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Vasquez v. Whole Foods Market, Inc.

United States District Court, District of Columbia

February 9, 2018

VICTOR VASQUEZ, et al., Plaintiffs,
v.
WHOLE FOODS MARKET, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          AMIT P. MEHTA, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiffs Victor Vasquez, Nadeem Sheikh, Katia Sadoudi, Svetlana Bautista, Ibrahima Ba, Nicholas Miano, Pa M. Njie, Michael Amegnaglo, and David Berger (collectively, “Plaintiffs”) are former Store Team Leaders for various Whole Foods grocery stores in the Washington, D.C., metropolitan area. They bring this action against Defendants Whole Foods Market, Inc. (“WFMI”), Whole Foods Market Group, Inc. (“WFM Group”), Whole Foods Market Services, Inc. (“WF Services”), and Whole Foods spokeswoman Brooke Buchanan (collectively, “Defendants” or “Whole Foods”), alleging that they were terminated in retaliation for blowing the whistle on the improper manner in which Whole Foods conducted its “Gainsharing” program, a bonus program designed to incentivize individual grocery store departments to operate under budget by sharing cost savings with employees. Plaintiffs also assert that, following their terminations, Defendants falsely accused them through published news stories of manipulating the Gainsharing program for their own benefit.

         Before the court are the following motions: (1) Defendants' Motion to Dismiss Plaintiffs' Amended Complaint; (2) Plaintiffs' Motion for Leave to File Second Amended Complaint; and (3) Defendants' Motion to Stay. For the reasons herein, the court grants in part and denies in part Defendants' Motion to Dismiss. The court dismisses all claims against all Defendants, except Plaintiffs' claims for defamation and false light invasion of privacy, which may proceed against WFM Group and WF Services only. Additionally, the court grants Plaintiffs' Motion to File a Second Amended Complaint and denies Defendants' Motion to Stay as moot.

         II. BACKGROUND

         A. Factual Background

         Each of the nine Plaintiffs in this action worked as a Store Team Leader-the highest level of leadership at a store location-for a Whole Foods grocery store in the Washington, D.C., metropolitan area before his or her termination in December 2016. Am. Compl., ECF No. 11, ¶ 24. During Plaintiffs' employment, Whole Foods used a profit-sharing program-what Whole Foods referred to as its “Gainsharing” program-in its stores to incentivize department productivity and revenue. Id. ¶ 28. Under the program, Whole Foods awarded bonuses to employees whose departments performed under budget by distributing the surplus savings among the employees in that department. Id.

         According to Plaintiffs, Whole Foods' corporate leadership undermined the Gainsharing program by imposing a nationwide scheme of “shifting” labor costs. Id. ¶ 29. Under this practice, if a department came in over budget, Whole Foods corporate leadership instructed store leadership-including Store Team Leaders-to “shift” the labor costs of that department to a department that had a budget surplus. Id. Payroll Specialists at each Whole Foods store then effectuated labor cost shifting by manually altering employee time records and submitting the manipulated records to corporate headquarters for payroll processing. Id. ¶ 33. As a result of this practice, the Gainsharing bonuses owed to employees of departments that performed under budget were reduced by the costs unlawfully “shifted” to those departments. Id. ¶ 29. Plaintiffs allege that Whole Foods corporate leadership imposed this practice of “shifting” labor costs in every Whole Foods grocery store to steal bonuses earned by employees and pad company profits. Id. ¶ 30.

         In October 2016, a Whole Foods employee from the Mid-Atlantic region submitted an anonymous complaint to Whole Foods' employee tip line, complaining that he or she did not receive the proper Gainsharing bonus because labor costs had been shifted from another department to the employee's department. Id. ¶ 34. Whole Foods thereafter launched an investigation into this complaint. According to Plaintiffs, however, the investigation was a sham. Its true goal was “to concoct support for Whole Foods' pre-determined outcome that the ‘shifting of labor costs' was limited to the store complained about” in the anonymous tip. Id. ¶ 35.

         In early November 2016, Whole Foods investigators interviewed each Plaintiff about the Gainsharing program implemented in his or her respective store. Each Plaintiff explained that shifting labor costs was a standard practice throughout Whole Foods stores and some Plaintiffs stated they received explicit instructions from corporate officials to do so. Am. Compl. ¶¶ 35- 37. After these meetings, Plaintiffs were immediately placed on administrative leave. Am. Compl. ¶ 37.

