Gilbert v. Freshbikes, LLC et al, No. 8:2014cv00609 - Document 24 (D. Md. 2014)

Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/9/14. (sat, Chambers)
Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : AMANDA GILBERT : v. : Civil Action No. DKC 14-0609 : FRESHBIKES, LLC, et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this Title VII and Fair Labor Standards Act ( FLSA ) case are two motions filed by Defendants: Fed.R.Civ.P. Freshbikes (1) 12(b)(1), Franchising, a (2), motion and LLC, to (6) dismiss filed Freshbikes pursuant by Mosaic, to Defendants LLC, and Freshbikes2, LLC, (ECF Nos. 11 and 13); and (2) a motion to transfer venue to the United States District for the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a) filed by Defendants Freshbikes Franchising, LLC, Freshbikes Mosaic, LLC, Freshbikes2, LLC, and Freshbikes, LLC (ECF Nos. 12 and 13). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. following reasons, both motions will be denied. For the I. Background A. Factual Background The following facts are set forth in the complaint. No. 1). There are four Freshbikes entities, each named as a defendant: Mosaic, (ECF (1) LLC, Freshbikes (3) Franchising, Freshbikes2, LLC, LLC, and (4) (2) Freshbikes Freshbikes, LLC. Each Freshbikes entity, except for Freshbikes Franchising, owns and operates (Freshbikes2), a bicycle Fairfax, retailer Virginia in Bethesda, (Freshbikes Maryland Mosaic), Arlington, Virginia (Freshbikes). (ECF No. 1 ¶¶ 4-8). Freshbikes Mr. and retailer is owned separately incorporated. Plaintiff Amanda by Scott McAhren as part-time Each and is Id. Gilbert worked a sales associate at the Bethesda store operated by Freshbikes2 from May 2010 until February 2012. (Id. at ¶ 21). February split 2012, Plaintiff her time Between fall 2011 and working between the Freshbikes2 Bethesda store and the Freshbikes Arlington store after Mr. McAhren asked her if she preferred to work more hours. Id. In February 2012, Plaintiff accepted a full time sales associate position at the Arlington store and left the Bethesda store. (Id. at ¶ 25). She worked solely in Arlington until she was terminated in November 2012. Plaintiff alleges that (Id. at ¶¶ 25, 67). when she worked at the Bethesda store, the store s assistant manager told her that this company 2 is not very good for women. (Id. at ¶ 22). She claims that the store manager and other male co-workers at the Bethesda store regularly made sexually derogatory comments in her presence to refer to women. and offensive (Id. at ¶ 23, 24). Plaintiff alleges that her male co-workers and supervisors at the Arlington store also frequently made sexually derogatory and offensive comments in her presence either directed at her or regarding other women. (Id. at ¶ 30). Furthermore, they allegedly made repeated comments regarding Plaintiff s sex life and directed sexual innuendos at her. (Id. at ¶ 31-33). Plaintiff asserts that one co-worker twice used a pole to lift up [her] skirt in front of other male employees, (Id. at ¶ 35), and another co-worker sent her a threatening text message after she complained to her supervisors about the harassment (Id. at ¶ 38). Plaintiff states that while she complained repeatedly to the Arlington store manager Jason Walder and to Mr. McAhren, who was frequently at the store, (Id. at ¶ 29), the offensive comments did not stop and no employee was ever reprimanded for the comments or conduct. (Id. at ¶ 64). Plaintiff further contends that she was repeatedly passed over for promotions that were instead given to less qualified male employees, (Id. at ¶¶ 52-54), and was continually denied the opportunity to build bikes, an important skill in the store, even though similarly situated male employees were given the 3 same opportunity. (Id. at ¶ 48). Plaintiff also asserts that although she regularly worked 50 hours a week at the Arlington store, she was not paid overtime for any time spent working more than 40 hours a week. (Id. at ¶¶ 26, 97). On November 19, 2012, Plaintiff spoke with Mr. McAhren who told Plaintiff that she could either resign or he [McAhren] would have to terminate [her]. (Id. at ¶ 65). When Plaintiff stated that she would not resign, Mr. McAhren terminated her employment on November 23, 2012. B. (Id. at ¶ 67). Procedural Background Plaintiff filed a charge with the United States Equal Employment Opportunity Commission ( EEOC ) on May 20, 2013. On December 6, 2013, Plaintiff was issued a right to sue letter by the EEOC. (ECF No. 1-1). Plaintiff commenced this action on March 4, 2014 against Defendants, asserting jurisdiction under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq., and the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. 