The opinion of the court was delivered by: GERARD E. LYNCH, District Judge
Plaintiff Lucas Decraene, proceeding pro se, brings suit
against his former employer, Neuhaus (U.S.A.), Inc. ("N-US"), its
parent company, Neuhaus N.V. ("N-NV"), and related defendants for
various torts, breach of contract, violation of the Fair Labor
Standards Act, 29 U.S.C. § 207 ("FLSA"), and mismanagement of a
publicly owned and traded company. Defendants N-US, N-NV, Claude
Emery, Walter Serow, Clementine Loehman, Marlene Vonken, Guy
Pacquot, Marie Coles, and Jos Linkens (collectively,
"defendants") now move to dismiss plaintiff's Amended Complaint in its entirety. As will be seen
below, defendants Mahboub Bakhtiari and Valerie Nagley are
dismissed from this action at plaintiff's request. The remaining
defendant, Ludo Mans, has not been served. Defendants' motion
will be granted in part and denied in part.
For purposes of this motion, the facts alleged in plaintiff's
Amended Complaint must be taken as true, and all reasonable
inferences must be drawn in the plaintiff's favor. Freedom
Holdings, Inc. v. Spitzer, 357 F.3d 205, 216 (2d Cir. 2004);
Bolt Elec. Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.
1995). Moreover, a pro se plaintiff's papers are to be read
"liberally and [interpreted so as to] raise the strongest
arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir. 1994), citing Mikinberg v. Baltic S.S. Co.,
988 F.2d 327, 330 (2d Cir. 1993). Plaintiff has supplemented those
facts alleged in the Amended Complaint with an affirmation dated
September 8, 2004 and annexed to the Amended Complaint. On a
motion to dismiss, a court may properly consider documents
attached to the complaint as exhibits or incorporated in it by
reference, Brass v. American Film Techs., Inc., 987 F.2d 142,
150 (2d Cir. 1993), and where the plaintiff is proceeding pro se,
"courts may look to submissions beyond the complaint to determine
what claims are presented." Boguslarsky v. Kaplan,
159 F.3d 715, 719 (2d Cir. 1998).
Decraene, a Belgian citizen, was employed by N-US, a
fully-owned subsidiary of N-NV, a Belgian chocolatier, in its
retail store in Plano, Texas, between late summer 2001 and early
2002. Decraene claims that he was often required to work overtime
as a result of continual problems with the management and
staffing of the store, and that he was never compensated for this overtime. (Decraene Aff. ¶ 7.) In addition, Decraene claims
that defendant Ludo Mans, then-chief executive officer of N-US,
ordered him to fix the store's books and to create deposits in
N-US's accounts to mislead the Belgian parent company about the
performance of its United States subsidiary. (Id. ¶¶ 21-22.) In
actuality, Decraene claims, customers were not billed for certain
orders, and a large volume of corporate sales for the 2001-2002
holiday season (approximately three tons of boxed chocolates)
went unfilled after his termination, losing money for the company
and depriving Decraene of his commission on those orders. (Id.
¶¶ 16, 18.)
Decraene's employment was terminated on January 5, 2002. His
termination letter, signed by Mans and countersigned by Decraene,
indicated that he was being terminated because of his "theft from
our company and fraudulent activity involving our accounts."
(Compl. Ex. A, at 1.) These allegations appear to correspond to
the account doctoring and unbilled and/or unfilled orders
described above, for which Decraene claims he was not culpable.
Mans and Claude Emery, an executive vice-president of N-US, filed
charges against Decraene with the Plano Police Department in
accordance with the allegations of theft and fraudulent
accounting in the termination letter. (Decraene Aff. ¶ 23.) Upon
investigation, the district attorney declined to bring a case
against Decraene, and a federal investigation into the
allegations was similarly dropped. (Id.)
Decraene commenced this action by filing his original Complaint
with the pro se office of this Court on February 13, 2004.
