Santerre v. Agip Petroleum Co., Inc.

• Decision Date: 29 March 1999
• Docket Number: No. CIV.A. H-98-0557.,CIV.A. H-98-0557.
• Parties: Judy C. SANTERRE, Plaintiff, v. AGIP PETROLEUM CO., INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

45 F.Supp.2d 558

Judy C. SANTERRE, Plaintiff, v. AGIP PETROLEUM CO., INC., Defendant.

No. CIV.A. H-98-0557.

United States District Court, S.D. Texas.

March 29, 1999.

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Gregg M. Rosenberg, Gregg M. Rosenberg & Associates, Houston, TX, for Judy C. Santerre, Plaintiff.

Gene M. Williams, Mehaffey & Weber, D. Faye Caldwell, Caldwell & Adams, Houston, TX, for Agip Petroleum Company Inc, Defendant.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is Defendant Agip Petroleum Co. Inc.'s ("Agip") Motion to Dismiss (# 5). Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that Agip's motion should be denied.

I. Factual Background

Plaintiff Judy C. Santerre ("Santerre") is a citizen of the United States who resides in Kingwood, Harris County, Texas. Agip is a Delaware corporation with its principal place of business in Houston, Texas. Santerre was hired by Agip in 1981 to work in its offices in Houston. From 1981 to 1993, she worked for Agip as a landman. On June 17, 1993, Santerre signed an employment contract with Agip to work at IEOC Co., Inc. ("IEOC"), a Panamanian corporation doing business in Cairo, Egypt. Santerre's 1993 contract was renewed on June 21, 1995. On January 30, 1996, Santerre signed a twenty-four month employment contract with Agip to relocate to London, England, to work at Agip (UK) Ltd. ("Agip UK"), a United Kingdom corporation. Eni S.p.A., an Italian corporation, is the majority shareholder of Agip, IEOC, and Agip UK.

On November 13, 1996, while working at Agip UK, Santerre filed a charge of employment discrimination against Agip with the Texas Commission on Human Rights ("TCHR") alleging sexual harassment and retaliation claims in violation of the Texas Commission on Human Rights Act ("TCHRA") and Title VII of the Civil Rights Act of 1964, as amended ("Title VII"). Santerre's original charge stated:

I am employed by Respondent as a Joint Venture Coordinator and have been employed with them for 16 years. I am currently on a contract where I am working with Respondent in London.

During the last several years continuing until recently, I have been subjected to a hostile working environment by Giorgio Pesenti an employee at another AGIP Company which is affiliated with Respondent. I have reported Mr. Pesenti's unwelcome advances which included letter writings, telephone calls and other such advances to the Respondent who has failed to take prompt remedial measures to end the harassment.

My reporting of this sexual harassment has resulted in a transfer to London to what essentially is a dead end position. This transfer is in retaliation for my reporting this sexual harassment.

On May 22, 1997, Santerre filed a supplemental affidavit amending her charge to include another retaliation claim, stating:

On April 22, 1997, at 10:00 a.m. Ernesto Sarpi came to my desk at my office in London and led me to his office stating that he wanted to talk to me. Mr. Sarpi stated that he did not realize that I had been on vacation in Houston for the Easter holiday. Mr. Sarpi stated that AGIP could relocate me to Houston with one condition. When I asked what the condition was, he stated that it was that I drop this discrimination suit. Mr. Sarpi used a hand gesture insinuating that my discrimination suit was of a petty nature. I explained to him that I could not drop my claim because it was very serious to me. Mr. Sarpi responded by telling me that he could not keep me in London. I asked Mr. Sarpi to clarify whether or not he was telling me to either drop the lawsuit or be fired. He responded by saying "you know I can't tell you that." I explained to Mr. Sarpi that my lawsuit was going forward and he insisted that I talk it over with my attorney. My response was that I was going to file the suit. Mr. Sarpi responded stating that he would speak to Mr. Fantini, the President of Agip but that he did not think that there was much negotiating room. He stated that Mr. Fantini did not want me in Houston with the lawsuit over his head and that because he could not keep me in London, I did not fit in.

