United States District Court, D. New Hampshire
DiClerico, Jr. United States District Judge
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.
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
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.
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.
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.
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.
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”).
Motion to Dismiss for Lack of Personal Jurisdiction
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
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).
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, 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).
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 ...