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DECRAENE v. NEUHAUS

June 3, 2005.

LUCAS DECRAENE, Plaintiff,
v.
NEUHAUS (U.S.A.), INC., NEUHAUS N.V., GUY PACQUOT, CLAUDE EMERY, CLEMENTINE LOEHMAN, WALTER SEROW, MARIE COLES, JOS LINKENS, MARLENE VONKEN, LUDO MANS, MAHBOUB BAKHTIARI, and VALERIE NAGLEY, Defendants.



The opinion of the court was delivered by: GERARD E. LYNCH, District Judge

ORDER AND OPINION

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.

  BACKGROUND

  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.

  DISCUSSION

  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 claim.

  I. Personal Jurisdiction

  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 ...


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