ALLEN v. THE M RESORT, LLC
Filing
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MEMORANDUM OPINION AND ORDER: IT IS HEREBY ORDERED that the 9 Defendant, The M Resort, LLC's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(2) based on a lack of personal jurisdiction is DENIED. For the reasons set forth in the accompanying Memorandum Opinion, this case is TRANSFERRED to the United States District Court for the District of Nevada, Las Vegas Division. The Clerk of Courts is directed to transfer the case to the Clerk of the United States District Court for the District of Nevada, Las Vegas Division. Signed by Judge Sean J. McLaughlin on 4/20/2011. (rlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRUCE ALLEN,
Plaintiff,
v.
THE M RESORT, LLC,
Defendant.
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Civil Action No. 10-120 Erie
MEMORANDUM OPINION
McLAUGHLIN, SEAN J., DISTRICT JUDGE.
Plaintiff, Bruce Allen (“Plaintiff”), a Pennsylvania resident, brought this action against the
Defendant, The M Resort, LLC (“Defendant”), a Nevada limited liability company, asserting claims
of sexual discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e.1 This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
Presently pending before the Court is the Defendant’s Motion to Dismiss pursuant to
Fed.R.Civ.P. 12(b)(2) and 12(b)(3) based on a lack of personal jurisdiction and improper venue.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is a resident of Meadville, Crawford County, Pennsylvania. See ECF No. 2,
Complaint ¶ 1. Defendant is a Nevada limited liability company, with its headquarters and principal
place of business located in Henderson, Nevada. Complaint ¶ 2; ECF No. 9, Defendant’s Motion
to Dismiss Ex. A, Woodhead Aff. ¶¶ 2; 4. Defendant is a resort casino providing entertainment,
gambling and spa services to clients and visitors at its facility located in Henderson, Nevada. Motion
to Dismiss Ex. A, Woodhead Aff. ¶ 3. Plaintiff was employed by the Defendant as a security officer
in Las Vegas, Nevada from July 31, 2008 until December 13, 2008. See ECF No. 2, Complaint ¶¶
1; 4; 13.
Plaintiff alleges that throughout his employment with the Defendant in Nevada, it accorded
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Although the Plaintiff did not specifically invoke Title VII, I will presume he is alleging an employment
discrimination claim pursuant to its provisions. Because the Plaintiff is proceeding pro se, he is held to a less
stringent standard than trained counsel. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Accordingly, the Court
“will apply the applicable law, irrespective of whether [Plaintiff] has mentioned it by name,” Dluhos v. Strasberg,
321 F.3d 365, 369 (3d Cir.2003) (citing Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir.2002)).
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preferential treatment to female security officers with respect to working conditions and failed to
discipline certain female security officers for work rule violations. Complaint ¶¶ 5-7; 10-12.
Plaintiff further alleges that he was subjected to a sexually hostile work environment by virtue of the
conduct of a female co-worker. Complaint ¶¶ 10-12. Plaintiff claims that he was terminated in
retaliation for complaining about the aforementioned conduct and/or for agreeing to testify in support
of two terminated male co-workers. Complaint ¶¶ 12-13.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission (the “EEOC”) based upon the Defendant’s alleged conduct on January 16, 2009, which
was cross-filed with the Nevada Equal Rights Commission (“NERC”). See Motion to Dismiss Ex.
B. Following its investigation, the NERC found that the Plaintiff was not subject to gender
discrimination or retaliation. See Motion to Dismiss Ex. C. A “right to sue” letter was issued with
respect to his claims on February 24, 2010. Motion to Dismiss Ex. A, Woodhead Aff. ¶ 10.
Thereafter, the Plaintiff filed the instant lawsuit pro se on May 14, 2010. Defendant filed its motion
to dismiss on December 21, 2010, and the Plaintiff filed a response on January 20, 2011. See ECF
No. 12, Plaintiff’s Reply. This matter is now ripe for disposition. For the following reasons, the
Court will transfer this action to the United States District Court for the District of Nevada, Las
Vegas Division.