         Soon thereafter, Plaintiffs were fired. On November 30, 2016, Plaintiffs were instructed to meet at Whole Foods' regional office on the following day. Am. Compl. ¶ 38. Each Plaintiff met individually with Regional President Scott Allshouse, Regional Vice-President Nicole Wescoe, and Human Resources Executive Coordinator David Gearhart. Each Plaintiff was terminated, purportedly (according to Whole Foods) for shifting labor costs and falsifying documents in violation of company policy. Id.

         The firings made the news. On December 13, 2016, the Associated Press reported in an article titled “Whole Foods Fires 9 Store Managers Over Bonus Manipulation” that nine store managers of Whole Foods stores in Maryland, Virginia, and the District of Columbia were dismissed after a company-wide investigation determined that the managers “engaged in a policy infraction that allowed the managers to benefit from a profit-sharing program at the expense of store employees.” Defs.' Mot. to Dismiss, ECF No. 12 [hereinafter Defs.' Mot], Ex. C-2, ECF No. 12-7 [hereinafter AP Article]. The Associated Press article attributed Whole Foods' statements and details about the investigation to Defendant Brooke Buchanan, a spokeswoman for Whole Foods. Two days later, The Washington Post published a news article titled “Whole Foods Fires Managers in Md., Va., and D.C. for Manipulating Bonus System.” Defs.' Mot., Ex. C-3, ECF No. 12-8 [hereinafter Washington Post Article]. In the article, Whole Foods confirmed that nine managers of Whole Foods stores in Maryland, Virginia, and the District were fired for manipulating a store bonus program. Washington Post Article, at 1. Whole Foods stated that the conduct was still under investigation but was isolated to a relatively small number of its 457 stores. Speaking on behalf of Whole Foods, Brooke Buchanan stated that “[Whole Foods] took swift action, but, relative to the rest of company, this manipulation only happened in nine of our locations.” Id.

         B. Procedural Background

         Plaintiffs filed this action in the Superior Court for the District of Columbia on December 20, 2016, and Defendants removed the case to this court on January 17, 2017. See Notice of Removal, ECF No. 1. Plaintiffs' Amended Complaint asserts the following claims: (1) wrongful termination and retaliation for whistleblowing against all Defendants except Buchanan (Count I); (2) wrongful termination and retaliation for whistleblowing as to Plaintiff Bautista only against all Defendants except Buchanan (Count II); (3) breach of contract and breach of the duty of good faith and fair dealing against all Defendants except Buchanan (Count III); (4) defamation as to all Defendants (Count IV); and (5) false light invasion of privacy as to all Defendants (Count V). Am. Compl. ¶¶ 49-91.

         Defendants moved to dismiss the Amended Complaint on April 3, 2017. Defs.' Mot. Defendants WFMI, WF Services, and Buchanan moved to dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction, and, in the alternative, for failure to state a claim pursuant to Rule 12(b)(6). Defs.' Mot. at 1 n.1. WFM Group moved to dismiss the complaint solely under Rule 12(b)(6). Id. Plaintiffs opposed Defendants' Motion and simultaneously sought leave from the court to amend their Amended Complaint to add a whistleblower retaliation claim under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 15 U.S.C. § 78u-6, against all Defendants except Buchanan. Pls.' Mem. in Opp'n. to Defs.' Mot., ECF No. 17 [hereinafter Pls.' Opp'n]; Pls.' Mot. for Leave to File a Second Am. Compl., ECF No. 16 [hereinafter Pls.' Mot. to Am.]. Defendants subsequently moved the court to stay consideration of Plaintiffs' Motion to Amend until the court ruled on the pending Motion to Dismiss. Defs.' Mot. to Stay Consideration of Pls.' Mot. to Am., ECF No. 21 [hereinafter Defs.' Mot. to Stay].

         The parties' motions are now ripe for consideration.

         III. LEGAL STANDARD

         Upon a motion to dismiss under Rule 12(b)(2), the plaintiff bears the burden of establishing a factual basis for personal jurisdiction. Crane v. N.Y. Zoological Soc., 894 F.2d 454, 456 (D.C. Cir. 1990)). A plaintiff can survive a motion to dismiss if she makes a “prima facie” showing of personal jurisdiction. Edmond v. U.S. Postal Serv. General Counsel, 949 F.2d 415, 424 (D.C. Cir. 1991). “[T]o establish a prima facie case, plaintiffs are not limited to evidence that meets the standards of admissibility required by the district court. Rather, they may rest their argument on their pleadings, bolstered by such affidavits and other written materials as they can otherwise obtain.” Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005). The court resolves all factual discrepancies in the record in favor of the plaintiff. See Crane, 894 F.2d at 456.