14). (ECF No. 1 ¶¶ 1, On March 26, 2014, three of the Defendants filed a motion to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, and for failure to state a claim. Nos. 11 and 13). (ECF Freshbikes Franchising and Freshbikes Mosaic argue that they were never Plaintiff s employer and that they are Virginia LLCs with no contacts 4 to Maryland. Id. Freshbikes2 argues that Plaintiff s Title VII claims against it are time barred and that the events giving rise to the retaliation claim and the FLSA claim occurred when Freshbikes2 was no longer Plaintiff s employer. Id. All four Defendants also filed a motion to transfer venue to the Eastern District of Virginia on March 26. both motions Defendants on (ECF Nos. 12 and 13). April Freshbikes 21 (ECF No. Franchising, 18, Plaintiff opposed 19). On 15, Mosaic, Franchising May and Freshbikes2 replied in support of the motion to dismiss. No. 22). Defendant Freshbikes also filed a reply in support of the motion to transfer venue on May 15. II. (ECF (ECF No. 23). Analysis A. Subject Matter Jurisdiction 1. Standard of Review Motions to dismiss for lack of subject matter jurisdiction are governed Generally, by Federal questions of Rule of subject Civil matter Procedure 12(b)(1). jurisdiction must be decided first, because they concern the court s very power to hear the case. Owens Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999) (quoting 2 James Wm. Moore, et al., Moore s plaintiff Federal bears Practice the § burden 12.30[1] of (3d proving ed. that 1998)). subject jurisdiction properly exists in federal court. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). 5 The matter See Evans v. In deciding a Rule 12(b)(1) motion, the court may consider evidence outside the pleadings to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg & Potomac R.R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647. Such a motion should only be granted if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Richmond, 945 F.2d at 768. Plaintiff has invoked federal question jurisdiction as the jurisdictional basis of this action. Pursuant to 28 U.S.C. § 1331, district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Generally, whether any of a plaintiff s claims arise under federal law is determined by application of the well-pleaded complaint rule. Shop Supermarket Co., 595 Ali v. Giant Food LLC/Stop & F.Supp.2d 618, 621 (D.Md. 2009) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)). According to the well-pleaded complaint rule, federal jurisdiction exists only when a federal question is presented on the face of the plaintiff s properly pleaded complaint. 2. Caterpillar Inc. v. Williams, 482 U.S. 386 (1987). While Analysis Defendants state that they bring the motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), they do 6 not specify in the motion why subject matter jurisdiction is lacking. Defendants employer under assumes that assert either this that Title is the VII they or basis were the for not FLSA, Plaintiff s and their the subject court matter challenge. Subject matter jurisdiction in this case is based on federal question, as the claims are brought under two federal statutes: divided Title on VII whether and the the FLSA. defendant s Courts status were as previously employer as defined by Title VII was an issue implicating subject matter jurisdiction or an plaintiff s claim. 