II. DISCUSSION
When a defendant challenges personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), the
plaintiff bears the burden of showing that personal jurisdiction exists. Marten v. Godwin, 499 F.3d
290, 295-96 (3rd Cir. 2007). “In deciding a motion to dismiss for lack of personal jurisdiction, we
take the allegations of the complaint as true. But once a defendant has raised a jurisdictional
defense, a plaintiff bears the burden of proving by affidavits or other competent evidence that
jurisdiction is proper.” Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3rd Cir. 1996) (internal
citations omitted); see also Patterson by Patterson v. F.B.I., 893 F.2d 595, 604 (3rd Cir.1990);
D’Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3rd Cir. 2009); O’Connor v. Sandy Lane Hotel
Co., Ltd., 496 F.3d 312, 316 (3rd Cir. 2007). In demonstrating that jurisdiction is proper, the plaintiff
is required to establish facts with reasonable particularity. Mellon Bank (East) PSFS, Nat’l Ass’n
v. Farino, 960 F.2d 1217, 1223 (3rd Cir. 1992). In addition, since personal jurisdiction is “inherently
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a matter which requires resolution of factual issues outside the pleadings,” a plaintiff may not rely
entirely on general averments in the pleadings. Time Share Vacation Club v. Atlantic Resorts, Ltd.,
735 F.2d 61, 66 n.9 (3rd Cir. 1984). The court must consider the pleadings and affidavits in a light
most favorable to the plaintiff and any discrepancies must be resolved in its favor. Carteret Sav.
Bank, F.A. v. Shushan, 954 F.2d 141, 142 n.1 (3rd Cir.), cert. denied, 506 U.S. 817 (1992).
Federal district courts “may assert personal jurisdiction over a nonresident of the state in
which the court sits to the extent authorized by the law of that state.” D’Jamoos, 566 F.3d at 102
(quoting Provident Nat’l Bank v. Cal. Fed. Sav. & Loan Ass’n, 819 F.2d 434, 436 (3rd Cir. 1987).
See also Marten, 499 F.3d at 296; O’Connor, 496 F.3d at 316. This involves a two-step inquiry
whereby courts first determine whether the forum state’s long-arm statute extends jurisdiction to the
nonresident defendant, and secondly, whether the exercise of that jurisdiction would comport with
federal due process principles. See Pennzoil Products Co. v. Colelli & Assoc., Inc., 149 F.3d 197,
2002-03 (3rd Cir. 1998). Pennsylvania’s long-arm statute permits a court to exercise jurisdiction over
non-resident defendants “to the fullest extent allowed under the Constitution of the United States and
[jurisdiction] may be based on the most minimum contact with this Commonwealth allowed under
the Constitution of the United States.” 42 Pa.C.S.A. § 5322(b). Pennsylvania courts typically
restrict their personal jurisdiction inquiry to the question of whether the exercise of personal
jurisdiction over the nonresident defendant would be constitutional, since Pennsylvania’s Long-Arm
statute authorizes jurisdiction to the fullest extent permissible under the U.S. Constitution. See 42
Pa. C.S.A. § 5322(b); Renner v. Lanard Toys Limited, 33 F.3d 277, 279 (3rd Cir. 1994) (“[T]his
court’s inquiry is solely whether the exercise of personal jurisdiction over the defendant would be
constitutional.”); Pennzoil, 149 F.3d at 200 (“A district court’s exercise of personal jurisdiction
pursuant to Pennsylvania’s long-arm statute is therefore valid as long as it is constitutional.”).
A district court may assert either general or specific jurisdiction over a non-resident
defendant consistent with these due process principles. Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290,
300 (3rd Cir. 2008); O’Connor, 496 F.3d at 317. General and specific jurisdiction are “analytically
distinct categories, not two points on a sliding scale.” O’Connor, 496 F.3d at 321. General
jurisdiction is the broader of the two, and exists where the defendant has maintained “systematic and
continuous” contacts with the forum state. Kehm Oil, 537 F.3d at 300; Marten, 499 F.3d at 296.
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The contacts need not be related to the particular claim proceeding in court. Pennzoil, 149 F.3d at
199 (general jurisdiction may be asserted “regardless of whether the subject matter of the cause of
action has any connection to the forum.”) (citation omitted). Specific jurisdiction, which is narrower,
allows for the exercise of personal jurisdiction over a non-resident defendant when the claim at issue
“arises from or relates to conduct purposely directed at the forum state.” Kehm Oil, 537 F.3d at 300
(citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984)); see also
Mellon Bank, 960 F.2d at 1221.
