds a
sufficient “nexus” between Davenport’s claims and HansaWorld’s Mississippi contacts for
the exercise of specific jurisdiction.7 HansaWorld may not have anticipated the possibility
of it “being haled into court in Mississippi” to defend Davenport’s employment related
claims. Ainsworth, 716 F.3d at 179. Yet, the Court is far from convinced that
HansaWorld’s failure to foresee this possibility was reasonable in light of its contacts with
the forum state.
The Court next considers whether its exercise of jurisdiction over HansaWorld
would be fair and reasonable. “When a plaintiff makes its prima facie case that the
defendant has ‘minimum contacts’ with the forum state, the burden of proof shifts to the
defendant to show that the exercise of jurisdiction would be unreasonable.” Luv n’ care,
Ltd., 438 F.3d at 473. The defendant must present a “compelling case” to establish its
burden and “[i]t is rare” for an assertion of jurisdiction to be deemed unfair after minimum
contacts have been evidenced. Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th
Cir. 1999) (citations omitted). Courts balance the following interests in conducting the
fairness inquiry and determining whether the exercise of personal jurisdiction comports
with fair play and substantial justice: “the burden on the defendant having to litigate in
the forum; the forum state’s interests in the lawsuit; the plaintiff’s interests in convenient
and effective relief; the judicial system’s interest in efficient resolution of controversies;

7

Cf. Coats, 5 F.3d at 883-84; Hancock Fabrics, Inc., 2013 WL 866977, at *4-5; Billiot
v. Turecamo Coastal & Harbor Towing Corp., Civ.A. No. 88-2545, 1988 WL 212487, at
*3 (E.D. La. Oct. 26, 1988).
-15-

and the state’s shared interest in furthering fundamental social policies.” Id.
HansaWorld’s case in opposition to jurisdiction is not that compelling.
HansaWorld deems the burden on it litigating in Mississippi significant because “[i]t has
no offices, staff, property, customers or any other business interests within the state”; it
never “locally advertised or had a single client in Mississippi”; and it “had no way of
knowing that [it] would be required to defend a lawsuit . . . in Mississippi.” (HansaWorld’s
Mem. in Supp. of Mot. to Dismiss [31] at p. 15.) Pursuant to the foregoing “minimum
contacts” analysis, HansaWorld’s claim that it had no way of foreseeing that it may be
sued in a Mississippi court is not well taken. Further, the burdens HansaWorld “would
potentially face in this court are no more onerous than those that every nonresident
defendant faces when litigating outside its home state, and there is no indication that
litigating this dispute in . . . [Mississippi] would place . . . [HansaWorld] at a ‘severe
disadvantage’ relative to . . . [Davenport].” Commerce Capital, L.P. v. PrivateBank, No.
Civ.A. 3:05cv0700, 2005
WL 1544798, at *4 (N.D. Tex. June 30, 2005). No evidence has been presented
indicating that the inconvenience HansaWorld is likely to encounter in litigating in this
forum would be any greater than that faced by Davenport if the situs of the suit was
HansaWorld’s preferred locale of Florida. In addition, it appears that interstate and
international travel are a routine part of HansaWorld’s business, which further militates
against its convenience concerns. Cf. Long v. Grafton Executive Search, LLC, 263 F.
Supp. 2d 1085, 1090 (N.D. Tex. 2003) (finding that travel from Missouri to Texas should
not present a substantial hardship for defendants who routinely engaged in interstate
travel).
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HansaWorld next asserts “that it has serous doubts as to whether Davenport even
presently resides in Mississippi.” (HansaWorld’s Mem. in Supp. of Mot. to Dismiss [31] at
p. 16.) These doubts purportedly negate any contention that Davenport has a substantial
interest in obtaining relief in a Mississippi court. HansaWorld presents copies of an IRS
notice and Facebook, LinkedIn and Twitter pages, indicating that Davenport lives in
McKinney, Texas, in support of this argument. Davenport states the following in
response:
I am still a resident of Mississippi. I was a resident of Mississippi when this
suit was filed. I still own my home in Seminary, Mississippi with its homestead
exemption. My husband took a job in Texas because of the financial burden
caused by HansaWorld. We have rented a home there. I travel back and forth
and stay with him for extended periods of time. I do not reside in Texas.
(Davenport Aff. [13-3] at ¶ 19.) Once again, the Court must resolve the parties’
inconsistent positions in favor of the exercise of jurisdiction. See Luv n’ care, Ltd., 438
F.3d at 469. The Court finds that Mississippi has a substantial interest in the resolution
of this suit given Davenport’s prima facie showing of Mississippi residency. See Coats, 5
F.3d at 885 (“Coats is a resident of Mississippi, and Mississippi has a strong ‘interest in
providing effective means of redress of its residents.’”).8
Finally, HansaWorld contends that it would be inefficient to allow this case to
proceed in light of the fact that it has a separate suit pending against Davenport in Florida
state court, “where the company is subject to jurisdiction . . . .” (HansaWorld’s Mem. in

