Rivera-Garca et al v. Sprint PCS Caribe et al

Filing 113

ORDER granting 59 Motion to Dismiss for Lack of Jurisdiction. Claims against Sprint Nextel Corporation are hereby dismissed with prejudice. Signed by Judge Juan M Perez-Gimenez on 8/2/2011. (PMA)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
WANDA RIVERA-GARCIA,
Plaintiff,
v.
CIVIL NO. 09-1813 (PG)
SPRINT PCS CARIBE, ET AL.,
Defendants.

OPINION AND ORDER
Pending before the Court is defendant Sprint Nextel Corporation’s motion
to dismiss for lack of personal jurisdiction (Docket No. 59), plaintiff Wanda
Rivera-Garcia’s opposition thereto (Docket No. 67), and Defendant’s reply
(Docket No. 70). For the reasons set forth below, the Court GRANTS its
request.
I. BACKGROUND
On

August

17,

2009,

plaintiff

Wanda

Rivera-Garcia

(“Rivera”

or

“Plaintiff”) filed the instant claim against defendants Sprint PCS Caribe
(“Sprint Caribe”); Sprint Nextel Corporation (“SNC”); Patricia Eaves (“Eaves”)
and the Conjugal Partnership Pagan-Eaves; Juan O. Rodriguez (“Rodriguez”) and
Conjugal Partnership Rodriguez-Castillo; Evelyn Davila (“Davila”) and Conjugal
Partnership Velez-Davila. See Complaint, Docket No. 1. In her complaint, the
Plaintiff seeks redress for the alleged sexual harassment, sex discrimination,
retaliation, hostile work environment, unlawful employment termination, and
other discriminatory practices she was subjected to during the course of her
employment with Sprint Caribe. Id. Rivera alleges defendants’ actions violated
Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e, et seq.
(“Title VII”); Puerto Rico’s sexual harassment statute, Law No. 17 of April
22, 1988 (“Law No. 17”), P.R. LAWS ANN. tit. 29, § 155a, et seq.; Puerto Rico’s
wrongful termination statute, Law No. 80 of May 30, 1976 (“Law No. 80”), P.R.
LAWS ANN. tit. 29, § 185, et seq.; Puerto Rico’s retaliation statute, Law No.
115 of December 20, 1991 (“Law No. 115”), P.R. LAWS ANN tit. 29, § 194, et seq.;
Puerto Rico’s anti-discrimination statute, Law No. 100 of June 30, 1959 (“Law
No. 100”), P.R. LAWS ANN. tit. 29, § 146, et seq.; Puerto Rico’s sex
discrimination statute, Law No. 69 of July 6, 1985 (“Law No. 69”), P.R. LAWS

Civil No. 09-1813 (PG)

Page 2

ANN. tit. 29 § 1321, et seq.; and Puerto Rico’s general tort statute, Article
1802 of the Puerto Rico Civil Code, P.R. LAWS ANN. tit. 31, § 5141 (“Article
1802”).
In 2001, Sprint Caribe hired Plaintiff as an Assistant Manager and she
was promoted shortly thereafter to Store Manager. It is uncontested that
Rivera received salary increases several times, and that among other duties,
the Plaintiff trained Sprint Caribe’s sales personnel and managers. It is also
admitted that Rivera and the stores she managed received several distinctions
for sales performance. See Docket No. 6 at ¶ 3.4.
On or about January of 2004, co-defendant Rodriguez became Retail Sales
Manager for Sprint Caribe, as well as Rivera’s direct supervisor. According
to Plaintiff, from the beginning, Rodriguez’s attitude towards her was
offensive, hostile and unprofessional. Rivera alleges that he began a pattern
of sexual harassment consisting of sexual advances and innuendos. And although
Rivera made it clear to Rodriguez that these were unwelcome and asked him to
stop, his unlawful behavior escalated instead. See Docket No. 1 at ¶ 3.8.
Rivera also alleges that she received a verbal warning about her management
duties from Rodriguez for the first time since she began her employment at
Sprint. See Docket No. 1 at ¶ 3.9.
According to Rivera, despite informing Davila, Sprint Caribe’s Human
Resources Manager, of the situation, her complaints were ignored. Plaintiff
contends that Rodriguez berated her for calling Human Resources and ordered
her to take two weeks of vacation time. Upon her return, she claims he
transferred her to the Fajardo store, which is much farther away from Rivera’s
home, and at the time, did not have the necessary permits to operate until six
months after opening. According to Rivera, the Fajardo store did not have
running water or electricity, and at one point, the store was robbed at
gunpoint on December 2004. Rivera claims that because she did not acquiesce
to Rodriguez unwelcome conduct, he continued to reprimand her for the
shortcomings in the Fajardo store and the employees’ complaints, which Rivera
contends were not her fault.
During her employment at Sprint Caribe, Rodriguez allegedly continued his
unwelcome sexual advances and innuendos and made several offensive comments
of sexual nature. When Rivera rebuffed Rodriguez, he continued to reprimand
her for situations that she claims were out of her control and which Davila
barred Rivera from refuting. According to Rivera, when she inquired the nature
of the complaints against her in order to address them, Rodriguez and Davila

