Calkins v. Dollarland, Inc.

• Citation: 117 F.Supp.2d 421
• Decision Date: 26 September 2000
• Docket Number: No. CIV. A. 99-04441(SSB).,CIV. A. 99-04441(SSB).
• Parties: Catherine M. CALKINS, Plaintiff, v. DOLLARLAND, INC., Howard Kerdeman, and Jerry Witten, Defendants.
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

117 F.Supp.2d 421

Catherine M. CALKINS, Plaintiff, v. DOLLARLAND, INC., Howard Kerdeman, and Jerry Witten, Defendants.

No. CIV. A. 99-04441(SSB).

United States District Court, D. New Jersey.

September 26, 2000.

COPYRIGHT MATERIAL OMITTED

Thomas N. Ganiaris, Cherry Hill, NJ, for Plaintiff.

Mitchell Feigenbaum, Mesirov Gelman Jaffe Cramer & Jamieson, LLP, Cherry Hill, NJ, Edward J. McBride, Jr., Schnader Harrison Segal & Lewis, LLP, Cherry Hill, NJ, for Defendants.

OPINION ON DEFENDANTS' MOTIONS TO DISMISS AND/OR TRANSFER VENUE

BROTMAN, District Judge.

I. INTRODUCTION

Presently before the Court in this sexual harassment case are defendants' motions to (a) dismiss ten of the eleven counts of the complaint for failure to state a claim; and/or (b) transfer venue of this action to the Eastern District of Pennsylvania. Because portions of plaintiff's complaint state claims upon which relief may be granted, this Court will grant in part and deny in part defendants' motion to dismiss, with leave to amend one count of the complaint. Additionally, because a substantial part of the events giving rise to plaintiff's claim arose in New Jersey, the Court will deny defendants' motion to transfer venue.

II. FACTUAL AND PROCEDURAL BACKGROUND

This matter involves sexual harassment and allied claims brought by plaintiff Catherine Calkins against her former employer, Dollarland, Inc., and two of its managers. Dollarland, a Pennsylvania corporation, is a discount merchandise chain with stores throughout the Delaware Valley region. Calkins worked for Dollarland in eastern Pennsylvania as a retail salesperson, and later as a store manager, from November 1993 to early 1995, when she took a job with a competing chain. In November 1996, she returned to Dollarland as a store manager, and around April 1998 she went to work in the company's Bellmawr, New Jersey, store. Defendant Jerry Witten was a district manager during both of Calkins' stints with the company, and was her direct supervisor for most of her employment, although the parties dispute how long he remained her supervisor once she transferred to New Jersey. Witten reported to defendant Howard Kerdeman, who was the general manager of Dollarland. Claiming that both Witten and Kerdeman had harassed her and created an intolerable work environment, Calkins resigned from Dollarland in September 1998. Both Witten and Kerdeman deny any harassment.

A. Witten's Alleged Conduct

Calkins claims that from the beginning of her employment with Dollarland, Witten engaged in crude, offensive behavior and made unwanted advances. She says he often referred to her as a "bitch," "crazy bitch" and "goofy bitch." (Compl. p. 3.) He would tell her she had "nice big boobs" and that she should not wear long blouses so that she could "show off her ass." (Compl. p. 3.) He inquired about her sexual relations and told her she could have really good sex with him. On one occasion, Witten allegedly "told Calkins that he could have licked her belly button inside and out." (Compl. pp. 3-4.) He often told her that he wanted to marry and asked her out, even after she got married in 1994. She claims that he often touched her in offensive ways — including on her back, arms and legs — and would make sexual comments while doing so. Calkins claims that Witten also harassed other female employees, telling obscene jokes in front of them as well as luring them into a back room and trying to kiss them. Witten would encourage an assistant store manager under Calkins' supervision to rub her hands all over each man, and Witten would make "lewd noises" while this was taking place. (Compl. p. 4.) Finally, Calkins maintains, Witten told her that if she had engaged in sex with him, she would have advanced to higher management positions at Dollarland.

B. Kerdeman's Alleged Conduct

Calkins maintains that she reported Witten's behavior to Kerdeman, who allegedly told her to "live with it." (Compl. p. 5.) Moreover, Calkins claims, Kerdeman engaged in some of the same types of behavior. He also would encourage the assistant store manager to rub her hands all over him. Additionally, he would tell obscene jokes and make sexually explicit remarks to Calkins and other female employees, at one point saying to Calkins, "Let me bang you." (Compl. p. 9.) Because she refused his advances, Calkins avers, Kerdeman "embarked upon a campaign of terror" against her. (Compl. p. 9.) He would come into her store and scream, curse, and throw things. (Compl. p. 9.) He criticized her looks, hair, age and clothes, and told Witten and others that he hated Calkins and wanted to make her quit. He also insisted that Witten give Calkins a hard time to make her quit.

