Scott v. Proclaim America, Inc. et al

Filing 21

ORDER granting 19 Motion to Dismiss for Lack of Jurisdiction. For the reasons set forth in the attached Memorandum and Order, defendants' motion to dismiss is granted. Defendants Kainer and Roy are hereby dismissed from this case. Ordered by Judge Denis R. Hurley on 6/22/2015. (Kaley, Regina)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MICHAEL SCOTT,
Plaintiff,

MEMORANDUM AND ORDER
14 CV 06003 (DRH) (ARL)

- against PROCLAIM AMERICA, INC. d/b/a/ “”ESISProClaim,”
ESIS, INC., ACE GROUP HOLDINGS, INC.,
CARL FERDENZI, Individually,
HEATHER ROY, Individually, and
CANDACE KAINER, Individually,
Defendants.
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APPEARANCES:
PHILLIPS & ASSOCIATES, PLLC
Attorneys for Plaintiff
45 Broadway, Suite 620
New York, New York 10006
By:
Alex Umansky, Esq.
STARK & STARK
Attorneys for Defendants
993 Lenox Drive
Lawrenceville, New Jersey 08648
By:
Scott I. Unger, Esq.
HURLEY, Senior District Judge:
Plaintiff Michael Scott (“Plaintiff” or “Scott”) brings this action against his former
employer ProClaim America, Inc. d/b/a ESISProClaim. (“ProClaim”), Esis, Inc. (“Esis”), and
Ace Group Holdings (“Ace”), as well as his former supervisors Carl Ferdenzi (“Ferdenzi”),
Heather Roy (“Roy”), and Candace Kainer (“Kainer”) for discrimination on the basis of medical
disability and retaliatory discharge, pursuant to the Family and Medical Leave Act (“FMLA”),
29 U.S.C. § 2601. Presently before the Court is Roy and Kainer’s motion to dismiss for lack of

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personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). For the reasons set
forth below, the motion to dismiss is granted.
BACKGROUND
The following facts are taken from Plaintiff’s Complaint and are presumed to be true for
purposes of Defendants’ present Motion.
Plaintiff Michael Scott worked full-time for Defendants ProClaim America, Inc., ESIS,
Inc., and ACE 1 as a “Senior Claim Director” in Melville, New York. (Compl. ¶ 11; ¶ 24.) His
responsibilities consisted of managing complex professional liability claims. (Id. ¶ 25.) During
this time, Ferdenzi, who held the position of “Executive Vice President,” was Plaintiff’s
supervisor. (Id. ¶¶ 12-13.) Plaintiff alleges that Roy, a “Claims Manager” and Kainer, an “HR
Manager,” also supervised him. (Id. ¶¶ 14-17.)
In November, 2013, Plaintiff fell and hit his head, resulting in severe headaches and
dizziness. (Id. ¶ 29.)

While receiving medical treatment for this fall, on or about the evening of

December 11, 2013, Plaintiff’s doctor found a Cholesteatoma in his left ear and removed it. (Id.
¶ 33.) On the same day, Plaintiff informed Ferdenzi of this surgery. (Id. ¶ 34.)
On December 18, 2013, Plaintiff sent an email to Ferdenzi and Kainer, who worked at the
corporate Headquarters of the company in Houston, Texas 2, in which he stated, “[a]s discussed, I
had surgery last Wed. to remove a tumor in my left ear. I have tried as best I could to work
through the pain and dizziness since last week but am unable to do so . . . . Three (3) new cases

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Plaintiff alleges that ProClaim, Esis, and Ace are “integrated employers,” meaning they
“have common management, share financial control of all companies, share centralized control
of labor relations, and share employees.” (Compl. ¶ 10.)
2

Kainer states in her affidavit that at all relevant times, she worked in ProClaim’s
corporate headquarters in Houston, Texas. (Kainer Decl. ¶ 4.) Plaintiff does not dispute this
fact.

