Wiggins v. Physiologic Assessment Services, LLC

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CHERYL WIGGINS,
Plaintiff/Counterclaim
Defendant,
v, C.A. No. N15C-01-186 CLS
PHYSIOLOGIC ASSESSMENT
SERVICES, LLC, and
Defendant/Counterclaim
Plaintiff,
JORDAN KLEAR,
\_/\_/\_/\_/\_/\_/\_/\_/§/\_/\_/\_/§/\_/\./€
Defendant.
Date Submitted: March 2, 2016
Date Decided: June 3, 2016
On Defendant Jordan Klear’s Motion to Dismiss for
Lack of Personal Jurisdicti0n Pursuant to Rule 12(b)(2). GRANTED.
_ OPINIQI§IM
John G. Harris, Esquire, Berger Harris LLP, Wilmington, Delaware, Attorney for
Plaintiff/Counterclaim Defendant.
Lauren E.M. Russell, Esquire, Margaret M. DiBianca, Esquire, Young, Conaway,
Stargatt & Taylor, LLP, Wilmington, Delaware, Attorneys for Defendant Jordan
Klear.
SCOTT, J.
Defendant Jordan Klear ("Klear") has moved to dismiss Plaintiff’s, Cheryl
Wiggins ("Plaintiff"), amended complaint for lack of personal jurisdiction pursuant
to Superior Court Civil Rule l2(b)(2). For the following reasons, Klear’s Motion
to Dismiss is GRANTED.
Backg_round
This action arises from the termination of Plaintiff’ s employment at
Physiologic Assessment Services, LLC ("PAS"), in December of 2014. Plaintiff
filed her initial complaint on January 23, 20l5, solely against PAS, asserting
claims for breach of contract, promissory estoppel, and violation of Pennsylvania’s
Wage Payment and Collection Law ("WPCL"). On July 22, 2015, Plaintiff filed
an amended complaint, adding Klear as a co-defendant to the action and alleging
personal liability against him, as chief executive officer ("CEO") of PAS, for the
WPCL claims only. The amended complaint asserts that personal jurisdiction over
Klear is authorized by 6 Del. C. § 18-109 based on his status as officer and
manager of PAS, a DelaWare limited liability company. On August 18, 2015,
Klear filed his Motion to Dismiss the amended complaint, and Plaintiff filed a
Response in Opposition to Klear’s Motion on December 7, 2015.'
PAS is a DelaWare limited liability company that maintains its principal
place of business in Pennsylvania and the Corporation Trust Company as
1 600 A.2d 43, 52 (Del.
1991)); see Hartsel, 2011 WL 2421003, at *9 n.56 ("The test articulated in [Rosheim] and Vichi
may not be exhaustive or exclusive Plaintiffs, however, have not alleged any facts that suggest
they otherwise might satisfy both § l8-l09(a) and the Due Process Clause.").
19 1a wiring ln¢'l shoe ca v_ Washzng¢@n, 326 U.s. 310, 316 (1945)).
20 1a wiring W@rld-Wzd@ Volkswag@n C@rp. v. W@@dson, 444 U.s. 294, 297 (1980)).
13
determined that the defendant has sufficient minimum contacts, "the court should
turn its analysis to issues of fairness and justice."zl
Plaintiff initially contends that due process is satisfied because Klear is
indistinguishable from PAS for purposes of personal jurisdiction. This Court
respectfully disagrees. While Pennsylvania’s WPCL may indeed impose personal
liability on high-ranking corporate officers like Klear under these circumstances, as
Plaintiff alleges, and it also may well be that Delaware’s legislature, too,
recognizes the virtues of imposing such liability, personal liability alone is simply
not equivalent to personal jurisdiction.zz
Plaintiff next contends that the facts in C0rnerst0ne Technolgies, LLC v.
Conraa' are similar to the case sub judice and, thus, due process would not be
violated by asserting personal jurisdiction over Klear. This Court, again, disagrees.