961 (11th Cir. issue implicating the merits of the Compare Scarfo v. Ginsberg, 175 F.3d 957, 1999) ( Whether the appellees constitute an employer within the definition of Title VII is a threshold jurisdictional issue. ), with Sharpe v. Jefferson Distrib. Co., 148 F.3d 676, 677 (7th without the fifteen Cir. 1998) (holding that a defendant employee minimum under Title VII was a failure to meet a statutory requirement rather than an issue with jurisdiction). The Supreme Court of the United States created a bright line rule in Arbaugh v. Y&H Corp., 546 U.S. 500, 515 (2006), however, when it held that employer status for purposes of Title VII liability related adequacy of the claim and not jurisdiction. to the substantive The Court explained that when Congress does not rank a statutory limitation on 7 coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character. Although employee Arbaugh involved requirement generalized to employer. for other Id. at 516. Title VII s employers, elements of statutory its Title holding VII s fifteen can be definition of See Price v. Waste Management, Inc., No. ELH-13- 02535, 2014 WL 1764722, at *5 (D.Md. Apr. 30, 2014) (stating that a Rule 12(b)(1) motion is not the proper mechanism to bring a defense regarding one s status as an employer ); Murphy- Taylor v. Hofmann, 968 F.Supp.2d 693, 724 (D.Md. 2013) ( [A] defendant s plaintiff qualification constitutes plaintiff s claim for Defendants motion as a the substantive relief, to employer not dismiss a for of a element jurisdictional lack of Title of VII [the] issue. ). subject matter jurisdiction is therefore misplaced as to Title VII, and the question of their status as Plaintiffs employer is better suited to a Rule 12(b)(6) analysis, as the question implicates the merits of Plaintiff s claim. The purposes question of of liability FLSA matter jurisdiction. a defendant s also status does as not employer implicate for subject The FLSA defines employer as any person acting directly or indirectly in the interest of an employer in relation to an employee. defined as any 29 U.S.C. § 203(d). individual employed 8 by an An employee is employer, id. § 203(e)(1), and employ means to suffer or permit to work, id. § 203(g). As discussed above, the Supreme Court held in Arbaugh that when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should nonjurisdictional in character. treat the restriction as Arbaugh, 546 U.S. at 516. This decision has been applied to other labor statutes, such as the Family Medical Leave Act ( FMLA ), in deciding that a defendant s status as employer under these statutes relates to the substantive jurisdiction. merits of the plaintiff s claim rather than See Sadowski v. U.S. Postal Serv., 643 F.Supp.2d 749, 751 (D.Md. 2009) (applying the Arbaugh decision to the FMLA and analyzing the defendant s contention of employer status as challenging complaint the substantive rather than sufficiency subject matter of the plaintiff s jurisdiction); see also Minard v. ITC Deltacom Commc ns. Inc., 447 F.3d 352, 356 (5th Cir. 2006) ( In light of the Supreme Court s decision in Arbaugh, we conclude that the definition section of the FMLA . . . is a substantive ingredient of a plaintiff s claim for relief, not a jurisdictional limitation. ). Courts in other jurisdictions have applied Arbaugh to FLSA claims. 2007) See Chao v. Hotel Oasis, Inc., 493 F.3d 26, 33 (1st Cir. (holding that the FLSA s $500,000 annual dollar value limitation is an element of the plaintiff s claim rather than a 9 jurisdictional requirement); Diaz v. Ming & Kent, Inc., No. C 09-05774 RS, 2010 WL 890040, at *2 (N.D.Cal. Mar. 8, 2010) (holding that a defendant s status as an enterprise engaged in commerce and a plaintiff as an employee of that enterprise were substantive ingredients of a meritorious FLSA claim rather than elements of subject matter jurisdiction); Rodriguez v. Diego s Rest., Inc., 619 F.Supp.2d 1345, 1348 (S.D.Fla. 2009) (holding that individual or enterprise coverage is an element of the plaintiff s persuasive. claim). The analysis in these cases is Consequently, whether a defendant is an employer as defined by the FLSA is an element of the plaintiff s meritorious FLSA claim and does not implicate subject matter jurisdiction. B. Failure to State a Claim 1. Standard of Review Defendants argument that the complaint fails to state a plausible claim for relief is governed by Fed.R.Civ.P. 12(b)(6). The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. See Presley v. City of Charlottesville, (4th 464 F.3d 480, 483 Cir. 2006). A plaintiff s complaint need only satisfy the standard of Rule 8(a), which requires a short and plain statement of the claim showing that the pleader is entitled to relief. 