Angelo v. Belfor U.S. Grp.
| Decision Date | 06 May 2022 |
| Docket Number | 21-2366-JWL |
| Parties | Shelle M. Angelo, Plaintiff, v. BELFOR USA Group, Inc. d/b/a Belfor Property Restoration; BELFOR Holdings, Inc. d/b/a Belfor Property Restoration; and BELFOR Kansas City, Defendants. |
| Court | U.S. District Court — District of Kansas |
Plaintiff filed suit against defendants alleging sex discrimination retaliation, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.§ 2000e et seq. This matter is presently before the court on defendant BELFOR Kansas City's motion to dismiss for failure to state a claim upon which relief can be granted (doc. 29) and BELFOR Holdings, Inc.'s motion to dismiss for lack of jurisdiction (doc. 31). As will be explained, plaintiff's complaint against defendant BELFOR Kansas City is dismissed with prejudice and plaintiff's complaint against defendant BELFOR Holdings, Inc. is dismissed with prejudice.
BELFOR Kansas City moves to dismiss the claims against it on the grounds that it is not a separate entity with the capacity to be sued but simply an informal name utilized by BELFOR USA Group, Inc. to refer to its Kansas business. In response plaintiff states that she does not object to the dismissal without prejudice of her complaint as to this defendant. Although defendant BELFOR Kansas City moved to dismiss the complaint with prejudice, it has not filed a reply brief addressing plaintiff's position. Nonetheless, as plaintiff does not challenge th substance of defendant's motion in any way, dismissal with prejudice is appropriate. Brereton v Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006). (“A dismissal with prejudice i appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.”). The court, then, grants the motion to dismiss and plaintiff's complain against this defendant is dismissed with prejudice.
Defendant BELFOR Holdings, Inc. moves to dismiss the complaint for lack of persona jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). Plaintiff bears the burden o establishing personal jurisdiction over BELFOR Holdings. Butler v Daimler Trucks N. Am., LLC 433 F.Supp.3d 1216, 1227 (D. Kan. 2020). In the absence of an evidentiary hearing, a plaintif must make only a prima facie showing of jurisdiction to defeat a motion to dismiss. Id. “Th plaintiff may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant.” Id. (citing AST Sport Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1056-57 (10th Cir. 2008) (quoting OMI Holdings Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998)). Allegations in a complain are accepted as true if they are plausible, non-conclusory, and non-speculative, to the extent tha they are not controverted by submitted affidavits. Dudnikov v. Chalk & Vermilion Fine Arts, Inc. 514 F.3d 1063, 1070 (10th Cir. 2008).[1] When a defendant has produced evidence to support a challenge to personal jurisdiction, the plaintiff has a duty to come forward with competent proo in support of the jurisdictional allegations of the complaint. Pytlik v. Profl Res., Ltd., 887 F.2(1371, 1376 (10th Cir. 1989). The court resolves all factual disputes in favor of the plaintiff Dudnikov, 514 F.3d at 1070 (citation omitted).
In a federal question case where a defendant resides outside the forum state, a federal cour applies the forum state's personal jurisdiction rules. Creech v. P.J. Wichita, LLC, 2017 WL 914810, at *2 (D. Kan. Mar. 8, 2017) (citations omitted). To establish personal jurisdiction ovei a defendant, plaintiff must show that jurisdiction is proper under the laws of the forum state anc that the exercise of jurisdiction would not offend due process. Id. (citing Intercon, Inc. v. Bell Atl Internet Sols., Inc., 205 F.3d 1244, 1247 (10th Cir. 2000)). The Kansas long-arm statute i construed liberally so as to allow jurisdiction to the full extent permitted by due process, therefor the court proceeds directly to the constitutional analysis. Id. (citing Federated Rural Elec. Ins Corp. v. Kootenai Elec. Coop., 17 F.3d 1302, 1305 (10th Cir. 1994). The due process analysis i comprised of two steps. First, the court must consider whether the defendant has such minimum contacts with the forum state “that he should reasonably anticipate being haled into court there.' Id. (quoting Emp'rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1159-60 (10th Cir. 2010 (citing OMI Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998))). I the requisite minimum contacts are found, the court will proceed to the second step in the du process analysis-ensuring that the exercise of jurisdiction “does not offend ‘traditional notion; of fair play and substantial justice.'” Id. (citing World-Wide Volkswagen Corp. v. Woodson, 44zU.S. 286, 292 (1980) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945))).
