Carpenter v. Southern Airways Express

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JACQUELYN CARPENTER,

Plaintiff, :

Case No. 2:21-cv-568

v.

Judge Sarah D. Morrison

Magistrate Judge Chelsey M.

Vascura

SOUTHERN AIRWAYS

EXPRESS, et al., :

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of the Motion to Dismiss for

Lack of Personal Jurisdiction and Improper Venue filed by Defendants Southern

Airways Express (“SAE”), Rob McKinney, and Susan Neff. (Mot. to Dismiss, ECF

No. 9.) Plaintiff Jacquelyn Carpenter responded (Resp., ECF No. 13) and

Defendants filed their reply (Reply, ECF No. 15). This matter is ripe for

consideration. For the reasons set forth below, Defendants’ Motion is GRANTED.

I. BACKGROUND

A. Parties

Ms. Carpenter, an Ohio resident, is a former employee of SAE. (Id., ¶¶ 1, 19).

“SAE is a scheduled service commuter airline, serving nearly three dozen

cities across the United States.” (Jacobs Decl., ¶ 3, PAGEID # 61.) SAE represents

that it “is a Delaware limited liability company, and Florida is its principal place of

business.” (Mot. to Dismiss, 4–5. See also Jacobs Decl., ¶ 2.) SAE does not operate

any physical location in Ohio or provide any flights to or from Ohio. (Jacobs Decl.,

¶¶ 7, 8.)

During the time period relevant to the Complaint, Mr. McKinney, a resident

of Hawaii, was SAE’s President of Pacific Operations and Ms. Neff, a resident of

Tennessee, was SAE’s Chief Executive Officer. (Compl., ¶¶ 4–5, 9–10.).

B. Ms. Carpenter’s employment with SAE

Ms. Carpenter worked for SAE as a Customer Service Representative in the

company’s call center. (Id., ¶ 22.) SAE’s call center employees are responsible for,

inter alia, processing new and changed reservations and handling customer

inquiries. (Jacobs Decl., ¶ 5.) While the call center is a single department within

SAE, call center employees are “virtual employees who work from their own homes

across the United States. There is no brick-and-mortar” SAE call center location.

(Id., ¶ 6. See also Mot. to Dismiss, Exh. B, PAGEID # 63–66 (“JOB TITLE: Call

Center Virtual Work from Home”).) Ms. Carpenter worked from her home in Ohio.

(Compl., ¶ 14.) Though she regularly communicated with other SAE employees,

including on occasion Mr. McKinney and Ms. Neff, “[a]ll of [Ms.] Carpenter’s

contacts and interactions with SAE were virtual[;]” i.e., by telephone or email. (See

e.g., id., ¶¶ 34, 41–42, 53. See also Jacobs Decl., ¶ 5.)

C. Ms. Carpenter’s suit against Defendants

Ms. Carpenter brings suit alleging violations of federal and state employment

laws. (Compl.) Defendants now move for dismissal of all claims for lack of personal

jurisdiction and improper venue. (Mot. to Dismiss.) Because the Court finds that it

lacks personal jurisdiction over Defendants, it need not and does not address the

venue arguments.

II. STANDARD OF REVIEW

Rule 12(b)(2) provides for dismissal of a lawsuit for lack of personal

jurisdiction. Fed. R. Civ. P. 12(b)(2). The plaintiff bears the burden of proving that

jurisdiction exists, Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991),

“over each defendant independently.” Beydoun v. Wataniya Rests. Holding, Q.S.C.,

768 F.3d 499, 504 (6th Cir. 2014) (quoting Days Inns Worldwide, Inc. v. Patel, 445

F.3d 899, 904 (6th Cir. 2006)). “[I]n the face of a properly supported motion for

dismissal, the plaintiff may not stand on his pleadings but must, by affidavit or

otherwise, set forth specific facts showing that the court has jurisdiction.”

Theunissen, 935 F.2d at 1458. If a court rules on a Rule 12(b)(2) motion prior to

trial, “it has the discretion to adopt any of the following courses of action:

(1) determine the motions based on affidavits alone; (2) permit discovery, which

would aid in resolution of the motion; or (3) conduct an evidentiary hearing on the

merits of the motion.” Intera Corp. v. Henderson, 428 F.3d 605, 614 n.7 (6th Cir.

