Davis v. Centex International II LLC et al

Filing 19

REPORT AND RECOMMENDATIONS recommending that Defendant Purdys Motion to Dismiss 17 be granted and that Purdy be dismissed from this action. Objections to R&R due by 1/15/2010. Signed by Magistrate Judge Thomas E Rogers, III on 12/29/2009. (Attachments: # 1 Notice)(dsto, )

U N IT E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA F LO R E N C E DIVISION ) ) P l a i n t i ff, ) ) -vs) ) ) CENTEX HOMES, a subsidiary of Centex ) C o rp o ra tio n , FRANK REDA, SUZANNE ) T O O LE , and LINDA PURDY, ) ) D e fe n d a n t s . ) ___________________________________ ) I. IN T R O D U C T IO N P l a i n t i ff originally filed this action in the Horry County Court of Common Pleas on February 1 9 , 2009, alleging gender discrimination retaliation in violation of Title VII of the Civil Rights Act o f 1964 (Title VII), 42 U.S.C. § 2000(e) et seq. Plaintiff also asserts state law causes of action for v io la tio n of the South Carolina human affairs law and defamation. Defendant removed the action t o this Court April 1, 2009. Presently before the Court is Defendant Linda Purdy's Motion to D i s m i s s (Document # 17) for lack of personal jurisdiction.1 Plaintiff has not filed a Response to this M o tio n . A l l pretrial proceedings in this case were referred to the undersigned pursuant to the p ro v is io n s of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC. Because the M o t io n to Dismiss is a dispositive motion, this Report and Recommendation is entered for review b y the district judge. T O N Y A RENEE DAVIS, Civil Action No.: 4:09-cv-830-RBH-TER

REPORT AND RECOMMENDATION

Defendant Purdy's previously filed Motion to Dismiss (Document # 5) and Defendant C en tex International II, LLC's Motion to Dismiss (Document # 5) are moot as a result of Plaintiff's su b seq u en t filing of an Amended Complaint (Document # 14).

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II.

FACTS P la in tiff, Tonya Renee Davis, was originally hired by Centex Homes, Denver Division, and

w a s employed by that division, performing work in the Denver, Colorado area. Purdy Aff. ¶ 8. It was w h i le employed in Denver that Plaintiff worked with Defendant Purdy. Id. In 2006, Plaintiff was tra n s fe rre d from her position in Denver, Colorado to Horry County, South Carolina. Id. at ¶ 9. Once t h a t transfer occurred, Defendant Purdy had no further contact with Plaintiff nor did she have any fu rth e r supervisory or other official control or personal relationship with Plaintiff. Id. at ¶¶ 9, 10. In d e e d , Defendant Purdy has never discussed Plaintiff with anyone located in the State of South C a ro lin a , including other defendants in this action, Suzanne Toole and Frank Reda. Id. at ¶¶ 10, 11. D e fe n d a n t Purdy is a resident of the State of Colorado. Id. at ¶ 5. She has been a resident of th a t state her entire life. Id. At all times relevant to the claims in Plaintiff's Complaint, Defendant P u rd y has been employed by Centex Homes, operating exclusively out of that company's Denver D i v is io n . Id. at ¶ 3. At all times relevant to this action, she held the position of Division Land M a n a g e r in Denver. Id. Purdy does not perform any duties as part of this employment in the State o f South Carolina. Id. at ¶¶ 3, 4. Defendant Purdy has only traveled to South Carolina once in the p a s t several years for a personal trip and once in 2005 for a conference unrelated to Plaintiff or P la in tiff's claims. Id. at ¶¶ 5, 6, 7. In her Amended Complaint, Plaintiff alleges that Purdy "is a resident and citizen of A r a p h a h o e County, State of Colorado, and at all times pertinent to this action, was employed by D e fe n d a n t Centex as Land Development Manager in Denver, Colorado." Amended Complaint ¶ 5. P l a in t iff asserts no specific allegations against Purdy and it appears from Plaintiff's Amended C o m p l a i n t that all of the alleged discriminatory conduct occurred while Plaintiff worked in the Horry

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C o u n ty office. Plaintiff's claims against Purdy are unclear. III. S T A N D A R D OF REVIEW W h e n a defendant files a motion to dismiss the plaintiff's complaint for lack of jurisdiction u n d e r Rule 12(b)(2), the plaintiff must prove jurisdiction by a preponderance of the evidence. Mylan La b s . , Inc. v. Akzo, 2 F.3d 56, 59-60 (4th Cir.1993). When a court declines to hold an evidentiary h e a rin g and decides to rely on the parties' pleadings, affidavits, and other legal documents, the p la in ti ff faces a lesser standard such that the plaintiff only must "make a prima facie showing of a s u ffic ie n t jurisdictional basis in order to survive the jurisdictional challenge." Combs v. Bakker, 886 F .2 d 673, 676 (4th Cir.1989). "In considering a challenge on such a record, the court must construe a ll relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and d ra w the most favorable inferences for the existence of jurisdiction." Id. IV . D ISC U SSIO N T h e re are two types of personal jurisdiction: general and specific. A court has general ju ris d ic tio n over a cause of action that arises outside of the forum state. See Calder v. Jones, 465 U.S. 7 8 3 , 786, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). General jurisdiction is permissible under the due p r o c e s s clause when the defendant has an enduring relationship with the forum state, and his c o n n e c t i o n to and activities in the forum state are so substantial that the defendant would expect to b e subject to suit there on any claim and would suffer no inconvenience from defending there. "The e s s e n c e of the issue ... is ... one of general fairness to the [defendant]." Perkins v. Benguet Consol. M i n i n g Co., 342 U.S. 437, 445, 72 S.Ct. 413, 96 L.Ed. 485 (1952). T h e United States Supreme Court articulated a two-branch due process test for determining s p e c ific jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291(1980). The

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firs t, the traditional minimum contacts branch, focuses on the defendant's connection with the forum s ta te and the relationship between that connection and the litigation. Burger King Corp., 471 U.S. a t 471-76. The second branch is frequently referred to as the fairness, convenience, or reasonableness b ra n ch . Beyond the requirement of minimum contacts, due process requires further factual evaluation to determine whether an assertion of personal jurisdiction comports with fair play and substantial ju s t ic e . Id. at 476 ( quoting Int'l Shoe Co., 326 U.S. at 320). As stated, the plaintiff has the burden o f establishing jurisdiction over Defendant Purdy. Plaintiff does not assert any specific allegations against Defendant Purdy nor has she re s p o n d e d to the present motion. Defendant Purdy avers that she has never lived in South Carolina, d o e s not perform any of her duties of employment in or in connection with South Carolina, nor has s h e had any supervisory or other official control over Plaintiff since she moved to South Carolina. B a s e d upon the record, there are insufficient contacts for this Court to exercise either general or s p e c ific jurisdiction over Purdy. Any cause of action Plaintiff may have against Purdy arose outside th e state of South Carolina and Purdy has no connection to this state. Plaintiff has failed to meet her b u rd e n of showing by a preponderance of the evidence that this Court has personal jurisdiction over P u rd y. Accordingly, dismissal of Purdy is appropriate. V. C O N C L U SIO N F o r the reasons set forth above, it is recommended that Defendant Purdy's Motion to Dismiss (D o c u m e n t # 17) be granted and that Purdy be dismissed from this action.

s/Thomas E. Rogers, III Thomas E. Rogers, III U n ite d States Magistrate Judge D e ce m b e r 29, 2009 F l o r e n c e , South Carolina

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