Moore v. Novo Nordisk, Inc.

• Decision Date: 10 February 2011
• Docket Number: Civil Action No. 1:10-2182-MBS -JRM
• Court: U.S. District Court — District of South Carolina
• Parties: TINA MOORE, Plaintiff, v. NOVO NORDISK, INC., ANGELA SUTTON, JASON MOVIUS, LEAH GREGG, BILL THOMPSON, Defendants.

TINA MOORE, Plaintiff, v. NOVO NORDISK, INC., ANGELA SUTTON,JASON MOVIUS, LEAH GREGG, BILL THOMPSON, Defendants.

Civil Action No. 1:10-2182-MBS -JRM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA AIKEN DIVISION

February 10, 2011

REPORT AND RECOMMENDATION

Plaintiff, Tina Moore ("Moore") originally filed this case in the Court of Common Pleas for Aiken County. Defendant, Novo Nordisk, Inc. ("Novo"), removed the case to this Court on August 19, 2010. On August 25, 2010, Novo and the individual Defendants¹ filed a "Motion for Partial Dismissal of the Complaint and Motion to Partially Strike the Complaint." Moore filed an opposition memorandum on September 9, 2010. Defendants filed a reply on September 20, 2010.

The complaint alleges that Novo is a foreign corporation incorporated in New Jersey which is a global pharmaceutical manufacturer and distributor. Moore alleges that she was terminated from her position of "Senior Diabetes Care Specialist (Pharma Rep)" by Novo, after a corporate snafu involving illegal gifts of autographed basketballs to physicians to gain their favor in prescribing or recommending Novo products,² and also after she suffered a broken ankle. Moore alleges the following claims:

1. Breach of contract (Count 1);

2. Breach of contract accompanied by a fraudulent act (Count 2);

3. Sex discrimination in violation of Title VII (Count 3);

4. Retaliatory wrongful discharge in violation of public policy against the common law and the statutory law of the States of South Carolina and New Jersey, and a violation of the New Jersey Conscientious Employee Protection Act ("CEPA") (Count 4);

5. Wrongful discharge in violation of public policy against the common law of the State of South Carolina (Count 5);

6. Violation of the Family Medical Leave Act ("FMLA") and the New Jersey Family Leave Act ("NJFLA") (Count 6);

7. Intentional infliction of emotional distress ("IIED") (Count 7);

8. Breach of the duty of good faith and fair dealing (Count 8); and

9. Civil Conspiracy (Count 9).

Defendants have not moved for dismissal of Moore's Title VII and FMLA claims.

Discussion

A. Title VII and FMLA (Counts 3 and 6)

The Defendants, in addition to Novo, are four of its employees, Sutton, Movius, Gregg, and Thompson. The complaint describes the parties, makes jurisdictional allegations, alleges certain facts, and then states the above nine claims. However, the compliant does not make clear which claims apply to specific Defendants. The present motion to dismiss assumes each claim applies to all Defendants.

Sutton, Movius, Gregg and Thompson argue that they should be dismissed from Moore's Title VII and FMLA claims because they are not employers as defined by those statutes. Moore concedes that she makes no claims against these "individual defendants" under Title VII or the FMLA. (Pl.Mem., p. 1). Therefore, Sutton, Movius, Gregg and Thompson should be dismissed insofar as they are being sued under Title VII or the FMLA.

B. Movius - Lack of Jurisdiction

Movius, alleged to be a resident of Georgia (Complaint, ¶ 4), asserts that he should be dismissed as a Defendant because he is not subject to this Court's jurisdiction. To validly assert personal jurisdiction over a non-resident defendant, two conditions must be satisfied. Christian Sci. Bd. of Dirs. of the First Church of Christ v. Nolan, 259 F.3d 209, 215 (4^th Cir.2001). First, the exercise of jurisdiction must be authorized by the long-arm statute of the forum state, and second, the exercise of personal jurisdiction must not "overstep the bounds" of Fourteenth Amendment due process. Anita's New Mexico Style Mexican Food, Inc. v. Anita's Mexican Foods Corp., 201 F.3d 314, 317 (4^th Cir.2000). South Carolina's long-arm statute has been construed to extend to the outer limits allowed by the Due Process Clause. Foster v. Arletty 3 Sarl, 278 F.3d 409, 414 (4^th Cir.2002). Thus, the dual jurisdictional requirements collapse into a single inquiry as to whether Defendants have "certain minimum contacts" with the forum, such that "maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (citations omitted).

