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AGUGLIARO v. BROOKS BROS.

July 28, 1992

JOSEPH AGUGLIARO, Plaintiff, against BROOKS BROTHERS, INC., a/k/a BROOKS SPECIALTY, INC.; MARKS & SPENCER LTD., MARKS & SPENCER U.S. INC.; ANDREA ROSS, BRIAN CURRY, ERICA PASION and JAN SIXTO SARMIENTO, all individually and in their capacities as employees of the defendant, BROOKS BROTHERS, INC., Defendants.


The opinion of the court was delivered by: KEVIN THOMAS DUFFY

MEMORANDUM & ORDER

 KEVIN THOMAS DUFFY, D.J.:

 Plaintiff Joseph Agugliaro commenced this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-634 ("ADEA") against defendants Brooks Brothers, Inc., a.k.a. Brooks Specialty, Inc.; Marks & Spencer, U.S.A., Inc., and Andrea Ross, Brian Curry, Erica Pasion, and Jon Sixto Sarmiento, all individually and as employees of Brooks Brothers, Inc. Agugliaro also alleges various pendent state law claims against some or all of these defendants. Agugliaro amended his complaint on September 18, 1991 to delete Marks & Spencer, U.S.A., Inc., and to add Marks & Spencer, Ltd., and Marks & Spencer U.S. Inc. Defendants now move to dismiss the Amended Complaint under various sections of Fed. R. Civ. P. 12(b) and, pursuant to Fed. R. Civ. P. 37(a), for an order to compel discovery. Agugliaro cross-moves for leave to amend the complaint a third time to name Marks & Spencer p.l.c. as the proper defendant.

 Statement of Facts

 The allegations, which I must take to be true for the purposes of a motion to dismiss, are as follows: Agugliaro was employed by Brooks Brothers, Inc. continuously from October 7, 1957 until June 18, 1990. Amended Complaint P 14. On June 12, 1990, Agugliaro was suspended with pay by Andrea Ross, a personnel representative for Brooks Brothers, based upon an allegation that he had sexually harassed a subordinate female employee, Erica Pasion. *fn1" On June 18, 1990 Agugliaro attended a meeting with Ross and Brian Curry, the Store Operations Manager of the Brooks Brothers store. At that meeting Agugliaro was fired from his position as Manager of Receiving and Stock by both Ross and Curry. Id. at PP 6, 17, 26. At the time of his discharge, Plaintiff was 51 years old.

 Agugliaro alleges that his termination was based, not upon allegations of sexual harassment, but rather upon his age and gender. Id. at P 31. He asserts that the allegations of sexual harassment were merely a pretext for his firing so that Brooks Brothers and/or Marks & Spencer could be relieved of any obligation to pay his salary and future retirement benefits. *fn2"

 In July, 1990 Agugliaro filed a complaint with the City of New York, Commission on Human Rights alleging age and sex discrimination. Id. at P 5. In September, 1990 his complaint was dually filed with the Equal Employment Opportunity Commission ("EEOC"). Id. at P 20. At Agugliaro's request, a Notice of Right to Sue was issued by the EEOC in March, 1991. Id. at P 21. Agugliaro received this Notice of Right to Sue on March 23, 1991 and filed this suit within ninety days thereafter. Id. at P 22-23.

 Discussion

 Pursuant to Fed. R. Civ. P. 12(b)(2) and (4), Defendants move to dismiss the Amended Complaint as against Marks & Spencer, Ltd. and Brian Curry. Specifically, Marks & Spencer, Ltd. and Curry each maintain that, because Agugliaro has failed to make effective service of process on them, this court does not have personal jurisdiction over them. Defendants also maintain that the Amended Complaint should be dismissed as against Marks & Spencer U.S., Inc. because it fails to state a claim against that entity.

 Defendants contend that: (1) there is no entity named "Marks & Spencer, Ltd." within the Marks & Spencer corporate structure and (2) Marks & Spencer U.S., Inc., a wholly owned subsidiary of Marks & Spencer p.l.c., is a dormant corporation existing only to reserve the Marks & Spencer name for potential future use. As such, Defendants argue that Marks & Spencer U.S., Inc. has no connection with Agugliaro or his termination.