8(a)(2). Fed.R.Civ.P. Rule 8(a)(2) still requires a showing, rather than a blanket assertion, of entitlement to relief. 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must consist of more than a formulaic recitation of the elements of a cause of action or naked assertion[s] devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). At this stage, all well-pleaded allegations in a complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In evaluating the complaint, unsupported legal allegations need not be accepted. See Revene v. Charles Cnty. Comm rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events, see United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). 2. Analysis a. Title VII As discussed above, Defendants Freshbikes Franchising and Freshbikes entities Mosaic from argue Freshbikes primarily and that Freshbikes2 Plaintiff s employers under Title VII. 11 they are and separate were not Due to the ambiguity of the term employer under the Act, courts have fashioned a variety of tests by which a defendant who does not directly employ the plaintiff may still be the plaintiff s employer under Title VII. See Hukill v. Auto Care, Inc., 192 F.3d 437, 442 (4th Cir. 1999), abrogated on other grounds by Arbaugh v. Y & H Corp., 546 U.S. 500 (2006). One such test, the integrated- employer test, seeks to determine whether two separate entities can be considered a single employer for Title VII purposes. See id.; Tasciyan v. Med. Numerics, 820 F.Supp.2d 664, 671-72 (D.Md. 2011); Watson v. CSA, Ltd., 376 F.Supp.2d 588, 594 (D.Md. 2005). Under this test, the court may find that separate companies are so interrelated that they constitute a single employer. Hukill, 192 F.3d at 442.1 The integrated-employer test involves four elements: (1) common management; (2) interrelation between operations; (3) centralized control of labor relations; and (4) degree of common ownership/financial control. Romano v. U-Haul Int l, 233 Hukill, 192 F.3d at 442; see also F.3d 1 655, 665 (1st Cir. 2000) The court in Hukill analyzed the integrated employer test in terms of subject matter jurisdiction, but, as discussed supra, the Supreme Court later held in Arbaugh that the question of whether a defendant constitutes an employer under Title VII is not jurisdictional. Compare Hukill, 192 F.3d at 442, with Arbaugh, 546 U.S. at 515. The integrated employer test, however, is still used by courts in this district. See Tasciyan, 820 F.Supp.2d at 671 (applying the integrated employer test to determine whether an employer had the requisite fifteen employees under Title VII). 12 (recognizing that the majority of courts have applied the integrated-enterprise test when determining whether a single employer exists under Title VII); Laurin v. Pokoik, No. 02 CIV. 1938 (LMM), 2004 (acknowledging WL that 513999, courts at *4 have (S.D.N.Y. applied the Mar. four 15, 2004) factors to Title VII claims). While control of labor operations is the most critical factor factor, is courts conclusive. Armbruster v. Quinn, have acknowledged Hukill, 192 F.2d 1332, 711 F.3d that at 1338 no 442; (6th single see Cir. also 1983), abrogated on other grounds by Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) ( All four criteria need not be present in all cases. )2; Laurin, 2004 WL 513999, at *4 ( No one factor is controlling, and not every factor is required. ). Whether employer is separate a entities fact-intensive can be inquiry. joined See as a single Tasciyan, 820 F.Supp.2d at 672 ( The integrated employer test necessitates a fact-intensive ( Whether inquiry. ); entities question of fact. ). can be Laurin, joined as 2004 WL a single 513999, employer at is *4 a Therefore, it is ordinarily inappropriate for courts to apply the integrated employer test at the motion to dismiss stage. Tasciyan, 820 F.Supp.2d at 672; cf. Murphy- 2 Armbruster was also abrogated on the ground that it identified the fifteen employee requirement as a jurisdictional element, but its application of the four factor test is still viable. See Armbruster, 711 F.2d at 1335, 1337. 