After his application to proceed in forma pauperis was granted,
the Complaint was filed with the Clerk of the Court on April 14,
2004. An Amended Complaint was filed on September 13, 2004. As
amended, the Complaint states seven causes of action in
connection with the events outlined above: (1) libel; (2)
slander; (3) intentional infliction of emotional distress; (4) breach of contract; (5) wrongful
discharge; (6) violation of the FLSA; and (7) mismanagement of a
publicly owned and traded company.
Defendants now move to dismiss the Amended Complaint in its
entirety, citing the Court's lack of personal jurisdiction over
defendants Vonken and N-NV and plaintiff's failure to state a
claim as to all causes of action.
In his response to this motion, Decraene concedes that his
first, second, third, and fifth causes of action should be
dismissed as against all defendants and that his fourth, sixth
and seventh causes of action should be dismissed as against
defendants Nagley and Bakhtiari. Accordingly, the plaintiff's
first (libel), second (slander), third (intentional infliction of
emotional distress), and fifth (wrongful discharge) causes of
action will be dismissed in their entirety, and his fourth
(breach of contract), sixth (FLSA violations), and seventh
(mismanagement of a publicly owned and traded company) causes of
action will be dismissed as to Nagley and Bakhtiari.
Decraene further requests that his seventh cause of action be
dismissed (presumably as to the remaining defendants) without
prejudice. Defendants have neither answered nor moved for summary
judgment, and, therefore, Decraene's right under Fed.R. Civ.
Pro. 41(a)(1) to dismiss the action without order of the court
and without prejudice by filing a notice of dismissal endures.
Kilpatrick v. Texas & P. Ry. Co., 166 F.2d 788, 792 (2d Cir.
1948). Although Decraene has not filed a formal notice of
dismissal, the Court accepts his response to this motion as the
equivalent and, accordingly, will dismiss his seventh cause of
action as to the defendants other than Nagley and Bakhtiari
without prejudice. Consequently, all that remains to be adjudicated on this motion is whether the Court has jurisdiction
over defendants Vonken and N-NV and whether Decraene's fourth and
sixth causes of action should be dismissed for failure to state a
Defendants move under Fed.R. Civ. Pro. 12(b)(2) to dismiss
Decraene's claims against defendants Vonken, a Belgian citizen,
and N-NV, a Belgian corporation, for lack of personal
jurisdiction. On a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(2), the plaintiff bears the burden of establishing
jurisdiction. In re Magnetic Audiotape Antitrust Litigation,
334 F.3d 204, 206 (2d Cir. 2003). Where, as here, no
jurisdictional discovery has been conducted, allegations of
jurisdictional fact must be construed in the light most favorable
to the plaintiff, CutCo Indus., Inc. v. Naughton, 806 F.2d 361,
365 (2d Cir. 1986), and the motion must be denied if those
allegations suffice as a matter of law. In re Magnetic
Audiotape, 334 F.3d at 206; PDK Labs, Inc. v. Friedlander,
103 F.3d 1105, 1108 (2d Cir. 1997) ("A plaintiff facing a
Fed.R.Civ.P. 12(b)(2) motion to dismiss made before any discovery need
only allege facts constituting a prima facie showing of personal
jurisdiction[,]" and courts must "construe the pleadings and
affidavits in plaintiff's favor at this early stage."); see
also Metro. Life Ins. Co. v. Robertson-Ceco Corp.,
84 F.3d 560, 566 (2d Cir. 1996).
A federal court sitting in diversity may exercise jurisdiction
over a foreign defendant if, first, the defendant is amenable to
process under the law of the forum state, Omni Capital Int'l
Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 105 (1987); Metro.
Life Ins. Co., 84 F.3d at 567, and second, the exercise of
personal jurisdiction comports with due process under
International Shoe Co. v. Washington, 326 U.S. 310 (1945), and
its progeny. See Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir. 1963) (en banc) ("[T]he amenability
of a foreign corporation to suit in a federal court in a
diversity action is determined in accordance with the law of the
state where the court sits, with `federal law' entering the
picture only for the ...