         When evaluating a motion under Rule 12(b)(6), the court “construe[s] the complaint ‘in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.'” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). The court need not accept as true, however, “a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         IV. DISCUSSION

         A. Personal Jurisdiction

         Before turning to the legal sufficiency of Plaintiffs' allegations, the court begins, as it must, by determining whether it can exercise personal jurisdiction over Defendants Brooke Buchanan, WFMI, and WF Services.[1] E.g., Forras v. Rauf, 812 F.3d 1102, 1105 (D.C. Cir. 2016). Personal jurisdiction takes two forms: (1) “general or all-purpose jurisdiction” or (2) “specific or case-linked jurisdiction.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). General jurisdiction exists where a defendant's contacts with the forum state are sufficiently “continuous and systematic, ” such that the defendant is “essentially at home” in the forum. See Id. For individuals, “the paradigm forum for the exercise of general jurisdiction is the individual's domicile.” Id. at 924. For corporations, “it is an equivalent place, one in which the corporation is fairly regarded as at home, ” id., namely “the place of incorporation and principal place of business, ” Daimler AG v. Bauman, 134 S.Ct. 746, 760 (2014). In this case, Plaintiffs do not contend that the court has general jurisdiction over any of the corporate Defendants or Buchanan. See Pls.' Opp'n at 6 (conceding lack of general jurisdiction). Thus, the parties dispute whether exercising specific jurisdiction over these Defendants (except WFM Group, see n. 1, supra) is appropriate.

         Specific jurisdiction is case specific. “In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.” Goodyear, 564 U.S. at 919 (citation omitted). Stated differently, specific jurisdiction exists if a claim is related to or arises out of the non-resident defendant's contacts with the forum. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984).

         A plaintiff seeking to establish specific jurisdiction over a non-resident defendant must make two showings. She must “establish that specific jurisdiction comports with the forum's Superior Court of Cal., San Francisco Cty., 137 S.Ct. 1773 (2017). See Order, ECF No. 25. In their response, WFM Group asserted for the first time that the court lacked personal jurisdiction as to it, as well, except as to one Plaintiff's claims. See Defs.' Suppl. Br. Regarding Personal Jurisdiction, ECF No. 26. The court, however, declines to consider WFM Group as having asserted a personal jurisdiction defense since the court raised the question of Bristol-Myer's application sua sponte. See Kapar v. Kuwait Airways Corp., 845 F.2d 1100, 1105 (D.C. Cir. 1988) (holding that district court committed error when it sua sponte dismissed claims against a defendant for lack of personal jurisdiction). Accordingly, only the sufficiency of Plaintiffs' pleading against WFM Group is at issue. long-arm statute, D.C. Code § 13-423(a), and does not violate due process.” FC Inv. Group LC v. IFX Markets, Ltd., 529 F.3d 1087, 1094-95 (D.C. Cir. 2008). As pertinent to this case, the District of Co lumbia's long-arm statute provides that specific jurisdiction exists if the claim against the non-resident defendant arises from the defendant's:

(1) transacting any business in the District of Columbia;
(2) contracting to supply services in the District of Columbia;
(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;
(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if the defendant regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia; [or]
(5) having an interest in, using, or possessing real property in the District of Columbia[.]

D.C. Code § 13-423(a)(1)-(5). Even if plaintiff satisfies one of these prongs, due process supplies a “constitutional check” and “sets the outer boundary” for the court's jurisdiction. Crane, 814 F.2d at 762. Whether due process is satisfied depends on weighing “the facts of each case . . . against notions of fairness, reasonableness and substantial justice.” Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 329 (D.C. 2000). Thus, the propriety of subjecting a defendant to a court's jurisdiction is a case-specific inquiry.

         1.The Impact of Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County

         The court starts the personal jurisdiction inquiry with the Supreme Court's recent decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S.Ct. 1773 (2017). The court ordered the parties to provide supplemental briefing addressing the impact of Bristol-Myers on this case. See Order, ECF No. 25. Specifically, the court asked “whether this court can, consistent with the requirements of due process as articulated in Bristol-Myers Squibb, exercise specific jurisdiction over Defendants with respect to any of the asserted claims, except those by Vasquez.” Id. at 2-3. The court singled out Vasquez because, as the only Plaintiff employed at a Whole Foods store in the District of Columbia at the time of his termination, Vasquez is the only Plaintiff to have clearly suffered injury in the District, thus satisfying the requirement of due process. See Id. at 2. By comparison, the other Plaintiffs resided and worked in either Maryland or Virginia at the time of their terminations, thereby raising the question whether their claims have any connection to the District of Columbia that would enable the court to exercise personal jurisdiction over Buchanan, WFMI, or WF Services. See Id. at 2-3.

