United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
STANDARD OF REVIEW
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.
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.
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.
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).
FINDINGS OF FACTS
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
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).
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