13 Taylor, 968 F.Supp.2d at 727 (confirming that whether an entity is plaintiff s employer is not appropriate for resolution as a pure matter of law, before discovery ). In deciding the common management element, courts look to whether the separate corporations share a common manager who runs day-to-day operations and has the authority to hire and fire employees. See Hukill, 192 F.3d at 443; Baker v. Stuart Broad. Co., 560 F.2d 389, 392 (8th Cir. 1977) (finding common management and ownership where the same individual was president of both corporations and ran day-to-day operations). The second element - interrelation between operations can also be shown through evidence operations and of a through common manager employee who transfers runs day-to-day between locations. See Hukill, 192 F.3d at 443. The third factor - control of labor when operations is shown a single party employment decisions across multiple corporations. controls See id. at 444 (finding no centralized control of labor relations when the company had no power to hire, fire, or supervise employees at the allegedly related companies). Employment decisions include the power to hire, fire, supervise, and set employee schedules. Id. The last element common ownership is shown when one individual owns and has financial control over the different enterprises. See Watson, 376 F.Supp.2d at 598. 14 Plaintiff has alleged sufficient facts to survive Defendants motion to dismiss on the question of whether the four Freshbikes entities are a single employer. First, Plaintiff has alleged that Mr. McAhren has the authority to fire employees at the Arlington location, (ECF No. 1 ¶ 67), and that he spent a considerable amount of time at the Arlington store, (Id. at ¶ 29). element. transfer These facts go toward the common management Second, between by store alleging an locations, incident (ECF of No. 1 an ¶¶ employee 21, 25), Plaintiff has met the interrelation between operations element. Third, Plaintiff has alleged sufficient facts to suggest that there is some centralized control of labor relations under Mr. McAhren, Arlington who and asked Plaintiff Bethesda Arlington store. to stores split and who her time fired between her from the the (ECF No. 1 ¶¶ 21, 67). Fourth, with respect to common ownership, Plaintiff s allegation that Scott McAhren owns all the Freshbikes store locations meets the fourth element of the single employer test. (ECF No. 1 ¶ 8). In sum, Plaintiff has alleged sufficient facts to survive the motion to dismiss on the question of Freshbikes single employer status under Title VII at this preliminary stage of the proceedings. b. FLSA Defendants Freshbikes Franchising, Freshbikes Mosaic, and Freshbikes2 similarly move to dismiss the FLSA claim, arguing 15 that they were not Plaintiff s employers as defined by the Act at the time of the events giving rise to the FLSA claim. Defendant Freshbikes2 argues that the claim is based on a time period that Arlington Plaintiff office Plaintiff s and worked that employer. exclusively (ECF No. 13, the was Freshbikes2 for therefore at 8). Freshbikes not Freshbikes Franchising and Freshbikes Mosaic argue that they were never Plaintiff s employer as defined by the Act. (Id. at 5-6). Plaintiff responds that the FLSA claim is applicable to all Defendants because all four Freshbikes entities are effectively the same enterprise under the FLSA. The FLSA determining employs when two a different separate (ECF No. 19). test than entities enterprise for purposes of liability. Title constitute VII a for single See Roman v. Guapos III, Inc., 970 F.Supp.2d 407, 414 (D.Md. 2013). The term employer under broadly the FLSA is generally interpreted to achieve Congress s intent to provide a remedy to employees for their employers wage and hour violations. Pearson v. Prof l 50 States Prot., LLC, No. RDB-09-3232, 2010 WL 4225533, at *3 (D.Md. Oct. 26, 2010); see also Schultz v. Capital Int l Sec., Inc., 466 F.3d 298, 304 (4th Cir. 2006) (articulating that the FLSA should be interpreted broadly). is not limitless. The scope of the FLSA, however, See Benshoff v. City of Virginia Beach, 180 F.3d 136, 140 (4th Cir. 1999). 