Civil No. 09-1813 (PG)

Page 3

refused to provide any information. Rivera alleges that she eventually became
afraid of placing another grievance against Rodriguez, because when she did,
Davila failed to act upon Rivera’s complaints and instead informed Rodriguez.
This situation eventually led to Rodriguez retaliating against Rivera.
Rivera further alleges that her stress levels were so high that she
developed several physical conditions that required staying at home to rest.
Notwithstanding, she claims Rodriguez barred her from taking sick leave.
On or about July 2005, Rivera was transferred to the San Patricio store,
and to the El Escorial store thereafter. However, on or about September 28,
2007, Rivera was transferred again to the Fajardo store. This transfer was
allegedly once again in retaliation for not accepting Rodriguez’s unwelcome
sexual advances.
According to the allegations in the complaint, on September 29, 2007,
Plaintiff called co-defendant Eaves to report the situation with Rodriguez.
Rivera left a message for Eaves, who in turn, forwarded the message to
Rodriguez for him to deal with the situation.
Thereafter, on December 4, 2007, Rivera called Davila and requested a
meeting, which was set for the next day. However, once again, Davila allegedly
informed Rodriguez of Rivera’s call. After Davila cancelled their meeting,
Rivera called Sprint’s Ethic Line on December 5, 2007 and filed a formal
grievance against Rodriguez for sexual harassment. Davila then set an
appointment with Plaintiff and Eaves for December 7, 2007 wherein Rivera
informed them of the situation. After the meeting, Rivera began reporting to
a different supervisor, Ana Franco. However, over a month elapsed and
Plaintiff allegedly did not receive any response to the grievance she had
filed.
Rivera claims she was summoned to a meeting with Eaves on January 15,
2007 in which she was reprimanded because of certain employee complaints
against her. However, Eaves allegedly refused to say which employees had
purportedly complained against Rivera, or the nature

of their alleged

complaints. Rivera was then issued a final warning and warned that she would
be fired if there was one more complaint against her.
On February 1, 2008, Plaintiff was assigned to the Catalinas Mall store
in Caguas, Puerto Rico and continued to be supervised by Ana Franco. However,
on February 20, 2008, Rivera received a call ordering her to report to Sprint
Caribe’s headquarters, where Eaves and Franco summarily fired Rivera.

