United States District Court, D. Columbia
August 22, 2005.
STEVE F. ROGERS, Plaintiff,
THE WASHINGTON FAIRMONT HOTEL AND CAROLYN CLARK, Defendants.
The opinion of the court was delivered by: RICHARD LEON, District Judge
MEMORANDUM OPINION (August 15th, 2005) [# 5]
Before the Court is defendants' motion to dismiss for lack of
personal jurisdiction, failure to state a claim upon which relief
may be granted, and insufficient service of process. Steve
Rogers, the pro se plaintiff, alleges that the defendants, the
Washington Fairmont Hotel (the "Hotel") and Carolyn Clark,
violated Title VII of the Civil Rights Act of 1964 by
"tolerating" sexual harassment in his workplace. Upon
consideration of the defendants' motion, the plaintiff's
opposition, and the entire record herein, the Court GRANTS the
defendants' motion to dismiss.
The plaintiff bears the burden of establishing a factual basis
for the Court to exercise personal jurisdiction over the
defendants. Crane v. N.Y. Zoological Society, 894 F.2d 454, 456
(D.C. Cir. 1990). To exercise jurisdiction over an individual,
the plaintiff must allege specific acts connecting a defendant
with the forum. Second Amendment Foundation v. U.S. Conference of Mayors, 274 F.3d 521, 524
(D.C. Cir. 2001). If a defendant does not reside within this
Court's jurisdiction, this Court may dismiss an action against
the individual pursuant to Rule 12(b)(2) if she is not within the
reach of the D.C. long-arm statute. See FED. R. CIV.P.
12(b)(2); GTE New Media Services Inc. v. Bellsouth Corp.,
199 F.3d 1343, 1347 (D.C. Cir. 2000). To exercise jurisdiction over a
corporation, service of process must be made upon an "officer, a
managing or general agent, or to any agent authorized by
appointment or by law to receive service." FED.R. CIV.P.
12(b)(5). This Court may dismiss an action pursuant to Rule
12(b)(5) if a defendant did not receive sufficient service of
process. See Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945).
For the following reasons, this Court lacks jurisdiction over
both defendants, Ms. Clark and the Washington Fairmont Hotel.
I. Carolyn Clark
The Court lacks personal jurisdiction over Ms. Clark, in her
individual capacity, because she does not reside in the District
and is not within the reach of the D.C. long-arm statute. Service
of a summons is effective to establish personal jurisdiction over
a person only if she "could be subjected to the jurisdiction of a
court of general jurisdiction in the stat in which the district
court is located." FED.R.CIV.P. 4(k)(1)(A). Ms. Clark, who is the
Vice President of Human Resources for the Fairmont Hotel &
Resorts, resides and works in Toronto, Ontario, Canada. Def. Arg.
¶ 2; Fennerty Decl. ¶ 7. Because Ms. Clark does not live in the
District, this Court can only exercise jurisdiction over her if
her conduct falls within the D.C. long-arm statute.*fn1 See
Xiangyuan v. Fed. Hous. Fin. Bd., 2004 WL 1249788, at *2 (D.C.
Cir. June 7, 2004). The only reference to Ms. Clark in the
complaint relates to the letter that plaintiff sent to her at her
office in Toronto. Pl. Stmt. Case ¶ 4; Mot. Dismiss at 3-4.
Plaintiff failed to allege any facts that would actually place
Ms. Clark within the reach of the D.C. long-arm statute.
Accordingly, the Court dismisses the complaint against Ms. Clark
for lack of personal jurisdiction.
II. The Hotel
The Court does not have personal jurisdiction over the Hotel
because service of process was insufficient. To affect service on
the Hotel, the plaintiff sent a summons and complaint to Don
Fennerty, who is the Director of Human Resources for the Hotel in
D.C. Def. Stmt. Facts ¶ 3; Fennerty Decl. ¶ 2. Under both the
federal and local rules, service upon a corporation is valid when
it is made upon an "officer, a managing or general agent, or to
any agent authorized by appointment or by law to receive
service." FED.R.CIV.P.4(h); D.C. Superior Ct. R. 4(h).
Mr. Fennerty, however, is not an officer, managing agent, or
general agent of the Hotel, and he is not otherwise authorized to
receive service. An officer is a person "elected or appointed by the board of directors to manage the
daily operations of a corporation, such as a CEO, president,
secretary, or treasurer." Black's Law Dictionary 1117 (8th ed.
2004). As Director of Human Resources, Mr. Fennerty's duties do
not include managing the daily operations of the corporation,
Fennerty Decl. ¶¶ 2, 3; therefore, he is not an officer. In order
to be considered a "managing or general agent," a person must
have broad authority encompassing general management powers,
distinguished from an employee who acts in an inferior capacity
and acts "under the direction and control of the principal."
Black's Law Dictionary 69-70 (8th ed. 2004); see also Harris
v. Howard Univ. Inc., 28 F. Supp. 2d 1, 12 (D.D.C. 1998)
(Lamberth, J.). Mr. Fennerty performs his Human Resource duties
under the supervision of the Hotel's General Manager and does not
exercise general management powers at the Hotel. Fennerty Decl.
¶¶ 2, 3. Therefore, Mr. Fennerty is not a managing or general
agent for the Hotel.
Finally, there are no facts alleged to demonstrate that Mr.
Fennerty is authorized to receive service on behalf of the Hotel.
Thus, since Mr. Fennerty is neither an officer, managing agent,
general agent of the Hotel, nor authorized to receive service,
the Hotel was not effectively served under Rule 4(h).
Accordingly, plaintiff's suit against the Hotel is dismissed for
insufficient service of process. CONCLUSION
For the foregoing reasons, the Court grants defendants' motion
to dismiss and dismisses the action in its entirety. An order
consistent with this ruling accompanies this Memorandum Opinion.
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