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Venderbush v. Veritas Technologies LLC

United States District Court, W.D. North Carolina, Charlotte Division

July 16, 2018

LINDA VENDERBUSH, Plaintiff,
v.
VERITAS TECHNOLOGIES LLC, MORGAN MILLER, RICH PISCIELLA, RICK KRAMER, TOM KENNEDY, and CARLOS VALAREZO, Defendants.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Defendants Morgan Miller, Rich Pisciella, Rick Kramer, Tom Kenney and Carlos Valarezo's Motion to Dismiss Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(2). (Doc. No. 6). As the parties have full briefed the Motion, it is now ripe for resolution.

         I. PROCEDURAL BACKGROUND

         Plaintiff commenced this action on March 29, 2018 in Superior Court in Mecklenburg County, North Carolina. (Doc. No. 1-1). Plaintiff asserts claims for breach of contract, violation of the North Carolina Wage and Hour Act, unjust enrichment, gender discrimination under Title VII of the Civil Rights Act of 1964, and age discrimination under the Age Discrimination in Employment Act against her former employer Veritas Technologies LLC (“Veritas”). Plaintiff also asserts claims for violation of the North Carolina Wage and Hour Act (“WAHA”) against Morgan Miller, Rich Pisciella, Rick Kramer, Tom Kenney, and Carlos Valarezo (collectively, the “Individual Defendants”). Defendants removed this action to this Court on May 25, 2018. (Doc. No. 1). On June 1, 2018, the Individual Defendants moved to dismiss for lack of personal jurisdiction. (Doc. No. 6).

         II. STANDARD OF REVIEW

         “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)). However, “[w]hen a district court considers a question of personal jurisdiction based on the contents of a complaint and supporting affidavits, the plaintiff has the burden of making a prima facie showing in support of its assertion of jurisdiction.” Universal Leather, LLC v. Koro Ar, S.A., 773 F.3d 553, 558 (4th Cir. 2014) (citation omitted). Under these circumstances, a court must “assume the credibility of [the plaintiff's] version of the facts[, ]” “construe all relevant pleading allegations in the light most favorable to the plaintiff[, ]” “construe any conflicting facts in the parties' affidavits and declarations in the light most favorable to [the plaintiff, ]” and “draw the most favorable inferences for the existence of jurisdiction.” Id. at 558, 560 (citations omitted); Combs, 886 F.2d at 676.[1]

         To exercise personal jurisdiction over the defendant, personal jurisdiction “must be authorized by the long-arm statute of the forum state” and “comport with Fourteenth Amendment due process requirements.” Christian Sci. Bd. of Directors of First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001). As interpreted by the North Carolina Supreme Court, North Carolina's long-arm statute “permits the exercise of personal jurisdiction over a defendant to the outer limits allowable under federal due process.” Universal Leather, 773 F.3d at 558 (citing N.C. Gen. Stat. § 1-75.4(1)(d); Dillon v. Numismatic Funding Corp., 231 S.E.2d 629, 630 ( N.C. 1977)). Thus, instead of a two-prong test, courts sitting in North Carolina only consider “whether [plaintiff] has made a prima facie showing that [defendants] had sufficient contacts with North Carolina to satisfy constitutional due process.” Universal Leather, 773 F.3d at 559 (citations omitted); see also Cambridge Homes of N.C., L.P. v. Hyundai Constr., Inc., 670 S.E.2d 290, 295 ( N.C. Ct. App. 2008).

         A court may exercise general jurisdiction or specific jurisdiction over a defendant. Daimler AG v. Bauman, 571 U.S. 117, 126-27 (2014). “A court with general jurisdiction may hear any claim against that defendant, even if all the incidents underlying the claim occurred in a different State.” Bristol-Myers Squibb Comp. v. Superior Court of Cal., San Francisco Cnty., 137 S.Ct. 1773, 1780 (2017) (citations omitted). The “paradigm forum for the exercise of general jurisdiction is the individual's domicile[.]” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011). In contrast, for a court to have specific jurisdiction, “‘the suit' must ‘aris[e] out of or relat[e] to the defendant's contacts with the forum.'” Bristol-Myers, 137 S.Ct. at 1789 (alterations in original) (quoting Daimler, 571 U.S. at 127).

         As Plaintiff only argues the Court possesses specific jurisdiction over the Individual Defendants, the Court's inquiry is limited to this category of jurisdiction. Specific jurisdiction “focuses on ‘the relationship among the defendant, the forum, and the litigation.'” Walden v. Fiore, 571 U.S. 277, 284 (2014) (citations omitted). Courts have specific personal jurisdiction over a defendant if the defendant has “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945). To make this determination, courts consider: “(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.” Consulting Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009) (quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002)). However, the defendant's acts and conduct in the state when unrelated to the claims cannot create specific jurisdiction because specific jurisdiction requires an “affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.” Bristol-Myers, 137 S.Ct. at 1781 (quoting Goodyear, 564 U.S. at 919).