The harassment became so bad, Calkins maintains, that she took a job with another company in 1995 to escape the abuse. Kerdeman allegedly visited her at her new place of employment, however, and tried to persuade her to come back: "[h]e said that he would behave and that he would `keep a leash' on [Witten]." (Compl. p. 10.) Upon her return to Dollarland in November 1996, she maintains, Kerdeman told her new district manager to "give Calkins a hard time." (Compl. p. 10.)

C. Alleged Conduct of Dollarland Corporate Officers

Calkins maintains that she reported Witten and Kerdeman's behavior to Jeff Pincus, Dollarland's chief executive officer and principal shareholder, and Jeff Mazer, the company controller. The company, which according to Calkins had previously been involved in harassment cases, also allegedly has received reports from two other employees about the conduct of the two men. No investigation or disciplinary action followed, however, and Witten and Kerdeman continued their misconduct, she alleges. Calkins maintains that Dollarland provided inadequate training and had no mechanisms in place to prevent sexual harassment.

Calkins also claims that once she reported her concerns about Witten and Kerdeman, she was treated differently by her supervisors. They criticized her, whereas previously the had praised her for outstanding work. She was given additional work assignments and treated as though she was the wrongdoer. She was not allowed to pursue her grievance in confidence; instead, other employees learned of her complaints and teased and intimidated her.

D. The Complaint

Calkins filed an eleven-count complaint with the Superior Court of New Jersey, Camden County, Law Division, on Aug. 18, 1999. She brings common-law claims against both Witten and Kerdeman for harassment, sexual harassment, intentional infliction of emotional distress, and negligent infliction of emotional distress. Additionally, she brings common-law claims against Dollarland for respondeat superior liability and maintenance of a hostile work environment. Finally, Calkins asserts a hostile-environment sex discrimination claim against Dollarland under the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1. She claims damages for physical injuries, including high blood pressure, as well as mental anguish and emotional distress.

After removing the case to this Court, defendants on Dec. 2, 1999, moved to dismiss the ten common law claims as well as transfer the case to the Eastern District of Pennsylvania. Calkins' response and defendants' reply brief, as well as certifications by each party, were filed the same day. Accordingly, defendants' motions are now ripe for consideration. Because this Court need not address the sufficiency of plaintiff's claims if it transfers venue to another district, the motion to transfer shall be considered first.

III. MOTION TO TRANSFER VENUE

Pursuant to Federal Rule of Civil Procedure 12(b)(3), defendants raise the defense of improper venue and move that the case be transferred to the Eastern District of Pennsylvania. Under 28 U.S.C. § 1406, a court must dismiss a case laying venue in the wrong district, or, if the interest of justice so requires, transfer the case to another judicial district.¹ Even if venue is proper, a court may transfer the case "[f]or the convenience of the parties [and] in the interest of justice." 28 U.S.C. § 1406. Because the standards for transfer differ depending on whether venue has been laid correctly, this Court must first examine the propriety of venue in New Jersey under the venue provision for diversity cases, 28 U.S.C. § 1391(a).

A. Propriety of Venue in New Jersey

28 U.S.C. § 1391(a) provides that venue is proper only in "(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred ... or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought." Applying the first criterion, venue would be proper in a Pennsylvania judicial district because all of the defendants are residents of that state.² Because venue would be appropriate elsewhere, the propriety of venue in New Jersey cannot be established under the statute's third, personal jurisdiction prong. Thus, venue is properly laid in New Jersey only if "a substantial part of the events or omissions giving rise to the claim" occurred there.

Defendants argue that no substantial part of the events leading up to this case occurred in New Jersey. In their motion brief, they contend that of Calkins' 46 months of employment with Dollarland, 41 were at Pennsylvania stores, and only the last five were at a store in New Jersey. Additionally, defendants certify that while Witten was Calkins' supervisor when she was transferred to the New Jersey store in April 1998, by June 1998 responsibility for her store had been given to another manager. They also aver that Witten never worked on location at Calkins' New Jersey store, and that Kerdeman "was based at all times" in Philadelphia. (Def.'s Certification ¶ 7.)...