United States District Court, D. Hawaii
ORDER DENYING DEFENDANTS' MOTION TO DISMISS
COMPLAINT AND TRANSFERRING CASE
E. Kobayashi United States District Judge
the Court is Defendants NHS Human Services
(“NHS”) and The Association for Independent
Growth's (“AIG, ” collectively
“Defendants”) Motion to Dismiss Complaint
(“Motion”), filed on May 25, 2018. [Dkt. no. 23.]
Pro se Plaintiff Nanette Stone (“Plaintiff”),
filed her memorandum in opposition on July 30, 2018, and
Defendants filed their reply on August 6, 2018. [Dkt. nos.
46, 49.] The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local
Rules of Practice of the United States District Court for the
District of Hawai`i (“Local Rules”).
Motion is hereby denied without prejudice, and the case is
transferred to the United States District Court for the
Eastern District of Pennsylvania, for the reasons below.
December 20, 2017, Plaintiff filed her Employment
Discrimination Complaint (“Complaint”) against
Defendants, who she refers to as her employers. [Dkt. no. 1 at
pgs. 1-2. Plaintiff alleges federal question and
possibly diversity jurisdiction. [Id.]
alleges that, between 2013 to 2014, her
employer implied that she was disabled and required
counseling, and openly discussed Plaintiff's medical
diagnoses with her.[Id. at pg. 8.] Plaintiff asserts
she was sexually assaulted and/or harassed on or about
February or March 2013, while at the NHS office building at
4700 Wissahickon Avenue (“Wissahickon Building”),
during a certified investigators class. An unknown man from
“AVS” sat next to her and touched her repeatedly
on the leg, and would not stop until she moved away from him.
[Id. at pgs. 6, 10.] Plaintiff alleges that, after
she reported the incident in June 2013, one of her
supervisors, Brian Hancock, threatened her in retaliation for
her report when he told her “Don't Ask, Don't
Tell” in the parking lot outside of the Wissahickon
Building. [Id. at pgs. 3, 9.]
2014, a coworker Plaintiff refers to as “Sheree”
would speak in a low voice so that Plaintiff could not hear
her, and at other times would ignore her
completely. [Id. at pg. 8.] On another
occasion, she alleges a male coworker attempted to humiliate
her in the presence of two other female coworkers, by
standing close behind her with his “frontal” near
her backside. [Id. at pg. 10.] Plaintiff also
alleges staff followed her to restrooms, break rooms,
meetings, and going to and from work. [Id. at pgs.
3, 4, 9, 10.]
believes and alleges she: was filmed on a number of occasions
by her coworkers; [id. at pg. 4;] was offered a sham
“promotion” that she perceived as a demotion from
her current position; [id.;] had a male coworker
“ram into [her] arm, ” in
retaliation; [id. at pg. 2;] had her work
sabotaged by other coworkers who infected her computer and
personal electronic devices with “malware
viruses”; [id. at pg. 8;] and received threats
from her coworkers and her superiors, [id. at pgs.
2, 3, 8]. Plaintiff alleges her pay was reduced on a date
between 2013 and 2014, which her supervisors and payroll
allegedly indicated she was “due” for.
[Id. at pg. 10.] Another coworker approached her and
implied that Plaintiff deserved the pay reduction.
resigned from NHS in August 2014. [Id. at pgs. 3,
7.] Plaintiff alleges she continued to experience negative
backlash following her resignation. Between the dates of 2014
to 2016, Plaintiff was approached by NHS staff on several
occasions in Philadelphia and Montgomery County,
Pennsylvania.[Id. at pg. 7.] On or about March
or April 2017, Plaintiff unsuccessfully applied to the
Columbia University Disability Services Department; Plaintiff
alleges NHS sabotaged her application by lying about the
quality of her work product and implying that she had been
terminated from NHS. [Id. at pg. 9.] Plaintiff
generally alleges NHS has blacklisted her from future
employment by “defaming [her] ‘good' record
of service . . . at NHS[.]” [Id. at pg. 2.]
filed a charge of discrimination with the United States Equal
Employment Opportunity Commission (“EEOC”) in
Honolulu, Hawai`i, and the EEOC issued a right-to-sue letter
to Plaintiff on October 31, 2017. [Complaint, Exh. A (EEOC
Complaint alleges employment discrimination based on her
gender (female) in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. §
2000e, et seq. [Complaint at pg. 2.] Plaintiff also
appears to allege disability discrimination, pursuant to the
Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101, et seq., in addition to unsafe
working conditions, retaliation, sexual harassment, assault,
slander, and defamation, among other unclear allegations.
[Id.] Plaintiff seeks compensation for back pay and
loss of future income, attorney's fees and costs, and any
other appropriate relief. [Id. at pgs. 5, 7.]
instant Motion asserts the Complaint should be dismissed as
this Court lacks personal jurisdiction over Defendants, who
are both Pennsylvania entities and do not conduct business in
the forum. NHS is a non-profit corporation, organized and
incorporated in the State of Pennsylvania, and currently
operating under the new name of Merakey USA. [Weitz Decl. at
¶¶ 1, 5-6.] AIG is a Pennsylvania corporation now
known as Merakey IDD Philadelphia, and is a wholly owned
subsidiary of Merakey USA. [Id. at ¶¶ 3,
7.] AIG has operations only in Pennsylvania. [Id. at
¶ 7.] NHS is a service organization that operates in
Pennsylvania, New Jersey, Virginia, New York, Maryland,
Delaware, Louisiana, and Michigan. [Id. at
¶¶ 10-11.] Defendants have employed no person and
conducted no business in Hawai`i. [Id. at
¶¶ 12, 17.] Defendants neither own/rent any
personal or real property in Hawai`i, nor do they hold any
bank accounts in Hawai`i. [Id. at ¶¶
14-16.] Defendants do not advertise or hold any licenses or
registrations to conduct business in Hawai`i. [Id.
at ¶¶ 13, 18.]
were unable to serve copies of the Motion on Plaintiff at her
residence in Honolulu, Hawai`i, but were later successful in
serving Plaintiff at her new address in Philadelphia,
Pennsylvania. [EO: Court Order Regarding Defs.' Motion to
Dismiss Complaint and Pltf.'s Duty to File a Notice
Regarding Any Change in Her Address, filed 6/14/18 (dkt. no.
33) (“6/14/18 EO”).] In the 6/14/18 EO, the Court
reminded Plaintiff that she must file a notice informing the
district court and the parties of her change of address, the
effective date of said change, and to include her telephone
and email address in the notice. Plaintiff was also reminded
that the deadline to file any opposition to the Motion was
July 2, 2018. [Id. at 2.]
Plaintiff was subsequently reminded on three separate
occasions to file a notice, Plaintiff has not done so.
See Minutes, filed 6/16/18 (dkt. no. 38); Minutes,
filed 7/2/18 (dkt. no. 39); EO: Order Vacating Hearing
Scheduled for July 23, 2018, and Resetting Hearing for August
27, 2018, at 9:45 A.M., filed 7/9/18 (dkt. no. 42).
Plaintiff's memorandum in opposition reflects her
Philadelphia, Pennsylvania address. [Mem. in Opp. at 1.]
Materials Beyond the Pleadings
have filed their Motion pursuant to Fed.R.Civ.P. 12(b)(2),
and move to dismiss the Complaint for lack of personal
jurisdiction. Generally, this Court's scope of review in
considering a motion to dismiss is limited to the allegations
in the complaint. See, e.g., Daniels-Hall v.
Nat'l Educ. Ass'n., 629 F.3d 992, 998 (9th Cir.
2010) (“[A] court may consider evidence on which the
complaint necessarily relies if: (1) the complaint refers to
the document; (2) the document is central to the
plaintiff's claim; and (3) no party questions the
authenticity of the copy attached to the 12(b)(6)
motion.” (citations and internal quotation marks
omitted)). However, “courts may ‘consider certain
materials - documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of
judicial notice - without converting the motion to dismiss
into a motion for summary judgment.'” Haw.
Reg'l Council of Carpenters v. Yoshimura, Civ. No.
16-00198 ACK-KSC, 2016 WL 4745169, at *2 (D. Hawai`i Sept.
12, 2016) (quoting United States v. Ritchie, 342
F.3d 903, 908 (9th Cir. 2003)). When, as here, the Court
considers a motion to dismiss for lack of personal
jurisdiction, the Court may consider evidence outside the
pleadings. See Wood v. Nw. Airlines, Inc., No. CV
09-00481 DAE-LEK, 2010 WL 2485946, at *2 n.2 (D. Hawai`i June
16, 2010) (citing Dole Food Co., Inc. v. Watts, 303
F.3d 1104, 1108 (9th Cir. 2002)).
Court has considered the Weitz Declaration in ruling on the
Motion. However, since Defendants seek dismissal of the
Complaint based on lack of personal jurisdiction, the Court
need not convert Defendants' motion to dismiss into a
motion for summary judgment. See id.
argue Plaintiff's Complaint should be dismissed as this
Court lacks personal jurisdiction over both nonresident
Defendants. [Motion at 2.] When faced with an attack on
personal jurisdiction, Plaintiff has the burden of
establishing that jurisdiction is appropriate. SeeSchwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800 (9th Cir. 2004). As the Court has decided to rule on
the Motion without an evidentiary hearing, Plaintiff is only
required to make a prima facie showing of
“jurisdictional facts to withstand the motion to
dismiss.” See Barranco v. 3D Sys. Corp., 6
F.Supp.3d 1068, 1076 (D. Hawai`i 2014) (citing Love v.
Associated Newspapers, Ltd., 611 F.3d 601, 608 (9th Cir.
2010); Schwarzenegger, 374 F.3d at 800). A plaintiff
may not simply rest on the bare allegations of the complaint;
however, “uncontroverted allegations in the complaint
must be taken as true, and conflicts between the parties over
statements contained in affidavits or declarations must be
resolved in the plaintiff's favor.” Id.
(citing Love, 611 F.3d at 608;
Schwarzenegger, 374 F.3d at 800). ...