The opinion of the court was delivered by: Alan C. Kay Sr. United States District Judge
ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND TRANSFERRING THE CASE TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION
For the following reasons, the Court: (1) DENIES Defendants' Motion to Dismiss on the basis of lack of personal jurisdiction; (2) DENIES Defendants' alternative Motion to Dismiss on the basis of improper venue; and (3) TRANSFERS this matter to the United States District Court for the Southern District of Texas, Houston Division.
This case arises out of Plaintiff's allegation that she was subjected to disparate treatment during her employment with Defendants. Plaintiff filed a complaint on November 9, 2011 (Doc. No. 1, the "Complaint") against defendants KBR, Inc. ("KBR") and Services Employees International, Inc. ("SEII") (together, the "Defendants"). In her Complaint, Plaintiff asserts the following causes of action: (I) violation of federal discrimination laws; (II) hostile work environment; (III) infliction of emotional distress; (IV) retaliation; (V) defamation; (VI) invasion of privacy; (VII) whistleblower's protection act; and (VIII) unlawful imprisonment. (Compl. ¶¶ 21-38.) Plaintiff seeks the following recovery: reinstatement to her employment with Defendants; all damages, including general damages for discrimination, wrongful termination, personal injury, and defamation; special damages, including back pay, front pay, and other expenses; and costs of litigation, reasonable attorney fees, and other costs and interests, including prejudgment interest. (Compl. at 16.)
On February 7, 2012, Plaintiff filed a Notice of Mailing to Defendant KBR at its last known address, which is listed as 601 Jefferson Street, Houston, Texas, 77002. (See Doc. No. 5.)
On February 17, 2012, Defendants filed a Motion To Dismiss For Lack Of Personal Jurisdiction, Or, Alternatively, For Improper Venue, Or Alternatively To Transfer Venue. (Doc. No. 6, hereinafter the "Motion to Dismiss.") In support of their Motion to Dismiss, Defendants submitted three declarations from Justin Mueller (Doc. No. 6-4), Mary Lamance (Doc. No. 6-5), and Paul Watson (Doc. No. 6-6).
Plaintiff filed a memorandum in opposition to the Motion to Dismiss on April 18, 2012. (Doc. No. 18, hereinafter "P's Opp. Mem.")*fn1 Plaintiff also submitted a declaration by Paulandrea De Leon in support of the opposition memorandum. (Doc. No. 18-1.) Plaintiff subsequently filed a First Errata to her opposition memorandum. (Doc. No. 21, hereinafter "P's Errata.") Defendants responded with a Reply Brief in support of their Motion to Dismiss on April 23, 2012. (Doc. No. 20, hereinafter "D's Reply.")
The Court held a hearing on Defendants' Motion to Dismiss on Monday, May 7, 2012, and addresses the motion herein.
II. FACTUAL BACKGROUND*fn2
This action arises out of Plaintiff's employment with Defendants as a Mechanical Assembler in Iraq, where Plaintiff contends that she was subjected to disparate treatment and ultimately terminated. (Compl. ¶¶ 8, 20(a), 20(m).) Plaintiff is a Filipino female. Id. ¶ 7. Plaintiff is and was at all relevant times a resident of Honolulu, Hawaii. Id. ¶ 1.
Defendant KBR is a foreign corporation incorporated in Delaware with its principal place of business in Houston, Texas. Id. ¶ 2; see also Mueller Decl. ¶ 3. Defendant SEII is a Cayman Island corporation headquartered in Dubai, U.A.E. that operates exclusively outside the United States. (Mueller Decl. ¶ 5.)
From October 12, 2008, through the present time, Defendants have employed no person and conducted no business in Hawaii. Id. ¶ 6. Defendants do not own, lease, possess, or maintain any personal or real property in Hawaii, including bank accounts. Id. ¶ 7.
In order to secure employment with Defendants, job applicants must apply through a website called www.kbrjobs.com. (See Watson Decl. ¶ 3.) This website allows applicants to electronically submit their resumes to a database that is reviewed and searched by company recruiters located in Houston, Texas. Id. ¶ 4. This website advertises jobs located all over the world. Id. ¶ 3. The site "does not specifically encourage Hawaiian residents to apply, does not suggest that Hawaiian residents will be given special consideration for employment, and does not make any other special effort to recruit Hawaiian residents." Id. After applicants submit an application, they "may be screened by recruiting personnel." (See Lamance Decl. ¶ 3.)
