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McCarthy v. Waxy's Keene, LLC

United States District Court, D. New Hampshire

August 10, 2016

Michael McCarthy and Jessica McCarthy
v.
Waxy's Keene, LLC, et al. Opinion No. 2013 DNH 133

          ORDER

          Joseph DiClerico, Jr. United States District Judge

         Michael and Jessica McCarthy bring federal and state claims against a group of restaurants, where they were formerly employed, and individuals who are employees or members of the restaurant companies or related companies. The defendants move to dismiss on the grounds that personal jurisdiction is lacking as to Waxy’s Lex, LLC and Waxy’s Mass, LLC, that neither “Waxy’s Partnership” nor “Waxy’s Pubs” exists, that the McCarthys have not alleged a viable theory of veil piercing to support the liability of Mark Rohleder and Ashok Patel, and that the McCarthys fail to state claims under the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”). The McCarthys object to the motion to dismiss.

         Background Summary

         Beginning in the summer of 2010, Michael McCarthy worked as a bartender at Waxy’s Mass. in Foxboro, Massachusetts. Michael was transferred to the Waxy’s restaurant in Keene, New Hampshire, in March of 2011 where he worked as a bartender. Jessica Paciulli, who later became Jessica McCarthy after marrying Michael, was hired as a bartender at Waxy’s Keene in March of 2011. In 2013, Michael and Jessica were appointed as co-general managers of Waxy’s Keene. The McCarthys allege that they were not properly paid for their work.

         The McCarthys complained to upper level management about the problems they perceived in their pay. They allege that management did not address their concerns and instead treated them more harshly and held them to a more demanding standard than other managers.

         In the fall, Jessica learned that she was pregnant and informed management that the baby was due in May of 2015. Jessica told Alfred Karnbach, Director of Operations, that she intended to return to work but that she might request a brief leave after the baby was born. Jessica did request leave, which was granted in early 2015. Karnbach notified the McCarthys that a new general manager would be hired for Waxy’s Keene to replace both Michael and Jessica while Jessica was out on leave. A new manager was hired in mid-May.

         Michael did bartender work during that time and by July of 2015, Michael was officially demoted to the position of bartender. When Jessica attempted to return to work, Karnbach told her that her position had changed, that she would now be required to work at night, and then that Waxy’s did not need her any more. Jessica was terminated on July 2, 2015.

         The McCarthys filed charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the New Hampshire Commission for Human Rights. Both commissions issued right-to-sue letters in January of 2016. The McCarthys also filed wage claims with the New Hampshire Department of Labor, which were dismissed without prejudice.

         In this suit, the McCarthys assert federal question jurisdiction based on their federal claims and supplemental jurisdiction over their state law claims. They bring claims that the defendants violated the Fair Labor Standards Act (“FLSA”), the New Hampshire Minimum Wage Law, the Family and Medical Leave Act (“FMLA”), Title VII of the Civil Rights Act, the New Hampshire Civil Rights Act, and the Americans with Disabilities Act (“ADA”).

         I. Motion to Dismiss for Lack of Personal Jurisdiction

         The defendants move to dismiss the claims against Waxy’s Lex, LLC and Waxy’s Mass, LLC on the ground that those entities lack sufficient contacts with New Hampshire to support personal jurisdiction. In response, the plaintiffs argue that personal jurisdiction exists over both entities because they are part of a partnership relationship with Waxy’s Keene and have other contacts with Waxy’s Keene.

         When challenged, the plaintiffs bear the burden of showing that personal jurisdiction exists over the defendants. Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., __ F.3d __, 2016 WL 3147645, at *3 (1st Cir. June 6, 2016). Because a hearing has not been held on the motion to dismiss for lack of personal jurisdiction, the prima facie standard applies. United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001). Under the prima facie standard, a plaintiff will carry his burden if he “proffer[s] evidence which, taken at face value, suffices to show all facts essential to personal jurisdiction.” Baskin-Robbins, 2016 WL 3147645, at *3. Facts offered by the defendants may be considered only to the extent they are uncontested. Mass. School of Law v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998).

         Personal jurisdiction over defendants in federal question cases depends on meeting the due process requirements of the Fifth Amendment and making service of process under Federal Rule of Civil Procedure 4(k). United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001). When, as here, a federal statute does not authorize nationwide service of process, [1]service is effective only if the defendant is subject to jurisdiction in the forum state. Fed.R.Civ.P. 4(k)(1). To make that showing, the plaintiffs must establish that the defendants meet the requirements of the forum state’s long-arm statute. Fed.R.Civ.P. 4(k)(1)(A); R & R Auction Co., LLC v. Johnson, 2016 WL 845313, at *3 (D.N.H. Mar. 2, 2016).

         New Hampshire Revised Statute Annotated section 510:4, I, the long-arm statute, provides for jurisdiction over persons who are not inhabitants of New Hampshire. New Hampshire’s long-arm statute authorizes the exercise of personal jurisdiction over a non-resident defendant to the extent permissible under the Fourteenth Amendment’s due process clause. N.H. Bank Comm’r forNoble Tr. Co. v. Sweeney,167 N.H. 27, 32 (2014); R & R Auction, 2016 WL 845313, at *3. Under the due process clause, personal jurisdiction must be based on ...


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