Stacy v. Hilton Head Seafood Co.

• Decision Date: 05 April 1988
• Docket Number: No. CV487-305.,CV487-305.
• Citation: 688 F. Supp. 599
• Parties: Lori M. STACY, Plaintiff, v. HILTON HEAD SEAFOOD COMPANY and Frank G. Toomer, Defendants.
• Court: U.S. District Court — Southern District of Georgia

688 F. Supp. 599

Lori M. STACY, Plaintiff, v. HILTON HEAD SEAFOOD COMPANY and Frank G. Toomer, Defendants.

No. CV487-305.

United States District Court, S.D. Georgia, Savannah Division.

April 5, 1988.

Frederick S. Bergen, Savannah, Ga., for plaintiff.

Charles W. Barrow, Savannah, Ga., Talbird Reeve Sams, Beaufort, S.C., for defendants.

ORDER^*

EDENFIELD, District Judge.

Before the Court is the defendants' motion to dismiss, both for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted.

I. Background

In October of 1986, plaintiff Lori Stacy began working for Hilton Head Seafood Company as a bookkeeper and trainee office manager, and also as secretary to defendant Frank G. Toomer, the sole proprietor of Hilton Head Seafood Company. Plaintiff alleges that, in late October 1986, while working at the premises of Hilton Head Seafood Company in Hilton Head Island, South Carolina, she was sexually assaulted and battered by Mr. Toomer. The alleged incident occurred on one of defendant's shrimp boats.

Plaintiff further alleges that she was sexually assaulted and battered by Mr. Toomer on November 11, 1986, while on a business trip to bid on two shrimp boats in Florida. This second alleged incident occurred at the Holiday Inn in Brookeville, Florida. According to plaintiff, she refused Mr. Toomer's sexual demands, whereupon he informed her that she would no longer be employed by the Hilton Head Seafood Company or by him.

The next day, November 12, 1986, Mr. Toomer allegedly changed his mind and told plaintiff that she could remain employed, but only at a lower rate of compensation.

Plaintiff alleges that, after November 12, 1986, Mr. Toomer created an intolerable working atmosphere for her, interfering "with her right to work in a safe place," and resulting in "plaintiff being forced to terminate her employment with the Hilton Head Seafood Company on November 24, 1986."

Plaintiff asserts claims of (1) sexual harassment in violation of Title VII, (2) sexual harassment in violation of the Fourteenth Amendment of the United States Constitution, Article I of the Georgia Constitution, and 42 U.S.C. § 1983, (3) intentional infliction of emotional distress, (4) assault and battery, (5) interference with her right to a reasonable and safe atmosphere in which to work.¹ Plaintiff seeks compensatory and punitive damages in the total amount of $650,000, together with a permanent injunction "enjoining the Defendants from threatening or continuing any acts which are illegal...."

II. Proper Identification of Defendants

Defendants assert that there is no such entity as Hilton Head Seafood Company. Rather, defendants assert, Frank Toomer operates Hilton Head Seafood Company as a sole proprietorship. The Court accepts this statement and therefore GRANTS defendants' motion to dismiss Hilton Head Seafood Company as a defendant. Hereafter, all pleadings shall bear the caption, Lori M. Stacy, plaintiff, v. Frank G. Toomer, D/B/A Hilton Head Seafood Company, defendant.²

III. Claims Said to Arise Under the Federal and Georgia Constitutions and 42 U.S.C. § 1983

Plaintiff's claims asserted under the Fourteenth Amendment of the Federal Constitution, 42 U.S.C. § 1983, and Article I of the Georgia Constitution are DISMISSED. Absent an allegation that defendant Toomer was acting under color of state law, those provisions have no application here.

IV. Personal Jurisdiction

Defendant Toomer contends that he is not subject to the personal jurisdiction of this Court. He contends that he is a citizen and resident of South Carolina who does not transact or solicit business in Georgia, and does not engage in any other persistent course of conduct, or derive substantial revenue from goods consumed or services rendered, in Georgia. Defendant does not support his motion with any affidavit, as required by Local Rule 6.1.

