Winner v. Tryko Partners, LLC, Case # 17-CV-6857-FPG

• Decision Date: 12 September 2018
• Docket Number: Case # 17-CV-6857-FPG
• Parties: Alexandra Cimino WINNER, Plaintiff, v. TRYKO PARTNERS, LLC, Defendant.
• Court: U.S. District Court — Western District of New York

333 F.Supp.3d 250

Alexandra Cimino WINNER, Plaintiff,

v.TRYKO PARTNERS, LLC, Defendant.

Case # 17-CV-6857-FPG

United States District Court, W.D. New York.

Signed September 12, 2018

Jessie Gregorio, Paul F. Keneally, Underburg & Kessler LLP, Rochester, NY, for Plaintiff.

Jeffrey League, Todd R. Shinaman, Nixon Peabody LLP, Rochester, NY, for Defendant

HON. FRANK P. GERACI, JR., Chief Judge

DECISION AND ORDER

INTRODUCTION

On December 12, 2017, Plaintiff Alexandra Cimino Winner brought this action for sex-based discrimination and retaliation against Defendant Tryko Partners, LLC pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e – 2000e-17, and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 – 301. ECF No. 1. On January 29, 2018, Defendant filed a Motion to Dismiss. ECF No. 8. Defendant contends that the Complaint should be dismissed pursuant to (1) Federal Rule of Civil Procedure 12(b)(2), for lack of personal jurisdiction; (2) Rule 12(b)(5), for improper service of process; and (3) Rule 12(b)(3) and 28 U.S.C. § 1406(a), for improper venue. See ECF No. 8. In the alternative, Defendant seeks to have the case transferred to the District of New Jersey pursuant to 28 U.S.C. § 1404.

For the reasons that follow, Defendant's Motion to Dismiss (ECF No. 8) is DENIED in all respects, and this case will remain in the Western District of New York.

BACKGROUND¹

Plaintiff alleges that, on or about March 6, 2016, she accepted an offer to serve as Defendant's Director of Marketing.² Defendant is based in New Jersey, but Plaintiff received and executed the offer letter at her home in Rochester, New York, and Defendant expressly agreed to Plaintiff "continuing to live and work [in Rochester, New York]" in her capacity as Director of Marketing. Plaintiff only visited Defendant's offices in New Jersey "two (2) – three (3) times during [her] entire employment"—Plaintiff claims that, although she requested to visit once a month, she was repeatedly told that she "did not need to come." ECF No. 10, at 2–3.

To facilitate Plaintiff's work in New York, Defendant provided her with a company laptop, which she used to "regularly perform all of [her]...job duties...including emails, reports, spreadsheets, telephone and conference calls." Id. at 2. When she was not traveling for Defendant "across the Northeast," she was working from home in New York. Id. That work included conference calls with her assistant "to discuss action items and future campaigns," phone conversations "with various property managers," and frequent correspondence over telephone and email with Yonah Kohn, Defendant's President, "to discuss upcoming travel plans and where he thought [Plaintiff's] services were most needed." Id. at 3. Plaintiff also attended multiple meetings with vendors in New York regarding projects for Defendant. In sum, "[t]he majority of the business activities and services [Plaintiff] performed on behalf of [Defendant] took place...in New York." Id. Plaintiff continued to serve as Director of Marketing from her home in Rochester, New York until her termination on November 15, 2016.

Plaintiff alleges that, during the course of her employment, she was subjected to sex-based discrimination. She maintains that, from March 2016 through July 2016, her immediate supervisor—Ryan Baker, Defendant's Vice President of Asset Management—engaged in a number of discriminatory activities. Plaintiff claims that, because she is a woman, Mr. Baker "prohibited her from visiting the corporate office," "routinely push[ed] his responsibilities onto" her, and "refused to reimburse [her] for business-related travel expenses." ECF No. 1, at 3. In addition, she alleges that Mr. Baker called her " ‘sparkle’ and brought her to business meetings to ‘please’ the male bankers." Id.

Plaintiff claims that, "[o]n many occasions," she was present when Mr. Baker and others "made sexually denigrating comments about female colleagues." Id. She also alleges that, "on many occasions," Mr. Baker told her "he would not promote a female employee because she was ‘not attractive enough,’ and that he would prefer to promote a more attractive woman in hopes of ‘sleeping with her.’ " Id. at 3–4. When "the situation with Mr. Baker worsened" in or around July 2016, Plaintiff traveled to Defendant's corporate office in New Jersey to report and complain of Mr. Baker's conduct. Id. at 4. Plaintiff maintains that "Defendant's failure to investigate and take appropriate action caused the discrimination to continue." Id.

Plaintiff recounts additional instances of male employees making sexual comments about female co-workers, along with "sexually derogatory and inappropriate comments" from other employees. Id. She also maintains that, in or around August 2016, Mr. Kohn "pressured [her] to delay her honeymoon," but did not require the same of male employees. Id.