Here, I find that the Plaintiff has failed to demonstrate that the Defendant has engaged in
“systematic and continuous” contacts with Pennsylvania so as to allow for the exercise of general
jurisdiction. The uncontroverted facts establish that the Defendant is a registered Nevada company,
with its main office, headquarters and administrative offices located in Henderson, Nevada. Motion
to Dismiss Ex. A, Woodhead Aff. ¶¶ 2; 4. Defendant is not licensed or registered to do business in
Pennsylvania, and conducts no business in Pennsylvania. Id. at ¶ 5. Nor do I find a basis for the
exercise of specific jurisdiction. It is undisputed that the alleged employment discrimination relates
to and arises out of incidents which occurred solely in Nevada, and the record is devoid of any
evidence demonstrating that the Defendant “purposely directed” any conduct towards Pennsylvania.
In sum, I conclude that the Defendant is not subject to personal jurisdiction in Pennsylvania.
Having concluded that this Court lacks personal jurisdiction over the Defendant, the issue
remains as to whether the case should be dismissed or transferred to the appropriate district.
Pursuant to 28 U.S.C. § 1631, the Court has the discretion to transfer the action to the appropriate
judicial district in the absence of personal jurisdiction.2 See Lawman Armor Corp. v. Simon, 319
F. Supp. 2d 499, 506 (E.D.Pa. 2004) (holding that the court lacked jurisdiction over the defendant
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Section 1631 provides:
W henever a civil action is filed in a court as defined in section 610 of this title or
an appeal, including a petition for review of administrative action, is noticed for
or filed with such a court and that court finds that there is a want of jurisdiction,
the court shall, if it is in the interest of justice, transfer such action or appeal to
any other such court in which the action or appeal could have been brought at the
time it was filed or noticed, and the action or appeal shall proceed as if it had
been filed in or noticed for the court to which it is transferred on the date upon
which it was actually filed in or noticed for the court from which it is transferred.
28 U.S.C. § 1631.
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and transferring the case pursuant to § 1631); Horgos v. Regions Bank, 2009 WL 763431 at *6-7 and
n.12 (W.D.Pa. 2009) (citing cases and holding that “under Third Circuit case law, this action may
be transferred under § 1631 in the alternative, owing to the absence of personal jurisdiction.”).
Given the Plaintiff’s pro se status, I will transfer the case to the United States District Court
for the District of Nevada, Las Vegas Division, rather than dismiss the matter.3 Alberts v. Wheeling
Jesuit University, 2009 WL 3152225 at *4 (W.D.Pa. 2009) (transferring rather than dismissing pro
se complaint noting that “requiring the Plaintiff to refile his Complaint would be unduly duplicative
and costly”); (citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467 (1962) (noting that “the interest
of justice” may require that the complaint not be dismissed but rather that it be transferred in order
to avoid “time-consuming and justice-defeating technicalities”)).
III. CONCLUSION
An appropriate Order follows.
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I note that there is an exclusive venue provision for actions grounded in Title VII. 42 U.S.C. § 2000e5(f)(3) provides:
Each United States district court and each United States court of a place subject
to the jurisdiction of the United States shall have jurisdiction of actions brought
under this subchapter. Such an 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. ...
It is clear, therefore, that this action not only “could have been brought” in Nevada but, indeed, should have been
brought there pursuant to the aforementioned venue provision.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRUCE ALLEN,
Plaintiff,
v.
THE M RESORT, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 10-120 Erie
ORDER
AND NOW, to wit, this 20th day of April, 2011;
IT IS HEREBY ORDERED that the Defendant, The M Resort, LLC’s Motion to Dismiss
pursuant to Fed.R.Civ.P. 12(b)(2) based on a lack of personal jurisdiction [ECF No. 9] is DENIED.
For the reasons set forth in the accompanying Memorandum Opinion, this case is TRANSFERRED
to the United States District Court for the District of Nevada, Las Vegas Division.
The Clerk of Courts is directed to transfer the case to the Clerk of the United States District
Court for the District of Nevada, Las Vegas Division.
s/ Sean J. McLaughlin
United States District Judge
cm: All parties of record.
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