In response to defendant's motion to dismiss, plaintiff has submitted her affidavit. She states that she was personally contacted in September, 1986 in Savannah, Georgia by defendant Frank G. Toomer and his daughter, Suzanne Woods, about working for Toomer and Hilton Head Seafood Company. This contact allegedly occurred at Curtis Mathis Home Entertainment Center, 7650 Abercorn Street, Savannah, Georgia, where plaintiff was then working. In her affidavit, plaintiff also describes regular business dealings between Hilton Head Seafood Company and Mathews Seafood Company of Savannah, Georgia, involving the transport of seafood between these two businesses. Plaintiff states that she personally picked up seafood from Mathews Seafood Company to bring to Hilton Head Seafood Company. Additionally, plaintiff has attached, as Exhibit B to her brief in opposition to defendants' motion to dismiss, a classified advertisement published in the Savannah Evening Press on Wednesday, November 19, 1986, which reads as follows:

PERSON NEEDED

Unattached person needed to assist me in bookkeeping and that can travel on the spur of the moment from Key West— Texas. Excellent opportunity for the right person. Call Hilton Head Seafood Co., XXX-XXX-XXXX.

In a diversity case, amenability of a non-resident party to a forum's jurisdiction is determined under a two-part test: first, the long-arm statute of the forum state must provide for jurisdiction over the defendant³ and, second, exercise of personal jurisdiction must be consistent with due process. See Psychological Resources Support Systems v. Gerleman, 624 F.Supp. 483, 484 (N.D.Ga.1985).

In federal question cases, or cases brought under both federal question and diversity jurisdiction, the otherwise threshold inquiry of whether the forum state's long-arm statute provides personal jurisdiction is irrelevant. See Vest v. Waring, 565 F.Supp. 674, 693 (N.D.Ga.1983); Terry v. Raymond Intern., Inc., 658 F.2d 398, 402-03 (5th Cir.1981). Here, plaintiff has asserted a Title VII claim within the federal question jurisdiction of this Court. The sole test of amenability to jurisdiction in a federal question case is the test of constitutionality, i.e., minimum contacts. Id.

On a motion to dismiss for lack of personal jurisdiction, the Court must take all jurisdictional facts alleged in plaintiff's affidavit as true. Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir.1982). Plaintiff's affidavit sets forth facts sufficient to support the exercise of personal jurisdiction over defendant. See generally Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Plaintiff alleges that her employment relationship with defendant arose out of a contact initiated by defendant in Georgia. Plaintiff also alleges that defendant regularly does business in Georgia. Plaintiff has alleged "purposeful contacts" by defendant with Georgia. Further, in light of the proximity of Hilton Head Island to Savannah, Georgia, the assertion of personal jurisdiction will not impose an unreasonable burden on defendant. The exercise of personal jurisdiction over defendant comports with "fairplay and substantial justice." See Burger King, 471 U.S. at 476, 105 S.Ct. at 2184.

Additionally, the Court notes that defendant resides within the 100 mile bulge area in which, under Fed.R.Civ.P. 4(f), out-of-state defendants may be served with process. Rule 4(f) has been held to extend the personal jurisdiction territory of district courts beyond state lines, notwithstanding that a defendant is not amenable to suit under a state long-arm statute. See Sprow v. Hartford Ins. Co., 594 F.2d 412, 417 (5th Cir.1979); Quinones v. Pennsylvania General Ins. Co., 804 F.2d 1167, 1172-77 (10th Cir.1986); Coleman v. American Export Isbrandsten Lines, Inc., 405 F.2d 250, 252 (2nd Cir.1968). Thus, even if this were solely a diversity action, personal jurisdiction requirements would be satisfied by the defendant's presence within the 100 mile bulge area of Rule 4(f), and Georgia's long-arm statute would be irrelevant. Accordingly, defendant's motion to dismiss for lack of personal jurisdiction is DENIED.

V. Fifteen Employee Minimum for Title VII Coverage

Only "employers" as defined in Title VII are subject to its remedial provisions. Title VII defines an "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees for such working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.... 42 U.S.C. § 2000e(b)" (Emphasis added). Defendant has moved to dismiss plaintiff's Title VII claim on the ground that he does not have 15 employees, and therefore is not covered by Title VII. Defendant does not support this assertion by affidavit, as required by Local Rule 6.1.

In her affidavit submitted in response, plaintiff identifies employees of defendant in excess of the fifteen employee minimum. For purposes of defendant's motion to dismiss, the Court must accept as true plaintiff's allegation, supported by affidavit based on personal knowledge, that defendant has more than fifteen employees. Accordingly, defendant's motion to dismiss plaintiff's Title VII claim is DENIED.

VI. Tort Claims

Plaintiff has alleged claims of intentional infliction of emotional distress, assault and battery, and interference with her right to a reasonable and safe atmosphere in which to work. It appears the South Carolina law would govern the tort claims, with the possible exception that one assault and battery count may be governed by Florida law (incident allegedly occurred in Brookeville, Florida).

South Carolina recognizes the tort of intentional infliction of emotional distress. Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776 (1981). One who, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. Id. Plaintiff's complaint sufficiently alleges an intentional infliction of emotional distress to withstand a motion to dismiss....