         In Bristol-Myers, “[a] group of plaintiffs-consisting of 86 California residents and 592 residents from 33 other States” brought a mass tort action in California state court arising from injuries allegedly caused by a drug manufactured by Bristol-Myers Squibb. 137 S.Ct. at 1777- 78. Incorporated in Delaware and headquartered in New York, Bristol-Myers Squibb challenged the California state court's exercise of specific jurisdiction over the company as to the claims of the non-resident plaintiffs, none of whom asserted any injury from the drug in California or any other connection to the state. Id. at 1777-80, 1782. The Court agreed with Bristol-Myers Squibb that the California state court's exercise of personal jurisdiction over the company as to those claims brought by the non-resident plaintiffs violated the Due Process Clause of the Fourteenth Amendment. Applying “settled principles regarding specific jurisdiction, ” the Supreme Court explained that the California state court's exercise of specific jurisdiction as to the non-residents' claims was unconstitutional because there was no “connection between the forum and the [nonresidents'] specific claims.” Id. at 1781. For instance, the non-resident plaintiffs had not shown that they were prescribed or had purchased or had ingested the drug in California. Id. Nor were any of the non-resident plaintiffs injured by the drug in California. Id. In short, the Supreme Court reasoned, the non-resident plaintiffs' claims did not comport with due process because none involved any activity or occurrence that took place in California. Id. The Court also rejected the argument that the similarity of the residents' and non-residents' claims obviated the due process infirmity. As the Court explained, “[t]he mere fact that other plaintiffs were prescribed, obtained, and ingested [the drug] in California-and allegedly sustained the same injuries as did the nonresidents-does not allow the State to assert specific jurisdiction over the nonresidents' claims.” Id. Accordingly, the Court held that the non-resident plaintiffs' claims could not be heard in California state court.

         In this case, Bristol-Myers does not pose a jurisdictional obstacle. All Plaintiffs have alleged some injury in the District of Columbia as a result of Defendants' alleged defamatory statements. Plaintiffs assert that, through Buchanan, Defendants made various defamatory statements that ran in the local press, including in The Washington Post. Am. Compl. ¶¶ 43, 73; see AP Article; Washington Post Article. They further allege that “Store Team Leaders, Assistant Store Team Leaders, and Team Members for Whole Foods in the Mid-Atlantic region knew and understood the defamatory statements published by Whole Foods referred to Plaintiffs.” Am. Compl. ¶ 81. Viewing these alleged facts in the light most favorable to Plaintiffs, Plaintiffs have plausibly asserted that Defendants' defamatory statements reached residents of the District of Columbia. Such an allegation is sufficient to establish injury in the District of Columbia, even by a plaintiff who does not reside or work here. See Charlton v. Mond, 987 A.2d 436, 438 (D.C. 2010) (agreeing with a plaintiff asserting a defamation claim, who was a Maryland resident and whose business was registered in Maryland, that “the situs of the alleged injury was certainly in the District because the allegedly defamatory material reached some who were indisputably District residents”). This case, therefore, does not present the jurisdictional deficiency at issue in Bristol-Myers-the lack of any connection between the claim and the forum. Because Plaintiffs have alleged injury in the District of Columbia, there is no due process impediment to Defendants being held to account for their alleged actions in this court.[2]

         Having concluded that Bristol-Myers does not preclude the exercise of personal jurisdiction over WFMI, WF Services, and Buchanan on constitutional grounds, the court turns to address whether dismissal of the Amended Complaint is warranted for lack of specific jurisdiction as to those Defendants under the D.C. long-arm statute.

