RIBUSTELLO v. WILSON SPORTING GOODS COMPANY et al
Filing
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OPINION. Signed by Judge William J. Martini on 1/9/13. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:12-cv-02326 (WJM)
THOMAS RIBUSTELLO,
Plaintiff,
OPINION
v.
WILSON SPORTING GOODS COMPANY,
et al.,
Defendants.
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Thomas Ribustello brings this action against the Wilson Sporting Goods
Company (“Wilson”), Christopher Considine, and William Kirchner (collectively
“Defendants”). This matter comes before the Court on Defendants Considine and
Kirchner’s motion to dismiss. There was no oral argument. Fed. R. Civ. P. 78(b). For
the reasons set forth below, Defendants’ motion to dismiss is GRANTED.
I.
BACKGROUND
Plaintiff is an individual and a citizen of the State of New Jersey. Defendant
Wilson is a corporation incorporated in Delaware, with its principal place of business in
Illinois. Defendants Considine and Kirchner are individuals who are citizens of the State
of Illinois. Considine is the President of Wilson. Kirchner is the Vice President of Sales
and Service at Wilson. Kirchner’s duties include hiring, promoting, and firing
employees.
The Complaint alleges as follows. For many years, employees at Wilson were
part of a pension plan. Compl. ¶ 19. The pension plan’s benefits increased substantially
when an employee reached 65 years of age. Id. ¶ 20. In 1999, Wilson stopped offering
the pension plan benefit to new employees. Id. ¶ 19. The Complaint alleges that Wilson
developed a pattern and practice of terminating its oldest employees when those
employees were approaching their late 50’s and early 60’s. Id. ¶ 18.
Plaintiff began working at Wilson in 1972, and was employed by Wilson for
approximately 40 years. Compl. ¶¶ 5, 12. In his last 17 years at Wilson, Plaintiff was
employed as a National Account Manager (“NAM”). Id. ¶ 12. As an NAM, he was
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responsible for handling national accounts in all sales areas, including Team Sports,
Racquet and Golf. Id. ¶ 13. Wilson did not require that an NAM live in the territory of
the assigned accounts, and did not assign national accounts based on their geographical
location. Id. ¶¶ 8-9. Thus, an NAM could live anywhere and handle the same accounts.
In or around 2009, Wilson took away Plaintiff’s largest account, along with
several smaller accounts. Id. ¶ 15. On November 1, 2011, Wilson sent an e-mail to
various employees announcing that a sales representative, who was under the age of 40,
was being promoted to an NAM, effective November 28, 2011. Id. ¶ 21. As of
November 28, 2011, Plaintiff was the oldest NAM at Wilson. Id. ¶ 35-36. On November
28, 2011, Plaintiff received a telephone call from Kirchner who advised Plaintiff that his
position was eliminated, effective December 31, 2011. Id. ¶ 26. Kirchner advised
Plaintiff that there was a reduction in the workforce, and that Plaintiff’s termination was
not performance based. Id. ¶¶ 27-28. That same day, Plaintiff e-mailed Considine to
seek assistance in retaining his job. Id. ¶ 29. Considine did not respond to Plaintiff’s email and did not render assistance. Id. ¶ 30.
On March 1, 2012, Plaintiff filed a Complaint in the Superior Court of New Jersey
in Bergen County. Defendants removed the action to this Court on April 19, 2012.
Defendants Considine and Kirchner now move to dismiss the Complaint.
II.
DISCUSSION
Plaintiff asserts 3 causes of action in the Complaint: (1) Count 1: Age
Discrimination in violation of the New Jersey Law Against Discrimination (“NJLAD”),
asserted against all Defendants; (2) Count 2: Intentional Infliction of Emotional Distress,
asserted against all Defendants; and (3) Count 3: Quantum Meriut, asserted against
Wilson. Defendants Considine and Kirchner move to dismiss the Complaint for
improper service of process, lack of personal jurisdiction, and failure to state a claim
pursuant to Federal Rules of Civil Procedure 12(b)(2), (5) and (6). Because the Court
determines that it lacks personal jurisdiction over Considine and Kirchner, the Court does
not reach the issues of service of process or failure to state a claim.
The burden of demonstrating facts that establish personal jurisdiction falls on the
plaintiff. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009). “[T]o
exercise personal jurisdiction over a defendant, a federal court sitting in diversity must
undertake a two-step inquiry.” IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 258-59 (3d
Cir. 1998). First, the court applies the relevant long-arm statute of the forum state to
determine if it permits the exercise of jurisdiction. Id. Second, the court applies the
principles of the Due Process Clause of the Constitution. Id. In New Jersey, this inquiry
is collapsed into a single step because the New Jersey long-arm statute permits the
exercise of personal jurisdiction to the fullest limits of due process. See N.J. Court. R.
4:4-4(c); DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 284 (3d Cir. 1981).
Personal jurisdiction under the Due Process Clause requires a plaintiff to show that the
defendant has purposefully directed its activities toward the residents of the forum state,
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or otherwise “purposefully avail[ed] itself of the privilege of conducting activities within
the forum State.” Hanson v. Denckla, 357 U.S. 235, 253 (1958).
A party is subject to the personal jurisdiction of a court through either general or
specific jurisdiction. See J Mcintyre Machinery, Ltd. v. Nicastro, 131 S.Ct. 2780, 2789
(2011). In this case, Plaintiff asserts that there is specific jurisdiction because the
plaintiff’s cause of action arises out of the defendant’s contacts with the forum state. See
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8 (1984). In
order for specific jurisdiction to be properly exercised under the Due Process Clause, the
plaintiff must satisfy a two-part test. First, the plaintiff must show that the defendant has
constitutionally sufficient “minimum contacts” with the forum. See Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985). Second, for jurisdiction to be exercised the court
must determine, in its discretion, that to do so would comport with “traditional notions of
fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct.
154, 90 L.Ed. 95 (1945).
In this case, the facts alleged by Plaintiff are insufficient to demonstrate that
Considine and Kirchner purposely availed themselves of the benefits and protections of
New Jersey law. Considine and Kirchner reside and work in Illinois. Plaintiff
unilaterally decided to reside in New Jersey, despite having accounts all over the country.
Plaintiff’s only allegation as to Considine is that Considine failed to respond to one email that Plaintiff sent from New Jersey. Plaintiff’s only allegation as to Kirchner is that
Kirchner made one telephone call from Illinois to New Jersey to inform Plaintiff of his
termination. Courts have held time and again that such communications are insufficient
to confer personal jurisdiction. See Bangura v. Pennrose Mgmt. Co., 2010 U.S. Dist.
LEXIS 59450, at *9-10 (D.N.J. June 15, 2010) (“The necessity of communicating with an
employee who happens to work in New Jersey cannot be said to show that the
supervisors purposefully directed their activities at New Jersey”); Nelligan v. Zaio Corp.,
2011 U.S. Dist. LEXIS 28628, at *14 (D.N.J., Mar. 21, 2011) (“Simply because Plaintiff
unilaterally decided to live and work in New Jersey is insufficient to show that [her
supervisor] directed this comment at the forum state”); Walburn v. Rovema Packaging
Machines, L.P., 2008 U.S. LEXIS 25369, at *3 (D.N.J. Mar. 28, 2008) (telephone calls
and mail correspondence to plaintiff did not create a connection with the state). Thus, the
Court finds that it does not have personal jurisdiction over Considine and Kirchner.
III.
CONCLUSION
For the reasons stated above, Defendants Considine and Kirchner’s motion to
dismiss is GRANTED. An appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: January 9, 2013
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