Plaintiff additionally alleges that Defendant's failure to investigate and address the situation in or around July 2016 allowed George Lewis, Defendant's Director of Asset and Quality Service, to subject her to further discrimination. She claims that, "[o]n or about August 23, 2016, Mr. Lewis apologized...for not attending her wedding, stating that she was ‘very important to him’ and that he had feelings for her and ‘could not see [her] marry someone else.’ " Id. at 5. When Plaintiff complained to Mr. Kohn "on or about September 6, 2016," Mr. Kohn "laughed it off, made jokes that she was ‘breaking hearts in the company’ and refused to investigate or remediate the conduct." Id. Plaintiff later complained to Mark Dewey, Defendant's Regional Property Manager, but "her complaints were again ignored." Id.

Plaintiff maintains that, in sum, the alleged misconduct created "a particularly difficult and stressful work environment." Id. at 6. She continued to work from her home in New York until November 15, 2016, when she was notified that "her position was allegedly being eliminated" and that Defendant "would not be replacing [her] or hiring someone with a marketing title." Id. at 6. However, Plaintiff later learned that, on or about November 21, 2016, Defendant "hired an individual to replace her under the title Regional Leasing and Marketing Manager." Id.

I. Motion to Dismiss for Lack of Personal Jurisdiction

The plaintiff bears the burden of demonstrating that personal jurisdiction exists over a defendant. E.g. , MacDermid, Inc. v. Deiter , 702 F.3d 725, 727–28 (2d Cir. 2012) (quoting Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala , 989 F.2d 572, 580 (2d Cir. 1993) ). Additionally, the plaintiff "must establish the court's jurisdiction with respect to each claim asserted." Sunward Elecs., Inc. v. McDonald , 362 F.3d 17, 24 (2d Cir. 2004) (emphasis omitted).

In resolving a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), "a district court has considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion." E.g. , Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A. , 722 F.3d 81, 84 (2d Cir. 2013) (per curiam) (quoting Marine Midland Bank, N.A. v. Miller , 664 F.2d 899, 904 (2d Cir. 1981) ). Notably, however, the showing required of the plaintiff depends upon the posture of the case: pre-discovery, a plaintiff need only plead, "in good faith, legally sufficient allegations of jurisdiction." See id. at 84–85 (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A. , 902 F.2d 194, 197 (2d Cir. 1990) ). "At that preliminary stage," such allegations alone suffice to meet the plaintiff's prima facie showing.

See id. at 85 (quoting Ball , 902 F.2d at 197 ).

Typically, a defendant will dispute the jurisdictional facts alleged

in one of three ways: (1) by a Rule 12(b)(2) motion, which assumes the truth of the plaintiff's factual allegations for purposes of the motion and challenges their sufficiency, (2) by a Rule 56 motion, which asserts that there are undisputed facts demonstrating the absence of jurisdiction, or (3) by a request for an adjudication of disputed jurisdictional facts, either at a hearing on the issue of jurisdiction or in the course of trial on the merits.

Id. (quoting Ball , 902 F.2d at 197 ). When a defendant files a Rule 12(b)(2) motion—remaining "content to challenge only the sufficiency of the plaintiff's factual allegation[s]"—"the plaintiff need persuade the court only that its factual allegations constitute a prima facie showing of jurisdiction." Id. (quoting Ball , 902 F.2d at 197 ). In assessing the plaintiff's showing, the court may consider materials outside the pleadings without converting the Rule 12(b)(2) motion into a motion for summary judgment. See id. at 86 ; see also, e.g. , Taylor Devices, Inc. v. Walbridge Aldinger Co. , 538 F.Supp.2d 560, 575 (W.D.N.Y. 2008) (specifying that, in response to a Rule 12(b)(2) motion, a plaintiff may demonstrate personal jurisdiction through its pleadings or "its own affidavits and supporting materials") (adopting report and recommendation). Where no evidentiary hearing is held,³ "the pleadings and affidavits are construed, and any ambiguity is resolved, in favor of the plaintiff," see Taylor , 538 F.Supp.2d at 575, "notwithstanding any controverting presentation by" the defendant, Dorchester , 722 F.3d at 86 (quoting Marine Midland Bank , 664 F.2d at 904 ) (expressly rejecting "the principle that[,] where ‘a defendant rebuts a plaintiff's unsupported allegations with direct, highly specific testimonial evidence regarding a fact essential to jurisdiction—and the plaintiff does not counter that evidence—the allegation may be deemed refuted’ " (citation omitted) ).

For the Court to determine that it has personal jurisdiction over Defendant, two things must be true: (1) the long-arm statute of the forum state—here, New York—must permit the exercise...