Smith v. W. Indian Co.
| Decision Date | 07 January 2014 |
| Docket Number | Civil Action No. 3:13-cv-00030 |
| Court | U.S. District Court — Virgin Islands |
| Parties | ANDREA V. SMITH, Plaintiff, v. THE WEST INDIAN COMPANY LIMITED, and JOSEPH BOSCHULTE in his personal capacity, the BOARD OF DIRECTORS OF THE WEST INDIAN COMPANY LIMITED, and JOSEPH BOSCHULTE, as PRESIDENT and CHIEF EXECUTIVE OFFICER OF THE WEST INDIAN COMPANY LIMITED, Defendants. |
NOT FOR PUBLICATION
Before the Court are defendants The West Indian Company Limited ("WICO") and Joseph Boschulte's ("Boschulte") (collectively "Defendants") Motion to Dismiss and Boschulte's individual Motion to Dismiss plaintiff Andrea V. Smith's ("Plaintiff'') Complaint ("Boschulte's Motion"). Defendants move to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and Boschulte individually moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and Local Rule of Civil Procedure 12.1. Defendants also claim that service of process to the WICO Board should be quashed pursuant to Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5) and dismissed as to the WICO Board of Directors ("WICO Board").
Venue is proper pursuant to 28 U.S.C. § 1391(b).
This Court, having considered the parties' submissions, decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78.
For the reasons stated below, this Court GRANTS Defendants' Motion to Dismiss and Boschulte's Motion.
In 1981, Plaintiff began working at WICO as a bookkeeper, and in 1987, was promoted to Controller. (Compl. ¶ 16.) In 1997, the WICO Board appointed Plaintiff to be Vice President and Treasurer, and in 2012, the WICO Board appointed Plaintiff to be the Chief Financial Officer ("CFO") of WICO. (Id. ¶ 17.) After Edward Thomas, the President and Chief Executive Officer ("CEO") of WICO, retired, Plaintiff was appointed to serve as the Acting President and CEO of WICO. (Id. ¶ 18.) Plaintiff continued in this position for almost a year, until Boschulte was hired. (Id. ¶ 19.) Throughout her career at WICO, Plaintiff had a history of receiving regular salary increases and cash bonuses due to her performance. (Id. ¶¶15, 20.)
On May 1, 2012, Boschulte started working in his position as President and CEO of WICO, and soon after submitted an invoice for expenses that he "incurred while attending SeaTrade in March of 2012." (Id. ¶ 21.) However, Plaintiff did not pay Boschulte's invoices as Boschulte was not yet an employee when the expenses were incurred. (Id. ¶ 22.) Plaintiff claims that as a result, Boschulte took retaliatory actions against Plaintiff "including but not limited to nitpicking at every issue and disciplining Plaintiff for every perceived company infraction," as well as excluding Plaintiff from meetings she had normally attended in the past. (Id. ¶¶ 23-24.) Boschulte appointed someone else instead of Plaintiff to be the Acting President and CEO when Boschulte was out of the office. (Id. ¶ 24.) Additionally, Plaintiff was not consulted in regard to WICO financial matters even though Plaintiff was the CFO. (Id. ¶ 25.) According to Plaintiff, in contrast to WICO's express employment policies, Boschulte also gave out raises without consulting Plaintiff and following the handbook. (Id. ¶ 26.) Plaintiff claims she did not know what Boschulte'sexpectations of her were and was ridiculed for not meeting these expectations. (Id. ¶¶ 27-28.) When WICO was going to appear before the Virgin Islands Legislature's Finance Committee on August 29, 2012, Boschulte disregarded custom and did not consult Plaintiff; instead, Plaintiff provided Boschulte with the information that he requested, but she was not invited to attend the meeting. (Id. ¶ 29.) Subsequently, Boschulte suspended Plaintiff without pay for one week for not attending the hearing, even though Boschulte knew the disciplinary action was unwarranted. (Id. ¶ 30.)
In or around July or August of 2012, Gershwin Sprauve ("Sprauve"), who was the Chief Operating Officer ("COO"), sent a letter to the WICO Board complaining about Boschulte's inappropriate use of language to staff and his unprofessional attitude. (Id. ¶ 31.) The WICO Board began an investigation and interviewed Plaintiff; whereafter, Boschulte became angry with Plaintiff and stated he did not trust her, nor did he have confidence in her. (Id. ¶¶ 32-33, 41.) Later, when Boschulte made a new organizational chart for WICO, Plaintiff's name was not on the chart. (Id. ¶ 38.) Boschulte complained to the WICO Board about Plaintiff "and recommended that she be terminated or be asked to retire because she is incompetent." (Id. ¶ 39.) Boschulte also complained that Plaintiff conspired with Sprauve to sell a WICO vehicle, but Plaintiff claims the sale was allowed under company policy. (Id. ¶¶ 34-37, 39.) Plaintiff also claims that Boschulte's complaints to the WICO Board were misleading and the WICO Board should have known that Boschulte's allegations were false. (Id. ¶¶ 40, 42.) The WICO Board followed Boschulte's recommendation and considered either terminating Plaintiff or asking her to retire. (Id. ¶ 43.)
