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DARDEN v. DAIMLERCHRYSLER
March 14, 2002
WILLIAM DARDEN, PLAINTIFF,
DAIMLERCHRYSLER NORTH AMERICA HOLDING CORPORATION, DAIMLERCHRYSLER CORPORATE SERVICES INC., MERCEDEZ-BENZ USA LLC, DAIMLERCHRYSLER A.G. AND CHRISTL R. GAISER, DEFENDANTS.
The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.
Plaintiff William Darden ("Darden") brought this action against
defendants DaimlerChrysler North America Holding Corporation ("NAH"),
DaimlerChrysler Corporate Services Inc. ("CSI"), Mercedes-Benz USA LLC
("MBUSA"), Daimler Chrysler A.G. ("DCAG") and Christl R. Gaiser
("Stoekl") (collectively "Defendants"). Darden's claims include: (1)
racial discrimination, harassment and retaliation in violation of
42 U.S.C. § 2000e ("Title VII"), 42 U.S.C. § 1981 ("§ 1981")
and New York State and City human rights laws ("HRL"), (2) age
discrimination in violation of 29 U.S.C. § 623 (a) (the "ADEA") and
New York State and City HRL, and (3) breach of contract causing loss of
severance pay. In response, Defendants filed a motion, pursuant to
Federal Rules of Procedure 12(b)(1), 12(b)(5) and 12(b)(6), to dismiss
parts of the complaint as to certain Defendants. Darden opposes the
motion. For the reasons set forth below, the Court grants Defendants'
motion in part and denies the motion in part.
According to the Amended Complaint ("Complaint" or "Compl."), Darden
was employed as a limousine driver by MBUSA from February 1978 to January
1990. Darden was the only African American limousine driver employed by
Defendants. In January of 1990 he was transferred to Daimler Benz North
America Corporation, which company "became" NAH in late 1999. CSI is a
New York subdivision of NAH. (Compl., ¶ 4.) Darden alleges that DCAG
is a German corporation that maintains an office in New York at the CSI
offices. (Compl., ¶ 7.) CSI is also a subsidiary of DCAG. (Compl.,
From 1990 through 1999, Darden worked for Timotheus R. Pohl ("Pohl"),
who was then Vice Chairman of NAH. In 1999, Pohl retired and Darden's
employment contract was transferred to CSI, without change to his
health, pension or retirement benefits. (Compl., ¶ 10.) Throughout
this time, Darden's job performance was satisfactory and his services
were personally requested by the executives he chauffeured. Darden's new
supervisor was Stoekl, then named Christl Gaiser.
Darden's claims arise out of his experiences working for Stoekl, who
"commenced a calculated campaign of racial harassment and terror against
him." (Amended Memorandum of Law in Opposition to Defendants' Motion for
the Partial Dismissal of the First Amended Complaint ("Pl.'s Mem.), at
3.) Darden provided detailed accounts of certain incidents. To briefly
summarize, on one occasion Stoekl asked Darden to "work off the books"
for her and, making reference to his age, she stated that she planned to
"get rid of him" by the end of the year; at that time also Stoekl
indicated that her job was secure because she used to work for Juergen
E. Schrempp ("Schrempp"), "`the overall boss of the company in Germany.'"
(Compl., ¶ 11(c).) In addition, Darden alleges she made racial
slurs while threatening his continued employment on at least four
memorable occasions. As further harassment, Darden felt that Stoekl was
imposing unreasonable demands on him. Darden asserts, for instance, that
Stoekl instructed him not to speak to his passengers and to make
deliveries that conflicted with his chauffeur responsibilities, which
caused him to re-injure his back. Darden
alleges that he filed a grievance against Stoekl, but he does not state
for what or with whom he filed this grievance.