8

Davenport’s intermittent presence in Texas does not nullify her status as a resident
of Mississippi under Mississippi state law. “Residence is an entirely different and more
flexible concept [than domicile]. . . . For instance, a person may have multiple
residences simultaneously.” Aetna Cas. & Sur. Co. v. Williams, 623 So. 2d 1005, 1009
(Miss. 1993) (citations omitted).
-17-

Supp. of Mot. to Dismiss [31] at p. 16.) HansaWorld filed suit against Davenport in the
Circuit Court of the Eleventh Judicial Circuit for Miami-Dade County, Florida (the “Florida
Action”) on November 13, 2012, approximately one month prior to Davenport filing this
action. (See Doc. No. [30-3].) Out of the five counts pled in the Florida Action, only
Count V (Civil Remedy for Criminal Practices) appears to have a connection with this
lawsuit. HansaWorld’s central allegation under Count V is that Davenport’s “actions of
concocting false and malicious allegations of employment discrimination and income tax
withholding errors or crimes in an effort to extort a severance settlement . . . constitute
the crime of extortion.” (Doc. No. [30-3] at ¶ 45.) Davenport asserts that counsel for the
parties were in discussions to amicably resolve this matter prior to the filing of the Florida
Action and that HansaWorld filed the Florida Action in anticipation of her Mississippi
lawsuit. Davenport also posits that the Florida Action is well into discovery. There is no
indication that Davenport has asserted a counterclaim against HansaWorld in the Florida
Action.
The Court finds that the existence of the Florida Action fails to give rise to
efficiency or fairness concerns warranting dismissal. Davenport did not file the Florida
Action, so there is nothing inequitable about her initiation and maintenance of this suit in
Mississippi. HansaWorld has not alleged that dismissal here would result in Davenport’s
claims being resolved in the Florida Action. Also, Davenport asserts that she will refile
her claims in a separate suit in an inconvenient forum (Florida), further prolonging her
right to relief, if the Court dismisses this cause. It thus appears that the end result of
dismissal would be two separate lawsuits in Florida, encompassing largely dissimilar
claims, proceeding on entirely different schedules. This result may be more convenient
-18-

for HansaWorld, but the Court does not foresee any significant efficiency gains making
this the “rare” case where “minimum contacts have been shown” and the assertion of
jurisdiction would be “unfair”. Brandt, 195 F.3d at 215.
The Court’s exercise of jurisdiction over HansaWorld is permissible under
Mississippi’s long-arm statue and would not violate the Fourteenth Amendment’s Due
Process Clause. Therefore, HansaWorld’s personal jurisdiction-based request for
dismissal is refused.
C.

Dismissal on Venue Grounds

HansaWorld contends that dismissal is required because Davenport cannot
establish venue in this district under 28 U.S.C. § 1391(b)(1) or (2).9 As to subsection
(b)(1), HansaWorld asserts that neither it nor Defendant Bohlin is a resident of
Mississippi. As to subsection (b)(2), HansaWorld argues that the Complaint fails to
allege any wrongdoing occurring in Mississippi.
HansaWorld relies on the wrong statute in arguing improper venue. Congress has
adopted specific venue provisions for actions involving alleged violations of Title VII. See
In re Horseshoe Entm’t, 337 F.3d 429, 432 (5th Cir. 2003). “‘The venue provisions of [42
U.S.C.] § 2000e-5(f)(3) were intended to be the exclusive venue provisions for Title VII
employment discrimination actions and . . . the more general provisions of § 1391 are not
controlling in such cases.’” Allen v. U.S. Dep’t of Homeland Sec., 514 Fed. Appx. 421,

9

Venue is proper in “(1) a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is located; [and/or] (2) a
judicial district in which a substantial part of the events or omissions giving rise to the
claim occurred, or a substantial part of property this is the subject of the action is
situated . . . .” 28 U.S.C. § 1391(b)(1)-(2).
-19-

422 n.3 (5th Cir. 2013) (quoting Pinson v. Rumsfeld, 192 Fed. Appx. 811, 817 (11th Cir.
2006)). No showing has been made that this judicial district falls outside the scope of
each potential venue authorized under § 2000e-5(f)(3).10 Moreover, it appears that
Davenport would have continued to work in this district “but for the alleged unlawful
employment practice . . . .” 42 U.S.C. § 2000e-5(f)(3). Accordingly, HansaWorld’s
request for dismissal based on the general venue provisions of 28 U.S.C. § 1391(b) is
denied.
D.

