United States District Court, E.D. North Carolina, Southern Division
ORDER
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE.
This
cause comes before the Court on defendant's motion to
dismiss or, in the alternative, transfer venue to the United
States District Court for the Eastern District of Virginia.
[DE 1');">11');">1]. The matter has been fully briefed and is ripe for
disposition. For the reasons that follow, defendant's
motion to dismiss [DE 1');">11');">1] is GRANTED and this action is
DISMISSED for lack of personal jurisdiction.
BACKGROUND
Defendant,
DynCorp International LLC ("DynCorp"), is a
"government services provider that supports U.S.
national security and foreign policy objectives by delivering
support solutions for defense, diplomacy and international
development." [DE 1');">12');">1');">12, 1');">1');">p. 1');">1]. DynCorp is incorporated in
Delaware but is headquartered in and maintains its primary
place of business in McLean, Virginia. Id. DynCorp
employs more than 1');">13, 000 people in 27 countries.
Id. at 2. 1');">1, 1');">18 of those employees work in North
Carolina at DynCorp's offices at Fort Bragg and Elizabeth
City. Id.
Plaintiff,
Mr. Timothy Hughes, is a former DynCorp employee. He worked
for DynCorp from 201');">12');">1');">12 to 201');">17 as a Security Specialist and
Coordinator at U.S. military bases in Afghanistan. [DE 1');">1,
¶ 3; DE 1');">12');">1');">12-1');">1, p. 2');">p. 2]. Over the course of his employment
with DynCorp, plaintiff signed several Foreign Service
Employment Agreements ("FSAs"). [DE 1');">12');">1');">12-1');">1, p. 2');">p. 2].
Plaintiff signed the first FSA in November 201');">12');">1');">12 in Texas.
Id. Upon his rehiring, plaintiff signed a new
1');">12');">1');">12-month FSA in January 201');">15. Id. Plaintiff and
DynCorp renewed the January 201');">15 FSA twice, with the second
renewal occurring in November 201');">16. Id. DynCorp
asserts that it emailed the renewal to plaintiff- who was
working in Afghanistan at the time-on November 25, 201');">16, and
plaintiff returned the signed FSA the following day.
Id. at 2-3. DynCorp claims, however, that plaintiff
had secretly altered five provisions in the FSA without
informing DynCorp. Id. at 3.
In
August 201');">17, plaintiff left DynCorp prior to the completion
of his most recent FSA in order to attend reserve officer
training with the U.S. Marine Corps. [DE 1');">1, ¶ 9; DE
1');">12');">1');">12-1');">1, p. 3]. Plaintiff intended to return to work for
DynCorp, but in October 201');">17 he was informed that he was
ineligible for re-hire. [DE 1');">1, ¶¶ 6-1');">12');">1');">12]. Plaintiff
asserts that DynCorp informed him that he was not eligible
for re-hire because his departure in August 201');">17 had not been
compliant with the Uniformed Services Employment and
Reemployment Rights Act (USERRA), 38 U.S.C. §§
4301');">1, et seq. [DE 1');">1,' ¶ 1');">12');">1');">12]. DynCorp claims
that plaintiff was ineligible because it had discovered that
he had fraudulently modified the terms of his most recent
FSA. [DE 1');">12');">1');">12-1');">1, p. 3].
Plaintiff
contacted a USERRA investigator to complain. [DE 1');">1, ¶
1');">13]. Plaintiff alleges that DynCorp informed the investigator
that USERRA did not apply to plaintiff because he was an
overseas employee, but the investigator advised that USERRA
did apply to overseas employees. Id.¶lA.
Plaintiff alleges that DynCorp then informed the investigator
that plaintiffs "USERRA claim was being denied because
[DynCorp] learned that [plaintiff] had made changes to his
employment contract." Id. ¶ 1');">15. DynCorp
allegedly told the investigator that it "would honor
USERRA's requirement to re-employ[] [plaintiff] but that
he would then be terminated, immediately because of the
contract issue." Id. ¶ 1');">16. Plaintiff
alleges that DynCorp advised that, unless he "drop[ped]
his USERRA claim," his personnel file would be modified
to reflect a termination rather than a resignation, which
would negatively affect plaintiffs ability to secure
employment with another government contractor. Id.