Civil No. 09-1813 (PG)

Page 4

According to Plaintiff, a timely charge of employment discrimination on
the basis of sex discrimination, sexual harassment and retaliation was filed
with Puerto Rico Department of Labor’s Anti-Discrimination Unit (“ADU”), which
notified of it to the Equal Employment Opportunity Commission (“EEOC”) on June
5, 2008. See Docket No. 1 at ¶ 14. On May 25, 2009, Rivera received her Notice
of Right to Sue from the EEOC, issued on May 20, 2009.
On August 17, 2009, Plaintiff filed the instant claim and on October 16,
2009, defendants Sprint Caribe, Davila, Eaves and Rodriguez answered the
complaint (Docket No. 6). Shortly after, on October 30, 2009, defendants
Conjugal Partnership Rodriguez-Castillo and Conjugal Partnership Doe-Davila
filed a motion to dismiss (Docket No. 11) requesting that the claims against
the conjugal partnership be dismissed. The Plaintiff opposed said motion, but
also requested that the claims against co-defendants Efren Pagan and Conjugal
Partnership Pagan-Eaves be voluntarily dismissed. See Docket No. 12. Then, on
February 9, 2010, the defendants filed a motion for judgment on the pleadings
(Docket No. 19) requesting that the claims pursuant to Article 1802 be
dismissed against all defendants inasmuch as they are time-barred. In
response, the Plaintiff filed a motion for partial voluntary dismissal
requesting that her tort-based claims pursuant to Article 1802 be dismissed
without prejudice. See Docket No. 22. The defendants replied opposing the
dismissal without prejudice of these claims and reiterating their request for
dismissal of the claims against the conjugal partnerships.1 See Docket No. 24.
On February 9, 2011, co-defendant SNC filed the pending motion to dismiss
for lack of personal jurisdiction. See Docket No. 59. SNC asserts in its
motion that: (1) SNC does not have sufficient contacts with Puerto Rico as to
justify the assertion of in personam jurisdiction by the Court; and (2) codefendant SPCS Caribe, Inc. (“Sprint Caribe”), although ultimately owned by
SNC, is a separate and independent corporate entity. Plaintiff opposes SNC’s
motion to dismiss (Docket No. 67) alleging that Sprint Caribe is a wholly

1
Pursuant to this Court’s Amended Opinion and Order entered on August 9, 2010
(Docket No. 36), Plaintiff’s claims against Efren Pagan and the Conjugal
Partnership Pagan-Eaves were dismissed with prejudice. The claims against Eaves,
Davila and Rodriguez under Title VII and all claims under Puerto Rico Civil Code
Article 1802 were also dismissed with prejudice. However, the claims against the
conjugal partnerships Rodriguez-Castillo and Velez-Davila were dismissed without
prejudice. Remaining before this Court are the claims under Title VII, Laws No. 17,
69, 80, 100 and 115 against Sprint Caribe and those under Laws No. 17, 69, 100 and
115 against Eaves, Davila and Rodriguez.

Civil No. 09-1813 (PG)

Page 5

owned subsidiary of SNC, that SNC has control or oversees Sprint Caribe’s
employees, and that SNC was the employer of Plaintiff.
II. STANDARD OF REVIEW
Under Rule 12(b)(2), a defendant may move to dismiss an action against
it for lack of personal jurisdiction. See FED.R.CIV.P. 12(b)(2). The plaintiff
bears the burden of proving that the Court has personal jurisdiction over the
defendants. See Daynard v. Ness. Motley, Loadholt, Richardson & Poole, P.A.,
290 F.3d 42, 50 (1st Cir.2002) (citations omitted). A district court faced
with such a motion “may choose among several methods for determining whether
the

plaintiff

has

met

its

burden:

the

“prima

facie”

standard,

the

“preponderance-of-the-evidence” standard, or the “likelihood” standard. … The
“most conventional” and “most commonly used” of these methods is the “prima
facie” standard.” Fiske v. Sandvik Mining, 540 F.Supp.2d 250, 254 (D.Mass.
2008) (citing Daynard, 290 F.3d at 50-51 & n. 5; Foster-Miller, Inc. v.
Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir.1995); Boit v. Gar-Tec
Prods., Inc., 967 F.2d 671, 675 (1st Cir.1992)).
Under the prima facie standard, the district court determines “whether
the plaintiff has proffered evidence that, if credited, is enough to support
findings of all facts essential to personal jurisdiction.” Boit, 967 F.2d at
675. “In order to make a prima facie showing of jurisdiction, ‘the plaintiff
ordinarily cannot rest upon the pleadings but is obliged to adduce evidence
of specific facts.’” Phillips v. Prairie Eye Center, 530 F.3d 22, 26 (1st
Cir.2008) (quoting Foster-Miller, 46 F.3d at 145). The court then “add[s] to
the