16 For two separate entities to constitute a single enterprise under the FLSA, they must conduct: (1) related activities, (2) performed under unified operations or common control, and (3) for a common business Brock v. Hamad, 867 F.2d 804, 806 (4th Cir. 1989); see purpose. also Martin v. Deiriggi, 985 F.2d 129, 133 (4th Cir. 1992) (applying the three elements to determine a single enterprise for FLSA purposes). Related activity in claims involving retail businesses can be shown if the retailing is done for a common purpose, even when it involv[es] different goods at different locations. Martin, 985 F.2d at 133 (citing 29 C.F.R. § 779.207). Related activity can also be shown if the businesses perform similar functions, such as serving similar products to similar clientele. See Gionfriddo v. Jason Zink, LLC, 769 F.Supp.2d 880, 892 (D.Md. 2011); see also Donovan v. Grim Hotel Co., 747 F.2d 966, 970 (5th Cir. 1984) (finding that five hotels located in different cities and operated by separate corporate defendants satisfied the related activities element because they operated in the same or a similar manner, . . . [and] loosely operated under the [same] name ). The second requirement common control exists where total ownership is vested in a single person. Brock, 867 F.2d at 807. The third requirement - a common business purpose - can be shown through activities that are directed at the same business 17 objective or at similar objectives in which the group has an interest. Brock, 867 F.2d at 807. This common purpose must be more than just the common goal to make a profit, see Martin, 985 F.2d at 134 ( A joint profit motive is insufficient to support a finding of common unified operation, business purpose. ), related activity, but factors such interdependency, and as a centralization of ownership or control can all indicate a common business Martin, purpose. 985 F.2d See at Donovan, 133 747 ( [T]here F.2d is a at 971; close see also relationship between the related activities and common business purpose criteria for FLSA enterprise coverage. ). Plaintiff has alleged sufficient facts to suggest that the four Freshbikes entities satisfy the elements of the single enterprise test under the FLSA at this preliminary stage of the proceedings. First, the facts alleged support the related activities element, as all three retailers sell bicycles and related gear, cater to similar clientele, and operate loosely under the Freshbikes name. (ECF No. 1 ¶¶ 8, 9). Second, Plaintiff has alleged sufficient facts to show that the four entities share common control under owner Mr. McAhren. ¶ 8). (Id. at Third, the facts may also support a common business purpose because of the alleged centralization of ownership and related activity. Plaintiff s 18 allegations are sufficient at this stage to survive Defendants motion to dismiss on this issue. c. Related Defenses Defendants Freshbikes Franchising, Freshbikes Mosaic, and Freshbikes2 further move to dismiss for failure to state a claim by raising a variety of additional issues that cannot be resolved until the status of the four Defendants as single employer or single enterprise is determined under both Title VII and the FLSA. As to the Title VII claim, Freshbikes2 argues that Plaintiff filed her claim with the EEOC more than 300 days after her departure from the Bethesda store, thereby rendering the claim time barred. (ECF No. 13, at 7). Plaintiff asserts that she did not terminate her employment at Freshbikes2 but instead transferred from one location to another within the same company. Title VII provides that a charge must be filed within 180 or 300 days occurred. after the alleged unlawful employment practice Nat l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (citing 42 U.S.C. § 2000e 5(e)(1)). In a deferral jurisdiction, such as Maryland, the limitations period is 300 days. See 42 U.S.C. F.Supp.2d at 713. § 2000e 5(e)(1); Murphy-Taylor, 968 Plaintiff alleges she suffered a hostile work environment, and such an allegation implicates the continuing violation doctrine. The doctrine provides that all acts which 19 constitute the [Title VII] claim are part of the same unlawful employment practice, and [i]t does not matter, for purposes of [Title VII], that some of the component acts of the hostile work environment fall outside the statutory time period. 