Davis v. Centex International II LLC et al - Document 19

Court Description:

REPORT AND RECOMMENDATIONS recommending that Defendant Purdys Motion to Dismiss 17 be granted and that Purdy be dismissed from this action. Objections to R&R due by 1/15/2010. Signed by Magistrate Judge Thomas E Rogers, III on 12/29/2009. (Attachments: # 1 Notice)(dsto, )

U N IT E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA F LO R E N C E DIVISION ) ) P l a i n t i ff, ) ) -vs) ) ) CENTEX HOMES, a subsidiary of Centex ) C o rp o ra tio n , FRANK REDA, SUZANNE ) T O O LE , and LINDA PURDY, ) ) D e fe n d a n t s . ) ___________________________________ ) I. IN T R O D U C T IO N P l a i n t i ff originally filed this action in the Horry County Court of Common Pleas on February 1 9 , 2009, alleging gender discrimination retaliation in violation of Title VII of the Civil Rights Act o f 1964 (Title VII), 42 U.S.C. 2000(e) et seq. Plaintiff also asserts state law causes of action for v io la tio n of the South Carolina human affairs law and defamation. Defendant removed the action t o this Court April 1, 2009. Presently before the Court is Defendant Linda Purdy's Motion to D i s m i s s (Document # 17) for lack of personal jurisdiction.1 Plaintiff has not filed a Response to this M o tio n . A l l pretrial proceedings in this case were referred to the undersigned pursuant to the p ro v is io n s of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC. Because the M o t io n to Dismiss is a dispositive motion, this Report and Recommendation is entered for review b y the district judge. T O N Y A RENEE DAVIS, Civil Action No.: 4:09-cv-830-RBH-TER REPORT AND RECOMMENDATION Defendant Purdy's previously filed Motion to Dismiss (Document # 5) and Defendant C en tex International II, LLC's Motion to Dismiss (Document # 5) are moot as a result of Plaintiff's su b seq u en t filing of an Amended Complaint (Document # 14). 1 II. FACTS P la in tiff, Tonya Renee Davis, was originally hired by Centex Homes, Denver Division, and w a s employed by that division, performing work in the Denver, Colorado area. Purdy Aff. 8. It was w h i le employed in Denver that Plaintiff worked with Defendant Purdy. Id. In 2006, Plaintiff was tra n s fe rre d from her position in Denver, Colorado to Horry County, South Carolina. Id. at 9. Once t h a t transfer occurred, Defendant Purdy had no further contact with Plaintiff nor did she have any fu rth e r supervisory or other official control or personal relationship with Plaintiff. Id. at 9, 10. In d e e d , Defendant Purdy has never discussed Plaintiff with anyone located in the State of South C a ro lin a , including other defendants in this action, Suzanne Toole and Frank Reda. Id. at 10, 11. D e fe n d a n t Purdy is a resident of the State of Colorado. Id. at 5. She has been a resident of th a t state her entire life. Id. At all times relevant to the claims in Plaintiff's Complaint, Defendant P u rd y has been employed by Centex Homes, operating exclusively out of that company's Denver D i v is io n . Id. at 3. At all times relevant to this action, she held the position of Division Land M a n a g e r in Denver. Id. Purdy does not perform any duties as part of this employment in the State o f South Carolina. Id. at 3, 4. Defendant Purdy has only traveled to South Carolina once in the p a s t several years for a personal trip and once in 2005 for a conference unrelated to Plaintiff or P la in tiff's claims. Id. at 5, 6, 7. In her Amended Complaint, Plaintiff alleges that Purdy "is a resident and citizen of A r a p h a h o e County, State of Colorado, and at all times pertinent to this action, was employed by D e fe n d a n t Centex as Land Development Manager in Denver, Colorado." Amended Complaint 5. P l a in t iff asserts no specific allegations against Purdy and it appears from Plaintiff's Amended C o m p l a i n t that all of the alleged discriminatory conduct occurred while Plaintiff worked in the Horry -2- C o u n ty office. Plaintiff's claims against Purdy are unclear. III. S T A N D A R D OF REVIEW W h e n a defendant files a motion to dismiss the plaintiff's complaint for lack of jurisdiction u n d e r Rule 12(b)(2), the plaintiff must prove jurisdiction by a preponderance of the evidence. Mylan La b s . , Inc. v. Akzo, 2 F.3d 56, 59-60 (4th Cir.1993). When a court declines to hold an evidentiary h e a rin g and decides to rely on the parties' pleadings, affidavits, and other legal documents, the p la in ti ff faces a lesser standard such that the plaintiff only must "make a prima facie showing of a s u ffic ie n t jurisdictional basis in order to survive the jurisdictional challenge." Combs v. Bakker, 886 F .2 d 673, 676 (4th Cir.1989). "In considering a challenge on such a record, the court must construe a ll relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and d ra w the most favorable inferences for the existence of jurisdiction." Id. IV . D ISC U SSIO N T h e re are two types of personal jurisdiction: general and specific. A court has general ju ris d ic tio n over a cause of action that arises outside of the forum state. See Calder v. Jones, 465 U.S. 7 8 3 , 786, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). General jurisdiction is permissible under the due p r o c e s s clause when the defendant has an enduring relationship with the forum state, and his c o n n e c t i o n to and activities in the forum state are so substantial that the defendant would expect to b e subject to suit there on any claim and would suffer no inconvenience from defending there. "The e s s e n c e of the issue ... is ... one of general fairness to the [defendant]." Perkins v. Benguet Consol. M i n i n g Co., 342 U.S. 437, 445, 72 S.Ct. 413, 96 L.Ed. 485 (1952). T h e United States Supreme Court articulated a two-branch due process test for determining s p e c ific jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291(1980). The -3- firs t, the traditional minimum contacts branch, focuses on the defendant's connection with the forum s ta te and the relationship between that connection and the litigation. Burger King Corp., 471 U.S. a t 471-76. The second branch is frequently referred to as the fairness, convenience, or reasonableness b ra n ch . Beyond the requirement of minimum contacts, due process requires further factual evaluation to determine whether an assertion of personal jurisdiction comports with fair play and substantial ju s t ic e . Id. at 476 ( quoting Int'l Shoe Co., 326 U.S. at 320). As stated, the plaintiff has the burden o f establishing jurisdiction over Defendant Purdy. Plaintiff does not assert any specific allegations against Defendant Purdy nor has she re s p o n d e d to the present motion. Defendant Purdy avers that she has never lived in South Carolina, d o e s not perform any of her duties of employment in or in connection with South Carolina, nor has s h e had any supervisory or other official control over Plaintiff since she moved to South Carolina. B a s e d upon the record, there are insufficient contacts for this Court to exercise either general or s p e c ific jurisdiction over Purdy. Any cause of action Plaintiff may have against Purdy arose outside th e state of South Carolina and Purdy has no connection to this state. Plaintiff has failed to meet her b u rd e n of showing by a preponderance of the evidence that this Court has personal jurisdiction over P u rd y. Accordingly, dismissal of Purdy is appropriate. V. C O N C L U SIO N F o r the reasons set forth above, it is recommended that Defendant Purdy's Motion to Dismiss (D o c u m e n t # 17) be granted and that Purdy be dismissed from this action. s/Thomas E. Rogers, III Thomas E. Rogers, III U n ite d States Magistrate Judge D e ce m b e r 29, 2009 F l o r e n c e , South Carolina -4-