“Minimum contacts” can be established in one of two ways, either generally or specifically for lawsuits based on the forum-related activities:
General jurisdiction is based on an out-of-state defendant's “continuous and systematic” contacts with the forum state, and does not require that the claim be related to those contacts. Specific jurisdiction, on the other hand, is premised on something of a quid pro quo: in exchange for “benefitting” from some purposive conduct directed at the forum state, a party is deemed to consent to the exercise of jurisdiction for claims related to those contacts.
Id. at *3 (citing Dudnikov, 514 F.3d at 1078). Specific jurisdiction exists over a nonresiden defendant “if the defendant has ‘purposefully directed' his activities at residents of the forum, anc the litigation results from alleged injuries that ‘arise out of or relate to' those activities.” Id. (citin OMI Holdings, 149 F.3d at 1091 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 47' (1985))). For jurisdictional purposes, the court must evaluate “[e]ach defendant's contacts with the forum State . . . individually.” Id. (citing Calder v. Jones, 465 U.S. 783, 790 (1984)).
In support of its motion to dismiss, defendant BELFOR Holdings, Inc. has submitted the affidavit of Paul Suchowski, BELFOR USA Group's Controller in Birmingham, Michigan. Mr Suchowski avers that he has personal knowledge of the corporate structure and operations o BELFOR USA Group in light of his position as Controller. He avers that BELFOR USA Group maintains an office in Kansas City, Kansas and that plaintiff was hired by BELFOR USA Group Inc. to work at that location. He avers that BELFOR Holdings, Inc. does not directly transac business in Kansas and does not have any meaningful contacts whatsoever with Kansas. BELFOR Holdings, Inc. is a corporation organized under the laws of Delaware with its principal place o business in Michigan. According to Mr. Suchowski, BELFOR Holdings is a true holdin company with no operations in or connection to Kansas; it is a parent business entity that does not manufacture anything, sell any products or services, or conduct any other business operations. H avers that BELFOR Holdings' purpose is to hold the controlling stock or membership interests in other companies; that it exercises no financial control over BELFOR USA Group, Inc. and no control over BELFOR USA Group, Inc.'s hiring or appointment of its management personnel and that BELFOR Holdings does not receive any revenue as a result of the BELFOR USA Group' work in Kansas. Mr. Suchowski avers that BELFOR USA Group, Inc. is a wholly owne(subsidiary of BELFOR USA Ltd. which, in turn, is a wholly owned subsidiary of BELFOR Holdings, Inc.
Plaintiff acknowledges that BELFOR Holdings, Inc. is a corporation organized under the laws of Delaware with its principal place of business in Michigan and that BELFOR USA Group Inc. is an indirect subsidiary of BELFOR Holdings, Inc. Nonetheless, plaintiff maintains that the court may exercise personal jurisdiction over BELFOR Holdings, Inc. by virtue of the parent subsidiary relationship between BELFOR Holdings, Inc. and BELFOR USA Group, Inc. ane because those entities shared some officers and the same business address; because of plaintiff's beliefs about the relationship between BELFOR Holdings, Inc. and BELFOR USA Group, Inc and broad statements on www.belfor.com about the nature and scope of BELFOR Holdings, Inc.' operations; and because Mike Yellen, the Secretary of both BELFOR Holdings, Inc. and BELFOR USA Group, Inc., emailed plaintiff about her employment purportedly in his capacity as Secretary of BELFOR Holdings, Inc.[2]
Plaintiff summarily asserts that BELFOR Holdings, Inc. is subject to the court's genera personal jurisdiction. General jurisdiction in a forum other than the defendant's place o incorporation or principal place of business will exist only in “exceptional case[s]” where th defendant's operations in the forum are “so substantial and of such a nature as to render the corporation at home in that State.” Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). It i undisputed that BELFOR Holdings, Inc. is a corporation organized under the laws of Delaware with its principal place of business in Michigan. Given that background, this is not an “exceptiona case” where defendant's operations in Kansas are so substantial as to render it “at home” in Kansas. Plaintiff suggests in her submissions and the exhibits attached thereto that BELFOR Holdings, Inc. maintains continuous and systematic contacts with Kansas by virtue of the fact tha BELFOR USA Group, Inc., its indirect subsidiary does business in Kansas. In a related vein plaintiff...
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