Darden filed a complaint against CSI and MBUSA with the EEOC on April
13, 2000. On that same day Stoekl gave Darden a letter requesting his
transfer from CSI to MBUSA, in New Jersey. His new supervisor would be
Hubert Connolly ("Connolly"), a man Darden remembered for his "active
disparagement of [Darden] on the issue of race." (Compl., ¶ 11
(in).) Darden alleges that he had complained previously about Connolly's
disparagement, but, again, Darden does not state to whom he complained.
Upon receiving the notice of his transfer, Darden wrote Stoekl on the same
day to inform her of his prior bad experiences with Connolly and of his
intent instead to appear for work at the New York office, presumably
meaning CSI. According to Darden, when he arrived at the New York
office, he was locked out. Thus, Darden states he was "arbitrarily
retired against his will" and deprived of severance pay. (Compl., ¶
The procedural history of this matter is also relevant to the instant
motion to dismiss. Darden filed this action on June 7, 2001. Darden
apparently attempted to serve Defendants on June 8, 2001; Defendants
assert that Darden's effort was not effective. Darden attempted to serve
DCAG at the CSI offices in New York. According to Defendants, DCAG does
not have offices in New York and has not authorized CM or its personnel
to accept service on its behalf. By Defendants' account, on June 8,
2001, a process server deposited multiple copies of a summons and
complaint for Defendants, including DCAG, on an empty desk in the
presence of a CSI secretary who refused to accept service. Darden provides
a different version of the service of process. Darden submitted the
affidavit of Ralph Addonizzio ("Addonizzio") the process server he
employed to serve Defendants. Addonizzio stated that he served the
offices of CSI on June 7, 2001 by handing the summons and complaint to a
woman with a foreign accent whom he believed to be Stoekl.
By stipulation, Defendants' time to answer or respond to the complaint
was extended. Plaintiff thereafter amended the complaint and served it on
Defendants' attorney on September 12, 2001; it was filed with the Court
on November 15, 2001.*fn1
Defendants seek dismissal of the Complaint on several different grounds
pursuant to Fed.R.Civ.P. 12(b). The Court considers the jurisdictional
issues first, because a dismissal for lack of jurisdiction renders all
other claims moot. Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574, 583
(1999) ("Article III generally requires a federal court to satisfy itself
of its jurisdiction over the subject matter before it considers the
merits of a case."); Calero v. Immigration and Naturalization Service,
967 F.2d 20 (2d Cir. 1992); Da Silva v. Kinsho Int'l Corp., 299 F.3d 358
(2d Cir. 2000). A court may find it appropriate to consider personal
jurisdiction before subject matter jurisdiction. See Ruhrgas, 526 U.S. at
578. For the reasons set forth below, the Court finds it appropriate to
address Defendants' motion to dismiss pursuant to 12(b)(5) before
reaching their motion to dismiss for lack of subject matter jurisdiction
pursuant to 12(b)(1).
Defendants base their motion to dismiss on two grounds: Darden's
efforts to serve Defendants with the original complaint and the
sufficiency of the claims contained in the Amended Complaint. Defendants
do not move to dismiss Darden's claims of race discrimination under
42 U.S.C. § 1981 and the HRL made against CSI and Stoekl.
A. INSUFFICIENT SERVICE OF PROCESS
Defendants claim that Darden failed to properly serve them.
Nevertheless, with the exception of DCAG, Defendants waived service of
process. (Memorandum of Law in Support of Defendants' Motion for the
Partial Dismissal of the First Amended Complaint, at 8 n. 6.) DCAG
presses the process point.
Once a defendant raises a challenge to the sufficiency of service of
process, the plaintiff bears the burden of proving its adequacy. See
Howard v. Klynveld Peat Marwick Goerdeler, 977 F. Supp. 654, 658
(S.D.N.Y. 1997), aff'd, 173 F.3d 844 (2d Cir. 1999). Conclusory
statements are insufficient to overcome a defendant's sworn affidavit
that he was not served. See id. If service of process was not
sufficient, the Court has discretion to dismiss the action, but dismissal
is not mandatory. See Fed.R.Civ.P. 12(b)(5); Zen Music, Inc. v. CVS
Corp., No. 98 Civ. 4246, 1998 WL 912102, at *4 (S.D.N Y Dec. 20, 1998).