2005) (citation omitted). “[T]he decision whether to grant discovery or an

evidentiary hearing before ruling on a 12(b)(2) motion is discretionary.” Burnshire

Dev., LLC v. Cliffs Reduced Iron Corp., 198 F. App’x 425, 434 (6th Cir. 2006)

(citation omitted). Here, no party has requested further discovery or an evidentiary

hearing, and the Court concludes that neither is necessary to rule on the

Defendants’ Motion.

When a court resolves a Rule 12(b)(2) motion based on “written submissions

and affidavits . . . , rather than resolving the motion after an evidentiary hearing or

limited discovery, the burden on the plaintiff is ‘relatively slight,’ and ‘the plaintiff

must make only a prima facie showing that personal jurisdiction exists in order to

defeat dismissal.’” Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544,

549 (6th Cir. 2007) (quoting Am. Greetings Corp. v. Cohn, 839 F.2d 1164, 1169 (6th

Cir. 1988); Theunissen, 935 F.2d at 1458) (cleaned up). A plaintiff can meet the

burden by “establishing with reasonable particularity sufficient contacts between

[it] and the forum state to support jurisdiction.” Neogen Corp. v. Neo Gen Screening,

Inc., 282 F.3d 883, 887 (6th Cir. 2002) (quoting Provident Nat’l Bank v. Cal. Fed.

Sav. Loan Ass’n, 819 F.2d 434, 437 (3d Cir. 1987)). In the absence of an evidentiary

hearing, courts apply the prima facie standard weighing the evidence in the light

most favorable to the plaintiff. Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272

(6th Cir. 1998). Nonetheless, the court may consider a defendant’s undisputed

factual assertions. Conn v. Zakharov, 667 F.3d 705, 711 (6th Cir. 2012). If “there

does not appear to be any real dispute over the facts relating to jurisdiction, the

prima facie proposition loses some of its significance.” Id. (internal quotations and

citation omitted).

In support of their Motion to Dismiss, Defendants filed a sworn declaration of

Bruce A. Jacobs, Secretary/Treasurer and Chief Integration Officer at SAE.1 (Jacobs

Decl., ¶ 1.) Plaintiff has not submitted any affidavits or declarations.

III. ANALYSIS

Where, as here, jurisdiction over a case is based upon a federal question,

personal jurisdiction over a defendant exists only if (1) “the defendant is amenable

to service of process under the [forum] state’s long-arm statute” and (2) “the exercise

of personal jurisdiction would not deny the defendant[ ] due process.” Bird v.

Parsons, 289 F.3d 865, 871 (6th Cir. 2002) (internal quotation omitted) (alterations

in original).

A. Ohio’s Long-Arm Statute

“Ohio’s long-arm statute grants Ohio courts personal jurisdiction over a non-

resident if its conduct falls within the nine bases for jurisdiction listed by the

statute.” Conn, 667 F.3d at 712. Ms. Carpenter asserts that Ohio’s long-arm statute

confers personal jurisdiction over Defendants (without distinguishing SAE from the

individual Defendants), and points to one provision of the statute in particular: that

“[a] court may exercise personal jurisdiction over a person who acts directly or by an

1 Together with their Reply, Defendants also filed the sworn declaration of

Margaret Thurber, SAE’s Director of Human Resources. (ECF No. 16.) Ms.

Thurber’s declaration sets out additional facts about Ms. Carpenter’s employment

with SAE. Although Ms. Carpenter has not filed a formal objection to Ms. Thurber’s

declaration or the issues and argument newly raised in Defendants’ reply brief, the

Court declines to consider them. See Ross v. Choice Hotels Int’l, Inc., 882 F. Supp.

2d 951, 958 (S.D. Ohio 2012) (Frost, J.) (“[t]his Court has explained time and again

that ‘a reply brief is not the proper place to raise an issue for the first time’” and

collecting cases).

agent, as to a cause of action arising from the person’s [t]ransacting any business in

this state.” Ohio Rev. Code § 2307.382(A)(1). Defendants argue that they are not

subject to Ohio’s long-arm statute because they did not transact any business

within the state, did not direct any business towards Ohio, did not take any action

in Ohio, and have no connection with Ohio other than one employee’s self-selected

address. Ms. Carpenter responds that jurisdiction is proper because Defendants

knew Ms. Carpenter performed her work in Ohio and regularly directed

communications toward the state.2

Ohio’s long-arm statute:

[is] very broadly worded and permit[s] jurisdiction over nonresident

defendants who are transacting any business in Ohio. “Transact,” as

defined by Black’s Law Dictionary (5 Ed. 1979) 1341, “ * * * means to

prosecute negotiations; to carry on business; to have dealings * * *. The

word embraces in its meaning the carrying on or prosecution of business

negotiations but it is a broader term than the word ‘contract’ and may

involve business negotiations which have been either wholly or partly

brought to a conclusion * * *.” (Emphasis added.)