536 U.S. at 117, 122. Morgan, A plaintiff therefore can recover for acts occurring even beyond that [time] period, as long as at least a portion of the hostile work environment occurred within the relevant limitations period. White v. BFI Waste Servs., LLC, 375 F.3d 288, 292-93 (4th Cir. 2004) (citing Morgan, 536 U.S. at 122). Plaintiff Arlington has stores discrimination. discrimination alleged that perpetuate both sexual the Bethesda harassment (ECF No. 1 ¶¶ 22-24, 31-33, 43). is part of an unlawful and and the gender Whether this employment practice depends on whether the two entities are a single employer under Title VII, as discussed above. a single employer, and If both Freshbikes entities are Plaintiff s move to the Arlington retailer was simply a transfer within that same company, the harassment was a continuing violation under Title VII. The EEOC filing would therefore be timely and could encompass the conduct at Freshbikes2 the Bethesda survives location. dismissal, Thus, pending the claim resolution against on the question of whether the two entities are a single employer under Title VII. 20 Second, retaliation Freshbikes2 claim. also moves Freshbikes2 to argues dismiss that Plaintiff s Plaintiff left Freshbikes2 voluntarily in February 2012 when she became a fulltime employee argues that Freshbikes, at the because it Arlington store. is a not was it her employer Freshbikes2 distinct terminated from the Arlington store. further corporation when Plaintiff (ECF No. 13, at 7). from was If Freshbikes2 and Freshbikes constitute a single employer under Title VII, however, Plaintiff may bring a claim against that single employer for retaliation. The question of Defendants single employer status has not yet been determined as discussed above; therefore, it is inappropriate to rule on the matter at the motion to dismiss stage. at 727-28 (denying a Cf. Murphy-Taylor, 968 F.Supp.2d motion to dismiss Title VII claims, including a retaliation claim, after determining that employer status is a fact-bound question better suited for summary judgment filed after discovery). For reasons stated above, Defendants motion to dismiss the Title VII and FLSA claims will be denied. C. Personal Jurisdiction 1. Standard of Review Defendants also move to dismiss Plaintiffs complaint for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). When a court s power to exercise 21 personal jurisdiction is challenged by a motion under Rule 12(b)(2), the jurisdictional question is to be resolved by the judge, with the burden on the plaintiff ultimately preponderance of to the prove grounds evidence. for jurisdiction Carefirst of Md., by Inc. a v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citation omitted). A federal district court may exercise personal jurisdiction over a non-resident defendant if (1) an applicable state long-arm statute confers jurisdiction and (2) the assertion of that jurisdiction constitutional due process. is consistent with Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir. 1993). Maryland s long-arm statute, Md.Code Ann., Cts. & Jud. Proc. § 6 103, authorizes the exercise of personal jurisdiction to the limits permitted by the Due Process Clause of the Fourteenth Amendment. See ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 710 (4th Cir. 2002); Base Metal Trading, Ltd. v. OJSC Novokuznetsky Aluminum Factory, inquiry 283 for established F.3d the 208, court minimum 212 13 is (4th whether contacts Cir. 2002). the defendant with Maryland Thus, the purposefully such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. Int l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). See 22 also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985); Base Metal Trading, Ltd., 283 F.3d at 213. 2. Analysis Defendants Freshbikes Franchising and Freshbikes Mosaic argue that they are both Virginia corporations that have never conducted business in the state of Maryland. response, Plaintiff reiterated (ECF No. 13). Freshbikes single In employer status and the existence of the store in Bethesda, Maryland. (ECF No. 19, at 7). When jurisdiction turns on disputed facts, the court may defer ruling pending receipt at trial of evidence relevant to the jurisdictional question. 676 (4th Cir. 1989). Combs v. Bakker, 886 F.2d 673, When the court, however, rules on the basis only of motion papers, supporting legal memoranda and the relevant allegations of a complaint, the burden on the plaintiff is simply to make a prima facie showing . . . in order to survive the jurisdictional challenge. Id. In deciding whether the plaintiff has met her burden, the court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the inferences for the existence of jurisdiction. most favorable Id. For the reasons discussed above, it is premature to rule on the issue of personal jurisdiction. If all four Freshbikes entities are a single employer under Title VII or a single 23 enterprise under the FLSA, personal jurisdiction is satisfied because Freshbikes2 is incorporated in Maryland sufficient minimum contacts with the jurisdiction. and has Therefore, construing all pleading allegations in the light most favorable to Plaintiff, it is inappropriate to dismiss at this time for lack of personal jurisdiction. D. Venue Transfer 1. Standard of Review Defendants U.S.C. § have 1404(a) to also moved the to Eastern transfer District venue of under Virginia. 28 A plaintiff may properly bring a federal diversity action in a judicial district in which a substantial part of the events or omissions giving 1391(a)(2). rise to the claim occurred. 28 U.S.C. § Section 1404(a) provides: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. To prevail on a motion to transfer venue under section 1404, the defendant must show by a preponderance of the evidence that the proposed transfer will better and more conveniently serve the interests of the parties and witnesses and better promote the interests of justice. Helsel v. Tishman Realty Constr. Co., 198 F.Supp.2d 710, 711 (D.Md. 2002) (internal quotation omitted). 24 See also Lynch v. Vanderhoef Builders, 237 F.Supp.2d 615, 617 (D.Md. 2002); Dicken v. United States, 862 F.Supp. 91, 92 (D.Md. 1994). In deciding a motion to transfer venue under section 1404(a), the court must weigh in the balance a number of casespecific factors. 22, 29 (1988). Stewart Org., Inc. v. Ricoh Corp., 487 U.S. The host of convenience factors a court should consider include, inter alia, (1) the plaintiff s choice of forum; (2) relative ease of access to sources of proof; (3) availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing and unwilling witnesses; . . . [and (4)] avoidance of unnecessary problems with conflicts of laws. Brown v. Stallworth, 235 F.Supp.2d 453, 456 (D.Md. 2002) (quoting Choice Hotels Int l, Inc. v. Madison Three, Inc., 23 F.Supp.2d 617, 622, n.4 (D.Md. 1998) (internal citations omitted)). The burden is on the moving party to show that transfer to another forum is proper. See Cross v. Fleet Reserve Pension Plan, 383 F.Supp.2d 852, 856 (D.Md. 2005). Ass'n In addition, deference is generally given to a plaintiff s choice of forum, CoStar Realty Info., Inc. v. Meissner, 604 F.Supp.2d 757, 773 (D.Md. 2009), and that choice should rarely be disturbed, Collins v. Straight, 748 F.2d 916, 921 (4th Cir. 1984). deference is not limitless, however, and can be overcome. Lynch, 237 F.Supp.2d at 617. 25 This See 2. Analysis All Defendants moved District of Virginia. to transfer venue to the Eastern Defendants argue that Virginia is a more appropriate forum because it is more convenient for the parties and witnesses and because a substantial part of the events giving rise to the claim occurred at a Virginia retailer. Defendants name several witnesses who reside in Virginia, and they emphasize the Virginia location of the store where most of the events giving rise to the claim occurred. 9). (ECF No. 1, at Plaintiff emphasizes that Bethesda houses another store where the alleged events occurred and that a number of witnesses live in Maryland. (ECF No. 18, convenience factor appears neutral. the interest of justice would be at 5). Therefore, the Defendants also argue that better served in Virginia because travel for witnesses would be less expensive and because there would be less delay in proceeding to trial. at 10). (ECF No. 13, Neither party would be greatly inconvenienced if the action were to continue in either forum, however, because of the close proximity between the transferor and transferee forums. Defendants arguments regarding convenience of the parties, convenience of the witnesses, ease of access to evidence, and inconvenience due to travel do not overcome their heavy burden. The facts therefore do not support a transfer of venue. 26 III. Conclusion For the foregoing reasons, the motions to dismiss and to transfer venue will be denied. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 27