         2.Specific Jurisdiction over Brooke Buchanan

         The court starts its long-arm inquiry with Buchanan. Buchanan is a Texas resident and is the Global Vice President of Communications for WF Services, which is headquartered in Austin, Texas. See Defs.' Mot., Decl. of Brooke Buchanan, ECF No. 12-4 [hereinafter Buchanan Decl.] ¶¶ 3-4. Plaintiffs allege that, shortly after their termination, Buchanan contacted reporters located in the District of Columbia and made false and defamatory statements about them and the circumstances of their termination. Am. Compl. ¶¶ 22, 41-43. Plaintiffs attribute an even more expansive role to Buchanan in their opposition memorandum. See Pls.' Opp'n at 14-15; Pls.' Suppl. Br., ECF No. 27 [hereinafter Pls.' Suppl. Br.], at 3-4. Plaintiffs contend that, because WF Services provided “legal services related to the investigation . . . within the District of Columbia, ” Pls.' Opp'n at 14 (citing Defs.' Mot., Decl. of Patricia Yost, ECF No. 12-3 [hereinafter Yost Decl.] ¶ 12), and because Buchanan was part of WF Services' investigative team, she engaged in a “persistent course of conduct” and received “substantial revenue” from the investigation of Plaintiffs in the District of Columbia, see Id. at 14-15; Pls.' Suppl. Br. at 3-4. Plaintiffs maintain that these contacts are sufficient to establish specific jurisdiction over Buchanan under subsection (a)(4) of the long-arm statute. The court disagrees.

         Section 13-423(a)(4) allows for the exercise of personal jurisdiction over a defendant that causes “tortious injury in the District of Columbia by an act or omission outside the District of Columbia if the defendant regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia.” D.C. Code § 13-423(a)(4). As the Circuit has observed, the drafters of the long-arm statute “apparently intended that the (a)(4) subsection would not occupy all of the constitutionally available space.” Crane, 814 F.2d at 762. The subsection's required “plus” factors-regularly doing or soliciting business, engaging in persistent conduct, or deriving substantial revenue-are meant “to filter out cases in which the in-forum impact is an isolated event and the defendant has no, or scant, affiliations with the forum.” Id. at 763. Consequently, subsection (a)(4) requires “something more” of plaintiffs than simply asserting that tortious conduct outside the District caused injury inside the District. Id.

         Plaintiffs have failed to meet their burden of making a prima facie case of personal jurisdiction under subsection (a)(4) as to Buchanan. For starters, Plaintiffs offer no “specific facts” to support their contention that Buchanan was part of the WF Services' team that investigated Plaintiffs in the District of Columbia. Lans v. Adduci Mastriani & Schaumberg, LLP, 786 F.Supp.2d 240, 263 (D.D.C. 2011) (citation omitted). The only fact that Plaintiffs offer to place Buchanan on the investigative team is that she received information about the investigation before making statements about Plaintiffs to the press. See Pls.' Opp'n at 14. But Buchanan's mere receipt of investigative findings does not plausibly make her a member of the investigative team that supposedly engaged in a persistent course of conduct in the District. Moreover, even if she were part of the investigative team, Plaintiffs offer nothing to establish that Buchanan herself was involved in a “persistent course of conduct” in the District of Columbia. Plaintiff cannot “aggregate factual allegations concerning multiple defendants”-or, in this case, impute to Buchanan the acts of other WF Services employees or agents-“in order to demonstrate personal jurisdiction over” her. Lans, 768 F.Supp.2d at 264 (internal quotation marks omitted); accord Mouzon v. Radiancy, Inc., 85 F.Supp.3d 361, 372-73 (D.D.C. 2015) (rejecting, for purposes of subsection (a)(4) jurisdiction, the plaintiffs' attempt to treat the employee's contacts with the forum state as the same as his employer's contacts). Finally, insofar as they claim that Buchanan received “substantial revenue” from the investigation, Plaintiffs concede that such revenue is “by virtue of her employment” with WF Services, and is not directly personal to her. Pls.' Opp'n at 15. Even if the court accepts that WF Services derived substantial revenue from the investigation, “it would not necessarily follow” that Buchanan did so as well. Mouzon, 85 F.Supp.3d at 373. In sum, Plaintiffs' allegations about Buchanan's contacts with the District are insufficient to “make a prima facie showing of the pertinent jurisdictional facts to survive a motion to dismiss for lack of personal jurisdiction.” Livnat v. Palestinian Auth., 851 F.3d 45, 56-57 (D.C. Cir. 2017) (emphasis and internal quotation marks omitted). The court therefore dismisses wit hout prejudice all claims against Buchanan for lack of personal jurisdiction.