mix

facts

put

forward

by

defendants,

to

the

extent

they

are

uncontradicted.” Daynard, 290 F.3d at 51 (internal citations omitted). The
prima facie method is appropriate here because the jurisdictional inquiry does
not involve materially conflicting versions of the relevant facts.
III. DISCUSSION
“An exercise of jurisdiction must be authorized by state statute and must
comply with the Constitution.” Harlow v. Children’s Hosp., 432 F.3d 50, 57 (1st
Cir.2005) (quoting Noonan v. Winston Co., 135 F.3d 85, 89 (1st Cir.1998)).
“Puerto

Rico’s

long-arm

statute

allows

Puerto

Rico

courts

to

exercise

jurisdiction over a non-resident defendant if the action arises because that
person: (1) transacted business in Puerto Rico personally or through an agent;
or (2) participated in tortuous acts within Puerto Rico personally or through
his agent.” Negron-Torres v. Verizon Communications, Inc., 478 F.3d 19, 24 (1st
Cir.2007) (citing P.R. LAWS ANN. tit. 32, App. III, R. 4.7(a)(1)) (quotation

Civil No. 09-1813 (PG)

Page 6

marks omitted). The First Circuit Court of Appeals has noted “that the reach of
Puerto Rico’s long-arm statute stretches ‘up to the point allowed by the
Constitution.’ … Therefore we proceed directly to the constitutional inquiry.”
Negron-Torres, 478 F.3d at 24 (citing Benítez-Allende v. Alcan Aluminio do
Brasil, S.A., 857 F.2d 26, 29 (1st Cir.1988) (quoting Indus. Siderúrgica v.
Thyssen Steel Caribbean, Inc., 114 P.R. Dec. 548, 558 (1983))).
“The due process clause imposes several requirements on the exercise of
personal jurisdiction over out-of-state defendants.” Harlow, 432 F.3d at 57.
First of all, “[i]n order for [Puerto Rico] to exercise personal jurisdiction
over … an out-of-state defendant, the Due Process Clause requires that [the
defendant]

have

sufficient

minimum

contacts

with

the

state,

such

that

maintenance of the suit does not offend traditional notions of fair play and
substantial justice.” Adams v. Adams, 601 F.3d 1, 5 (1st Cir.2010) (quoting
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)) (quotation marks
omitted). “For specific jurisdiction, the plaintiff’s claim must be related to
the defendant’s contacts. For general jurisdiction, in which the cause of action
may be unrelated to the defendant’s contacts, the defendant must have continuous
and systematic contacts with the state.” Harlow, 432 F.3d at 57. “The standard
for

evaluating

whether

…

contacts

satisfy

the

constitutional

general

jurisdiction test ‘is considerably more stringent’ than that applied to specific
jurisdiction questions.” Harlow, 432 F.3d at 64 (internal citations omitted);
see also Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d
42, 54 (1st Cir.2002) (general jurisdiction requires that the defendant’s
activities in the forum be continuous and systematic, whereas specific
jurisdiction requires a lesser showing).
“Second, for either type of jurisdiction, the defendant’s contacts with
the state must be purposeful. And third, the exercise of jurisdiction must be
reasonable under the circumstances.” Harlow, 432 F.3d at 57 (internal citations
omitted).
A. Specific Jurisdiction
“For specific jurisdiction, the constitutional analysis is divided into
three categories: relatedness, purposeful availment, and reasonableness.”
Phillips, 520 F.3d at 27.
First, the claim underlying the litigation must directly
arise out of, or relate to, the defendant’s forum-state
activities. Second, the defendant’s in-state contacts
must represent a purposeful availment of the privilege
of conducting activities in the forum state, thereby
invoking the benefits and protections of that state’s

