LOUISE W. FLANAGAN, United States District Judge
STATEMENT OF THE CASE
Plaintiff commenced this action on September 20, 2017, and filed amended complaint on February 2, 2018. Plaintiff complains of unlawful discrimination in the work place. Specifically, plaintiff asserts the following claims against defendant:
1) Discrimination against plaintiff on the basis of her disability in violation of the Americans with Disabilities Act,42 U.S.C. § 21112 (a) ("Count I");
2) Harassment оf plaintiff on the basis of her disability, in violation of42 U.S.C. § 21112 (a) ("Count II");
3) Retaliation against plaintiff by defendant on the basis of her disability, in violation of42 U.S.C. § 12203 (a) ("Count III");
4) Discrimination against plaintiff on the basis of her disability in violation of the Rehabilitation Act of 1973,29 U.S.C. § 794 (a) ("Count IV");
5) Harassment of plaintiff on the basis of her disability, in violation of29 U.S.C. § 794 (a) ("Count V");
6) Retaliation against plaintiff on the bаsis of a disability in violation of29 U.S.C. § 791 (f) ("Count VI").
Plaintiff seeks back pay plus interest, front pay, compensatory damages, punitive damages, attorney's fees, and costs under the Americans with Disabilities Act and the Rehabilitation Act. Seeking to invoke the jurisdiction of the court, plaintiff alleges "a substantial portion of the emрloyment practices described herein were committed within Wake County, North Carolina" (DE 14 ¶ 3). Plaintiff also asserts that venue is proper.
In its motion to dismiss, defendant seeks dismissal of the present action on the ground that the court lacks personal jurisdiction, and that venue is improper. In support of its argument that it lacks sufficient contacts with North Carolina, defendant relies upon several documents, including:
1) Affidavit of Sonja Banks ("Banks Affidavit") (DE 17-2);
2) Articles of Organization of Jennifer Roman Enterprises ("Articles of Organization") (DE 17-3) and financial documents pertaining to the company (DE 17-6, DE 17-7).
3) May 1, 2015 Independent Contractor Agreement between defendant and Jennifer Roman Enterprises ("First Agreement") (DE 17-4);
4) July 8, 2016 Independent Contractor Agreement between defendant and Jennifer Roman Enterprises ("Second Agreement") (DE 17-5);
5) EEOC Charge of Discrimination filed by plaintiff against defendant (DE 17-8);
6) Selected emails from plaintiff during the course of her employment (DE 17-9).
The facts alleged in the complaint may be summаrized as follows.
At the outset of her employment, plaintiff worked closely with Sonja Banks ("Banks"), defendant's President, and performed a variety of tasks. (Id. ¶¶ 68-79). However, plaintiff's relationship with Banks became strained after Banks allegedly mаde several disparaging remarks about individuals with Sickle Cell Disease. (Id. ¶¶ 37-40). Additionally, Banks became aware of negative feedback plaintiff provided in an investigation of Banks by defendant for misconduct. (Id. ¶¶ 47, 50, 51). Plaintiff alleges that following this investigation, Banks took a variety of actions to retaliate, harass, and discriminаte against plaintiff using her role as defendant's President. These actions included disparaging comments about plaintiff's appearance, ordering plaintiff to work while she experienced an extended episode of symptoms caused by her disability, demoting her, and ultimately discharging her. (Id. ¶¶ 55, 56-57, 60, 87-88).
Apart from the complaint, the following facts are presented by defendant through uncontroverted affidavit. Plaintiff's relationship with defendant began when she met Banks at a conference in 2011 and subsequently inquired about work with defendant in 2012 and 2013. (Banks Affidavit (DE 17-2), ¶¶ 3-5). Defendant later responded to these inquiries by offering plaintiff a position as Projeсt Manager of the HRSA grant. (Banks Affidavit (DE 17-2) ¶¶ 6-7). As noted above, plaintiff refused the offer until she could work remotely. (Banks Affidavit (DE 17-2) ¶ 7).
On May 1, 2015, defendant entered its First Agreement to employ Jennifer Roman Enterprises, a company formed by plaintiff in Maryland, with its principal place of business in North Carolina.
COURT'S DISCUSSION
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(2) allows for dismissal of a claim for lack of personal jurisdiction. "When a district court cоnsiders a question of personal jurisdiction based on the contents of a complaint and supporting affidavits, the plaintiff has the burden of making a prima facie showing in support of its assertion of jurisdiction." Universal Leather, LLC v. Koro AR, S.A.,
B. Analysis
1. Personal Jurisdiction
"A lawful assertion of personal jurisdiction over a defendant requires satisfying the standards of the forum state's long-arm statute and respecting the safeguards enshrined in the Fourteenth Amendment's Due Process Clause." Tire Eng'g & Distribution, LLC v. Shandong Linglong Rubber Co.,
The due process inquiry "can be undertaken through two different approaches - by finding specific jurisdiction based on conduct connected to the suit or by finding general jurisdiсtion" based on "continuous and systematic" activities. ALS Scan, Inc. v. Digital Serv. Consul., Inc.,
"To decide whether specific jurisdiction exists, we examine (1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable." Mitrano v. Hawes,
A single contract may demonstrate purposeful availment of plaintiff's forum. Perdue Foods LLC v. BRF S.A.,
Here, defendant's connection to the forum state is not substantial enough to demonstrate purposeful availment. Defendant does not maintain any offices in North Carolina, own or rent any property in North Carolina, or have any employees in North Carolina. (Banks Affidavit (DE 17-2) ¶¶ 19-21). Defendant never held meetings in North Carolina, аnd no employees traveled to North Carolina to work with plaintiff. (Banks Affidavit (DE 17-2) ¶ 23). Moreover, the alleged actions by defendant occurred in other states, such as the disparaging remarks allegedly made by Banks at the 2015 Sickle Cell National Conference in Maryland, or being ordered to work by Banks while plaintiff was ill on a business trip to Nevada. (Compl. ¶¶ 56-57; Banks Affidavit (DE 17-2) ¶ 24). The only basis that plaintiff relies upon for personal jurisdiction is the First Agreement and Second Agreement between her and defendant, as well as work that plaintiff did pursuant to such agreements.