         3.Specific Jurisdiction over WFMI and WF Services

         a. WFMI

         Turning next to WFMI, WFMI is a Texas corporation with its principal place of business in Austin, Texas. Am. Compl. ¶ 18. According to a declaration submitted by Patricia Yost, an officer with WF Services, “WFMI is . . . a holding company that owns shares of other operating companies, which in turn own and operate the individual Whole Foods market stores.” Yost Decl. ¶ 5. Yost further attests that WFMI does not own or operate any stores in the District of Columbia; has no employees, office space, or telephones in the District; and has no bank accounts or other tangible personal or real property in the District. See Id. ¶¶ 5, 9. WFMI also does not, according to Yost, set policies for Whole Foods stores and does not regulate or assure uniformity of policies in the stores. See Id. ¶ 10.

         To counter these assertions, Plaintiffs point to two pieces of evidence and one set of allegations. First, Plaintiffs offer WFMI's Form 10-K filing with the Securities and Exchange Commission for the fiscal year ending September 2016, which states that, “As of September 25, 2016, we operated 456 stores: 436 stores in 42 U.S. states and the District of Columbia, ” and identifies four such stores in the District. Pls.' Opp'n., Ex. 1, ECF No. 17-4 [hereinafter 10-K filing], at 14 (emphasis added). Second, Plaintiffs cite to the Complaint and Answer filed in FTC v. Whole Foods Market, Inc., 07-cv-1021-PLF (D.D.C.), an antitrust enforcement action brought by the Federal Trade Commission (“FTC”) to enjoin the merger of Whole Foods and another grocery chain. In the Complaint, the FTC defined “Whole Foods” to mean “Whole Foods Market, Inc.” and alleged that “Whole Foods transacts business in the District of Columbia, ” an allegation WFMI admitted in its Answer. See Pls.' Opp'n. at 9-10. Plaintiffs also cite to another response in the Answer, in which WFMI admitted that it “operates approximately 190 stores in more than 30 states and the District of Columbia.” Pls.' Opp'n, Ex. 3, ECF No. 17-6, at 2 ¶ 2. Third, Plaintiffs point to their allegations that the shifting of labor costs to undermine the Gainsharing program was a “nation-wide corporate practice” and Plaintiffs were instructed by “Whole Foods corporate leadership . . . to shift labor costs.” Am. Compl. ¶¶ 29, 31. Plaintiffs argue this “nation-wide” practice only could have come from the “corporate parent, ” thereby creating relevant contacts between WFMI and the District of Columbia. Based on the foregoing, Plaintiffs maintain that this court may exercise specific jurisdiction over WFMI because their claims in this case arise from WFMI's “transacting [ ] business in the District, ” D.C. Code § 13-423(a)(1); “contracting to supply services in the District, ” id. § 13-423(a)(2); and “having an interest in, using, [and] possessing real property in the District, ” id. § 13-423(a)(5). Pls.' Opp'n at 7-8. They further assert that personal jurisdiction also is available under subsections (a)(3) and (a)(4) by virtue of WFMI's agents terminating Plaintiff Vasquez, who was a Store Team Leader at a store in the District of Columbia, [3] and defaming all Plaintiffs in the District of Columbia. Id. at 8. Plaintiffs therefore insist that WFMI “qualifies under all five of the cited bases for this Court to exercise specific personal jurisdiction under the long-arm statute.” Id.

         The court disposes of two of the asserted bases quickly. Neither subsection (a)(2) nor subsection (a)(5) supports the exercise of long-arm jurisdiction. None of Plaintiffs' claims “aris[e] from, ” D.C. Code § 13-423(b), WFMI's “contracting to supply services in the District of Columbia, ” id. § 13-423(a)(2), or its “having an interest in, using, or possessing real property in the District of Columbia, ” id. § 13-423(a)(5). Accordingly, long-arm jurisdiction over WFMI, if it exists at all, must come under subsections (a)(1), (a)(3), or (a)(4).

         Subsection (a)(1) does not, however, provide a basis to exercise jurisdiction over WFMI. Save an argument buried in a footnote, Plaintiffs do not argue that WFMI's subsidiaries' contacts with the District of Columbia should be imputed to WFMI.[4] Rather, Plaintiffs contend that WFMI take such action, see Am. Compl. ¶¶ 29, 31, is simply too vague to ascribe jurisdictional contacts to WFMI in the District. Plaintiffs do not allege specific facts supporting their assertion that labor cost-shifting occurred at stores outside the Mid-Atlantic region; nor do they identify the “corporate leadership” that directed Plaintiffs' conduct. Absent such allegations, Plaintiffs cannot overcome Yost's sworn declaration that WFMI does not “set policies for any Whole Foods Market store, nor does WFMI regulate or assure the uniformity of policies in Whole Foods Market stores . . . . [, which] is set and regulated by other Whole ...


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