Civil No. 09-1813 (PG)

Page 7

laws and making the defendant’s involuntary presence
before the state’s courts foreseeable. Third, the
exercise of jurisdiction must, in light of the Gestalt
factors, be reasonable.
Id. at 27 (citing Adelson v. Hananel, 510 F.3d 43, 49 (1st Cir.2007)). “[A]n
affirmative finding on each of the three elements of the test is required to
support a finding of specific jurisdiction.” Negron-Torres, 478 F.3d at 24.
“To satisfy the relatedness requirement, ‘the claim underlying the
litigation must directly arise out of, or relate to, the defendant’s forum-state
activities.’” N. Laminate Sales, 403 F.3d at 25 (citing

United Elec., Radio &

Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1088-89 (1st
Cir.1992)). “There must be more than just an attenuated connection between the
contacts and the claim; the defendant’s in-state conduct must form an important,
or at least material, element of proof in the plaintiff’s case.” Phillips, 530
F.3d at 27 (citing Harlow, 432 F.3d at 61).
“A parent company may not be the subject to the jurisdiction of a court
simply because its wholly-owned subsidiary resides in the forum state.”
Alvarado-Morales

v.

Digital

Equipment

Corp.,

843

F.2d

613,

616

(1st

Cir.1988)(citing Mangual v. General Battery Corporation, 710 F.2d 15, 20 (1st
Cir.1983)). A plaintiff must demonstrate that the non-resident defendant parent
company completed some act or transaction in the forum substantial enough to
meet the due process requirements of “fair play and substantial justice” and,
additionally, that the cause of action arises out of the act or transaction.
Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 904-5 (1st Cir.
1980)(citations

omitted).

“The

First

Circuit

has

established

that

the

presumption of separateness must be overcome by “strong and robust” evidence
that “the parent either controlled the subsidiary’s business as a whole such
that it can be said to have carried out business transactions in Puerto Rico,
as provided in Rule 4.7(a)(1), or that it engaged in or controlled those
activities which plaintiff alleges tortiously caused him injury.” AlvaradoMorales, 843 F.2d at 616. A plaintiff who asks a court to disregard independent
corporate structure by piercing a subsidiary’s corporate veil faces a high
burden of proof. See Velazquez v. P.D.I. Enterprises, Inc., 141 F.Supp.2d 189,
193 (D.P.R.1999).
Plaintiff alleges in her complaint that Sprint Caribe is a wholly owned
subsidiary of SNC. See Complaint, Docket No. 1, ¶ 2.2. Plaintiff further alleges
that SNC was her employer and responsible for the acts of its agents and
supervisors, such as Rodriguez, Eaves and Davila. Id. at ¶¶ 2.6, 7.2.

Civil No. 09-1813 (PG)

Page 8

In her opposition, Plaintiff alleges that: (1) Davila is an employee of
SNC; (2) Sprint Caribe does not have its own Human Resources Department and the
employees of that department are SNC employees; (3) Sprint Caribe does not have
its own Employee Manual or Code of Ethics, but rather, these policies are
imposed by SNC; and (4) there is a chain of command that reaches from Sprint
Caribe to SNC. See Docket No. 67, ¶¶ 10, 11.
In support of its motion to dismiss, SNC filed an unsworn statement under
penalty of perjury from Scott W. Andreasen (“Andreasen”), Assistant Secretary
for SNC, which reflects that SNC has not done any business in Puerto Rico and
would not be subject to a personal jurisdiction here. The declaration directly
contradicts Plaintiff’s conclusory allegations of SNC’s control over Sprint
Caribe’s operations. Andreasen states that SNC is the direct or indirect parent
corporation

for

approximately

260

other

corporations,

limited

liability

partnerships and other legal entities. Andreasen further states that all of
SNC’s operating subsidiaries are responsible for their own employees and
decisions related to their employees and SNC is not involved in the day to day
affairs of Sprint Caribe. Also, that Sprint Caribe is responsible for its own
employees and decisions related to those employees.
Furthermore, Andreasen claims that: (1) there is no financial dependency
between Sprint Caribe and SNC since they keep separate books and do not
commingle assets; (2) SNC is a corporation organized and existing under the law
of the State of Kansas; (3) SNC has never been licensed and qualified to do
business in Puerto Rico; (4) SNC does not have any offices in Puerto Rico and
is not subject to tax in Puerto Rico; (5) does not maintain corporate records
in Puerto Rico; (6) SNC maintains no bank accounts in Puerto Rico; and (7) SNC
does not have a designated agent in Puerto Rico.

