Russo v. System Integrators Inc., et al
Filing
24
ORDER granting in part and denying in part 17 : The Motion to Dismiss is denied to the extent that Defendant Warner moves to dismiss for insufficient service of process. However, it is granted to the extent that Defendants Warner and Angleberger mo ve to dismiss for lack of personal jurisdiction. Furthermore, Plaintiff's request to take jurisdictional discovery is denied. The Clerk of Court is directed to dismiss Defendants Warner and Angleberger. See attached Order. Ordered by Judge Denis R. Hurley on 8/28/2018. (Bochner, Francesca)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RICHARD RUSSO,
Plaintiff,
MEMORANDUM AND ORDER
2:17-cv-4317 (DRH)(AYS)
-againstSYSTEM INTEGRATORS INC., JOE WARNER,
in his official and individual capacity, KELLI
ANGLEBERGER, in her official and individual
capacity,
Defendants.
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APPEARANCES
LAW OFFICES OF FREDERICK K. BREWINGTON
Attorneys for Plaintiff
556 Peninsula Blvd.
Hempstead, New York 11550
By:
Frederick K. Brewington, Esq.
MILES & STOCKBRIDGE, PC
Attorneys for Defendants
100 Light Street
Baltimore, Maryland 21202
By:
Suzanne White Decker, Esq.
Amber Jackson, Esq.
HURLEY, Senior District Judge:
INTRODUCTION
Plaintiff Richard Russo (“Plaintiff”) brings this action against his former employer
System Integrators, Inc. (“System”), his former direct supervisor Joe Warner (“Warner”), and
System’s office manager Kelli Angleberger (“Angleberger”) (collectively, “Defendants”),
asserting claims for discrimination and retaliation under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000-e et seq.; the New York State Human Rights Law, N.Y. Exec. Law
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§ 296 et seq.; 42 U.S.C. § 1981; and the Americans with Disabilities Act, 42 U.S.C. § 12101 et
seq. Presently before the Court is Defendants Warner’s motion to dismiss for insufficient service
of process under Fed. R. Civ. P. 12(b)(5) (“Rule 12(b)(5)”), as well as both Defendants Warner’s
and Angleberger’s motion to dismiss for lack of personal jurisdiction under Fed. R. Civ. P
12(b)(2) (“Rule 12(b)(2)”). Plaintiff opposes the motion. For the reasons set forth below, the
motion is granted in part and denied in part.
BACKGROUND
The following facts are taken from the Complaint and are presumed to be true for
purposes of this motion. In or about April 2015, Plaintiff, a white male, was hired as a Lead
Technician in System’s Woodland Park, New Jersey office. (Compl. ¶ 14.) System specialized
in installation, integration, deinstallation, testing, and maintenance of wireless networks and
communications equipment. (Id. ¶ 11.) Plaintiff worked on a variety of customer sites in New
Jersey and New York. (Id. ¶ 15.) Plaintiff worked with two male coworkers: Tyrus Hughes, an
African American person; and Al Perry, a person of Puerto Rican descent. (Id. ¶ 16 .) During
this time, Defendant Warner, a white male, was a director for Systems and Plaintiff’s direct
supervisor. (Id. ¶ 12.) Defendant Angleberger, a white female, was System’s office manager.
(Id. ¶ 13.)
Beginning in or about May 2015, Defendant Warner made racist comments and remarks
to Plaintiff about two coworkers. (Id. ¶¶ 17-18.) Defendant Warner also told racist jokes to
Plaintiff and showed him racist pictures. (Id. ¶¶ 19-20.) When Plaintiff complained to
Defendant Warner that he was creating a hostile work environment, Warner “threatened that he
would terminate anyone who called OSHA.” (Id. ¶ 21.) In or about May or June 2015, Plaintiff
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complained to Defendant Angleberger about Warner creating an offensive and hostile work
environment, but she did nothing to resolve his concerns. (Id. ¶ 22.)
On July 6, 2015, after Plaintiff was injured in an on-the-job car accident, he was found to
have Hodgkins Lymphoma, stage four cancer, which required immediate treatment. (Id. ¶ 23.)
