Mullaly v. Sunrise Senior Living Mgmt., Inc.

224 F.Supp.3d 117

Frances M. MULLALY, et al. Plaintiffs,

v.SUNRISE SENIOR LIVING MANAGEMENT, INC., et al., Defendants.

CIVIL ACTION NO. 16–10729–JGD

United States District Court, D. Massachusetts.

Signed December 20, 2016

Paul K. Baker, Baker & Abraham PC, Boston, MA, Robert P. Kimball, Baker Law Offices, P.C., Boston, MA, for Plaintiff.

Joseph M. Desmond, Joseph M. Fogarty, Morrison Mahoney LLP, Boston, MA, for Defendant.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND FAILURE TO STATE A CLAIM

DEIN, U.S.M.J

I. INTRODUCTION

Plaintiffs, Frances M. Mullaly and Mark F. Mullaly, husband and wife, and residents of Massachusetts (collectively, "Plaintiffs"), have brought this action against Sunrise Senior Living Management, Inc. ("Sunrise Management"), SZR Norwood, LLC ("Sunrise Norwood"), and Sunrise Senior Living, LLC ("SSL, LLC") in connection with alleged injuries Frances M. Mullaly sustained when she fell on the premises at 86 Saunders Road, Norwood, Massachusetts, a senior living community, as a result of the Defendants' alleged failure to exercise due care in maintaining the premises. (Docket No. 15 (First Amended Complaint) at ¶ 8). Mark M. Mullaly claims loss of consortium due to his wife's alleged injuries. (Id. at ¶¶ 31–36).

This matter is before the court on SSL, LLC's motion to dismiss for lack of personal jurisdiction and for failure to state a claim. (Docket No. 18). SSL, LLC argues that the claims against it must be dismissed pursuant to Fed. R. Civ. P. 12(b)(2) because it lacks sufficient contacts with Massachusetts to support this court's exercise of personal jurisdiction. Alternatively, SSL, LLC argues that Plaintiffs have failed to state a claim against it under any legal theory, and that the complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). There is no pending motion as to Sunrise Management or Sunrise Norwood. Plaintiffs oppose SSL, LLC's motion and argue that there is sufficient evidence to demonstrate that SSL, LLC is subject to the jurisdiction of this court. Alternatively, at the hearing on this matter, Plaintiffs requested that they be allowed jurisdictional discovery.

The factual record relating to the status of SSL, LLC, and its contacts with Massachusetts, is inconsistent and ambiguous. Therefore, and for the reasons that follow, this court finds that Plaintiffs should be allowed limited jurisdictional discovery. SSL, LLC's motion to dismiss for lack of personal jurisdiction and for failure to state a claim is DENIED WITHOUT PREJUDICE, subject to renewal, if appropriate, after completion of limited discovery as detailed below.

II. STATEMENT OF FACTS

Sunrise Management is a corporation duly organized and existing under the laws of the Commonwealth of Virginia, with its principal office located at 7902 Westpark Drive, McLean, Virginia, and has been registered as a foreign corporation in the Commonwealth of Massachusetts since 2003. (Docket No. 15 at ¶ 3). There is no dispute that Sunrise Management is a proper party to this action and that it is in the business of managing and operating assisted living communities, including Sunrise Norwood where Frances Mullaly allegedly sustained injuries. (Docket No. 19 (SSL, LLC's Memorandum) at 4). Sunrise Norwood is a limited liability corporation duly organized and existing under the laws of the State of Delaware, with its principal office being located at 7900 Westpark Drive, 7th Floor, McLean, Virginia, and has been registered as a foreign corporation in the Commonwealth of Massachusetts since October 28, 2005. (Docket No. 15 ¶ 4). As noted above, there is also no dispute that this court has jurisdiction over Sunrise Norwood as well.

SSL, LLC is a Delaware limited liability company with its principal place of business at 7902 Westpark Drive, in McLean, Virginia, and is the parent company of Sunrise Management. (Id ¶ 5; Docket No. 19–1 (Affidavit of Marc Roder, SSL authorized representative) at ¶¶ 3–4; Docket No. 21–15 (Sunrise Senior Living website page showing corporate headquarters for SSL, LLC)). While the Plaintiffs contend that this court has jurisdiction over SSL, LLC, that Defendant has submitted the Affidavit of Marc Roder seeking to refute Plaintiffs' jurisdictional allegations. (Docket No. 19–1). He states in relevant part that:

• SSL, LLC is the parent company to various wholly owned and separately existing subsidiary corporations. SSL, LLC's business consists of owning interests in separately existing subsidiary corporations. SSL, LLC exercises only that degree of oversight normally expected of a parent company interested in its subsidiary corporations. (Id. ¶ 4).

• SSL, LLC's principal place of business is in McLean, Virginia. SSL, LLC does not have any offices in any state other than Virginia. (Id. ¶ 5).