In Cornerstone, the Court of Chancery was presented with a situation where the
plaintiffs made a prima facie showing that the defendant was a founding member,
director, and offlcer, by virtue of evidence that he signed the LLCs’ operating
agreements, and, thus, found that the defendant could have formed the two LLCS
as Pennsylvania entities, but instead personally and purposely participated in the
21 Cornerstone, 2003 WL 1787959, at *l3 (citing Burger King Corp. v. Rua'zewicz, 471 U.S.
462, 476-77 (l985)).
22 see Ruhrges AG v. Mare¢hen oil ce_, 526 U.s. 574, 577 (1999) (“Jurisdietien re resolve eeses
on the merits requires both authority over the category of claim in suit (subject-matter
jurisdiction) and authority over the parties (personal jurisdiction), so that the court’s decision will
bind them.").
l4
choice to invoke the laws of this State.zz Here, Plaintiff argues that Klear, like the
defendant-manager in Cornerstone, purposefully participated in forming PAS as a
Delaware entity based on the following two assertions, the latter of which having
been made in the last footnote in conjunction with a novel reference to Delaware’s
long-arm statute: (l) "Klear, as CEO, caused PAS to be formed as a Delaware
entity," and (2) "Klear signed, as an ‘Authorized Person’ for PAS, a Certificate of
Amendment Changing Only the Registered Office or Registered Agent of a
Limited Liability Company, which he caused to be filed with the Office of the
Delaware Secretary of State in July 20l4." Without more, this Court cannot make
the inference that Klear caused PAS to be formed under Delaware law.
Because Plaintiff has not alleged any facts from which this Court can infer
that Klear was a founding manager or otherwise participated, purposely or
otherwise, in the decision to form PAS under the laws of Delaware, neither
allegation constitutes a prima facie showing that Klear possesses any minimum
contacts with Delaware, which makes Cornerstone distinguishable and fails to
support Plaintiff’s argument that Klear purposefully availed PAS and himself of
the benefits and protections of Delaware such that he should reasonably anticipate
being haled into this Court, let alone to answer for claims premised on PAS’s
violation of Pennsylvania state law. Therefore, it appears to this Court that
15
-24
Plaintiff has failed to satisfy her burden of demonstrating that Klear, as a
nonresident defendant, has the requisite minimum contacts with Delaware to
enable this Court to exercise personal jurisdiction over him with regard to the
WPCL claims. Because the constitutional analysis ends once it is determined that
the defendant lacks minimum contacts with the forum jurisdiction, this Court
declines to reach the issues of faimess and justice.z‘l
III. C0nsent or Waiver Implied Fr0m the Filing of PAS’s Counterclaims
"Because the defense of lack of personal jurisdiction is a personal right, it
may be obviated by consent or otherwise waived."z§ Plaintiff, therefore, argues in
the alternative that Klear is subject to the personal jurisdiction of this Court
because he consented. A court may find that a defendant has waived his defense of
lack of personal jurisdiction where "the defendant’s conduct did not reflect a
continuing objection to the power of the court to act over the defendant’s
person."% Specifically, "[t]he personal jurisdiction defense may be lost by failure
to assert it seasonably, by formal submission in a cause, or by submission through
conduct."” "Put another way, in determining whether a defendant has waived his
-z »=»_
However, it bears repeating that "[h]owever minimal the burden of defending in a foreign
tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts'
with that State that are a prerequisite to its exercise of power over him." Hanson v. Denckla, 357
U.S. 235, 251 (l958) (citing Im"l Shoe, 326 U.S. at 319).
25 Sprm¢, 2008 wL 2737409, at *6 (ciracions omicred); see H@rman, 2015 wL 1733 805, ar *5.
26 Hornberger Mgmt. C0. v. Haws & Tingle Gen’l Contractors, Inc., 768 A.Zd 983, 988 (Del.
2000).
27 1a at 989.