When personal jurisdiction is challenged pursuant to Rule 12(b)(2), Fed.R.Civ.P., the Plaintiff has the burden of showing that jurisdiction exists. In re Celotex Corp., 124 F.3d 619, 628 (4^th Cir. 1997). Movius asserts that he lacks sufficient ties to South Carolina to be subject to the jurisdiction of this Court. Moore has not responded to this argument. Therefore, Movius should be dismissed.

C. Motion to Dismiss Pursuant to Rule 12(b)(6)

When considering a 12(b)(6) motion to dismiss, the court must accept as true the facts alleged in the complaint and view them in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4^th Cir.1999). The United States Supreme Court recently stated that "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," a pleading that merely offers "labels and conclusions," or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Likewise, "a complaint [will not] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancements.' " Iqbal, --- U.S. at ----, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557).

Moore alleges, in addition to her Title VII and FMLA claims, a variety of supplemental claims. Moore appears to allege a New Jersey common law wrongful discharge claim in violation of public policy and in violation of the CEPA. Moore also alleges retaliatory discharge in violation of the public policy of South Carolina in Count 4. Most of the other claims in the complaint (see Counts 2, 5, 7, 8 and 9) contain citations to South Carolina case law, appearing to indicate a reliance on the law of South Carolina for support.

The complaint raises choice of law issues inadequately addressed by the parties. Defendants make an initial argument that Moore's claims specifically brought under New Jersey law should be dismissed because "South Carolina applies the rule of lex loci delicti to tort and statutory claims." (Def.Mem., p. 10). This argument is followed by a discussion of Moore's ties to South Carolina and her lack of ties to New Jersey. Moore emphasizes the connections with New Jersey and argues that "a jury can determine whether or not New Jersey legal requirements and protections should apply to the employee of a New Jersey company dealt with in the manner Defendant chose to treat Moore." (Pl.Mem., p. 14). The undersigned can say with certainty that choices of law issues are not issues for the jury, but for the Court.

Generally, South Carolina choice of law rules apply to a case pending in the United States District Court for the District of South Carolina. Kirkland v. Sam's East, Inc., 411 F.Supp.2d 639, 640-641 (D.S.C. 2005) citing Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941). South Carolina applies the doctrine of lex loci delicti to tort claims, i.e., "the law of the place where the injury was inflicted." (Santee-Lynches Affordable Housing and Community Development Corporation v. Ellinger, 2010 WL 670096, *2 (D.S.C.) (court declined to rule on choice of law issue due to inadequate record in a legal malpractice case where legal advice given from North Carolina and received in South Carolina)). With respect to contract claims, South Carolina employs the doctrine of lex loci contractu, i.e., "the substantive law of the place the contract was allegedly formed applies." See King v. Marriott International, Inc., 520 F.Supp.2d 748, 753 (D.S.C. 2007) (court found that supplemental handbook contract claim was unsustainable either under law of place from which handbook was likely distributed (Maryland) or the law of place where the handbook was likely received by the employee (South Carolina).

1. New Jersey Claims

Moore appears to allege a common law retaliatory wrongful discharge in violation of New Jersey law as well as a CEPA claim in Count 4. Additionally, she alleges a NJFLA violation in Count 6.

a. Wrongful Discharge in Violation of Public Policy (Count 4)

Moore states common law retaliatory discharge claims under the laws of South Carolina and New Jersey. As noted above, South Carolina choice of law rules apply. The issue is whether South Carolina law³ or New Jersey law⁴ applies under the South Carolina choice of law rule. In Ellinger, the Honorable Cameron McGowan Currie, United States District Judge, declined to rule because the issue was not adequately developed in the record before her. She denied a motion for reconsideration without prejudice to allow the record and arguments to be better developed on summary judgment. The present case is in a similar posture.

Moore makes detailed factual allegations and attaches a number of exhibits to her complaint. The allegations and exhibits appear to show that Novo's United States Corporate Office is located in New Jersey, that Moore sent her disability requests there after breaking her ankle, and that was a high level human resources manager (Sutton) whose office was there. Plaintiff and the remaining Defendants do not appear to have worked in New Jersey. The decision making process to terminate Moore is unclear even though the termination letter was written by Sutton,...