Chulsky v. Golden Corral Corp.

• Decision Date: 01 February 2022
• Docket Number: Case No. 1:19-cv-875
• Citation: 583 F.Supp.3d 1059
• Parties: Irina CHULSKY, Plaintiff, v. GOLDEN CORRAL CORPORATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

583 F.Supp.3d 1059

Irina CHULSKY, Plaintiff,

v.GOLDEN CORRAL CORPORATION, et al., Defendants.

Case No. 1:19-cv-875

United States District Court, S.D. Ohio, Western Division.

Signed February 1, 2022

Brian Joseph Butler, Marc David Mezibov, Daniel J. Treadaway, Mezibov Butler, Cincinnati, OH, for Plaintiff.

Karen Adinolfi, Akron, OH, David L. Woodard, Pro Hac Vice, Poyner Spruill LLP, Raleigh, NC, for Defendants Golden Corral Corporation, CPB Foods, LLC, Manna, Inc.

Alexander Jacob Durst, The Durst Law Firm, Cincinnati, OH, for Defendant Kurt Parry.

OPINION AND ORDER

DOUGLAS R. COLE, UNITED STATES DISTRICT JUDGE

This cause comes before the Court on Defendant Kurt Parry's Motion to Dismiss ("Mot.") (Doc. 18), which asks the Court to dismiss Plaintiff Irina Chulsky's Complaint (Doc. 1) as to Parry for lack of personal jurisdiction, failure to state a claim, and insufficiency of service of process. For the reasons discussed below, the Court concludes that it has personal jurisdiction over Parry, and that the delay in service should not prevent this matter from moving forward. However, the Court GRANTS Parry's Motion (Doc. 18) on the grounds that the Complaint fails to state a claim, and accordingly DISMISSES Chulsky's Complaint (Doc. 1) as to Parry, but does so WITHOUT PREJUDICE .

BACKGROUND¹

Plaintiff Irina Chulsky began working for Golden Corral, a buffet-style restaurant, in 2006. (Compl., Doc. 1, #4² ). In 2013, Golden Corral promoted Chulsky to kitchen manager and transferred her to its Eastgate, Ohio location. (Id. ). Around October 2016, Chulsky met Defendant Kurt Parry at the Eastgate Golden Corral when Parry, then working for Golden Corral as a Quality Assurance Director, visited to inspect the Eastgate facility. (Id. ). Chulsky alleges that Parry returned to the Eastgate location on subsequent occasions for "business purposes," and spent time speaking with Chulsky on each such occasion. (Id. ). Chulsky further alleges that, on at least one occasion, Parry visited the Eastgate location for "no discernable official or business reason," and made clear that he was there only to speak with Chulsky. (Id. ). He later invited her to join him for dinner via Facebook. (Id. ).

Their relationship thereafter "developed." (Id. ). Chulsky alleges that the two corresponded regularly, and that Parry began to "mentor her and provide her with insider information" about personnel matters and promotional opportunities at Golden Corral. (Id. ). According to Chulsky, what she believed was a business relationship became something else when Parry began sending her "notes, gifts, and photographs of himself." (Id. ). While she attempted to ignore his advances in the beginning, Chulsky alleges that Parry pressured her, reminding Chulsky that she was "indebted to him," and asking for a photo of her as repayment. (Id. at #4–5). Relenting, Chulsky sent certain "innocent" photos of herself. (Id. at #5). She alleges, though, that this only caused Parry to demand more explicit photos, threatening that, if she did not comply, he would disclose their relationship to Chulsky's husband. (Id. ).

Chulsky says that at this same time, Parry was using "his position and authority over" her as leverage to prevent Chulsky from reporting his conduct to Golden Corral. (Id. ). Parry allegedly told Chulsky that he had previously used his influence in the company to prevent another woman from reporting sexual harassment by a male employee, and threatened to "destroy" Chulsky if she raised the issue with Golden Corral. (Id. ). Fearing for her job, Chulsky remained silent, for a time. (Id. ).

Parry's conduct continued to escalate, however. Chulsky reached a breaking point when Parry allegedly forwarded to Chulsky's husband some of the photographs Chulsky had sent to Parry. (Id. ). With at least one of the forwarded photos, Parry also included a text to Chulsky's husband, which thanked Chulsky's husband for "sharing" Chulsky with Parry. (Id. at #5–6). She reported Parry to Golden Corral's human resources department, but according to her, the restaurant failed to "meaningfully or reasonably discipline" Parry or otherwise take corrective action. (Id. at #6). Chulsky alleges that Parry's conduct, combined with Golden Corral's inaction, caused her to suffer extreme emotional distress, including humiliation, depression, anxiety, and anger. (Id. ).

Chulsky filed this lawsuit on October 16, 2019, asserting statutory employment discrimination claims under both federal and state law against Parry, Golden Corral Corporation, CPB Foods, LLC, and Manna, Inc. (Id. at #3, 6–8). (She has since withdrawn her federal law employment discrimination claims against Parry, for reasons noted below, but not the other defendants.)