16
defense of lack of personal jurisdiction, or has consented to jurisdiction, it is
instructive to look at whether the defendant has abandoned a solely defensive
posture and become an actor in the cause."zg
Plaintiff argues that Klear caused PAS to file "affirmative claims" in this
Court, solely by virtue of "his capacity as CEO."ZQ For reasons similar to those
relied upon by this Court in its finding that Plaintiff failed to meet her burden of
making a prima facie case that the requirements of due process were satisfied, see
infra, this Court finds that Plaintiff has also failed to meet her burden of showing
that Klear consented to personal jurisdiction Plaintiff offers no other evidence to
support an inference that, because Klear is the CEO of PAS and PAS filed
counterclaims in this action, it necessarily follows that PAS’s actions should be
imputed to Klear in order that Klear be found to have consented to or waived his
defense to personal jurisdiction by this Court over his person. Neither does
Plaintiff provide any case law that stands either for this exact proposition.30
_ . _
_Z?;ig=elow/Diversz_'fz`ed Secona'ary P’ship Funa' 1990 v. Damson/Bircher Partners, 2001 WL
1641239, at *6 (Del. Ch. Dec. 4, 2001).
29 Pl.’s Resp. 1]13.
30 The Court notes that Plaintiff cites to Bigelow/Diversifz`ed Secondary P’ship Funa' 1990 v.
Damson/Bircher Partners as support for the general rule statement, but does not discuss or
otherwise analogize the case at all. In Bigelow, the Court of Chancery held that all of the
defendants had submitted to the jurisdiction of the court solely by virtue of a motion filed by one
defendant, who had not moved to dismiss for lack of personal jurisdiction, because even though
the other defendants "were not nominally parties to the Communications Motion, all defendants
were real parties in interest in that motion." 2001 WL 1641239, at *6. In so holding, the court
relied on the fact that the communications motion was signed by counsel on behalf of all of the
defendants, the motion sought the court’s blessing over communications with putative class
members for the purpose of settling all claims against all defendants, the benefits of the court’s
17
Therefore, because Plaintiff has not shown how or why this Court could or should
find PAS’s actions attributable to Klear for purposes of waiving his defense to
personal jurisdiction, Plaintiff has failed to meet her burden of making a prima
facie showing that this Court has personal jurisdiction over Klear based on consent
and/or waiver.
Conclusion
Accordingly, for the foregoing reasons, Defendant Jordan Klear’s Motion to
Dismiss for lack of personal jurisdiction is GRANTED.
The Honorable.Llvin L. Scott, Jr.
IT IS SO ORDERED.
cc: Prothonotary
ruling on the motion would inure to all defendants, and without having jurisdiction over all of the
defendants, it questioned how it could have effectively enforced and policed those
communications it would allow by granting the motion. Ia'. at *7. Of course, Plaintiff has not
presented any of these arguments to the Court and argues instead that the counterclaims "brought
by the opposing parties in this action center on the same nucleus of operative facts. Pl.’s Resp. 11
14 (emphasis added). As previously mentioned, such an argument is based on nothing more than
the conclusory allegation that Klear caused PAS to file its counterclaims, and which is belied not
only by the fact that the counterclaims were not signed by counsel on behalf of Klear or all
defendants, but also by the fact that none of the affirmative claims themselves inure to Klear’s
benefit See Def.’s Counterclaims 1111 38-73 (Count l ~ Breach of Contract; Count ll - Unfair
Competition; Count III - Tortious interference with Contractual Relationships; Count IV ~
Uniform Trade Secrets Act; and Count V - Misappropriation of Confidential Information); cf
Wallace v. Wooa', 752 A.2d ll75, 1180 (Del. Ch. 1999) ("It is a general principle of contract law
that only a party to a contract may be sued for breach of that contract.").
18
registered agent for service of process in 'Delaware. PAS is in the business of
providing intraoperative neurophysiologic monitoring ("IONM") services to
physicians and medical facilities and employed Plaintiff to provide clinical IONM
services on its behalf. Plaintiff is a resident of Pennsylvania and, while employed
by PAS, worked primarily at PAS’s place of business in Pennsylvania. Plaintiff
has never held an ownership interest in or an officer position at PAS.
Klear is also a resident of Pennsylvania and maintains an office at PAS’s
place of business in Pennsylvania. Klear is CEO of PAS and actively involved in
the management of human resources at PAS, specifically the hirings, firings, and
salary adjustments of both executive and clinician personnel. Plaintiff entered into
an Employment Agreement ("EA") with PAS on November 26, 2013, and Klear
signed the EA on behalf of PAS under the title of CEO.