Andreasen also states that

certain of SNC’s operating subsidiaries are authorized to operate their
businesses using the d/b/a "Sprint Nextel," but that Sprint Caribe is not
authorized to operate its business in Puerto Rico using the d/b/a "Sprint
Nextel".
Even considering the facts in the light most favorable to Plaintiff, she
has failed to meet the prima facie burden of demonstrating that jurisdiction
attaches to SNC. Plaintiff, in the allegations of the complaint has not plead
sufficient facts or evidence to meet the standard required when moving the court
to pierce the corporate veil. Aside from conclusory allegations, none of the
exhibits or allegations show that SNC controls Sprint Caribe operations or the
mix in their properties or accounts. Plaintiff’s assertion that co-defendant

Civil No. 09-1813 (PG)

Page 9

Davila had testified that she was an employee of SNC, showing relatedness, was
contradicted by a unsworn statement under penalty of perjury by Davila stating
that after reviewing her records she is in fact an employee of Sprint Caribe.
See Docket No. 59, Exhibit No. 2.
There is nothing before this Court that demonstrates a lack of corporate
separateness, an absence of corporate records, or non functioning directors or
officers. The allegations of the human resource department and the Employee
Manual are not enough to create a causal connection between any business
transaction or tortious conduct by SNC and Plaintiff’s injuries. Furthermore,
this also does not demonstrate that SNC has the necessary minimum contacts to
assert specific personal jurisdiction over SNC. Plaintiff may not depend on the
parent-subsidiary relationship per se to pierce a corporate veil. Ramirez De
Arellano v. Colloides Naturels Int’l, 236 F.R.D. 83, 88 (D.P.R.2006).
Moreover, SNC has proffered evidence demonstrating that it does not
control Sprint Caribe, nor is it responsible for Sprint Caribe’s decisions
regarding its employees. In addition, SNC and Sprint Caribe have separate board
of directors and separate financial records. Plaintiff has failed to establish
SNC’s specific involvement in Sprint Caribe’s personnel decision or with
Plaintiff’s dismissal from Sprint Caribe. Alvarado-Morales, 843 F.2d at 616.
B. General Jursidiction
According to the evidence submitted, SNC has its principal place of
business in Kansas. It has no employees in Puerto Rico, never owned property
here, never paid local taxes, or maintained any office or records in Puerto
Rico. It has never been authorized to do business in Puerto Rico and never
appointed an agent for service of process locally.
This Court finds that the limited contacts between SNC and Sprint Caribe
do not reflect a continuous, systematic and substantial activity with this forum
necessary for our long arm reach under general jurisdiction principles.
Accordingly, this Court concludes that Plaintiff has not sufficiently
established that SNC had contacts with Puerto Rico or Sprint Caribe in a way to
relate

to

her

claims

and

meet

the

prima

facie

standard

for

personal

jurisdiction.
IV. CONCLUSION
For the reasons stated above, SNC’s motion to dismiss for lack of personal
jurisdiction (Dockets No. 59) is hereby GRANTED. Plaintiff’s suit against SNC
is hereby DISMISSED WITH PREJUDICE.

Civil No. 09-1813 (PG)

Page 10

IT IS SO ORDERED.
In San Juan, Puerto Rico, August 2, 2011.
S/ JUAN M. PEREZ-GIMENEZ
JUAN M. PEREZ-GIMENEZ
U.S. DISTRICT JUDGE