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March 14, 2002


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., ¶ 11(d).)

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., ¶ 12.)

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.


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 omitted).

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.


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. 2000) Furthermore, 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 ...

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