The events leading up to and culminating in the termination of Plaintiff’s
employment with PAS, which form the basis of Plaintiff s claims against Klear,
transpired as follows: In September, 2014, nine months after Plaintiff began
working at PAS, Klear informed Plaintiff that he had decided to terminate PAS’s
Vice President of Clinical Operations and redistribute the job’s non-clinical,
executive functions. Klear then met several times with Plaintiff and, on September
24th, verbally offered her a raise of $20,000 in exchange for her performing some
of the job’s executive functions, which Plaintiff accepted. Klear subsequently held
a meeting in early October with Plaintiff and other personnel, where he detailed the
redistribution of the job’s duties, and, shortly thereafter, Plaintiff began performing
her new responsibilities. After at least two pay periods thereafter, PAS had yet to
pay Plaintiff any of the additional compensation for her increased job
responsibilities, and she so informed Klear. In response, Klear promised to discuss
PAS’s non-payment of Plaintiff”s salary increase with PAS’s comptroller.
On December Sth, Klear called Plaintiff into a meeting, where he accused
her of conspiring with co-workers to solicit PAS employees to work for a yet-to-
be-formed business in which Plaintiff had allegedly invested. Following the
meeting, Klear issued a letter to Plaintiff, notifying her that, pursuant to § 7(a)(iv)
of the EA, PAS was giving her l5 days’ notice of its termination of her
employment for good cause based on her alleged violation of the non-solicitation
covenant in § 9(c) of the EA.
Counts V, VI, and VlI of Plaintiff’ s amended complaint allege violation of
Pennsylvania’s WPCL by PAS and are asserted against both PAS and Klear.z
Specifically, Plaintiff alleges that Klear is personally liable (i) for all of the
damages to which she is entitled resulting from PAS’s violations of Pennsylvania’s
WPCL, and (ii) as an "employer" for any violations of Pennsylvania’s WPCL.3 ln
support of these allegations, Plaintiff alleges that Klear was at all relevant times a
2 All other C_ounts in Plaintiff:s amended complaint are asserted against PAS, individually;:_t;
3 Am. c@mpi. 1111 76, 79, 91, 94, 104, 107.
high ranking officer of PAS, who was actively involved in managing PAS’s
affairs, and that he made the decisions to hire Plaintiff, set her base salary, increase
her salary, and fire Plaintiff.‘i
‘Parties’ Cont_e_n§i_;gl_§|
Klear asserts that subjecting him, as a nonresident, to personal jurisdiction in
Delaware is not authorized by 6 Del. C. § l8-l09, which is the sole statutory basis
to which Plaintiff cites for the Court’s personal jurisdiction over Klear, and would
violate due process. Specifically, I_(lear contends that Plaintiff’s claims relate
solely to a personal contractual dispute with PAS regarding her employment and,
thus, do not involve or relate to any duty or obligation owed by him to PAS or to
his oversight of PAS’s internal business or daily operationsa
Further, Klear argues that Delaware law is not inextricably bound up in
Plaintiff`s claims, because the contract at issue, Plaintiff"s Employment
Agreement, specifically states that New Jersey law applies, and Delaware has little
interest in the resolution of Plaintiff’s claims against Klear, because he resides and
works in Pennsylvania, Plaintiff worked and currently resides in Pennsylvania, and
PAS’s primary place of business is in Pennsylvania, Therefore, Klear argues that
subjecting him to personal jurisdiction in Delaware would violate due process.
_a_ 11 ___F,__
" Ani. BQ:N 77-73, 92-93, 105-106_;,_;
In response, Plaintiff argues that her claims do relate to PAS’S business,
because they involve the human resource decisions Klear made, which decisions
constitute the "day-to-day operations of PAS" and because Klear owes a duty to
PAS to ensure that it complies with state and federal wage payment and
employment laws. Plaintiff further argues that the due process requirement is also
satisfied, because Klear’s liability arises under Pennsylvania’s WPCL due to his
role as CEO and decision-maker at PAS and, thus, he indistinguishable from PAS
for purposes of personal jurisdiction.