On July 22, 2015, Memorial Sloan Kettering Cancer Center sent System a letter informing
System of Plaintiff’s Hodgkins Lymphona and stating that he could return to work on July 27,
2015. (Id. ¶ 24.) On August 3, 2015, Plaintiff gave System a note from his physician assistant
stating that he could return to work on a restricted basis and requesting an accommodation for
neck and back issues—presumably stemming from the car accident—and for his cancer. (Id. ¶
25.) In response, Warner told Plaintiff that an accommodation would not be a good idea and that
Plaintiff should quit because he would be “tired, dizzy, and unable to breathe properly.” (Id. ¶
26.) Shortly thereafter, Angleberger told Plaintiff that System had no light or restricted-duty
work available, and that Plaintiff would not be permitted to return to work until System received
a letter clearing him for full duty without physical limitations. (Id.) At the end of August,
Plaintiff’s doctor notified him that he could not return to work, so Plaintiff took a leave of
absence. (Id. ¶ 27.) While on leave, Plaintiff maintained “constant communication” with
Defendant Angleberger, requesting accommodations for when he was cleared to work. (Id.) His
last letter requesting accommodations was December 17, 2015. (Id.) The next day, Plaintiff was
terminated, purportedly because “the office was closing,” even though Plaintiff made it clear that
he was willing to work at any other office or work site. (Id. ¶ 28.) Plaintiff maintains that
Defendant Angleberger fired him, and that “Defendants . . . retaliated against [him] because he
complained about Warner’s discrimination. (Id. ¶ 37.)
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Thereafter, Plaintiff filed administrative charges of discrimination and retaliation with the
New York State Division of Human Rights and the Equal Employment Opportunity
Commission. (Id. ¶ 7.) Eventually, Plaintiff received a Notice of Right to Sue and commenced
this action. (Id. ¶ 9.) In response to the Complaint, and before discovery, Defendants Warner
and Angleberger filed the present motion to dismiss for insufficient service of process under
Rule 12(b)(5) as to Defendant Warner, and lack of personal jurisdiction under Rule 12(b)(2) as to
both Defendants Warner and Angleberger.
DISCUSSION
I. The Motion to Dismiss Pursuant to Rule 12(b)(5) is Denied
a.
Rule 12(b)(5) Legal Standard
On a motion to dismiss under Rule 12(b)(5) challenging the sufficiency of service of
process, it is the plaintiff’s burden of proof to establish the adequacy of service. Hertzner v. U.S.
Postal Serv., No. 05-CV-2371, 2007 WL 869585, at *3 (E.D.N.Y. Mar. 20, 2007). In
considering the motion, the court may look beyond the pleadings, including to affidavits and
supporting materials, to determine whether service was adequate. Werst v. Sarar USA Inc., No.
17-CV-2181, 2018 WL 1399343, at *2 (S.D.N.Y. Mar. 16, 2018).
Fed. R. Civ. P. 4 (“Rule 4”) governs the requirements for sufficient service of process.
Under Rule 4(e), service upon an individual is made by either (1) “following state law for
serving a summons in an action brought in courts of general jurisdiction in the state where the
district court is located or where service is made,” or (2) “delivering a copy of the summons and
of the complaint to the individual personally” or “leaving a copy of each at the individual’s
dwelling or usual place of abode with someone of suitable age and discretion who resides there”
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or “delivering a copy of each to an agent authorized by appointment or by law to receive service
of process[.]” Rule 4(e)(2).
Here, the relevant state law is New York law. New York Civil Practice Law and Rules
(“CPLR”) § 308(2) provides that personal service upon a natural person may be made
by delivering the summons within the state to a person of suitable age and discretion
at the actual place of business . . . of the person to be served and by either mailing
the summons to the person to be served at his or her last known residence or by
mailing the summons by first class mail to the person to be served at his or her
actual place of business [subject to certain other specific requirements], such
delivery and mailing to be effected within twenty days of each other . . . .
CPLR § 308(2).
b. Service of Process on Defendant Warner
Defendant Warner maintains that he was not served in the manner prescribed by Rule
4(e), namely, either in accordance with the law of New York or in accordance with any of the
other methods listed in Rule 4(e)(2).
