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Davenport v. Hansaworld USA

United States District Court, Fifth Circuit

September 25, 2013



KEITH STARRETT, District Judge.

This matter is before the Court on the Defendant HansaWorld USA, Inc.'s Motion to Dismiss or, in the Alternative, to Transfer Venue [30]. Having considered the parties' submissions, the record and the applicable law, the Court finds that the motion should be denied.


Plaintiff Kimberlee Davenport asserts several federal and state law claims against her former employer, HansaWorld USA, Inc. ("HansaWorld"), in this action. Davenport was employed by HansaWorld as a sales manager through a written Contract of Employment (the "Contract") [13-4] from January of 2011 to October of 2012. Davenport worked for HansaWorld Ireland, a related entity of HansaWorld, before that time, and the Contract specifies that Davenport's "period of employment with the Company is counted from 25 May 2009." (Contract [13-4] at ¶ 1.2.) Davenport was also HansaWorld's corporate secretary prior to her termination.

It appears that HansaWorld is a software company. HansaWorld was incorporated in California in July of 2009, and maintains its principal offices in Florida. HansaWorld was registered to do business in Mississippi from February of 2010 to December of 2011. HansaWorld's filings with the Mississippi Secretary of State's ("MSOS") office identify Davenport as its registered agent for service of process in Mississippi.

Davenport alleges that HansaWorld is the alter ego and subsidiary of Defendants HansaWorld UK Ltd. and HansaWorld Ireland. Davenport further asserts that the HansaWorld companies are simply namesakes and that the companies share the same board of directors and country manager.

Defendant Karl Bohlin is an adult resident citizen of Sweden. Davenport contends that Bohlin was her direct and immediate supervisor at all times relevant to her employment with HansaWorld.

On December 13, 2012, Davenport filed suit against HansaWorld and Karl Bohlin in this Court. ( See Compl. [1].) Subject matter jurisdiction is asserted under Title 28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights). Davenport alleges that she experienced sexual harassment by officers, directors and employees of HansaWorld, and that Bohlin was the primary perpetrator of the harassment. Davenport further contends that as one of the few U.S. employees of HansaWorld, she "was often singled out and ridiculed for her national origin as being an American.'" (Compl. [1] at ¶ 15.) Davenport claims that she was wrongfully terminated after complaining to HansaWorld's board of directors about the purported sexual harassment and about HansaWorld's alleged disregard of U.S. tax and immigration laws pertaining to employee pay. Based on these and other allegations, the Complaint asserts liability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), for discrimination based on sex and national origin, retaliation, and hostile work environment. The following supplemental state law claims are also pled: defamation; malicious interference with employment; intentional and negligent infliction of emotional distress; discharge in violation of public policy; breach of contract; breach of good faith and fair dealing; and negligent supervision and training.

On March 18, 2013, HansaWorld filed its Motion to Dismiss or, in the Alternative, to Transfer Venue [6]. Davenport opposed the motion and moved to strike certain affidavits submitted by HansaWorld in support of its requested relief. On April 16, 2013, Davenport filed her Amended Complaint [28], joining HansaWorld UK Ltd. and HansaWorld Ireland as Defendants. No new causes of action are alleged in the Amended Complaint [28].

On April 23, 2013, HansaWorld filed its second Motion to Dismiss or, in the Alternative, to Transfer Venue ("Motion to Dismiss") [30]. On April 30, 2013, the Court denied HansaWorld's original dismissal motion as moot due to the filing of the Amended Complaint [28] and the second dismissal motion. ( See Order [34].) Briefing on the Motion to Dismiss [30] is now complete, with the parties having adopted and incorporated by reference their prior filings on the original dismissal motion and having presented some additional facts and arguments in support of their respective positions. As of the date of this Order, there is no indication on the Court's docket that service of process has been made on Bohlin, HansaWorld UK Ltd. or HansaWorld Ireland.


HansaWorld's Motion to Dismiss [30] seeks dismissal on the following grounds: (1) Davenport's Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because she fails to plausibly allege that HansaWorld is subject to personal jurisdiction in Mississippi; (2) Davenport has failed to establish that HansaWorld is subject to Mississippi's long-arm statute or that it has constitutional minimal contacts with Mississippi, i.e., the Court lacks personal jurisdiction over HansaWorld; and (3) venue is improper in the Southern District of Mississippi. In the alternative, HansaWorld argues that this action should be transferred to the United States District Court for the Southern District of Florida pursuant to 28 U.S.C. § 1404(a). Each of these matters will be addressed in turn.