As to due process, Plaintiff also argues that, as CEO, Klear caused PAS to
be formed as a Delaware entity, purposefully availed PAS and himself of the
benefits and protections of Delaware, and, therefore, cannot credibly be surprised
to have to defend the WPCL claims in this forum. Plaintiff contends that, to hold
otherwise, would (i) promote the inefficient result of bifurcating symbiotic claims
in separate jurisdictions, (ii) frustrate clear legislative intent, (iii) create a
substantial risk of inconsistent judgments, (iv) force Plaintiff to reinstitute the
VVPCL claims against Klear in Montgomery County, Pennsylvania, while
continuing to prosecute the WPCL claims against PAS in nearby Wilmington,
Delaware, where Klear will be called as a fact witness, and (v) reward Klear’s
minimal inconvenience. Alternatively, Plaintiff argues that Klear consented to
personal jurisdiction when he, as CEO, allegedly caused PAS to file affirmative
claims in this action.
§.- _LV.Y»,_
On a motion to dismiss for lack of personal jurisdiction pursuant to Superior
Court Civil Rule l2(b)(2), the plaintiff bears the burden of showing a basis for the
trial court’s exercise of jurisdiction over a nonresident defendant.§ Absent an
evidentiary hearing or jurisdictional discovery, the plaintiff need only make a
prima facie showing that the exercise of personal jurisdiction is appropriate.é In
making its determination, the Court must accept all well-pleaded factual
allegations as true, unless contradicted by affidavit, and draw all reasonable
inferences in favor of the plaintiff.7 However, Delaware courts have warned that
"[a]lthough plaintiffs have ‘a relatively light burden’ to establish a prima facie
basis for personal jurisdiction, the Court of Chancery has stated ‘[c]ourt[s] should
exercise caution in extending jurisdiction over nonresident defendants whose direct
ties to Delaware are, at best, tenuous."’g
5 Greenly v. Davis, 486 A.2d 669, 670 (Del. l984); Herman v. BRP, Inc., 2015 WL 1733805, at
*3 (Del. Super. Apr. l3, 2015); see Werner v. Miller Tech. Mgmt., L.P., 831 A.2d 318, 326 (Del.
Ch. 2003) (construing Court of Chancery Rule l2(b)(2) in the same way). -
6 Greenly, 486 A.2d at 670; Sprint Nextel Corp. v. iPCS, Inc., 2008 WL 2737409, at *5 (Del. Ch.
July l4, 2008).
7 See Herman, 2015 WL 1733805, at *3 (citing AeroGlobal Capital Mgmt., LLC v. Cirrus Indus.,
871 A.2d 428, 437 (Del. 2005)); Hartsel v. Vanguard Grp., Inc., et al., 20ll WL 2421003, at *7
(Del. Ch. June l5, 201 l).
8 Wakely Ltd. v. Ensotran, LLC, 2014 WL lll6968, at *3 (D. Del. Mar. 18, 20l4) (citing R0ss
Hola'ing & Mgmt. C0. v. Adv. Realty Grp., 2010 WL 1838608, at *l5 (Del. Ch. Apr. 28, 20l0)).
Under the circumstances here, Plaintiff` s burden is satisfied if she makes a
prima facie showing that (l) service of process on Klear, as a nonresident
"manager," is authorized by 6 Del. C. § l8-l()9, and (2) jurisdiction over Klear
does not violate the Due Process Clause of the Fourteenth Amendment.9
Discussionl_
ii
I. Section 18-109 of the Delaware LLC Act
The "implied consent" provision of the Delaware LLC Act, 6 Del. C. § l8-
l09(a), authorizes service of process of all civil actions brought in the State of
Delaware on managers of Delaware LLCs " involving or relating to the business of
the limited liability company or a violation by the manager . . . of a [f`iduciary]
"'0 Recognizing the potential for unconstitutional applications of the
duty.
"involving or relating to" statutory language when applied to claims against
nonresident managers not alleging any breach of fiduciary duty, the Court of
Chancery determined in Rosheim that "[d]ue process would not be offended if
Plaintiffs can show that (l) the allegations against the defendant-manager focus
centrally on his rights, duties and obligations as a manager of a Delaware LLC; (2)
the resolution of the matter is inextricably bound up in Delaware law; and (3)
9 l/Veriier, §31 A.Zd at 3-26; cjf-Herman, 2015 WL 1733805, at *3,.::
10 6 D@z. C. § 18-109(3).