 Agugliaro admits that he did not name the proper Marks & Spencer entity in his Amended Complaint and cross-moves to amend the complaint once again to name Marks & Spencer p.l.c. which appears to be the proper name of this corporate defendant.

 There is nothing to suggest either that Agugliaro's cross-motion is motivated by bad faith or that allowing him to amend the complaint will result in undue delay or prejudice to the defendants. See Schonberger v. Serchuk, 742 F. Supp 108, 117 (S.D.N.Y. 1990). Nor would it be futile to allow Agugliaro to amend his complaint. See id. Contrary to the Defendants' belief that Marks & Spencer p.l.c. is not subject to personal jurisdiction in New York simply because it is not a New York corporation and, allegedly, does not do business in New York, N.Y. Civ. Prac. L. & R. ("CPLR") 302(a)(3) may provide this court with personal jurisdiction over this non-domiciliary.

 Agugliaro alleges that Marks & Spencer p.l.c. is liable as Brooks Brothers' parent because it "owned, controlled, managed, and operated and directed" Brooks Brothers during the period of time when Agugliaro and numerous other senior management employees were terminated. He also states his beliefs regarding Marks & Spencer p.l.c.'s domination over Brooks Brothers' personnel management decisions. While the Southern District of New York has stringent pleading requirements for holding a parent corporation liable for the acts of its subsidiary, see, e.g., American Protein Corp. v. AB Volvo, 844 F.2d 56, 60 (2d Cir. 1988) (holding that a parent did not exercise complete domination "in respect to the transaction attacked" such that the subsidiary had "at the time" no separate will of its own), defendants have not sought relief on this ground.

 Therefore, because Agugliaro does not demonstrate any reason why Marks & Spencer, Ltd. and Marks & Spencer U.S., Inc. are proper parties to this suit, I will dismiss the Amended Complaint as against them. However, Agugliaro's cross-motion to amend his complaint to include Marks & Spencer, p.l.c. is granted.

 Agugliaro also cross-moves this court to fashion an expeditious form of service upon Marks & Spencer p.l.c. by directing that the summons and complaint be delivered to its local attorney and mailed to Marks & Spencer p.l.c. headquarters in England.

 It does not appear as though Agugliaro has sustained the burden of showing that he has exhausted all of the possible methods for service on Marks & Spencer p.l.c. See Sangdahl v. Litton, 69 F.R.D. 641, 644-645 (S.D.N.Y. 1976) (citations omitted). Therefore, I will not order substituted service but will allow Agugliaro sixty days to perfect service on Marks & Spencer p.l.c.

 Agugliaro also admits that proper service has yet to be effected upon Brian Curry. I will not consider any motion to dismiss as against a defendant who is not a party to this action. It may well be that a motion pursuant to Rule 4(j) may be in order.

 Failure to Name

 Defendants Marks & Spencer U.S., Inc. and Marks & Spencer, Ltd. next argue that because they were not named in Agugliaro's EEOC charge, the first and second causes of action should be dismissed as against them. Agugliaro's EEOC charge named only Brooks Brothers and Andrea Ross. As I have already granted the plaintiff's motion to amend his complaint to replace the named Marks & Spencer defendants with Marks & Spencer p.l.c., Defendants' motion to dismiss these causes of action against the named Marks & Spencer defendants is now moot. Nevertheless, the Plaintiff's naming of Marks & Spencer p.l.c. in his second amended complaint will present the same question.

 Generally, a party who has not first been named as a respondent in an EEOC charge may not subsequently be made a defendant in an action either under Title VII or the ADEA. See e.g., Toliver v. Sullivan Diagnostic Treatment Center, 748 F. Supp 223, 225 (S.D.N.Y. 1990). The purpose of this notice requirement is to notify the charged party of the alleged violation and to give him an opportunity to resolve the dispute through conciliation. Travers v. Corning Glass Works, 76 F.R.D. 431, 433 (S.D.N.Y. 1977). However, when failure to comply with this requirement does not undermine the purpose of the requirement, courts have allowed plaintiffs to sue defendants who were not named in the EEOC complaint. See Koster v. Chase Manhattan Bank, 554 F. Supp 285, 289 (S.D.N.Y. 1983) (allowed respondent to be named in ...


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