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came in for Brooklyn and accordingly, I am dropping them off with you . . . . I will advise when
I am medically cleared to return.” (Id. ¶ 35.) On the same day, Plaintiff asked Ferdenzi if he
could postpone a meeting originally scheduled for the following day, but Ferdenzi refused. (Id.
¶¶ 36-37.)
The next day, Plaintiff was diagnosed with a left ear infection as well as post-concussion
syndrome. (Id. ¶ 38.) Plaintiff informed Ferdenzi of these diagnoses the same day. (Id. ¶ 39.)
On December 19, 2013, however, Ferdenzi issued Scott a Performance Written Warning in
which Ferdenzi explained that Plaintiff was “being placed on warning for a period of up to 90
days.” (Id. ¶ 40.) Plaintiff sent Ferdenzi a request that he rescind the warning, however, Ferdenzi
did not respond (Id. ¶ 42.)
On December 26, 2013, Plaintiff informed Defendants that he had to take a medical leave
of absence since his condition was not improving. (Id. ¶ 43.) He submitted a letter from his
doctor confirming his diagnoses and began medical leave that day. (Id. ¶¶43-44.) On December
30, 2013, Plaintiff received a letter from Defendants approving his eligibility for leave pursuant
to the FMLA and confirming the receipt of the doctor’s note as well as Plaintiff’s submission of
“sufficient certification to support [his] request for FMLA leave.” (Id. ¶ 45.)
On January 10, 2014, Kainer sent Plaintiff an email that stated “[p]lease find attached the
disability papers for the state of NY and Lincoln’s Short Term Disability’s papers.” (Id. ¶ 46.)
On or about January 16, 2014, Plaintiff wrote an email to Kainer and Roy, in which he stated
“I’m heading over to the ENT this afternoon, so I hope to have some sense of where I’m heading
in that regard. I actually have two (2) issues, one is the ENT issue and the other the Post
Concussion so I may need two docs certs. Do we need just one or two?” Kainer never
responded to this email. (Id. ¶ 47.)
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On January 17, 2014, Roy, who also worked at the Texas Headquarters, 3 called Plaintiff
and terminated his employment without providing any reason. (Id. ¶ 48.) In the same
conversation, Roy stated that the Defendants would provide Plaintiff with a severance payment
and a neutral employment reference, and they agreed not to dispute unemployment benefits. (Id.
¶ 48.) Roy also instructed Plaintiff to send him an email memorializing the terms discussed in
the phone call. Id. Plaintiff sent the email, however, Roy never responded. (Id. ¶ 49.) On
January 21, 2014, Plaintiff received a letter from Roy stating “this letter will serve as our official
notice to accept your resignation.” (Id. ¶ 50.) Plaintiff, however, disputes that he ever resigned
from his position, and maintains that he was terminated. (Id.)
DISCUSSION
I. Standard of Review for Motion to Dismiss
On a motion to dismiss under Rule 12(b)(2), the plaintiff bears the burden of establishing
jurisdiction over the defendant. See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560,
566 (2d Cir. 1996). Where, as here, the parties have not yet conducted discovery, plaintiff may
defeat defendant’s Rule 12(b)(2) motion “by making a prima facie showing of jurisdiction by
way of the complaint’s allegations, affidavits, and other supporting evidence.” Mortg. Funding
Corp. v. Boyer Lake Pointe, L.C., 379 F. Supp. 2d 282, 285 (E.D.N.Y. 2005). Moreover, given
the early stage of the proceedings here, the Court must view the pleadings in a light most
favorable to the plaintiff, see Sills v. The Ronald Reagan Presidential Found., Inc., 2009 WL
1490852, *5 (S.D.N.Y. May 27, 2009), and when evidence is presented, “doubts are resolved in
the plaintiff’s favor, notwithstanding a controverting presentation by the moving party,” A.I.
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Roy states in her affidavit that at all relevant times, she worked in ProClaim’s corporate
headquarters in Houston, Texas. (Roy Decl. ¶ 4.) Plaintiff does not dispute this fact.
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Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 80 (2d Cir. 1993). However, the Court is not bound
by conclusory statements, without supporting facts. Jazini v. Nissan Motor Co. Ltd., 148 F.3d
181, 185 (2d Cir. 1998).
II.

