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Bruce Allen v. the M Resort

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


April 20, 2011

BRUCE ALLEN,
PLAINTIFF,
v.
THE M RESORT, LLC,
DEFENDANT.

The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge.

MEMORANDUM OPINION

Plaintiff, Bruce Allen ("Plaintiff"), a Pennsylvania resident, brought this action against the Defendant, The M Resort, LLC ("Defendant"), a Nevada limited liability company, asserting claims of sexual discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. *fn1 This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

Presently pending before the Court is the Defendant's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(3) based on a lack of personal jurisdiction and improper venue.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND

Plaintiff is a resident of Meadville, Crawford County, Pennsylvania. See ECF No. 2, Complaint ¶ 1. Defendant is a Nevada limited liability company, with its headquarters and principal place of business located in Henderson, Nevada. Complaint ¶ 2; ECF No. 9, Defendant's Motion to Dismiss Ex. A, Woodhead Aff. ¶¶ 2; 4. Defendant is a resort casino providing entertainment, gambling and spa services to clients and visitors at its facility located in Henderson, Nevada. Motion to Dismiss Ex. A, Woodhead Aff. ¶ 3. Plaintiff was employed by the Defendant as a security officer in Las Vegas, Nevada from July 31, 2008 until December 13, 2008. See ECF No. 2, Complaint ¶¶ 1; 4; 13.

Plaintiff alleges that throughout his employment with the Defendant in Nevada, it accorded preferential treatment to female security officers with respect to working conditions and failed to discipline certain female security officers for work rule violations. Complaint ¶¶ 5-7; 10-12. Plaintiff further alleges that he was subjected to a sexually hostile work environment by virtue of the conduct of a female co-worker. Complaint ¶¶ 10-12. Plaintiff claims that he was terminated in retaliation for complaining about the aforementioned conduct and/or for agreeing to testify in support of two terminated male co-workers. Complaint ¶¶ 12-13.

Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC") based upon the Defendant's alleged conduct on January 16, 2009, which was cross-filed with the Nevada Equal Rights Commission ("NERC"). See Motion to Dismiss Ex.

B. Following its investigation, the NERC found that the Plaintiff was not subject to gender discrimination or retaliation. See Motion to Dismiss Ex. C. A "right to sue" letter was issued with respect to his claims on February 24, 2010. Motion to Dismiss Ex. A, Woodhead Aff. ¶ 10. Thereafter, the Plaintiff filed the instant lawsuit pro se on May 14, 2010. Defendant filed its motion to dismiss on December 21, 2010, and the Plaintiff filed a response on January 20, 2011. See ECF No. 12, Plaintiff's Reply. This matter is now ripe for disposition. For the following reasons, the Court will transfer this action to the United States District Court for the District of Nevada, Las Vegas Division.

II. D ISCUSSION

When a defendant challenges personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), the plaintiff bears the burden of showing that personal jurisdiction exists. Marten v. Godwin, 499 F.3d 290, 295-96 (3 rd Cir. 2007). "In deciding a motion to dismiss for lack of personal jurisdiction, we take the allegations of the complaint as true. But once a defendant has raised a jurisdictional defense, a plaintiff bears the burden of proving by affidavits or other competent evidence that jurisdiction is proper." Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3 rd Cir. 1996) (internal citations omitted); see also Patterson by Patterson v. F.B.I., 893 F.2d 595, 604 (3 rd Cir.1990); D'Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3 rd Cir. 2009); O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3 rd Cir. 2007). In demonstrating that jurisdiction is proper, the plaintiff is required to establish facts with reasonable particularity. Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3 rd Cir. 1992). In addition, since personal jurisdiction is "inherently a matter which requires resolution of factual issues outside the pleadings," a plaintiff may not rely entirely on general averments in the pleadings. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n.9 (3 rd Cir. 1984). The court must consider the pleadings and affidavits in a light most favorable to the plaintiff and any discrepancies must be resolved in its favor. Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 142 n.1 (3 rd Cir.), cert. denied, 506 U.S. 817 (1992).

Federal district courts "may assert personal jurisdiction over a nonresident of the state in which the court sits to the extent authorized by the law of that state." D'Jamoos, 566 F.3d at 102 (quoting Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 436 (3 rd Cir. 1987). See also Marten, 499 F.3d at 296; O'Connor, 496 F.3d at 316. This involves a two-step inquiry whereby courts first determine whether the forum state's long-arm statute extends jurisdiction to the nonresident defendant, and secondly, whether the exercise of that jurisdiction would comport with federal due process principles. See Pennzoil Products Co. v. Colelli & Assoc., Inc., 149 F.3d 197, 2002-03 (3 rd Cir. 1998). Pennsylvania's long-arm statute permits a court to exercise jurisdiction over non-resident defendants "to the fullest extent allowed under the Constitution of the United States and [jurisdiction] may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States." 42 Pa.C.S.A. § 5322(b). Pennsylvania courts typically restrict their personal jurisdiction inquiry to the question of whether the exercise of personal jurisdiction over the nonresident defendant would be constitutional, since Pennsylvania's Long-Arm statute authorizes jurisdiction to the fullest extent permissible under the U.S. Constitution. See 42 Pa. C.S.A. § 5322(b); Renner v. Lanard Toys Limited, 33 F.3d 277, 279 (3 rd Cir. 1994) ("[T]his court's inquiry is solely whether the exercise of personal jurisdiction over the defendant would be constitutional."); Pennzoil , 149 F.3d at 200 ("A district court's exercise of personal jurisdiction pursuant to Pennsylvania's long-arm statute is therefore valid as long as it is constitutional.").

