Bates v. Private Jet Commercial Group, Inc. et al

Filing 73

///ORDER granting 46 Motion to Dismiss. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Katie M. Bates,
Plaintiff
v.

Case No. 11-cv-547-SM
Opinion No. 2013 DNH 030

Private Jet Commercial Group, Inc.,
Private Jet Management Group, Inc.,
Private Jet Services Group, Inc.,
and Gregory Raiff,
Defendants
O R D E R
Re:

(Document No. 46), Motion to Dismiss

Ruling:

The motion to dismiss is granted.

are dismissed as to Defendant Raiff.

Counts I and II

Count V, which is brought

only against the corporate defendants, is dismissed in its
entirety.

Count I (Title VII): Plaintiff seeks to hold Raiff individually
liable for gender discrimination under Title VII.

In this

circuit, however, “there is no individual employee liability”
under that statute.

Fantini v. Salem State College, 557 F.3d 22,

30 (1st Cir. 2009).

Plaintiff argues that Fantini does not

shield Raiff from liability, because she is seeking to hold him
accountable as her “employer,” under the alter ego doctrine, and
not as an “employee.”

See Pl. Br., doc. no. 51.

The practical effect of piercing the corporate veil under
the alter ego doctrine to impose individual liability upon Raiff
as an “employer” would seem to run counter to the holding in

Fantini.

Those courts of appeals that have addressed the issue

have reached similar conclusions.

See Worth v. Tyler, 276 F.3d

249, 262 (7th Cir. 2001) (rejecting alter ego doctrine as
contrary to “Congress’ aversion to individual liability under
Title VII.”); Dearth v. Collins, 441 F.3d 931, 934 (11th Cir.
2006) (same).

See also Lafferty v. Owens, Schine & Nicola, P.C.,

2012 WL 162332, at *10-11 (D. Conn. Jan. 18, 2012) (rejecting
alter ego doctrine); Jacobs v. R&B Sunrise, Say You Say Me, Inc.,
2008 WL 4630836, at *3 (D. Idaho Oct. 17, 2008) (same).
But the court need not resolve that issue here because
plaintiff has not adequately alleged grounds that might warrant
piercing the corporate veil under federal common law.

See

Sheppard v. River Valley Fitness One, L.P., 2002 WL 197976, at
*11-12 (D.N.H. Jan. 24, 2002) (applying the “federal common law
of veil piercing” in Title VII action).

Under federal common

law, “‘[f]raudulent intent is a sine qua non’” of the veil
piercing doctrine.

Id.

Plaintiff has not alleged any fraudulent

intent in Raiff’s use of the corporate form, and has not linked
his use of the corporate form to the alleged assault.

See id.

see also NLRB v. Greater Kansas City Roofing, 2 F.3d 1047, 1053
(10th Cir. 1993) (“[T]he showing of inequity . . . must flow from
the misuse of the corporate form . . . .

It is only when the

shareholders disregard the separateness of the corporate identity
and when that act of disregard causes the injustice or inequity
or constitutes the fraud that the corporate veil may be
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pierced.”) (emphasis in original).

For these reasons, Count I is

dismissed as to Raiff.

Count II (RSA Ch. 354-A:7): Plaintiff makes the same veil
piercing argument with regard to Count II, in which she alleges a
violation of New Hampshire’s employment discrimination statute.
See RSA ch. 354-A:7.

The New Hampshire Supreme Court has yet to

decide whether liability under that statute can be assessed
against individuals.
But even assuming that it can, the amended complaint, again,
comes up short.

Nothing is alleged that would support piercing

the corporate veil.

Under New Hampshire law, a court may pierce

the corporate veil where “the owners have used the corporate
identity to promote an injustice or fraud on the plaintiff[s].”
Norwood Group, Inc. v. Phillips, 149 N.H. 722, 724 (2003).

The

complaint here fails to allege that Raiff used the “corporate
identity” to promote an injustice against plaintiff.

It is not

enough, as plaintiff posits, that Raiff’s alleged wrongdoing took
place at the office while he and plaintiff were working, thus
making the alleged assault “convenient as to time and place.”
Misuse or abuse of the “corporate identity” is not implicated in
that context.

Count II, therefore, is necessarily dismissed as

to Raiff.

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Count V (Vicarious Liability): The amended complaint seeks to
hold the corporate defendants vicariously liable for Raiff’s
alleged state law torts of assault and battery and intentional
infliction of emotional distress.

Under New Hampshire law, an

employer will be vicariously liable for the intentional torts of
its employee when the employee is acting within the scope of his
employment.

Statchen v. Palmer, 2009 WL 2997982, at *11 (D.N.H.

Sept. 15, 2009) (DiClerico, J.) (citing Porter v. City of
Manchester, 155 N.H. 149, 152 (2007)).

The employee’s purpose or

motivation for his actions is critical to the inquiry.

See

Daigle v. City of Portsmouth, 129 N.H. 561, 580-81 (1987); see
also Restatement (Second) of Agency, § 228(1)(c).

The amended

complaint here alleges facts that give rise only to an inference
of personal motives for the alleged assault.

Count V, therefore,

is dismissed for failure to state a claim.

Steven J. McAuliffe
United States District Judge
Date:
cc:

March 7, 2013

Stephen C. Buckley, Esq.
Kathleen A. Davidson, Esq.
Clara A. Dietel, Esq.
Steven M. Gordon, Esq.
Jamie N. Hage, Esq.
Benjamin T. S. Hillman, Esq.

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