Plaintiff, on the other hand, claims to have effectuated service on Defendant Warner in
accordance with CPLR § 308(2). According to Defendant Warner, Plaintiff attempted to serve
him by personally delivering a copy of the Summons and Complaint to Defendant Angleberger,
admittedly a person of suitable age and discretion. However, Warner claims that Plaintiff has
failed to show that he also mailed the summons, as required by CPLR § 308(2). Defendant
Warner refers the Court to an Affidavit of Service filed on October 23, 2017 (ECF No. 6-1),
which does not indicate that the required mailing was made. (See Def.’s Reply Mem. [ECF No.
21] at 2.) In response, Plaintiff refers the Court to an Affidavit of Service filed December 13,
2017 (ECF No. 16)–before the motion to dismiss was brought–correcting the service information
in the October 23, 2017 Affidavit (ECF No. 6-1) to include that the required mailing was, in fact,
made. (See Mem. in Opp. [ECF No. 18] at 2. Defendant Warner does not challenge the
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December 13, 2017 Affidavit in his reply papers. Accordingly, the Court will treat the
December 13, 2017 Affidavit as relating back to the filing date of the October 13, 2017
Affidavit. Given that the December 13, 2017 Affidavit shows that service on Defendant Warner
comports with the requirements of CPLR § 308(2), the motion to dismiss for insufficient service
of process under Rule 12(b)(5) is denied.
II. The Motion to Dismiss Pursuant to Rule 12(b)(2) is Granted
a. Rule 12(b)(2) Legal Standard
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, a plaintiff may
defeat a 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 the 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.
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).
In a diversity case, 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
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Cir. 2001). In New York, courts may exercise either general or specific jurisdiction over
defendants. Pursuant to general jurisdiction, courts in New York can adjudicate all claims
against an individual or a corporation, even those unrelated to its contacts with the state. Sonera
Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 225 (2d Cir. 2014). General jurisdiction
is not at issue here.
The existence of 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, 564 U.S. 915, 919 (2011) (internal quotation marks and citations
omitted). C.P.L.R. § 302(a), New York’s “long-arm” statute, allows for specific jurisdiction
over non-domiciliaries and provides that “a court may exercise personal jurisdiction over any
non-domiciliary . . . 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.” Courts have found that this
subsection of New York’s long-arm statute effectively has two prongs: “(1) ‘[t]he defendant
must have transacted business within the state,’ either itself or through an agent, and (2) ‘the
claim asserted must arise from that business activity.’” Powell v. Monarch Recovery
Management, Inc., 2016 WL 8711210, at *6 (E.D.N.Y. 2016) (quoting Licci ex rel Licci v.
Lebanese Canadian Bank, SAL ,732 F.3d 161, 168 (2d Cir. 2013) (quoting Solé Resort, S.A. de
C.V. v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d Cir. 2006))).
Here, Russo asserts that both Defendants Warner and Angleberger are subject to specific
jurisdiction under CPLR § 302(a)(1) and § 302(a)(3)(iii) of New York’s long-arm statute. The
Court will consider each of these arguments individually, and if the requirements of CPLR
§ 302(a) are satisfied, then the Court will determine whether the exercise of jurisdiction
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comports with due process. Licci v. Lebanese Canadian Bank, SAL, 673 F. 3d 50, 61 (2d Cir.
2012).
b. CPLR § 302(a)(1)
The “transacting business” provision of CPLR § 302(a)(1) establishes that a “court may
exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . .
. transacts any business within the state or contracts anywhere to supply goods or services in the
state.” Pursuant to this provision, 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. 1999). To extend
personal jurisdiction to a nonresident under § 302(a)(1), however, two conditions must be met.
First, the nonresident must have “purposely availed [himself] of the privilege of conducting
activities within New York and thereby invoked the benefits and protections of its laws.” Id.
(internal quotation marks omitted; alteration in original). Second, there must be a “substantial
nexus” between the business transacted in the state of New York and the claims asserted.