Shortly after she filed her suit, she sent a copy of the Complaint, Summons, and a Waiver of Service request to Parry's last known address. (Treadaway Decl., Doc. 21-1, #134). Three months later, as Parry had neither appeared nor executed the waiver, Chulsky hired a process server to find Parry and attempt service in Texas. (Id. ). The process server reported that Parry had sold his Texas home in November 2019, and that a search for his updated address had proved fruitless. (Id. ).

Chulsky requested Parry's new address from Golden Corral in April 2019. (Id. at #134–35). Although Golden Corral provided one two weeks later, that address correlated to a business park in St. George, Utah. (Id. at #135). Finally, Chulsky purchased a paid search service from Westlaw, which uncovered a previously unknown residential address also in St. George. (Id. ). Chulsky then hired another process server, who successfully served Parry at this address on August 21, 2020, approximately ten months after Chulsky filed the Complaint. (Id. ).

Parry moved to dismiss on September 1, 2020, relying on Fed. R. Civ. P. 12(b)(2) (lack of personal jurisdiction),³ 12(b)(6) (failure to state a claim), and 12(b)(5) and 4(m) (insufficient service of process). (See generally Mot., Doc. 18). Chulsky filed her opposition on October 16, 2020 (Pl. Mem. in Opp'n to Def. Mot. to Dismiss ("Resp."), Doc. 21), and Parry replied on October 29, 2020 (Def. Reply in Supp. of Mot to Dismiss ("Reply"), Doc. 22). The matter is now ripe.

LEGAL STANDARD

Because the Motion presses three arguments—lack of personal jurisdiction, insufficiency of service, and failure to state a claim—three different legal standards are involved.

First, faced with a motion to dismiss for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2), a court has three options: it (1) "may determine the motion on the basis of affidavits alone"; (2) "permit discovery in aid of the motion"; or (3) "conduct an evidentiary hearing on the merits of the motion." Malone v. Stanley Black & Decker, Inc. , 965 F.3d 499, 505 (6th Cir. 2020) (quoting Serras v. First Tenn. Bank Nat. Ass'n , 875 F.2d 1212, 1214 (6th Cir. 1989) ). If the court decides the motion on the pleadings and affidavits alone, a plaintiff need only make a prima facie showing of personal jurisdiction. Id. (quoting Schneider v. Hardesty , 669 F.3d 693, 697 (6th Cir. 2012) ). In evaluating whether the plaintiff has met this "relatively slight" burden, the court "must consider the pleadings and affidavits in the light most favorable to the plaintiff." Am. Greetings Corp. v. Cohn , 839 F.2d 1164, 1169 (6th Cir. 1988) (quoting Welsh v. Gibbs , 631 F.2d 436, 439 (6th Cir. 1980) ). And the court "does not weigh the controverting assertions of the party seeking dismissal," so as to "prevent non-resident defendants from regularly avoiding personal jurisdiction simply by filing an affidavit denying all jurisdictional facts." Theunissen v. Matthews , 935 F.2d 1454, 1459 (6th Cir. 1991) (citing Serras , 875 F.2d at 1214 ).

Here, the Court is deciding the motion without conducting an evidentiary hearing or permitting jurisdictional discovery—the parties requested neither—and therefore considers the pleadings and affidavits in a light most favorable to Chulsky. Thus, consistent with the authority above, insofar as the parties aver conflicting accounts of the salient facts, the Court resolves those conflicts in Chulsky's favor. With that version of the facts in mind, "[d]ismissal in this procedural posture is proper only if all the specific facts which the plaintiff ... alleges collectively fail to state a prima facie case for jurisdiction." Kerry Steel, Inc. v. Paragon Indus. , 106 F.3d 147, 149 (6th Cir. 1997) (quoting Theunissen , 935 F.2d at 1458 ).

Second, in resolving a motion to dismiss for insufficient service under Fed. R. Civ. P. 12(b)(5), the burden is on the party asserting the validity of service to demonstrate that service on the moving party "satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law." Light v. Wolf , 816 F.2d 746, 751 (D.C. Cir. 1987) (internal quotations omitted); accord Robinson v. Tenn. Highway Patrol , No. 116CV01296, 2017 WL 3234390, at *2 (W.D. Tenn. July 31, 2017). As with a motion under Rule 12(b)(2), a court may look outside the pleadings to determine whether this showing has been made. See Robinson , 2017 WL 3234390, at *2. A court has "broad discretion" to dismiss an action for insufficient service. Sherer v. Construcciones Aeronauticas, S.A. , 987 F.2d 1246, 1247 (6th Cir. 1993).

Finally, Parry asserts that Chulsky's Complaint should be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. A plaintiff must "state[ ] a claim for relief that is plausible, when measured against the elements" of a claim. Darby v. Childvine, Inc. , 964 F.3d 440, 444 (6th Cir. 2020) (citing Binno v. Am. Bar Ass'n , 826 F.3d 338, 345–46 (6th Cir. 2016) ). "To survive a motion to dismiss, in other words, [the plaintiff] must make sufficient factual allegations that, taken as true, raise the likelihood of a legal claim that is more than possible, but indeed plausible." Id. (citations omitted).

In making that assessment, ...