Transfer of Venue

HansaWorld’s alternative request for a transfer of venue to the Southern District of
Florida is made pursuant to 28 U.S.C. § 1404(a). This statute provides: “For the
convenience of parties and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where it might have been brought
or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a).
Section 1404(a) applies in Title VII actions because it is specifically referenced under 42
U.S.C. § 2000e-5(f)(3). See In re Horseshoe Entm’t, 337 F.3d at 433.

10

“[A]n action may be brought in any judicial district in the State in which the unlawful
employment practice is alleged to have been committed, in the judicial district in which
the employment records relevant to such practice are maintained and administered, or
in the judicial district in which the aggrieved person would have worked but for the
alleged unlawful employment practice, but if the respondent is not found within any such
district, such an action may be brought within the judicial district in which the respondent
has his principal office. For purposes of sections 1404 and 1406 of Title 28, the judicial
district in which the respondent has his principal office shall in all cases be considered a
district in which the action might have been brought.” 42 U.S.C. § 2000e-5(f)(3).

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District courts maintain “‘broad discretion’” in determining whether to transfer
venue pursuant to § 1404(a). In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir.
2008) (quoting Balawajder v. Scott 160 F.3d 1066, 1067 (5th Cir. 1998)). The trial court’s
first consideration under § 1404(a) is whether the lawsuit “‘might have been brought’ in
the destination venue.” Id. at 312. Next, the court determines whether good cause has
been shown for the transfer. Id. at 315. Good cause within the context of § 1404(a)
means that the movant must show “that the transferee venue is clearly more convenient”
than the plaintiff’s choice of forum. Id. The Fifth Circuit has adopted the private and
public interest factors set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91
L. Ed. 1055 (1947), a forum non conveniens decision, for the determination of this issue.
In re Volkswagen of Am., Inc., 545 F.3d at 315.
The private interest factors are: “(1) the relative ease of access to
sources of proof; (2) the availability of compulsory process to secure the
attendance of witnesses; (3) the cost of attendance for willing witnesses; and
(4) all other practical problems that make trial of a case easy, expeditious and
inexpensive.” The public interest factors are: “(1) the administrative difficulties
flowing from court congestion; (2) the local interest in having localized
interests decided at home; (3) the familiarity of the forum with the law that will
govern the case; and (4) the avoidance of unnecessary problems of conflict
of laws [or in] the application of foreign law.”
Id. (citation omitted). The preceding factors are not necessarily exhaustive and no single
factor is dispositive. Id.
HansaWorld asserts that “the Southern District of Florida is a proper venue for this
action . . . .” (HansaWorld’s Mem. in Supp. of Mot. to Dismiss [31] at p. 19.) “Davenport
agrees that this action COULD have been brought in the Southern District of Florida . . .
.” (Davenport’s Resp. in Opp. [35] at ¶ 22.) In accordance with the parties’ agreement,
the Court moves on to consider whether the above-listed public and private interest
-21-

factors favor the transfer of this action to the Southern District of Florida.
The private interest factors do not weigh in favor of a transfer. Most of the
potential witnesses (Davenport, Kyle Partida, Joshua Davenport, Stephen Jay and
Bohlin) identified by the parties reside outside the State of Florida. Further, HansaWorld
has failed to specify the subject matter of the expected testimony of its potential
witnesses (Mare Raidma, Allan Lessing and Hadi Mansouri) residing in Florida.11
HansaWorld’s contention that compulsory process to secure the testimony of its
corporate representative would be more available in the Southern District of Florida than
in this District is also unpersuasive. Stephen Jay (HansaWorld’s Rule 30(b)(6) corporate
representative, custodian of records, and country manager) is an adult resident citizen of
Canada, as opposed to Mississippi or Florida. (See Jay Suppl. Aff. [30-2] at ¶¶ 1-2.)
HansaWorld can compel Stephen Jay to attend any necessary proceedings before this
Court by virtue of his employment relationship with the Defendant.12 Although

11

Cf. Aultman, Tyner, & Ruffin, Ltd. v. Capital Rubber & Specialty Co., No.
2:10cv223, 2011 WL 213471, at *11 (S.D. Miss. Jan. 21, 2011) (denying transfer where
the defendant asserted that key witnesses resided in Louisiana, but failed to identify the
witnesses by name or describe their anticipated testimony); Sorrels Steel Co. v. Great
Sw. Corp., 651 F. Supp. 623, 629 (S.D. Miss. 1986) (“The party seeking a transfer for
the convenience of witnesses must clearly specify the key witnesses and make a
general statement of what their testimony will cover.”) (emphasis added; citation
omitted).
12

