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Stone v. NHS Human Services

United States District Court, D. Hawaii

October 29, 2018

NHS HUMAN SERVICES, The Association for Independent Growth, Defendant.


          Leslie E. Kobayashi United States District Judge

         Before 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”).

         Defendants' 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.


         I. Plaintiff's Complaint

         On December 20, 2017, Plaintiff filed her Employment Discrimination Complaint (“Complaint”) against Defendants, who she refers to as her employers.[1] [Dkt. no. 1 at pgs. 1-2.[2] Plaintiff alleges federal question and possibly diversity jurisdiction.[3] [Id.]

         Plaintiff alleges that, between 2013 to 2014, her employer[4] implied that she was disabled and required counseling, and openly discussed Plaintiff's medical diagnoses with her.[5][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, [6]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.]

         In 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.[7] [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.]

         Plaintiff 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;[8] [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. [Id.]

         Plaintiff 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.[9][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.]

         Plaintiff 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 right-to-sue letter).]

         Plaintiff's 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.]

         II. Defendants' Motion

         The 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.]

         Defendants 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.]

         Although 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.]


         I. Materials Beyond the Pleadings

         Defendants 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)).

         The 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.

         II. Jurisdiction

         Defendants 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). ...

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