Beeney v. InSightec, Inc., No. 13-CV-8022, 2014 WL 3610941, at *2 (S.D.N.Y. July 7, 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.
c. Personal Jurisdiction over Defendants Warner and Angleberger under CPLR
§ 302(a)(1)
Neither Defendant Warner nor Defendant Angleberger submitted affidavits or other
evidentiary materials with their initial moving papers. Plaintiff, likewise, did not submit
affidavits or other evidentiary materials in opposition. Only with their reply papers did
Defendants Warner and Angleberger submit declarations, purporting to show that each lacks
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sufficient contacts with New York for the proper exercise of personal jurisdiction. (See Aff. in
Support [ECF No. 21-1]; Aff. in Support [ECF No. 21-2].) Plaintiff did not respond to the
declarations, as the Court’s procedures do not call for surreply papers. Given that the
declarations were submitted for the first time in reply, and have not been addressed by Plaintiff,
the Court limits its determination of the sufficiency of Plaintiff’s showing to the allegations of
the Complaint.1
Based on the allegations in the Complaint, neither of the two conditions for personal
jurisdiction over a nonresident are met as to Defendants Warner or Angleberger. As noted
above, Defendant Warner allegedly made racist comments and remarks to Plaintiff, and told
racist jokes and showed racist pictures to Plaintiff. (Compl. ¶¶ 17-20.) However, the Complaint
does not specify whether Defendant Warner’s alleged racist comments, remarks, jokes, and
pictures were directed at Plaintiff in New York. Thus, these allegations are not sufficient to
show that Warner engaged in any specific instances of “discriminatory conduct directed at New
York.” Beeney, 2014 WL 3610941, at*3 (in discrimination case, finding 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”). Defendant Warner also allegedly
told Plaintiff that an accommodation for his reported disability would not be a good idea and that
Plaintiff should quit. (Compl. ¶ 26.) Even assuming that this communication occurred while
Plaintiff was in New York, without more detail as to the nature of this communication and its
relation to the claims of discrimination or retaliation, the Court cannot say that it is sufficient to
constitute the transaction of business in New York. See Litton v. Avomex, Inc., No. 08-CV-1340,
1
To the extent that Plaintiff makes unsupported factual assertions in his brief as to the mode or location
of communications or acts referenced in the Complaint, the Court will not consider those assertions for
this motion.
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2010 WL 160121, at *6 (N.D.N.Y Jan. 14, 2010) (finding that a telephone call to the plaintiff in
New York during which the plaintiff was laid off “is not enough to establish that [defendant] was
physically present within the state for jurisdictional purposes of a claim of discrimination and
retaliation); see also Palace Expl. Co. v. Petroleum Dev. Co., 41 F Supp. 2d 427, 433 (S.D.N.Y.
1998) (“[I]t is . . . well-settled that, generally, telephone and mail contacts do not constitute
‘transacting business’ under [§ 302(a)(1)]”). Moreover, Plaintiff’s allegations do not show that
Warner “purposefully availed [himself] of the privilege of conducting activities within New
York.” See Bank Brussels Lambert, 171 F.3d at 787 (internal quotation marks omitted; alteration
in original). As a result, the allegations in the Complaint are not sufficient to show that
Defendant Warner transacted business in New York for purposes of Plaintiff’s discrimination
and retaliation claims. Beeney, 2014 WL 3610941, at *3.
With regards to Defendant Angleberger, she allegedly told Plaintiff, in response to his
request for an accommodation, that System had no light or restricted-duty work available and
that Plaintiff would not be permitted to return to work until System received a letter clearing him
for full duty without physical limitations. (Compl. ¶¶ 26.) Plaintiff also allegedly maintained
“constant communication” with Defendant Angleberger regarding accommodations, and she
fired Plaintiff in retaliation for his complaints of discrimination. (Id. ¶¶ 27-28, 36-37.) Even
assuming that these communications occurred while Plaintiff was in New York, without more
detail as to the nature of these communications and their relation to the claims of discrimination
and retaliation, the Court cannot say that they are sufficient to constitute the transaction of
business in New York. See Litton, 2010 WL 160121, at *6; Palace Exploration, 41 F Supp. 2d
at 433. Moreover, Plaintiff’s allegations do not show that Angleberger “purposefully availed
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[herself] of the privilege of conducting activities within New York.” See Bank Brussels
Lambert, 171 F.3d at 787 (internal quotation marks omitted).