         III. FINDINGS OF FACTS

         Veritas employed Plaintiff from June 2014 until her resignation on October 18, 2016. (Doc. No. 1-1 at 5, 9). In 2016, Plaintiff worked as a Channel Territory Manager on the sell-to sales team, serving the territories of Virginia, North Carolina, and South Carolina. (Doc. No. 1-1 at 5). Miller served as Plaintiff's direct supervisor from May 2016 until her resignation in October 2016. (Doc. No. 1-1 at 2; Doc. No. 7-3 at 3-4). Veritas maintains a local office in Raleigh, North Carolina, but Plaintiff worked out of Mecklenburg County, North Carolina. (Doc. No. 1-1 at 2, 5). Miller oversaw the team responsible for the region including North Carolina. (Doc. No. 1-1 at 3). Miller traveled to North Carolina monthly, conducted business in North Carolina, and initiated communications with Plaintiff in North Carolina. (Doc. No. 1-1 at 3; see Doc. No. 7-3 at 4). Miller met with Plaintiff approximately four or five times to address issues with her sales and performance. (Doc. No. 7-3 at 4). Pisciella, as Vice President of Sales, served as Miller's direct supervisor and oversaw Veritas's eastern region, which includes North Carolina. (Doc. No. 1-1 at 3; Doc. No. 7-4 at 3). Pisciella traveled to North Carolina, conducted business in North Carolina, and initiated communications with Plaintiff in North Carolina. (Doc. No. 1-1 at 3; see Doc. No. 7-4 at 3-4). The Vice President of Channel Sales Kramer oversaw all North American channel sales. (Doc. No. 1-1 at 4; Doc. No. 7-5 at 3). Kramer directed communications to Plaintiff in North Carolina. (Doc. No. 1-1 at 4). Kennedy, the Public Sector Vice President and General Manager, conducted business in North Carolina (Doc. No. 1-1 at 4) but in the past five years, can only recall traveling to North Carolina once for business (Doc. No. 7-1 at 3). Kennedy does not oversee employees located in North Carolina but does have some contact with customers or prospective customers in North Carolina. (Doc. No. 7-1 at 3). The Senior Director of Inside Sales for the Americas Valarezo lead sales teams servicing customers across the United States and conducted business in North Carolina (Doc. No. 1-1 at 4-5; Doc. No. 7-2 at 3) but did not travel to North Carolina for business during the last thirty months of his employment with Veritas (Doc. No. 7-2 at 3).

         Pisciella and Kramer determined Plaintiff's territory. (Doc. No. 1-1 at 4; see Doc. No. 7-4 at 6; Doc. No. 7-5 at 6). All Individual Defendants were in some way involved with compensation plans or determinations. (See Doc. Nos. 1-1, 7-1, 7-2, 7-3, 7-4, 7-5). However, none had final authority on matters of compensation or sales allocation for purposes of commissions. (See Doc. No. 7-1 at 5; Doc. No. 7-2 at 5; Doc. No. 7-3 at 6; Doc. No. 7-4 at 4-5; Doc. No. 7-5 at 4-5). All Individual Defendants reside in states other than North Carolina. (See, e.g., Doc. No. 1-1).

         Veritas compensated Plaintiff in 2016 in the form of a salary and commissions pursuant to the commission plan (the “Plan”). (Doc. No. 1-1 at 5). Under the Plan, Plaintiff received higher commissions for sales revenue exceeding her 2016 target of $3, 099, 998. (Doc. No. 1-1 at 6). Plaintiff's sales revenue for 2016 totaled $4, 889, 127, which under the Plan, entitled Plaintiff to $368, 940 in commissions. (Doc. No. 1-1 at 6-7). In May or April 2016, Valarezo recognized that his team had not handled some deals with customers in Virginia made in March 2016 and informed Kennedy, the Vice President of Veritas, that Valarezo's team should not have applied for the commissions based on these sales. (Doc. No. 7-2 at 6). In or about May 2016, Kennedy moved sales revenue attributed to Plaintiff to a male employee, reducing Plaintiff's commission by $245, 740. (Doc. No. 1-1 at 7; see generally Doc. No. 7-1 at 5). When Plaintiff learned of this transfer, she contacted Miller, Pisciella, Kramer, Valarezo, and another member of management to report the problem. (Doc. No. 1-1 at 7). In response, Miller in an email to Pisciella conveyed the problem of the transferred sales revenue and indicated that the transfer was contrary to the Plan and Veritas's past practice. (Doc. No. 1-1 at 8; see Doc. No. 7-3 at 6-7, 9-14). Defendants Pisciella and Kramer did not respond to Plaintiff's inquiry. (Doc. No. 1-1 at 8; see Doc. No. 7-4 at 6-8; Doc. No. 7-5 at 7). Meanwhile Defendant Valarezo threatened Plaintiff's colleagues with termination if they advocated for Plaintiff. (Doc. No. 1-1 at 8). Plaintiff appealed Veritas's decision but was unsuccessful. (Doc. No. 1-1 at 8, 9). Appeals are handled by the Geography Compensation Exception Committee (“Committee”). (See, e.g., Doc. No. 7-5 at 5). None of the Individual Defendants are members ...


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