¶¶ 1');">17-1');">18. Because he "wished to continue
working for government contractors in Afghanistan,"
plaintiff withdrew his USERRA claim. Id.
¶¶ 21');">1-22.
In
March 201');">19, plaintiff initiated this action, asserting a
single cause of action against DynCorp for allegedly
violating USERRA. [DE 1');">1]. Specifically, plaintiff claims that
he "was refused re-employment and retaliated against for
making a USERRA claim," and that DynCorp
"attempt[ed] to prevent [him] from exercising his rights
under USERRA and . . . threatened] to alter employment
documents if he continued with his USERRA claim." [DE 1');">1,
¶¶ 22-26].
DynCorp
has moved to dismiss plaintiffs complaint under Federal Rule
of Civil Procedure 1');">12');">1');">12(b)(2) for lack of personal jurisdiction
or, in the alternative, to transfer the case under 28 U.S.C.
§ 1');">1404(a) to the United States District Court for the
Eastern District of Virginia. [DE 1');">11');">1]. DynCorp first argues
that this Court lacks personal jurisdiction over it because
its headquarters and principal place of business are in
Virginia and it has only a "very limited presence in
North Carolina" and the "facts do not support an
exercise of personal jurisdiction by North Carolina courts
over [DynCorp] in this matter." [DE 1');">12');">1');">12, p. 3-4]. DynCorp
next argues that plaintiffs most recent FSA, signed in
November 201');">16, governs the employment relationship at issue
in this matter and includes an exclusive forum-selection
clause requiring disputes to be resolved in the Eastern
District of Virginia. [DE 1');">12');">1');">12, p. 4; see DE 1');">12');">1');">12-1');">1, p.
26-27].
Plaintiff
has responded in opposition to dismissal, arguing that this
Court does have specific personal jurisdiction over DynCorp
and that transfer is inappropriate given the venue provisions
in USERRA. [DE 1');">13].
DISCUSSION
Defendant
argues that the instant suit must be dismissed under Federal
Rule of Civil Procedure 1');">12');">1');">12(b)(2). A suit may be dismissed
under Rule 1');">12');">1');">12(b)(2) if a court lacks personal jurisdiction.
Fed.R.Civ.P. 1');">12');">1');">12(b)(2). "When 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. 201');">14).
District courts must view the allegations in the light most
favorable to the plaintiff and draw inferences in favor of
finding jurisdiction. Combs v. Bakker, 886 F.2d 673,
676 (4th Cir. 1');">1989).
In his
response, plaintiff argues only that this Court possesses
specific, rather than general, jurisdiction over DynCorp.
Federal courts may exercise specific jurisdiction over a
nonresident defendant if (1');">1) "such jurisdiction is
authorized by the long-arm statute of the state in which the
district court sits" and (2) "application of the
long-arm statute is consistent with the Due Process Clause of
the Fourteenth Amendment." Universal Leather, LLC v.
Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 201');">14). Here,
the Court must look to North Carolina's long-arm statute,
N.C. Gen. Stat. § 1');">1-75.4, which permits courts to
exercise jurisdiction to the "outer limits allowable
under federal due process." Dillon v. Numismatic
Funding Corp., 1');">1 S.E.2d 629');">231');">1 S.E.2d 629, 630 ( N.C. 1');">1977). To
determine whether the exercise of jurisdiction over a
defendant comports with the Due Process Clause, courts must
consider "(1');">1) the extent to which the defendant
purposefully availed itself of the privilege of conducting
activities in the forum state; (2) whether the plaintiffs
claim [arose] out of those activities; and (3) whether the
exercise of personal jurisdiction's constitutionally
reasonable." Universal Leather, 773 F.3d at 559
(citing Tire Eng'g v. Shandong Linglong Rubber
Co., 682 F.3d 292, 302 (4th Cir. 201');">12');">1');">12)) (alteration in
original).
Specific
jurisdiction requires courts to focus "on the
relationship among the defendant, the forum, and the
litigation." Walden v. Fiore,1');">1 U.S. 277');">571');">1 U.S. 277,
283-84 (201');">14) (internal quotations omitted). To meet the
third requirement, that personal jurisdiction be
constitutionally reasonable, "the defendant's
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