Bostic v. Drummond Ltd.

W. JEFFREY BOSTIC, Plaintiff, v. DRUMMOND LTD., Defendant.

Civil Action No. 2:15-12723

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON

November 14, 2016

MEMORANDUM OPINION AND ORDER

Pending is a motion to dismiss, filed by defendant Drummond Company, Inc. ("DCI") on September 1, 2015.

I. Background

Bostic filed this action on June 5, 2015, in the Circuit Court of Kanawha County claiming that DCI wrongfully discharged him on the basis of age in violation of the anti-discrimination provisions of West Virginia Code section 5-11-1 et seq. On August 26, 2015, DCI removed, invoking this court's diversity jurisdiction over the action.

Bostic is a resident of West Virginia. In his complaint he alleges that DCI is an Alabama corporation with mining operations in the country of Colombia. Pl. Compl. ¶¶ 2, 4, 6; Aff. of Curtis W. Jones ¶¶ 6, 8. In 2013, DCI hired Bostic as the "Superintendent of Highwall Mining Operations" at one of its mines in Colombia. Pl. Compl. ¶ 6. He alleges that DCI recruited him for the position through persons living in Beckley, West Virginia. Id. at ¶ 3.

"Typically, [DCI's] crew," which evidently included Bostic, "worked two weeks in Colombia before returning home for one week, and then repeated the process again." Id. ¶ 14. In March of 2015, DCI fired Bostic via telephone to Bostic at his home in West Virginia. Id. at ¶ 15. Bostic's replacement was a West Virginia resident whom Bostic had helped recruit to DCI. Id.

On September 1, 2015, DCI filed a motion to dismiss for lack of personal jurisdiction. DCI first argues that it was not Bostic's employer and that Drummond Ltd., an Alabama limited partnership and affiliate of DCI, was Bostic's actual employer. DCI also argues that Bostic has failed to allege facts sufficient to show that DCI or Drummond Ltd. purposefully availed itself of the privilege of conducting activities in West Virginia, and that, as a result, it is not constitutionally reasonable for this court to maintain jurisdiction over either party in this action. Drummond's Mem. in Supp. of Mot. to Dismiss at 2, n.2 and 5-6. Bostic responded stating that Drummond Ltd. was his employer and should be the proper defendant in the case. Bostic argues that Drummond Ltd.purposefully availed itself of the privilege of conducting activities in West Virginia through its actions within West Virginia, that his claim arises out of Drummond Ltd.'s contacts in West Virginia, and that this court's jurisdiction over his claim is constitutionally reasonable. Pl. Resp. at 6-7.

On September 22, 2016, after the motion to dismiss was fully briefed, the parties agreed that Drummond Ltd. was the proper defendant and stipulated to substitute it for DCI as the defendant in this case. See Stipulation. Although the allegations in the complaint refer to DCI, the court finds that the parties additionally intended to agree to substitute Drummond Ltd. for DCI in the allegations in the complaint inasmuch as Drummond Ltd., not DCI, was Bostic's employer. As noted, in its motion to dismiss and accompanying memorandum and reply, then defendant DCI argues that the court does not have personal jurisdiction over it or Drummond Ltd. See Drummond Mem. in Supp. of Mot. to Dismiss at 2, n. 2; see also Reply at 3, n. 1 (stating "even if this case were brought against [Bostic's] actual employer Drummond Ltd., for reasons explained in the initial memorandum, this Court also lacks personal jurisdiction over Drummond Ltd."). The court also finds that the parties intended for Drummond Ltd. to be substituted for DCI in the pending motion to dismiss and that Drummond Ltd. stillintends to pursue the motion to dismiss on the grounds that the court does not have personal jurisdiction over it, for the reasons stated in DCI's motion to dismiss, accompanying memorandum, and reply brief. Accordingly, from this point on, the court will refer to the briefing on the motion to dismiss as though it was filed by Drummond Ltd.