Kentucky Oaks Mall Co. v. Mitchell’s Formal Wear, Inc., 559 N.E.2d 477, 480 (Ohio

1990). The statute is “a broad statement of jurisdiction,” so the Supreme Court

advises that “[w]ith no better guideline than the bare wording of the statute to

establish whether a nonresident is transacting business in Ohio, [courts] must,

therefore, rely on a case-by-case determination.” U.S. Sprint Commc’ns Co. P’ship v.

Mr. K’s Foods, Inc., 624 N.E.2d 1048, 1052 (Ohio 1994).

2 Ms. Carpenter also argues that Defendants sought employees from outside

of Florida. (Resp., 8.) However, she offers no facts—sworn or otherwise—supporting

this assertion.

Considering the undisputed facts of this case, even a broad interpretation of

Ohio’s long-arm statute fails to reach Defendants. As an initial matter, Ms.

Carpenter makes no serious effort at demonstrating that either Mr. McKinney or

Ms. Neff are subject to Ohio’s long-arm statute. (See Resp., 4–6.) Absent an

argument in favor of an alternative conclusion, the Court determines that neither

Mr. McKinney nor Ms. Neff transacted business in Ohio.

Ms. Carpenter does argue that SAE transacted business in Ohio, relying

heavily on a purported “employment agreement” between herself and SAE. But she

did not produce any such agreement for the Court’s review, or explain how or why

the agreement is sufficient to establish that SAE was ‘transacting business’ in Ohio.

Ms. Carpenter further argues that SAE directed business-related phone and email

communications to her in Ohio. Ms. Carpenter was hired by SAE to work in a

remote, or “virtual,” position. She does not assert that SAE exerted any control or

expressed any preference over the location from which she worked—she could have

been in Alabama, Alaska, Arizona, or Arkansas as easily as in Ohio. SAE’s

customers were similarly ignorant and agnostic about Ms. Carpenter’s location. On

these facts, the Court cannot conclude that SAE “transacted business” in Ohio.

Ms. Carpenter’s invocation of ALTA Analytics, Inc. v. Muuss, 75 F. Supp. 2d

773 (S.D. Ohio 1999) (Marbley, J.) does not save her claims. In ALTA, an Ohio

corporation brought suit against a nonresident former employee. This Court held

that the employee was subject to service under Ohio’s long-arm statute because he

transacted business in the state—namely, he entered into a written employment

agreement that expressly provided that it was governed under Ohio law, he came to

Ohio for sales and training meetings, and he made work-related sales contracts in

Ohio. Id. at 779. These facts are wholly distinct from those now before the Court.

Ms. Carpenter has failed to show that this Court’s exercise of personal

jurisdiction over Defendants comports with Ohio’s long-arm statute.

B. Due Process Clause

Even assuming, arguendo, that Defendants were subject to service under

Ohio’s long-arm statute, the exercise of personal jurisdiction over them would not

comport with the Due Process Clause. To satisfy due process, a court’s exercise of its

power over an out-of-state defendant must “not offend ‘traditional notions of fair

play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)

(citation omitted). “[T]he defendant’s conduct and connection with the forum State

[must be] such that he should reasonably anticipate being haled into court there.”

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). The Due

Process Clause of the Fourteenth Amendment recognizes two types of personal

jurisdiction—general and specific—either one of which is adequate to confer

jurisdiction over a defendant. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564

U.S. 915, 919 (2011).

“If a court has general jurisdiction over a defendant, it can adjudicate any

claims involving that defendant, regardless of where the cause of action arose.”

Maclin v. Reliable Reports of Tex., Inc., 314 F. Supp. 3d 845, 849 (N.D. Ohio 2018).

“For an individual, the paradigm forum for the exercise of general jurisdiction is the

individual’s domicile; for a corporation, it is an equivalent place, one in which the

corporation is fairly regarded as at home[,]” such as the corporation’s place of

incorporation and its principal place of business. Goodyear, 564 U.S. at 924. General

jurisdiction may also exist over an out-of-state corporation when its contacts with

the forum state “are so continuous and systematic as to render it essentially at

home in the forum state.” BNSF Ry. Co. v. Tyrrell, 137 S. Ct.1549, 1558 (2017).