Cf. Blume v. Int’l Servs., Inc., No. 4:12cv165, 2012 WL 1957419, at *6 (E.D. Mo.
May 31, 2012) (finding that the availability of compulsory process was not a significant
concern since the defendants’ employees were available to provide testimony by virtue
of their employment status); In re Optimal U.S. Litig., 837 F. Supp. 2d 244, 259
(S.D.N.Y. 2011) (“Defendants’ employees in Europe are within defendants’ control and
subject to compulsory process.”); Pension Advisory Group, Ltd. v. Country Life Ins. Co.,
771 F. Supp. 2d 680, 711 (S.D. Tex. 2011) (denying the defendants’ transfer request
because, inter alia, they could compel the attendance of any of their employees residing
outside of the forum district).
-22-

HansaWorld asserts that “the records and documents relevant to Davenport and her
claims are located in Florida”,13 the Court presumes that the documentary evidence is
easily transferable since its “custodian of records”, Stephen Jay, is based in Canada and
Mr. Jay has executed an affidavit in Canada partially based on his “review of relevant
HansaWorld USA, Inc. business records”. (Jay Suppl. Aff. [30-2] at pp. 1, 5.)
Davenport’s claim that she already has possession of numerous records, such as e-mails
and Skype conversations, that will be used in this matter further supports the inference
that “the documents related to the litigation should be readily accessible from either”
Mississippi or Florida. White v. Wexford Health Sources, Inc., No. 2:09cv161, 2012 WL
3913956, at *3 (N.D. Miss. Sept. 7, 2012) (finding a motion to transfer not well taken).
The aforementioned Florida Action filed by HansaWorld against Davenport fails to
tip the balance of the private interest factors in favor of a transfer. HansaWorld argues
that the existence of the Florida Action lends support to its requested relief because
Davenport will have to conduct discovery in Florida in that action. HansaWorld,
nonetheless, concedes that the Florida Action “involves different facts and claims than
those at issue in this federal court action.” (HansaWorld’s Reply in Supp. of Mot. to
Dismiss [36] at p. 5.) Further, a transfer of this action to a federal district court in Florida
would not alter the fact that the Florida Action is a state court proceeding. Given these
realities, it is unlikely that the relocation of this suit will give rise to any significant
efficiency benefits associated with related discovery between the two proceedings,
overriding Davenport’s choice of forum.

13

(HansaWorld’s Mem. in Supp. of Mot. to Dismiss [31] at p. 20.)
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The public interest factors, as a whole, are inconclusive. Neither party has
presented any current statistics as to the number of civil cases before this Court versus
the number of civil actions before the District Judge in the Southern District of Florida to
whom this cause would be transferred. Thus, the Court is unable to resolve the “court
congestion” factor in either party’s favor. Davenport is a resident of Mississippi, whereas
HansaWorld is incorporated in California and has its principal offices in Florida. As a
result, the “localized interests” factor is neutral or inapplicable. It appears that
Davenport’s claims implicate federal law, Mississippi law and New York law. This Court
and the Florida district court are equally capable of applying federal law to Davenport’s
Title VII claims and looking to New York law with respect to her breach of contract
allegation. This Court’s familiarity with Mississippi law in relation to Davenport’s
remaining claims is not dispositive.
Ultimately, the change of venue to the Southern District of Florida would shift the
burden of litigating in an inconvenient forum from the Defendant HansaWorld to the
Plaintiff Davenport. It is well-settled in this Court that “transfer will be refused where it
would operate merely to shift inconvenience from one party to the other.” Aultman,
Tyner, & Ruffin, Ltd., 2011 WL 213471, at *11.14 Accordingly, HansaWorld’s § 1404(a)
transfer request is not well taken.

III. CONCLUSION

14

Accord Flowserve Corp. v. Midwest Pipe Repair, L.L.C., No. 3:05cv1357, 2006 WL
265521, at *5 (N.D. Tex. Feb. 3, 2006); Vig v. Indianapolis Life Ins. Co., 384 F. Supp. 2d
975, 981 (S.D. Miss. 2005); Jackson, 864 F. Supp. at 580.
-24-

Dismissal of this suit is unwarranted on the grounds presented by HansaWorld.
Furthermore, HansaWorld has failed to establish good cause for the transfer of this
action to the United States District Court for the Southern District of Florida.
IT IS THEREFORE ORDERED AND ADJUDGED that HansaWorld’s Motion to
Dismiss [30] is denied. Counsel for the parties shall contact the chambers of the United
States Magistrate Judge Michael T. Parker within seven (7) days of the entry of this
Order to schedule a case management conference.
SO ORDERED AND ADJUDGED this the 25th day of September, 2013.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

-25-