Similar to a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for
lack of subject matter jurisdiction, in considering a motion to dismiss
pursuant to 12(b)(5) for insufficiency of process, a Court must look to
matters outside the complaint to determine whether it has jurisdiction.
There is no dispute that DCAG is a foreign stock corporation. To effect
service on a foreign corporation a party must comply with the rules of
the forum state, here the State of New York. See Fed.R.Civ.P. 4(h).
Under New York law, to effect service on a foreign corporation a party
must serve both the New York Department of State and the foreign
corporation at its foreign offices. See N.Y. Bus. Corp. L. § 307;
Weinstein v. Volkswagen of America, Inc., No. 88 C 1932, 1989 WL 35950,
*3 (E.D.N.Y. Apr. 4, 1989). Because service on a foreign corporation
requires the transmittal of a judicial document abroad, the Hague
Convention on the Service Abroad of Judicial and Extra-Judicial Documents
("Hague Convention") applies and preempts contrary state law. See
Volkswagonwerk AG v. Schlunk, 486 U.S. 694, 700 (1989). By Darden's own
account, however, Darden failed to comply with either New York law or the
Hague Convention because Darden did not attempt to serve DCAG in Germany
nor serve the New York Secretary of State here.
Darden argues that CSI is a subsidiary of DCAG, and that, under an
exception to the Hague Convention, service on CSI effected service on
DCAG. The subsidiary exception would apply if Darden could show that CSI
is "the foreign parent's general agent in New York or is so dominated by
the foreign parent as to be a `mere department' of the parent."
International Cultural Prop. Soc. v. Walter De Gruyter & Co., No. 99
Civ. 12329, 2000 WL 943319, *1-*2 (S.D.N.Y. July 6, 2000) (citing Low v.
BMW, AG, 449 N.Y.S.2d 733, 735 (App. Div. 1 st Dep't 1992). A specific
factual showing of an agency relationship is necessary. Id. at *2; see
also Jerge v. Potter, No. 99-CV-0312, 2000 WL 1160459, *2 (W.D.N.Y. Aug.
11, 2000). To show an agency relationship, a party must show more than
mere ownership, Jerge, 2000 WL at *2, and should show that: "[t]he
subsidiary does all the business which [the parent corporation] could do
were it here by its
own officials." Int'l Cultural Prop. Soc., 2000 WL at
*2 (citation and internal quotations omitted). Alternately, to show that
a domestic company is a mere department of the foreign corporation, a
plaintiff should address four factors: common ownership; financial
dependency of the subsidiary on the parent corporation; the parent's
control over the subsidiary's selection of executives and observance of
corporate formalities; the parent's control over the subsidiaries'
marketing and operations. Id. at *2 (citing Janzini v. Nissan Motor Co.,
148 F.3d 181, 184-185 (2d Cir. 1997) (internal quotations and citations
In the Complaint, Darden alleged that Stoekl was employed by DCAG
"and/or" CSI in 1999 and that her job functions entailed arranging for
Board meetings between DCAG, NAH and MBUSA. Further, Darden alleges that
Stoekl made statements that her relationship with Schrempp, the chairman
of DCAG, was close and ensured her employment. In further support of his
argument that CSI is DCAG's agent or department, Darden submitted the
affidavit of Pohl, the former president and chief executive officer of
DaimlerBenz North America Corporation. Pohl states that CSI "was set up
as the corporate unit of [DCAG] in certain service related aspects" and
that CSI was "operated in a way so dominated as it was by Mr. Schrempp
that it had no independence from him." (Affidavit of Timotheus R. Pohl,
dated Nov. 15, 2001 ("Pohl Aff."), at ¶ 8, 10.) Darden's Complaint
and Pohl's conclusory statements generally show a relationship between
DCAG and CSI, but do not address the specific analysis required by law.