A district court may assert either general or specific jurisdiction over a non-resident defendant consistent with these due process principles. Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290, 300 (3 rd Cir. 2008); O'Connor, 496 F.3d at 317. General and specific jurisdiction are "analytically distinct categories, not two points on a sliding scale." O'Connor, 496 F.3d at 321. General jurisdiction is the broader of the two, and exists where the defendant has maintained "systematic and continuous" contacts with the forum state. Kehm Oil, 537 F.3d at 300; Marten, 499 F.3d at 296.

The contacts need not be related to the particular claim proceeding in court. Pennzoil, 149 F.3d at 199 (general jurisdiction may be asserted "regardless of whether the subject matter of the cause of action has any connection to the forum.") (citation omitted). Specific jurisdiction, which is narrower, allows for the exercise of personal jurisdiction over a non-resident defendant when the claim at issue "arises from or relates to conduct purposely directed at the forum state." Kehm Oil, 537 F.3d at 300 (citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984)); see also Mellon Bank, 960 F.2d at 1221.

Here, I find that the Plaintiff has failed to demonstrate that the Defendant has engaged in "systematic and continuous" contacts with Pennsylvania so as to allow for the exercise of general jurisdiction. The uncontroverted facts establish that the Defendant is a registered Nevada company, with its main office, headquarters and administrative offices located in Henderson, Nevada. Motion to Dismiss Ex. A, Woodhead Aff. ¶¶ 2; 4. Defendant is not licensed or registered to do business in Pennsylvania, and conducts no business in Pennsylvania. Id. at ¶ 5. Nor do I find a basis for the exercise of specific jurisdiction. It is undisputed that the alleged employment discrimination relates to and arises out of incidents which occurred solely in Nevada, and the record is devoid of any evidence demonstrating that the Defendant "purposely directed" any conduct towards Pennsylvania. In sum, I conclude that the Defendant is not subject to personal jurisdiction in Pennsylvania.

Having concluded that this Court lacks personal jurisdiction over the Defendant, the issue remains as to whether the case should be dismissed or transferred to the appropriate district. Pursuant to 28 U.S.C. § 1631, the Court has the discretion to transfer the action to the appropriate judicial district in the absence of personal jurisdiction. *fn2 See Lawman Armor Corp. v. Simon, 319 F. Supp. 2d 499, 506 (E.D.Pa. 2004) (holding that the court lacked jurisdiction over the defendant and transferring the case pursuant to § 1631); Horgos v. Regions Bank, 2009 WL 763431 at *6-7 and n.12 (W.D.Pa. 2009) (citing cases and holding that "under Third Circuit case law, this action may be transferred under § 1631 in the alternative, owing to the absence of personal jurisdiction.").

Given the Plaintiff's pro se status, I will transfer the case to the United States District Court for the District of Nevada, Las Vegas Division, rather than dismiss the matter. *fn3 Alberts v. Wheeling Jesuit University, 2009 WL 3152225 at *4 (W.D.Pa. 2009) (transferring rather than dismissing pro se complaint noting that "requiring the Plaintiff to refile his Complaint would be unduly duplicative and costly"); (citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467 (1962) (noting that "the interest of justice" may require that the complaint not be dismissed but rather that it be transferred in order to avoid "time-consuming and justice-defeating technicalities")).

III. C ONCLUSION

An appropriate Order follows.

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BRUCE ALLEN, Plaintiff, v. THE M RESORT, LLC, Defendant.

Civil Action No. 10-120 Erie

ORDER

AND NOW, to wit, this 20 th day of April, 2011;

IT IS HEREBY ORDERED that the Defendant, The M Resort, LLC's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(2) based on a lack of personal jurisdiction [ECF No. 9] is DENIED. For the reasons set forth in the accompanying Memorandum Opinion, this case is TRANSFERRED to the United States District Court for the District of Nevada, Las Vegas Division.

The Clerk of Courts is directed to transfer the case to the Clerk of the United States District Court for the District of Nevada, Las Vegas Division.

Sean J. McLaughlin United States District Judge

cm: All parties of record.


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