Plaintiff Has Not Sufficiently Demonstrated Personal Jurisdiction Over Kainer and
Roy
A federal district court exercises personal jurisdiction over a party in accordance with the

law of the forum state, subject to the requirements of due process under the United States
Constitution. See Whitaker v. American Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001). In
New York, courts may exercise either general or specific jurisdiction over defendants. General
jurisdiction allows courts in New York to adjudicate all claims against an individual or a
corporation, even those unrelated to its contacts with the state. See Sonera Holding B.V. v.
Cukurova Holding A.S., 750 F.3d 221, 225 (2d Cir. 2014). In contrast, specific jurisdiction
“depends on an affiliation between the forum [state] and the underlying controversy, principally,
activity or an occurrence that takes place in the forum State and is therefore subject to the State’s
regulation.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)
(internal quotation marks and citations omitted).
Here, Plaintiff only contends that Roy and Kainer are subject to specific jurisdiction
under New York’s long-arm statute, and in particular the “transacting business” provision of
C.P.L.R. § 302(a)(1). That provision states that “a court may exercise personal jurisdiction over
any non-domiciliary, or his executor or administrator, who in person or through an agent: (1)
transacts any business within the state or contracts anywhere to supply goods or services in the
state.” Pursuant to this provision of the long arm statute, a “party need not be physically present
in the state at the time of service” in order for the court to obtain personal jurisdiction over that
party. Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 787 (2d Cir.
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1999). To extend personal jurisdiction to any nonresident under Section 302(a)(1), however, two
conditions must be satisfied. First, the nonresident must have “purposely availed [himself] of the
privilege of conducting activities within New York and thereby invoke[] the benefits and
protections of its laws.” Id. (internal quotation marks and citation omitted). Second, there must
be a “substantial nexus” between the business transacted in the state of New York and the cause
of action. Beeney v. InSightec, Inc., 2014 WL 3610941, at *2 (S.D.N.Y. 2014). “Ultimately, the
analysis must focus on the nature and quality of the individual defendant’s contact with the
forum and whether such contact has a strong relationship to the claims based on the totality of
the circumstances.” Id. at *3.
Plaintiff’s attempt to demonstrate that the Court has personal jurisdiction over Kainer is
limited to the allegations in the Complaint that Kainer, located in Texas, exchanged email
communications with Plaintiff Scott, located in New York, on three occasions. These alleged
communications consist of Plaintiff’s December 18, 2013 email to Ferdenzi and Kainer
discussing his ear surgery and inability to perform certain work, (Compl. ¶ 35), Kainer’s January
10, 2014, email to Plaintiff attaching certain disability papers, (id. ¶ 46), and Plaintiff’s January
16, 2014 email to Kainer and Roy inquiring about his need to obtain doctor certificates verifying
his condition (id. ¶ 47). These alleged emails do not demonstrate that Kainer transacted business
in New York that was sufficiently related to Plaintiff’s discrimination claims. “[I]t is . . . wellsettled that, generally, telephone and mail contacts do not constitute transacting business under
the statute.” Palace Exploration Co. v. Petroleum Dev. Co., 41 F Supp. 2d 427, 433 (S.D.N.Y.
1998) (internal quotation marks omitted). Moreover, regarding the two emails from Plaintiff to
Kainer discussing Plaintiff’s physical condition and ability to perform work, Plaintiff has not
alleged that Kainer responded to these emails in any discriminatory manner or at all engaged in
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any discriminatory conduct directed at Plaintiff in New York. Beeney, 2014 WL 3610941, at *3
(finding that in discrimination case there was no personal jurisdiction over individual defendant
where plaintiff did not allege that defendant engaged in any specific instances of “discriminatory
conduct directed at New York”). Additionally, Kainer’s single act of sending Plaintiff disability
papers does not establish that Kainer “purposefully availed [herself] of the privilege of
conducting activities within New York.” See Bank Brussels Lambert, 171 F.3d at 787.
Furthermore, upon review of the facts, Kainer “did not solicit business in New York, did not
individually contract with any person in New York, and did not conduct any other purposeful
activity within the forum that would constitute a business transaction under § 302(a)(1).”
Beeney, 2014 WL 3610941, at *3.
The alleged communications between Roy, who was located in Texas, and the state of
New York are similarly insufficient to warrant exercise of jurisdiction pursuant to Section
302(a)(1). These alleged contacts consist of Roy’s receipt of an email from Plaintiff informing
her of Plaintiff’s visit to the ENT and inquiring about the need to obtain doctor certificates,
(Compl. ¶ 47), Roy’s phone call to Plaintiff on the following day in order to terminate Plaintiff’s
employment and Plaintiff’s follow-up email, (id. ¶ 48), and Roy’s later letter to Plaintiff as
acceptance of Plaintiff’s resignation (id. ¶ 50). As with Kainer discussed above, Plaintiff has not
alleged that Roy responded in any discriminatory manner to Plaintiff’s email regarding his visit
to the ENT and inquiry about doctor certificates. Moreover, Roy’s communication with Plaintiff
regarding the decision to terminate his employment on behalf of ProClaim does not constitute the
transacting of business in New York. See Litton v Avomex, Inc., 2010 WL 160121 (N.D.N.Y.
Jan. 14, 2010) (“telephone . . . call regarding plaintiff’s termination is not enough to establish
that [defendant] was physically present within the state for jurisdictional purposes of a claim of
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discrimination and retaliation”). Here, Roy’s termination phone call and resignation letter were
“discrete contact[s] that terminated any association with [Plaintiff] in New York state” and did
not serve to “thrust [Roy] into New York.” Gianino v. Panacya, Inc., 2000 WL 1224810, at * 8
(S.D.N.Y. 2000). Accordingly, Plaintiff has failed to demonstrate that there is a sufficient basis
for the exercise of jurisdiction over Kainer and Roy in New York pursuant to Section 302(a)(1).
Furthermore, this case is distinguishable from the case that plaintiff primarily relies upon,
International Healthcare Exchange, Inc. v. Global Healthcare Exchange, LLC, 470 F. Supp. 2d
345 (S.D.N.Y. 2007). In that case, the court found that there was jurisdiction over individual
defendants because “work assignments that [p]laintiff claim[ed] constituted instances of illegal
disparate treatment were communicated and assigned to [p]laintiff by [defendants] via telephone,
email, and fax to her home office in New York” and “discussions concerning her complaints
about” those assignments “took place through the same channels.” Int’l Healthcare Exch., 470
F. Supp. 2d at 359. Moreover, the court found that “a substantial portion of [defendants’]
communications to [plaintiff] form[ed] the substantive basis for her claims against them.” Id.
The communications with Kainer and Roy at issue here, however, do not form the substantive
basis of Plaintiff’s claim as they consist mainly of Plaintiff’s emails to Defendants describing his
physical condition and do not constitute instances of discriminatory treatment. Id. at 359 n. 7.
Moreover, this case is unlike Launer v. Buena Vista Winer, Inc., 916 F. Supp. 204, 209-10
(E.D.N.Y. 1996), another case relied upon by Plaintiff, because while in that case, the decision to
terminate plaintiff was actually made in New York, here Plaintiff has not presented any facts
suggesting that the decision to terminate Plaintiff occurred in New York, let alone that Roy and
Kainer participated in that decision.