Delaware has a strong interest in providing a forum for the resolution of the
dispute relating to the manager’s ability to discharge his managerial functions."“
Typically, claims that the Court of Chancery have found capable of
surviving the Rosheim test involve disputed managerial acts or rights arising under
LLC agreements, where it is clear that the relevant "rights, duties and obligations"
of the defendant-manager are those owed by the defendant-manager to the LLC.”
However, it appears that the Court of Chancery has also implied that a plaintiff’ s
claims against a nonresident defendant, who, though not named or designated a
manager pursuant to an instrument, but, rather, is treated as one for having
participated materially in the management of the LLC pursuant to § l8-l09(a)(ii),
may involve or relate to the business of the LLC where they relate, not to the
rights, duties and obligations of the defendant-manager, but "in any other way to
the internal business affairs of [the LLC] or to the running of [the LLC]’s day-to-
day operations."”
" Har¢sel, 2011 wL 2421003, ar *9 (¢icing mm v. Konznklzjke Phzlzps El@c. N. V_, 2009 wL
4345724, at *8 (Del. Ch. Dec. l, 2009); Assist Stock Mgmt. L.L.C. v. Rosheim, 753 A.Zd 974,
981 (Del. Ch. 2000)).
12 See Cornerstone Technologies, LLC, et al. v. Conraa', et al., 2003 WL 1787959, at *12 (Del.
Ch. Mar. 3l, 2003) (dispute between two managers over their respective responsibilities in
Rosheim, 753 A.Zd at 980-81 (action for declaratory judgment involving
'
__ ,_ cl" _- - not involve or relate to
[the LLC]’s business in the sense of its internal business as required by the statute and the Due
Process Clause."); Vichi, 2009 WL 4345724, at *8 ("None of these counts relate to the rights,
duties and responsibilities [the defendant] owes to [the LLC], or in any other way to the internal
business affairs of [the LLC] or to the running of [the LLC]’s day-to-day operations.
Accordingly, none of the counts [the plaintiff] asserts against [the defendant] involve or relate to
Plaintiff“s amended complaint asserts, albeit in conclusory fashion, that
Klear is both CEO and manager of PAS, which Klear does not explicitly deny,
either by affidavit or otherwise; therefore, the Court will assume that he is a
manager of PAS.M lt follows, then, that in order to determine whether personal
jurisdiction is, in fact, authorized by § l8-l()9(a), our inquiry must focus on
Plaintiff’s claims against Klear--that Klear is personally liable as an "employer"
under Pennsylvania law for Plaintiff’s damages resulting from PAS’s violation of
Pennsylvania’s WPCL.‘S The issue, thus, becomes whether Plaintiff has alleged
any facts from which this Court can infer what duties or obligations Klear owed to
PAS, which he may have breached when he allegedly made the_decisions to
withhold certain wages eamed by Plaintiff and to fire Plaintiff, and upon which her
claims focus centrally.
the business of [the LLC]."); see also Wakely, 2014 WL 1116968, at *5-6 (citing Phillips v.
Hove, 2011 WL 4404034, at *22 (Del. Ch. Sept. 22, 20ll)) (discussing the defendants’
involvement in business affairs and management of day-to-day operations in determining
whether the defendants’ qualified as managers and, thus, consented to personal jurisdiction
pursu§;i§i""'t§§ § 18-109).
4 Th`i§.?'_-. notes that, although Klear’s Motion does not explicitly admit to Klear being a
"manager" of a Delaware limited liability company, neither does it challenge personal
jurisdiction on the basis that Klear is not a "manager."
15 What is notably absent from Plaintiff s amended complaint is any allegation that Klear
breached any duty, contractual or otherwise implied. Further1nore, the Court notes that Plaintiff
offers little to no legal support for her arg.lment that her actual claims against Klear relate to the
business of PAS and, in fact, cites to no cases at all in the one paragraph dedicated to this
argument. Nor has Plaintiff cited to any cases elsewhere which involve claims against a
nonresident defendant-manager that arise under non-Delaware law which any Delaware court
has found were sufficient to pass constitutional muster. See Pl.’s Resp. 11 6.
:1»,
10