d. CPLR § 302(a)(3)(ii)
Under CPLR § 302(a)(3)(ii), as relevant here, “a court may exercise personal jurisdiction
over any non-domiciliary . . . who in person or through an agent . . . commits a tortious act
without the state causing injury to person or property within the state . . . if he . . . expects or
should reasonably expect the act to have consequences in the state and derives substantial
revenue from interstate or international commerce . . . .”
e. Personal Jurisdiction over Defendants Warner and Angleberger under CPLR §
302(a)(3)(ii)
Plaintiff’s allegations fail to meet the requirements of § 302(a)(3)(ii) as to either Warner
or Angleberger, most notably because the Complaint does not allege that either one of them
derived substantial revenue from interstate or international commerce. Instead, Plaintiff makes
only conclusory assertions in his Memorandum in Opposition that “Warner derived substantial
revenue from the work performed each day by [Plaintiff], who is also an agent of . . . System and
Warner,” and that “Defendants” received unspecified “benefits” from their “contact, supervision
and communication with the state of New York.” (Mem. in Opp. at 11, 15.) In any event, there
is no basis for imputing System’s revenue (which amount is not even referenced) to Defendants
Warner or Angleberger for jurisdictional purposes. See Int’l Healthcare Exch., Inc. v. Glob.
Healthcare Exch., LLC, 470 F. Supp. 2d 345, 360 (S.D.N.Y. 2007) (“The revenue of a
corporation is imputed to individuals for jurisdictional purposes only if they are major
shareholders”) (citing Siegel v. Holson Co., 768 F. Supp. 444, 446 (S.D.N.Y. 1991)).
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Given that the Complaint fails to allege facts sufficient to satisfy personal jurisdiction
over either Defendants Warner or Angleberger under CPLR § 302, the Court need not address
whether the exercise of jurisdiction would comport with due process.
III. Plaintiff’s Request for Jurisdictional Discovery
Plaintiff requests that the motion be denied so that he may take jurisdictional discovery.
(Mem. in Opp.. at 15-16.) This Court recognizes that it has discretion to order jurisdictional
discovery. See, e.g., Leon v. Shmukler, 992 F. Supp. 2d 179, 194-96 (E.D.N.Y.2014) (“It is well
settled under Second Circuit law that, even where a plaintiff has not made a prima facie showing
of personal jurisdiction, a court may still order discovery, in its discretion, when it concludes that
the plaintiff may be able to establish jurisdiction if given the opportunity to develop a full factual
record.”). However, jurisdictional discovery is only appropriate when Plaintiff has asserted
“specific, non-conclusory facts that, if further developed, could demonstrate substantial state
contacts.” Leon, 992 F. Supp. 2d at 195 (quoting Texas Int’l Magnetics, Inc. v. BASF
Aktiengesellschaft, 31 F. App’x. 738, 739 (2d Cir. 2002) (unpublished opinion); see also
Manhattan Life Ins. Co. v. A.J. Stratton Syndicate (No. 782), 731 F. Supp. 587, 593
(S.D.N.Y.1990) (“[P]laintiffs are entitled to discovery regarding the issue of personal jurisdiction
if they have made a sufficient start, and shown their position not to be frivolous”).
Here, Plaintiff has not made a “sufficient start” in showing that this Court has personal
jurisdiction over Defendants Warner and Angleberger. Neither of these two defendants live or
work in New York, and Plaintiff’s only allegation that the Defendants had contacts with the State
of New York are the phone calls in question. Plaintiff has not provided the Court with any
reason to infer that an opportunity to develop the record would be anything other than frivolous.
Accordingly, Plaintiff’s request for jurisdictional discovery is denied.
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CONCLUSION
For the foregoing reasons, Defendant Warner and Angleberger’s motion to dismiss is
granted in part and denied in part. It is denied to the extent that Defendant Warner moves to
dismiss for insufficient service of process, as Plaintiff has shown that service was sufficient.
However, it is granted to the extent that Defendants Warner and Angleberger move to dismiss for
lack of personal jurisdiction. Furthermore, Plaintiff’s request to take jurisdictional discovery is
denied. The Clerk of Court is directed to dismiss Defendants Warner and Angleberger.
SO ORDERED.
Dated: Central Islip, New York
August 28, 2018
/s/
_
Denis R. Hurley
Unites States District Judge
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