Qualified applicants are invited to travel to Houston, Texas for pre-employment screening and orientation. Id. Recruiters may contact qualified candidates by telephone or e-mail to provide important job information, including the location of the position which "could be anywhere across the globe." (Watson Decl. ¶ 4.) Candidates who agree to certain employment conditions are mailed additional information about overseas employment and are given a plane ticket to Houston if they are not within reasonable driving distance. Id. ¶ 5. Candidates do not receive any money and are informed that they will not receive any wages unless they are hired at the conclusion of testing and orientation in Houston. Id.
While she was living in Hawaii, Plaintiff applied for a job with Defendants through www.kbrjobs.com on three dates: June 25, June 28, and July 2, 2008. Id. ¶ 6; see also De Leon Decl. ¶ 5. Plaintiff received an email response from a KBR recruiter on July 28, 2008, and was invited to participate in a conference call to discuss mandatory information. (De Leon Decl. ¶ 6.) The following day, Plaintiff received an email from KBR attaching a Recruiting Packet, which she subsequently completed and faxed back to KBR as requested. Id. ¶ 7. Between August and September of 2008, Plaintiff corresponded via email with KBR representatives regarding subjects such as completion of an online background check, a "Workplace Attitude and Behavior Inventory Test," supplemental data requests, health benefits, Plaintiff's "processing date," and travel arrangements to Houston. Id. ¶¶ 8-14.
Plaintiff boarded a flight at the Honolulu airport on September 27, 2008, and arrived in Houston, Texas on September 28, 2008. Id. ¶ 15. Upon arrival, Plaintiff participated in KBR's orientation program, which lasted for approximately two weeks and took place in Houston, Texas. Id. ¶ 16. Subsequently, Plaintiff departed Houston to begin work in Iraq on October 12, 2008. (Watson Decl. ¶ 6.) Plaintiff worked exclusively in Iraq during her employment with Defendants. (Lamance Decl. ¶ 6.)
Beginning on October 12, 2008, Plaintiff was employed by Defendants as a Mechanical Assembler on the Logistics Civil Augmentation Program ("LOGCAP") III project, which supports the United States military in Iraq. Compl. ¶¶ 6, 20(a). Plaintiff alleges that during the course of her employment, supervisors employed by Defendants subjected her to "disparate treatment as compared to similarly situated non-Filipino male employees." Id. ¶ 8. Specifically, Plaintiff contends that she was sexually harassed by several of her male co-workers during her employment with Defendants in Iraq, where she was one of very few females on-site. Id. ¶ 9.
Plaintiff alleges that she made complaints of sexual harassment, hostile work environment and/or retaliation based upon inappropriate comments and/or advances made by male co-workers on three separate occasions while employed by Defendants in Iraq. Id. ¶¶ 20(c), 20(f), 20(j). However, Plaintiff alleges that these complaints resulted in no corrective action taken against the male co-workers. Id. ¶¶ 10, 14, 20(k). Instead, Plaintiff contends that shortly after filing these complaints she was either transferred to another work camp or written up for work violations just days or weeks after filing her complaints. Id. ¶¶ 11, 13, 15, 20(d), 20(e), 20(g), 20(k).*fn3
Shortly after Plaintiff was involuntarily transferred on or about August 16, 2010, just five days after reporting that a male co-worker had harassed her, Plaintiff alleges that she was falsely accused of work violations by her new foreman and terminated on November 14, 2010. Id. ¶¶ 20(l), 20(m).
Following her termination, Plaintiff discussed her discrimination claims with officials at the U.S. Equal Employment Opportunity Commission (the "EEOC"), and signed the Charge of Discrimination and retaliation (the "Charge") against Defendants on March 12, 2011. Id. ¶ 17. In the Charge, Plaintiff alleged discrimination in the terms and conditions of her employment due to her race (Filipino), sex (female), and in retaliation for complaining about discrimination and sexual harassment to her employer. Id. ¶ 19. The EEOC issued a Dismissal and Notice of Rights to Plaintiff on August 11, 2011. Id. ¶ 18.
Motion to Dismiss for Lack of Personal Jurisdiction
A motion to dismiss for lack of personal jurisdiction is governed by Federal Rule of Civil Procedure 12(b)(2). "Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate." Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). It is within the Court's discretion to allow the plaintiff to submit affidavits, allow affidavits plus discovery, or to conduct an evidentiary hearing. Data Disc., Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). When the Court rules without conducting an evidentiary hearing, "the plaintiff need only make a prima facie showing of jurisdictional facts" through the submitted materials in order to avoid dismissal.*fn4
Schwarzenegger, 374 F.3d at 800; Data Disc., 557 F.2d at 1285. In such cases, the Court only inquires into whether the plaintiff's "pleadings and affidavits make a prima facie showing of personal jurisdiction." Id. (quoting Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir. 1995)).
"In determining whether [the plaintiff] has met this burden, uncontroverted allegations in [the] complaint must be taken as true, and 'conflicts between the facts contained in the parties' affidavits must be resolved in [the plaintiff's] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists.'" Am. Tel. & Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996) (quoting WNS Inc. v. Farrow, 884 F.2d 200, 203 (5th Cir.1989)); accord Pure, Ltd. v. Shasta Bev., Inc., 691 F. Supp. 1274, 1277 (D. Haw. 1988).
Defendants assert three central bases for dismissal in their Motion to Dismiss: (1) there is no basis for the Court to exercise general or specific personal jurisdiction over the Defendants; (2) venue in this forum is improper; and (3) litigation in Hawaii would result in undue inconvenience and expense for the parties and witnesses in the action and would be counter to the interests of justice. (Mot. to Dismiss at 3-4.) For the following reasons, the Court determines that it lacks personal jurisdiction over Defendants, however it is in the interest of justice to transfer the case to the U.S. District Court for the Southern District of Texas.
A. The Court Lacks Personal Jurisdiction Over Defendants*fn5
Plaintiff bears the burden of establishing personal jurisdiction over a nonresident defendant. Schwarzenegger, 374 F.3d at 800. The Hawaii Supreme Court interprets Haw. Rev. Stat. § 634-35 as allowing jurisdiction "to the full extent permissible by the Due Process Clause of the Fourteenth Amendment." Cowan v. First Ins. Co., 608 P.2d 394, 399 (Haw. 1980); accord Robinson Corp. v. Auto-Owners Ins. Co., 304 F. Supp. 2d 1232, 1236 n. 7 (D. Haw. 2003) (citation omitted). Because Hawaii's long-arm statute reaches to the full extent permitted by the Constitution, the Court need only determine whether due process permits the exercise of personal jurisdiction. See, e.g., Schwarzenegger, 374 F.3d at 800-01.
"The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985); accord Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 269-70 (9th Cir. 1995). Due process is satisfied if the Court has "either general jurisdiction or specific jurisdiction" over the defendant. Doe v. Am. Natl. Red Cross, 112 F.3d 1048, 1050 (9th Cir.1997); Robinson Corp. v. Auto-Owners Ins. Co., 304 F. Supp. 2d 1232, 1236 (D. Haw. 2003) (citation omitted).
General jurisdiction exists only when the defendant's "activities in the state are 'substantial' or 'continuous and systematic.'" Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990) (quoting Data Disc., 557 F.2d at 1287). Courts in the Ninth Circuit have recognized that the standard for general jurisdiction "is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world." Mavrix Photo, Inc. v. Brand Techs., 647 F.3d 1218, 1224 (9th Cir. 2011) (quoting Schwarzenegger, 374 F.3d at 801). The Court of Appeals for the Ninth Circuit recently observed that the Supreme Court has only found general personal jurisdiction over a non-resident defendant in one case. See Mavrix, 647 F.3d at 1224 (discussing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952).*fn6
Numerous courts have declined to extend general jurisdiction to non-resident defendants based upon contacts that were far more substantial than those alleged in the instant action. For example, in Helicopteros Nacionales de Colombia, S.A. v. Hall, the Supreme Court held that a Colombian corporation was not subject to general jurisdiction in the state of Texas even though it had sent its CEO to Texas to negotiate a contract; sent pilots for training in Texas; sent management and maintenance personnel to Texas for technical consultation; spent more than $4 million to purchase approximately 80 percent of its fleet from a Texas supplier; and received more than $5 million in contract payments from funds drawn on a Texas bank. Mavrix, 647 F.3d at 1224 (discussing 466 U.S. 408 (1984)).*fn7 Moreover, the Ninth Circuit has held that a defendant's operation of an interactive website, even one that is "highly interactive," does not confer general jurisdiction. Mavrix, 647 F.3d at 1224.
In her opposition memorandum, Plaintiff concedes that Defendants "are
not incorporated in Hawaii and do not have continuous, systematic, and
substantial contacts with Hawaii necessary to give rise to general
personal jurisdiction." (See P's Opp. Mem. at 4.) The Court agrees.
Defendants "have employed no person and conducted no business in
Hawaii," nor have they "owned, leased, possessed or maintained any personal or real
property in Hawaii, to include bank accounts." (See Mueller Decl. ¶¶