Plaintiff's contract with defendant fails to create sufficient basis for jurisdiction. As a preliminary matter, both the First Agreement and the Second Agreement between plaintiff and defendant include a provision requiring that the contract be construed according to Maryland law. (First Agreement (DE 17-4) ¶ 13; Second Agreement (DE 17-5) ¶ 13). Additionally, the contract did not make any statement about where defendant required рlaintiff to work, except that plaintiff must come to defendant's office in Maryland five business days each month. (First Agreement (DE 17-4) ¶ 2; Second Agreement (DE 17-5) ¶ 2). Additionally, the First Agreement was a short term, independent contractor arrangement to last one year and two months with possible renewal, while the Second Agreement was a month to month contract. (First Agreement (DE 17-4); Second Agreement (DE 17-5) ). Unlike the Supreme Court's decision in Burger King, this contract does not involve "a carefully structured [long term] relationship that envisioned continuing and wide-reaching contacts" with plaintiff in North Carolina.
In addition, the alleged activity in North Carolina is proрerly characterized as unilateral activity by the plaintiff, rather than acts by the defendant made with the intent to reach North Carolina. Plaintiff alleges that she completed many tasks for defendant while in North Carolina, some of which go beyond the scope of the First Agreement and the Second Agreemеnt. (Compl. ¶¶ 68-79). Plaintiff further argues that she was subject to the direction and control of defendant, describing how defendant closely worked with her in completing her tasks. (DE 18 at 5). However, plaintiff's allegations fail to reveal a substantial connection between the defendant and North Carolina. Plaintiff initiated contaсt with defendant by inquiring about possible employment. (Banks Affidavit (DE 17-2) ¶¶ 4-5). When defendant did extend an offer of employment, plaintiff refused unless she could telecommute from North Carolina. (Compl. ¶ 29). Defendant then accommodated her by only requiring that she come to Maryland five business days per month, but otherwise allowing her to choose where to work. (First Agreement (DE 17-4) ¶ 2; Second Agreement (DE 17-5) ¶ 2).
Plaintiff cites Universal Leather in support of her contention that remotely working
Plaintiff's first argument that personal jurisdiction was created by defendant hiring her while she was resident in North Carolina does not count as purposeful availment. Both the First Agreement and Second Agreement do not require plaintiff to work in any forum except for Maryland. (First Agreement (DE 17-4) ¶ 2; Second Agreement (DE 17-5) ¶ 2). Moreover, the act of hiring plaintiff is not related to the dispute in question, which concerns acts and omissions by the defendant that occurred during the course of employment. Cf. Ciena Corp. v. Jarrard,
Likewise, Plaintiff's work in North Carolina and alleged discharge based on the defendant's alleged inability to accommodate her telecommute similarly do not create jurisdiction. In Perdue Foods, the Fourth Circuit found that while a contract mаy give rise to personal jurisdiction, the contract must create continuing obligations that connect the defendant to the forum state. Perdue Foods,
Plaintiff's transactions with defendant are not perfectly analogous to еither Perdue Foods or Burger King, however the facts of this case, taken together, more closely resemble Perdue Foods. Plaintiff's complaint does not allege that any work she completed for defendant was targeted at or involved North Carolina. Additionally, by the terms of plaintiff's contracts, she could telecommute from any locаtion to complete the tasks she described in her complaint. (Compl. ¶¶ 68-79). On the face of her complaint, plaintiff alleges that she chose to stay in North Carolina to manage her disability and also ensure that extended family could care for her son if her symptoms worsened. (Compl. ¶¶ 23-24, 29). Plaintiff's choice tо complete her work in North Carolina for her own reasons is a unilateral decision that cannot be fairly attributed to the defendant as an attempt to avail itself of the privileges of conducting business in North Carolina. Similarly, the decision to discharge plaintiff does not demonstrate purposeful avаilment of the privileges of conducting business in North Carolina. Here, defendant chose to cease conducting business with the plaintiff in North Carolina. See Perdue Foods,
In sum, the court lacks personal jurisdiction over defendant in this case and the complaint must be dismissed. Because the court has not found jurisdiction, it does not reach the alternative ground for dismissal for improper venue.
CONCLUSION
Based on the foregoing, defendant's motion to dismiss (DE 16) is GRANTED for lack of personal jurisdiсtion. The clerk is directed to close the case.
SO ORDERED, this the 26th day of September, 2018.
Notes
Hereinafter, all references to the "complaint" in the text and to "Compl." in citations are to the amended complaint filed February 2, 2018, (DE 14), unless otherwise specified.
Based on the Articles of Organization, it appears that "Roman" is the middle name of Jennifer Fields, and thus "Jennifer Roman Enterprises" is derived from her first and middle names. (Articles of Organization (DE 17-3) at 1).