In December 2012, Boschulte became a member of the WICO Board. (Id. ¶ 45.) On January 11, 2013, Boschulte terminated Plaintiff for '"failure to execute'" and gave her twenty minutes to clear out the office that she occupied for more than thirty years. (Id. ¶¶ 46-47.)Boschulte also called security, as well as the police, to escort Plaintiff out of her office after the twenty minutes he had given her passed. (Id. ¶ 48.)
Plaintiff alleges that Act No. 5826 "created WICO as a public instrumentality and public corporation of the Government of the Virgin Islands," and as such, "WICO employees can only be terminated for good cause." (Id. ¶ 49.) Plaintiff alleges that she was retaliated against by Boschulte for participating in the WICO Board's investigation of Boschulte. (Id. ¶ 50.) Therefore, according to Plaintiff, Boschulte had a pretextual reason for terminating her, and thereby violated the First Amendment of the United States Constitution. (Id.) Plaintiff also alleges that she was terminated without being given a hearing in violation of the due process clause of the Fourteenth Amendment. (Id. ¶ 49.) Further, Plaintiff alleges that she was wrongfully terminated on January 11, 2013, in violation of the Virgin Islands Wrongful Discharge Statute. (Id. ¶ 51.) Plaintiff states that there is no evidence that she violated WICO's policy and that the WICO Board should have known Boschulte was in a position to gain something from making allegations against Plaintiff, where Plaintiff had refused to pay unauthorized reimbursement submissions signed by Boschulte himself. (Id. ¶¶ 52-53.) Furthermore, Plaintiff states that WICO did not grant Plaintiff the benefit of the progressive disciplinary program that applies to all employees, contrary to WICO's express written policies. (Id. ¶ 54.) Accordingly, Plaintiff alleges that her termination was against WICO's employment policies and as a result, she suffered "economic loss, embarrassment, humiliation, emotional distress[,] and shame." (Id.)
On March 19, 2013, Plaintiff filed a Complaint in this Court alleging the following: (Count I) First Amendment violation; (Count II) Fourteenth Amendment violation; (Count III) Virgin Islands Wrongful Discharge; (Count IV) Breach of Contract; (Count V) Defamation; (Count VI)Prima Facie Torts claim; (Count VIII) Tortious Interference with Contract; (Count IX) Intentional Infliction of Emotional Distress; (Count X) Negligent Hiring and Supervision; (Count XI) Breach of Covenant of Good Faith and Fair Dealing; (Count XII) Civil Conspiracy; (Count XIII) Misrepresentation and Fraud; (Count XIV) Invasion of Privacy: False Light; (Count XV) Violation of Employee Handbook Claim; (Count XVI) First Amendment Freedom of Speech violation; (Count XVIII) First Amendment (Free Association) Claim, and three counts of 42 U.S.C. § 1983 violations against Boschulte in his personal capacity (Counts VII, XVII, IXX). (Compl., Dkt. No. 1.)
On May 9, 2013, Boschulte in his individual capacity filed a Motion to Dismiss. (Dkt. No. 21.) On May 10, 2013, WICO and Boschulte—in both his personal and official capacity as CEO of WICO—filed the instant Motion to Dismiss. (Dkt. No. 23.) Plaintiff opposed Boschulte's Motion on June 7, 2013 and opposed Defendants' Motion on June 17, 2003. (Dkt. Nos. 28, 30.) Defendants collectively replied on June 21, 2013. (Dkt. Nos. 17, 32.)1
A defendant may move to dismiss claims for lack of subject matter jurisdiction pursuant to Federal Rule 12(b)(1). See Fed. R. Civ. P. 12(b)(1). In a Rule 12(b)(1) motion, no presumption of truthfulness attaches to plaintiff's claims, and disputed material facts will not preclude the court from evaluating the merits of jurisdictional claims. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977); Airlines Reporting Corp. v. Belfon, No. 2003/146, 2010 WL 3664065, at *12 (D.V.I. Sept. 16, 2010) (citing Mortensen, 549 F.2d at 891). Furthermore, the plaintiff bears the burden to establish subject matter jurisdiction. See Kokkonen v. Guardian LifeIns. Co. of Am., 511 U.S. 375, 377 (1994) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936)); Ballentine v. Roberts, 50 V.I. 722, 724 n.4, Civ. No. 2008-60, 2008 WL 4560742, at *1 (D.V.I. Oct. 8, 2008).
A defendant may move to dismiss for "insufficient process" pursuant to Federal Rule 12(b)(4). Fed. R. Civ. P. 12(b)(4). When considering a 12(b)(4) motion to dismiss, "[d]istrict courts possess broad discretion." Jarvis v. Gov't of V.I., No. 07-117, 2009 WL 367727, at *3 (D.V.I. Feb. 12, 2009) (citing Umbenhauer v. Woog, 969 F.2d 25, 30-31 (3d Cir. 1992)). If a summons fails to properly name the parties pursuant to Rule 4(a), it is void. See Ayres v. Jacobs...
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