However, “[m]aintaining extensive operations within a state alone does not satisfy

the general-jurisdiction exception.” Maclin, 314 F. Supp. 3d at 849 (noting that the

Supreme Court found in BNSF Ry. Co., that, although BNSF operated one of its

automotive facilities in Montana, had more than 2,000 Montana employees, and

had more than 2,000 miles of Montana railroad tracks, it was not subject to general

jurisdiction in Montana).

“Specific jurisdiction refers to jurisdiction over claims arising from or related

to a defendant’s contacts with the forum state.” Id. The Sixth Circuit has

“promulgated a three-prong test that not only guides the determination of whether

specific jurisdiction exists, but also protects the due process rights of a defendant[:]”

First, the defendant must purposefully avail himself of the privilege of

acting in the forum state or causing a consequence in the forum state.

Second, the cause of action must arise from the defendant’s activities

there. Finally, the acts of the defendant or consequences caused by the

defendant must have a substantial enough connection with the forum

state to make the exercise of jurisdiction over the defendant reasonable.

Intera Corp., 428 F.3d at 615 (citing S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d

374, 381 (6th Cir. 1968)). “Failure to meet any one of the three prongs means that

personal jurisdiction may not be invoked.” Maclin, 314 F. Supp. 3d at 849.

Here, this Court lacks general jurisdiction over the Defendants. Ms.

Carpenter alleges that Mr. McKinney and Ms. Neff are residents of Hawaii and

Tennessee, respectively. (Compl., ¶¶ 4, 9.) Similarly, she alleges that SAE is “a

foreign-incorporated, for-profit company from the state of Florida that conducts

business within the state of Ohio.” (Id., ¶ 2.) However, as discussed, the mere

allegation that a company does business in Ohio does not confer general jurisdiction

over that company, absent a showing of operations or contacts that are “so

substantial and of such a nature as to render the corporation at home in [this]

State.” BNSF Ry. Co., 137 S. Ct. at 1558 (internal quotation marks omitted). See

also Calphalon Corp. v. Rowlette, 228 F.3d 718, 722 (6th Cir. 2000) (explaining that

“the mere existence of a contract between [the defendant] and an Ohio citizen for

seventeen months is insufficient to confer personal jurisdiction over [the

defendant]”). Ms. Carpenter has made no such showing.

Turning to specific jurisdiction, under Southern Machine, the Court first

looks to whether Defendants purposefully availed themselves of the privilege of

acting in Ohio. “In the Sixth Circuit, the emphasis in the purposeful availment

inquiry is whether the defendant has engaged in some overt actions connecting the

defendant with the forum state.” Beydoun, 768 F.3d at 605 (quoting Fortis

Corporate Ins. v. Viken Ship Mgmt., 450 F.3d 214, 218 (6th Cir. 2006)). “[T]he issue

is not the quantity, but the quality of a defendant’s contacts with the forum state.”

MAG IAS Holdings, Inc. v. Schmückle, 854 F.3d 894, 901 (6th Cir. 2017) (citations

omitted). Contacts that are “random, fortuitous, or attenuated” are not considered

to be high-quality. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). See

also Calphalon, 228 F.3d at 722 (finding that “the actual course of dealings between

the parties demonstrate[d] that [the defendant’s] contacts with Ohio were purely

‘fortuitous’ and ‘attenuated’).

To this Court’s knowledge, the Sixth Circuit has not considered the question

of personal jurisdiction over a nonresident employer of a fully-remote employee.

However, in Hall v. Rag-O-Rama, LLC, 359 F. Supp. 3d 499 (E.D. Ky. 2019), our

sister court determined that such an employer was subject to personal jurisdiction

in the remote employee’s state. In so holding, the court considered several factors,

including:

whether (1) the defendant solicited the employment of the plaintiff in

the forum state; (2) the plaintiff worked predominantly from within the

forum state; (3) the plaintiff was a high-level employee in the

defendant’s business; (4) the plaintiff signed the employment contract

in the forum state; (5) the defendant had knowledge of, and “facilitated,”

the plaintiff’s remote employment; and (6) the work the plaintiff

performed in the forum state advanced the defendant’s business

interests in the forum state.