Thus, Darden's allegations of an agency relationship between DCAG and
CSI, or CSI's mere department status, are not supported by sufficient
factual specificity. See Int'l Cultural Prop. Soc., 2000 WL at *2.
Because Darden failed to carry his burden, the Court concludes that
service of process on DCAG was not effected.
In anticipation that the Court's determination regarding service of
DCAG may be unfavorable, Darden requested that the Court grant him
additional time to serve DCAG in compliance with the Hague Convention. In
light of the discussion set forth below, see infra, discussion at II.B.
and II.C., the Court exercises its discretion under Fed.R.Civ.P.
12(b)(5) and 4(m) to grant Darden's request. See Advanced Portfolio
Technologies, Inc. v. Advanced Portfolio Techniques, Ltd., No. 94 Civ.
5620, 1999 WL 64283, *8 (S.D.N.Y. Feb. 8, 1999) (citing Mejia v. Castle
Hotel Inc., 164 F.R.D. 343 (S.D.N Y 1996) and Simmons v. Warden, No. 92
Civ. 7615, 1996 WL 79321, *5 (S.D.N.Y. Feb. 23), aff'd, 104 F.3d 350 (2d
Cir. 1996)). Thus, if the second amended complaint contains a short and
plain statement of the grounds upon which subject matter jurisdiction over
DCAG is based, as well as sufficient facts in support of those
allegations, Darden may attempt to serve DCAG a second time.
B. LACK OF SUBJECT MATTER JURISDICTION
On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), it is the
Court's duty to resolve disputed jurisdictional facts. See Cargill
International S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019 (2d Cir.
1993); see also Ruhrgas, 526 U.S. at 583; Lyndonville Savings Bank &
Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000) ("[F]ailure of
subject matter jurisdiction is not waivable and may be raised at any time
by a party or the court sua sponte."). The Court may fulfill its duty by
reference to evidence outside the pleadings. See Zappia Middle East
Construction Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir.
in resolving a challenge to subject matter
jurisdiction, the Court is not obligated to draw inferences in favor of
the plaintiff. See Newsom-Lang v. Warren International,
129 F. Supp.2d 662, 663-64 (S.D.N.Y. 2001)
1. Lack of Subject Matter Jurisdiction over DCAG, NAH and Stoekl
Defendants claim that Darden lacks subject matter jurisdiction over
DCAG, NAH and Stoekl because he did not name them in the charge he filed
with the EEOC.*fn2 As a general rule, a court lacks jurisdiction to hear
a civil action against a party that was not already named in an EEOC
charge. See 42 U.S.C. § 2000e-5 (b); Alcena v. Raine, 692 F. Supp. 261,
269 (S.D.N.Y. 1988); Campbell v. International Brotherhood of
Teamsters, 69 F. Supp.2d 380, 387 (E.D.N Y 1999). The purpose of this
requirement is to give defendants adequate notice of the claims and an
opportunity to voluntarily comply with Title VII's strictures. See
Alcena, 692 F. Supp. at 269. Failure to name a defendant in an EEOC
charge, however, does not prohibit a plaintiff from asserting claims made
under 42 U.S.C. § 1981 that may be based on the same core events. See
Stewart v. Wappingers Central Sch. Dist., 437 F. Supp. 250, 253
(S.D.N.Y. 1997) (citing Johnson v. Railway Express Agency, 421 U.S. 454,
460-61 (1975) and Gresham v. Chambers, 501 F.2d 687 (2d Cir. 1974)).
However, if there is an "identity of interest as between the parties"
then a Court may overlook a plaintiff's failure to comply with the EEOC
filing requirement. See Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991).
The Second Circuit instructed Courts, in determining whether a ...