Santerre's 1995 employment contract expired without renewal in December 1997.

On November 12, 1997, Santerre received her right-to-sue letter from the TCHR. She filed suit under the TCHRA against Agip in the 270th Judicial District Court of Harris County, Texas, on November 17, 1997. Agip responded by filing a motion to abate the state court proceeding on January 12, 1998. On January 28, 1998, the state court granted Agip's motion. Santerre filed a notice of non-suit of the state court action on February 2, 1998.

Santerre brought the instant case in federal court on February 26, 1998, after receiving a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC") on January 30, 1998. Agip's motion to dismiss asserts that Santerre's Title VII action should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) or, alternatively, for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

II. Analysis

A. Standards for Dismissal

1. Dismissal for Lack of Subject Matter Jurisdiction under Rule 12(b)(1)

Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenge the subject matter jurisdiction of the district court. See FED. R. CIV. P. 12(b)(1). Subject matter jurisdiction must be ascertained before the court addresses other grounds for dismissal raised by the defendant. See Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 220 (5th Cir.), cert. granted, ___ U.S. ___, 119 S.Ct. 589, 142 L.Ed.2d 532 (1998); Aetna Cas. & Sur. Co. v. Iso-Tex, Inc., 75 F.3d 216, 218 (5th Cir.1996); see also Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir.1977). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. See Fred v. State Bar of Tex., No. Civ. A. 5:98-CV-158-C, 1999 WL 68643, at *2 (N.D.Tex. Feb. 5, 1999). The court's dismissal of a case for lack of subject matter jurisdiction is not a decision on the merits and does not prevent the plaintiff from pursuing the claim in a court that has proper jurisdiction. See Hitt, 561 F.2d at 608.

"`A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.'" Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir.1996)). "Courts may dismiss for lack of subject matter jurisdiction on any one of three different bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir.1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981)); accord Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996); Ynclan v. Department of Air Force, 943 F.2d 1388, 1390 (5th Cir.1991); Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir.1989). The burden of proof on a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. See Strain v. Harrelson Rubber Co., 742 F.2d 888, 889 (5th Cir.1984); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980); Fred, 1999 WL 68643, at *1; McDaniel v. United States, 899 F.Supp. 305, 307 (E.D.Tex. 1995), aff'd, 102 F.3d 551 (5th Cir.1996). Accordingly, the plaintiff at all times bears the burden of demonstrating that subject matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981); Menchaca, 613 F.2d at 511.

When examining a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), unlike a motion under Rule 12(b)(6), the district court is entitled to consider disputed facts as well as undisputed facts in the record. See Clark, 798 F.2d at 741; Williamson, 645 F.2d at 413. "It is elementary that a district court has broader power to decide its own right to hear the case than it has when the merits of the case are reached." Id. "Jurisdictional issues are for the court — not a jury — to decide whether they hinge on legal or factual determinations" Id. To determine whether jurisdiction exists, the court will generally resolve any factual disputes from the pleadings and the affidavits submitted by the parties. See Espinoza v. Missouri Pac. Ry. Co., 754 F.2d 1247, 1248 n. 1 (5th Cir.1985). The court may also hold an evidentiary hearing and "may hear conflicting written and oral evidence and decide for itself the factual issues which determine jurisdiction." Williamson, 645 F.2d at 413; see Menchaca, 613 F.2d at 511-12. Nevertheless, "it is extremely difficult to dismiss a claim for lack of subject matter jurisdiction." Garcia v. Copenhaver, Bell & Assoc., 104 F.3d 1256, 1260 (11th Cir.1997) (citing Simanonok v. Simanonok, 787 F.2d 1517, 1519 (11th Cir.1986)).

"Attacks on subject matter jurisdiction under FED. R. CIV. P. 12(b)(1) come in two forms: `facial attacks' and `factual attacks.'" Garcia, 104 F.3d at 1260-61 (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.1990)); see Williamson, 645 F.2d at 412; Menchaca, 613 F.2d at 511. "`Facial attacks on the complaint "require[] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion."'" Garcia, 104 F.3d at 1261 (quoting Lawrence, 919 F.2d at 1529 (quoting Menc...