A. Personal Jurisdiction Viewed Under Rule 12(b)(6)

The Amended Complaint asserts that "[a]t all times relevant Defendant HansaWorld was authorized to do business in the State of Mississippi by way of its Certificate of Authority." (Am. Compl. [28] at ¶ 7.) HansaWorld argues that this "conclusory allegation" fails to state a valid basis for personal jurisdiction over it, and thus, dismissal is warranted under Rule 12(b)(6). ( See HansaWorld's Mem. in Supp. of Mot. to Dismiss [31] at pp. 7-8.) HansaWorld's argument is not well taken.

Federal Rule of Civil Procedure 8 requires that a pleading stating a claim for relief include "a short and plain statement of the grounds for the court's jurisdiction...." Fed.R.Civ.P. 8(a)(1). Several authorities have found that Rule 8's jurisdictional pleading requirement only pertains to subject matter jurisdiction, and not to personal jurisdiction. See, e.g., Stirling Homex Corp. v. Homasote Co., 437 F.2d 87, 88 (2d Cir. 1971) (reversing the district court's dismissal of a complaint that failed to allege personal jurisdiction); Cox v. Sherman Capital LLC, No. 1:12cv01654, 2013 WL 1826380, at *1 (S.D. Ind. Apr. 30, 2013) ("[T]he Rules do not require that personal jurisdiction be specifically alleged in the pleadings."); Polar Molecular Corp. v. Amway Corp., No. 1:07cv460, 2007 WL 3473112, at *8 (W.D. Mich. Nov. 14, 2007) (denying the defendants' Rule 12(b)(6) motion to dismiss based on the complaint's failure to allege facts supporting the existence of personal jurisdiction); 5 Charles Alan Wright et al., Federal Practice and Procedure § 1206 (3d ed.) ("It should be emphasized that Rule 8(a)(1) only deals with subject matter jurisdiction.").

The absence of any requirement under the Federal Rules that a complaint allege grounds for personal jurisdiction is made clear by Form 7 of the Rules, which only addresses subject matter jurisdiction in its statement of jurisdiction. Furthermore, the Fifth Circuit has held that "a court is not restricted to a review of the plaintiff's pleadings" in determining personal jurisdiction, and that this issue of jurisdiction may be resolved through affidavits, oral testimony, depositions or any other form of discovery. Adams v. Unione Mediterranea Di Sicurta, 220 F.3d 659, 667 (5th Cir. 2000). Dismissal under Rule 12(b)(6) "is appropriate only if the complaint fails to plead enough facts to state a claim to relief that is plausible on its face." Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citation and internal quotation marks omitted). Since the Court may look to documents other than Davenport's Complaint in determining personal jurisdiction and since the Rules do not require the Complaint to allege grounds for the Court's exercise of personal jurisdiction, HansaWorld's reliance on Rule 12(b)(6) in support of dismissal is misplaced.

HansaWorld's citation to Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Dell, Inc. v. This Old Store, Inc., No. H-07-0561, 2007 WL 1958609 (S.D. Tex. July 2, 2007) in support of dismissal is unavailing. Ashcroft says nothing about personal jurisdiction. With all due respect to the district court in Dell, Inc., this Court is unpersuaded by the footnote discussion resulting in Dell, Inc. being required to file an amended complaint alleging sufficient foundational facts as to subject matter jurisdiction and personal jurisdiction. See 2007 WL 1958609, at *1 n.2. Accordingly, HansaWorld's first basis for dismissal is rejected.

B. Personal Jurisdiction on the Merits

"When a federal question case is based upon a federal statute that is silent as to service of process, " the district court must determine if the defendant is subject to the jurisdiction of the courts of the forum state. Aviles v. Kunkle, 978 F.2d 201, 203-04 (5th Cir. 1992) (citation omitted). Title VII, under which Davenport asserts her federal claims, is such a statute. See Willshire v. HK Mgmt., No. Civ.A. 3:04cv0090, 2004 WL 2974082, at *2 (N.D. Tex. Dec. 16, 2004) (determining if Texas courts would have jurisdiction over the defendant in ...

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