II. Personal Jurisdiction

"When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff ultimately bears the burden of proving to the district court judge the existence of jurisdiction over the defendant by a preponderance of the evidence." New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005) (citing Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)). "But when, as here, the court addresses the question 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 of a sufficient jurisdictional basis to survive the jurisdictional challenge." Id. (citations omitted) (citing Combs, 886 F.2d at 676, and In re Celotex Corp., 124 F.3d 619, 628 (4th Cir. 1997)); see also Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003); cf. Mitrano v. Hawes, 377 F.3d 402, 407 (4th Cir. 2004)("When a district court rules on personal jurisdiction without holding an evidentiary hearing, we view the facts in the light most favorable to the plaintiff and determine de novo whether he has made a prima facie showing of personal jurisdiction.").

To make a showing of personal jurisdiction, the nonmovant faces two hurdles. First, he must identify, and bring the nonresident within, the terms of an applicable state long-arm statute. Second, the nonmovant must show that the exercise of personal jurisdiction would be consistent with the Due Process Clause of the Fourteenth Amendment. See Consulting Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 277 (4th Cir. 2009); Mitrano, 377 F.3d at 407; English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir. 1990).

Inasmuch as our court of appeals has held that the West Virginia long-arm statute is coextensive with the proper reach of due process, In re Celotex Corp., 124 F.3d at 627, the two-part inquiry merges into one, namely, whether the exercise of personal jurisdiction over the nonresident defendant will comport with due process.¹

An exercise of personal jurisdiction comports with the Due Process Clause of the Fourteenth Amendment if "the defendant has 'certain minimum contacts with [the State] such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."'" Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923 (2011) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Milliken v. Meyer, 311 U.S. 457, 463 (1940)); Mitrano, 377 F.3d at 407; Carefirst, 334 F.3d at 396. "A defendant should be able to anticipate being sued in a court that can exercise personal jurisdiction over him; thus, to justify an exercise of jurisdiction, a defendant's actions must have been 'directed at the forum state in more than a random, fortuitous, or attenuated way.'" Mitrano, 377 F.3d at 407 (quoting ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 625 (4th Cir. 1997)). Put another way, "there must 'be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefitsand protections of its laws.'" Base Metal Trading, Ltd. v. OJSC "Novokuznetsky Aluminum Factory", 283 F.3d 208, 213 (4th Cir. 2002) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

"In examining whether the exercise of jurisdiction is reasonable, a distinction is made between specific and general jurisdiction. When the cause of action arises out of the defendant's contacts with the forum, a court may seek to exercise specific jurisdiction." Base Metal Trading, 283 F.3d at 213.

In determining whether specific jurisdiction exists, the court considers "(1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable." Mitrano, 377 F.3d at 407 (quoting ALS Scan, Inc. v. Dig. Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002) (alteration & internal quotation marks omitted)).

III. Analysis

Drummond Ltd. insists that it lacks minimum contacts with West Virginia and "has not purposefully availed itself ofthe privilege of conducting activities in West Virginia." Drummond's Mem. in Supp. of Mot. to Dismiss at 6. Further, Drummond Ltd. argues that, as a result of its lack of contacts with West Virginia, and the inconvenience of its defending a suit here, it would be constitutionally unreasonable for the court to assert jurisdiction. Id. In support of these contentions, Drummond Ltd. submitted an affidavit from Curtis W. Jones, who serves as corporate counsel and assistant secretary for DCI.

Jones avers, that Drummond Ltd., which is now the relevant defendant in this suit, "is not doing and never has done business in or been authorized to do business in West Virginia." Aff. of Jones ¶ 7. Jones further states that Drummond Ltd. "has no operations or employees in West Virginia," and that the company has no officers, directors, or offices in West Virginia. Id. He makes similar representations regarding the earlier defendant, DCI. Id. ¶ 3. The court notes, however, that Jones's affidavit does not specifically deny that DCI or Drummond Ltd. recruited employees in West Virginia. Jones states only that the companies do not "conduct business" or "do[] business" in West Virginia. The briefing submitted by defense counsel regarding this motion appears to embrace asufficiently narrow definition of "do[ing] business" that the activity of recruiting employees may not be included within it.²

Bostic responds, on the other hand, that sufficient contacts exist for the court to exercise specific jurisdiction over Drummond Ltd. Pl. Resp. at 6-7. In a sworn declaration, Bostic responded to Jones's averments by reaffirming that "[t]he allegations made in paragraphs...