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III.

Plaintiff’s Request for Jurisdictional Discovery Is Denied
While this Court has discretion to order further jurisdictional discovery, Manhattan Life

Ins. Co. v. A.J. Stratton Syndicate (No. 782), 731 F. Supp. 587, 593 (S.D.N.Y. 1990), it finds that
such further discovery is not warranted here. As discussed above, the Plaintiff has not made a
prima facie showing of jurisdiction. Moreover, unlike in the cases cited by the Plaintiff where
further jurisdictional discovery was warranted, here there is no dispute as to facts material to the
determination of jurisdiction. See e.g., Uebler v. Boss Media, AB, 363 F. Supp. 2d 499, 506-07
(E.D.N.Y. 2005); Aerotel, Ltd. v. Sprint Corp., 100 F. Supp. 2d 189, 194 (S.D.N.Y. 2000).
Neither is the current case like Winston & Strawn v. Dong Won Securities Co., Ltd, 2002 WL
31444625 (S.D.N.Y. 2002), where facts necessary to establish personal jurisdiction were
exclusively within the defendant’s knowledge. Since further discovery is unlikely to shed light
on the jurisdictional question, Plaintiff’s request for jurisdictional discovery is denied.
CONCLUSION
For the foregoing reasons, Defendant Kainer and Defendant Roy’s motion to dismiss for
lack of personal jurisdiction is granted. Kainer and Roy are hereby dismissed from this case.

SO ORDERED.
Dated: Central Islip, New York
June 22, 2015
/s/
_
Denis R. Hurley
Unites States District Judge

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