• SSL, LLC does not have any employees in any state other than Virginia. (Id. ¶ 6).

• SSL, LLC does not now and has not previously conducted business in Massachusetts and is not licensed or authorized to conduct business in Massachusetts. (Id. ¶ 7).

• SSL, LLC does not now and has not previously solicited business in Massachusetts or contracted to do business in Massachusetts. (Id. ¶ 8).

• SSL, LLC has not designated any agent to accept service of process in Massachusetts. (Id. ¶ 9).

• SSL, LLC has never owned or rented any property in Massachusetts. (Id ¶ 10).

• SSL, LLC has never maintained any bank accounts in Massachusetts. (Id ¶ 11).

• SSL, LLC does not and did not own, operate, manage or control the property located at 86 Saunders Road, Norwood, Massachusetts. (Id. ¶ 16).

• SSL, LLC is not and was not responsible for maintenance or repairs at the property located at 86 Saunders Road, Norwood, Massachusetts. (Id. ¶ 17).

Plaintiffs assert that Mr. Roder's affidavit is self-serving and contradicted by the documents attached to their opposition to SSL, LLC's motion. The attached documents consist of:

• Resident/General Liability Incident Report (Docket No. 21–1);

• Linked In profiles for SSL, LLC and several "Sunrise Senior Living" employees, with a hyperlink to SSL, LLC (Docket Nos. 21–2; 21–3; 21–4; 21–12);

• "Sunrise Senior Living" printed web site pages (Docket No. 21–4 through 21–11);

• Washington Post article (Docket No. 21–14); and

• the "Code of Conduct & Integrity" for "Sunrise Senior Living" (Docket No. 21–16).

As detailed below, these documents raise an issue as to whether SSL, LLC has sufficient contacts with Massachusetts and/or exerts sufficient control over Sunrise Management so that this court may properly assert jurisdiction over SSL, LLC.

According to the "Sunrise Senior Living" website, the website belongs to SSL, LLC. (Docket No. 21–9 (Copyright & Usage Statement)). Under the heading "Corporate Headquarters," for "Sunrise Senior Living," the website lists "Sunrise Senior Living, LLC, 7902 Westpark Drive, Mclean, VA 22102." (Docket No. 21–15). The website also states that "Sunrise Senior Living" has 51 employment positions (as of 6/9/2016) in Massachusetts (Docket No. 21–6 at 2), four of which are for Sunrise Norwood. (Docket No. 21–6 at 3). The website enables a job applicant to apply through the website, a prospective resident to book a tour, and a resident to "Pay Your Sunrise Bill Online." (Docket No. 21–8 at 1, 8). Sunrise Management does not have its own website.

The "Code of Conduct & Integrity" for "Sunrise Senior Living" provides:

This Code of Conduct & Integrity (this "Code") of Sunrise Senior Living, LLC and its affiliates, operating entities, and subsidiaries (collectively, "Sunrise" or the "Company") covers a wide range of business practices and procedures. Sunrise conducts business ethically, honestly and in full compliance with all laws and regulations. This applies to every business decision in every area of the Company worldwide. All Sunrise team members, officers and Members of the Board of Directors ("Board Members") must conduct themselves according to these policies and seek to avoid even the appearance of improper behavior.

(Docket No. 21–16 at 4 (emphasis omitted)).

Against this record, the court turns to SSL, LLC's motion to dismiss for lack of personal jurisdiction. Additional factual details relevant to this court's analysis are described below where appropriate.

III. ANALYSIS

"[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction)." Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp. , 549 U.S. 422, 430–31, 127 S.Ct. 1184, 1191, 167 L.Ed.2d 15 (2007). Therefore, it is appropriate to address the jurisdictional issue before reaching SSL, LLC's motion to dismiss for failure to state a claim.

A. Burden of Proof and Jurisdictional Discovery

"On a motion to dismiss for want of personal jurisdiction, the plaintiff ultimately bears the burden of persuading the court that jurisdiction exists." Astro–Med, Inc. v. Nihon Kohden Am., Inc. , 591 F.3d 1, 8 (1st Cir. 2009), and cases cited. "When a district court rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, as in this case, the ‘prima facie’ standard governs its determination." United States v. Swiss Am. Bank, Ltd. , 274 F.3d 610, 618 (1st Cir. 2001). Under this standard, Plaintiffs must "demonstrate the existence of every fact required to satisfy both the forum's long-arm statute and the Due Process Clause of the Constitution." Id. (quotations and citation omitted). Thus, to meet their burden in this case, Plaintiffs must "proffer evidence which, taken at face value, suffices to show all facts essential to personal jurisdiction." Baskin–Robbins Franchising LLC v. Alpenrose Dairy, Inc. , 825 F.3d 28, 34 (1st Cir. 2016). The court will "take the facts from the pleadings and whatever supplemental filings (such as affidavits) are contained in the record, giving credence to the plaintiff's...