Id. at 511 (citation omitted). Even though Rag-O-Rama did not sell merchandise or

operate stores in Kentucky, the company’s knowledge, acceptance, and support of

Ms. Hall’s desire to work in Kentucky was enough to establish minimum contacts

with the state. Id. at 510. Rag-O-Rama “aggressively sought out” Ms. Hall, while

she was in Kentucky, for an executive-level position. Id. at 510. Ms. Hall’s

arrangement to work from Kentucky “was specifically bargained for in the

negotiation of [her] employment contract.” Id. at 510. Rag-O-Rama further

supported Ms. Hall’s remote work by sending a computer, monitor, and cell phone to

her residence in Kentucky for business use. Id. at 504.

A review of case law from other circuits reveals similar, case specific

analyses. See Cossart v. United Excel Corp., 804 F.3d 13, 16 (1st Cir. 2015) (finding

that a nonresident employer purposefully availed itself of Massachusetts law where

the employer recruited a Massachusetts resident to conduct sales work in

Massachusetts with a contract stating that the work would occur in Massachusetts

and provided office equipment to use while in Massachusetts) and Stuart v. Churn

LLC, No. 1:19-CV-369, 2019 WL 2342354, at *5 (M.D.N.C. June 3, 2019) (finding

that a nonresident employer purposefully availed itself of North Carolina law where

the employer hired a North Carolina resident, reimbursed the employee’s remote

work-related phone and internet expenses, and expected the employee to expand

the business into North Carolina by meeting with distributors there). But the result

of the analysis can and does change when the facts change. For example, in Fields v.

Sickle Cell Disease Ass’n of Am., Inc., the Eastern District of North Carolina

classified an employee’s remote work, which was by her own decision and at her

request, as “a unilateral decision that cannot be fairly attributed to the defendant

as an attempt to avail itself of the privileges of conducting business in [the forum

state].” 376 F. Supp. 3d 647, 653 (E.D.N.C. 2018), aff’d, 770 F. App’x 77 (4th Cir.

2019). Similarly, the District of Maryland recently held that an employee who

conducted much of her work remotely from her Maryland home was engaged in

“’unilateral activity’ that d[id] not establish purposeful availment,” even though the

remote work was known to and supported by her employer. Perry v. Nat’l Ass’n of

Home Builders of the U.S., No. TDC-20-0454, 2020 WL 5759766, at *5 (D. Md. Sept.

28, 2020). See also Rosenberg v. Deutsche Bank AG, No. 11-02200, 2012 WL

3744632, at *5 (D. Colo. May 22, 2012), adopted by No. 11-02200, 2012 WL 3744631

(D. Colo. Aug. 28, 2012) (finding that an employee’s unilateral decision to relocate to

the forum state did not establish an employer’s minimum contacts with the state);

Phillips v. Persons Servs. Corp., No. 2:20-cv-2392-MSN-atc, 2021 WL 5277481, at *5

(W.D. Tenn. Mar. 31, 2021) (same); Sciortino v. CMG Capital Mgmt. Grp., Inc., No.

16-11012, 2016 WL 4799099, at *6 (E.D. La. Sept. 14, 2016) (finding that an

employer did not have minimum contacts with the forum state simply by hiring an

employee who worked mainly from his home in that state).

Here, a review of the facts and the Rag-O-Rama factors, compels the

conclusion that the Defendants did not purposely avail themselves of the privilege

of acting in Ohio. There is no allegation that SAE affirmatively recruited Ms.

Carpenter, asked or required her to work from Ohio, came to Ohio to meet with her,

supplied her with materials or equipment to remotely conduct her work from Ohio,

or tasked her with extending SAE’s business in Ohio. Similarly, there is no

indication that Ms. Carpenter specifically bargained for the ability to work from

Ohio. Ms. Carpenter’s unilateral decision to reside in Ohio while working in a

virtual role does not support the conclusion that Defendants engaged in any overt

actions connecting them to Ohio. Defendants’ contacts with Ohio are random,

fortuitous, and attenuated. Accordingly, this Court’s exercise of personal

jurisdiction over them would not comport with due process.

IV. CONCLUSION

Defendants’ Motion to Dismiss (ECF No. 9) is GRANTED. Ms. Carpenter’s

Complaint is DISMISSED without prejudice to refiling before the appropriate

court. The Clerk is DIRECTED to TERMINATE this case from the docket records

of the United States District Court for the Southern District of Ohio.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE