United States District Court, D. Maryland
JANISHA P. PRICE, Plaintiff,
WASTE MANAGEMENT, INC., Defendant.
ELLEN LIPTON HOLLANDER, District Judge.
Janisha Price, the self-represented plaintiff, filed suit against Waste Management, Inc. ("WMI"), defendant, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). Plaintiff alleges discrimination based on race and color as well as retaliation (ECF 1, "Complaint" or "Compl."). Pursuant to Rules 12(b)(1) and 12(b)(2) of the Federal Rules of Civil Procedure, WMI filed a motion to dismiss (ECF 7), supported by a memorandum (ECF 7-1) (collectively, the "Motion"), seeking dismissal of the Complaint based on lack of both subject matter jurisdiction and personal jurisdiction. Plaintiff opposed the Motion (ECF 10, "Opposition") and, in the alternative, has requested leave to amend. See ECF 10 at 2. Defendant replied (ECF 16, "Reply").
The issues have been fully briefed, and no hearing is necessary to resolve them. See Local Rule 105.6. For the reasons that follow, I will grant defendant's Motion, but will also grant leave to amend.
Plaintiff alleges that in September 2008, she "was hired by Waste Management" as a human resources professional. Compl. at ¶ 6. Price recounts that she "was involved in a series of investigations" of an employee named Kami Moody in March 2010, in which Price raised concerns about discrimination and retaliation. Id. Plaintiff avers that she was approached by a manager in April 2010 "about repairing [her] relationship with the individuals involved in discriminatory and retaliative [sic] behavior." Id. From April to September 2010, a manager discussed plaintiff's performance with her several times. Id. Plaintiff asserts that, prior to voicing her concerns about discrimination and retaliation, no one questioned her performance and she was never "written up or placed on a performance improvement plan, " nor was she given "a poor performance review." Id. According to plaintiff, on September 23, 2010, she "was terminated for performance within approximately six months of raising concerns about discrimination and retaliation." Id. at ¶ 4, 6.
Plaintiff filed charges with the Equal Employment Opportunity Commission ("EEOC") on September 23, 2010, id. at ¶ 9, and the EEOC issued a right-to-sue letter to Price, dated June 5, 2013. ECF 1-1; see Compl. at ¶ 10. On August 30, 2013, plaintiff filed suit against WMI, alleging unlawful termination based on race and color, and retaliation based on participation in a protected activity. Id. at ¶¶ 4-5. Plaintiff seeks back pay, reinstatement to her former position, monetary damages in the amount of $2, 500, and a "3-year employment contract training HR professionals on [T]itle VII." Id., ECF 1 at 3-4.
As noted, WMI moved to dismiss for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), and for lack of personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2). It asserts that Price was an employee of Waste Management of Maryland, Inc. ("WM-MD"), one of its subsidiaries, and not an employee of WMI. According to WMI, it lacks the requisite minimum contacts with Maryland to establish personal jurisdiction, and cannot be considered an employer under Title VII for the purpose of subject matter jurisdiction. ECF 7-1 at 1-2.
In support of its Motion, WMI has offered the Declaration of Linda Smith ("Smith Decl., " ECF 7-2), the Corporate Secretary of WMI, in which she avers that WMI is a publicly traded company incorporated under the laws of the State of Delaware, with its principal place of business in Houston, Texas. Id. at ¶ 3. Smith explains that WMI is a holding company and is an indirect shareholder and "ultimate parent company" of WM-MD, a subsidiary incorporated under the laws of Maryland. Id. at ¶ 4. Smith also asserts that WMI does not conduct, transact, or solicit business in Maryland. Id. at ¶ 7. Further, Smith avers that WMI is not qualified or licensed to do business in Maryland; it does not maintain an agent in Maryland for service of process; and it does not maintain an office, a telephone listing, or a mailing address in Maryland. Id. at ¶¶ 7-8. Smith also states that "WMI does not have employees in Maryland, " id. at ¶ 9, and that "WMI has no employees." Id. at ¶ 10. According to Smith, WM-MD employs its own personnel to conduct business in Maryland, id. at ¶ 5, and WMI has no involvement in the hiring, firing, or suspension of WM-MD employees, or in "supervising of day-to-day work activities of WM-MD employees...." Id. at ¶ 10. Nor does WMI "control or administer" any "terms or conditions of WM-MD employees" or "enforce WM-MD's employment policies...." Id. Smith maintains that "WM-MD is a separate and distinct corporate entity from WMI, " id. ¶ 6, with its own officers, directors, books, and records. Id.
WMI also submitted the Declaration of Robert Kviklys ("Kviklys Decl., " ECF 16-1), the "Vice President Human Resources Operations for WM Corporate Services, Inc." Id. at 1. He states, inter alia, that (1) "Janisha Price was an employee of Waste Management of Maryland"; (2) "No representative of Waste Management, Inc. (WMI') made employment decisions regarding Ms. Price"; and (3) "WMI had and continues to have no involvement with respect to  employment decisions affecting WM-MD employees, nor has WMI been involved in the establishment of workplace policies at WM-MD." See Kviklys Decl. at ¶¶ 3-5. Kviklys appended as an exhibit to his Declaration the letter of August 21, 2008, offering plaintiff "the position of Sr. Human Resources Manager with Waste Management of Maryland." See Ex. A, ECF 16-1. Plaintiff signed the letter on March 25, 2008, under the words "AGREED and ACCEPTED." Id.
In her Opposition, plaintiff asserts that this Court has "general jurisdiction over WMI." ECF 10 at 1. According to plaintiff, "the company website, which displays the Waste Management, Inc. emblem... recognizes and lists the Senior VP of Human Resources among its Leaders.'" Plaintiff contends that the position of "Senior VP of Human Resources" involves "company standards" for "all Waste Management subsidiary human resources departments, " including WM-MD. Id. In addition, she claims that WMI had "direct involvement" in her "employment decisions." Id. She insists that, as the parent company, WMI is liable based on respondeat superior. Id. at 2. In support of her Opposition, plaintiff provided a webpage listing "Leadership" at WMI (Ex. A, ECF 10-1); a web page containing a "Legal Notice" from WMI disclaiming liability for links to external websites (Ex. B, ECF 10-2); and email exchanges between her and Chris Drier, an individual identified in the emails as "MA Vice President" (Ex. C, ECF 10-3; Ex. D, ECF 10-4).
Standards of Review
A. Fed.R.Civ.P. 12(b)(1)
"It is well established that before a federal court can decide the merits of a claim, the claim must invoke the jurisdiction of the court." Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006). Fed.R.Civ.P. 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. See Khoury v. Meserve, 628 F.Supp.2d 600, 606 (D. Md. 2003), aff'd, 85 F.App'x 960 (4th Cir. 2004). "[A] motion to dismiss under Rule 12(b)(1) is nonwaivable and may be brought at any time-even on appeal-regardless of whether a litigant raised the issue in an initial pleading." Sucampo Pharms., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 548 (4th Cir. 2006); see Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").
A test of subject matter jurisdiction under Rule 12(b)(1) may proceed "in one of two ways": either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting "that the jurisdictional allegations of the complaint [are] not true, '" or that other facts, outside the four corners of the complaint, preclude the exercise of subject matter jurisdiction. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); see also Buchanan v. Consol. Stores Corp., 125 F.Supp.2d 730, 736 (D. Md. 2001).
In a facial challenge, "the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Kerns, 585 F.3d at 192; see also Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). In a factual challenge, on the other hand, "the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction." Kerns, 585 F.3d at 192. In that circumstance, the court "may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); Evans, 166 F.3d at 647. That is, "the court may look beyond the pleadings and the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Khoury, 268 F.Supp.2d at 606 (citation omitted).
B. Fed.R.Civ.P. 12(b)(2)
A motion to dismiss for lack of personal jurisdiction arises under Fed.R.Civ.P. 12(b)(2). "When a court's personal jurisdiction is properly challenged by a Rule 12(b)(2) motion, the jurisdictional question thus raised is one for the judge, with the burden on the plaintiff ultimately to prove the existence of a ground for jurisdiction by a preponderance of the evidence." Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). Discovery and an evidentiary hearing are not required to resolve a motion under Rule 12(b)(2). See generally 5B Wright & Miller, Federal Practice & Procedure § 1351, at 274-313 (3d ed. 2004, 2012 Supp.). Rather, the district court may address the question of personal jurisdiction as a preliminary matter, ruling solely on the basis of motion papers, supporting legal memoranda, affidavits, and the allegations in the complaint. Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009). In that circumstance, the plaintiff need only make "a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge." Id.
"In deciding whether the plaintiff has made the requisite showing, the court must take all disputed facts and reasonable inferences in favor of the plaintiff." Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 396 (4th Cir. 2003). Notably, "district courts are not required to look solely to the plaintiff's proof in drawing those inferences." Mylan Laboratories, Inc. v. Akzo, N.V., 2 F.3d 56, 62 (4th Cir. 1993). However, "[a] threshold prima facie finding that personal jurisdiction is proper does not finally settle the issue; plaintiff must eventually prove the existence of personal jurisdiction by a preponderance of the evidence, either at trial or at a pretrial evidentiary hearing.'" New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 n.5 (4th Cir. 2005) (citation omitted).
A. Motion to Dismiss for Lack of Subject ...