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Ingenito v. Riri USA, Inc.

United States District Court, E.D. New York

March 3, 2015


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For Loredana Ingenito, Plaintiff: Victor A. Carr, Westbury, NY; Walter Glibowski, PRO HAC VICE, Kew Gardens, NY.

For Riri USA, Inc., Benjamin Howell, II, Defendants: David Edward Strand, Fisher & Phillips LLP, New Providence, NJ.

For Riri SA, Riri Group, Defendants: Glenn Sklaire Grindlinger, Fox Rothschild LLP, New York, NY.

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MARGO K. BRODIE, United States District Judge.

Plaintiff Loredana Ingenito brings the above-captioned action against Defendants Riri USA, Inc. (" Riri USA" ), Benjamin Howell, II, Riri SA and Riri Group, alleging violations of Title VII of the Civil Rights Act of 1964 (" Title VII" ), as amended by the Pregnancy Act of 1978 (" PDA" ), and the New York State Human Rights Law (" NYSHRL" ). Riri SA and Riri Group (collectively, " Movants" ) moved to dismiss Plaintiff's claims pursuant to Rules 12(b)(2) and (6) of the Federal Rules of Civil Procedure.[1] For the reasons set forth below, the Court grants the motion to dismiss as to Riri Group, and denies the motion to dismiss as to Riri SA.

I. Procedural Background

Plaintiff brought the above-captioned action against Riri USA and Benjamin Howell, II, in the Supreme Court of the State of New York, County of Queens. Defendants removed the action to this Court on

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May 27, 2011. The Complaint asserted claims for pregnancy discrimination under both disparate impact and disparate treatment theories pursuant to Title VII, as amended by the PDA; pregnancy discrimination pursuant to the NYSHRL, the American with Disabilities Act (" ADA" ), the Genetic Information Nondiscrimination Act (" GINA" ), and the Family and Medical Leave Act of 1993 (" FMLA" ); due process violations pursuant to the Due Process Clause of the U.S. Constitution; and intentional infliction of emotional distress pursuant to New York state law. Defendants moved for summary judgment on all claims, and by Memorandum and Order dated February 27, 2013, the Court granted Howell summary judgment as to Plaintiff's Title VII claims and denied Howell summary judgment as to Plaintiff's NYSHRL claim. The Court granted Defendant Riri USA summary judgment on Plaintiff's Title VII disparate impact claim and denied Riri USA summary judgment on Plaintiff's Title VII disparate treatment and NYSHRL claims.[2] Plaintiff requested and was granted leave to amend the Complaint to add Movants as defendants.

On April 18, 2013, Plaintiff submitted her Revised[3] Amended Complaint, adding claims of unlawful discriminatory practices in violation of the NYSHRL and of disparate treatment in violation of Title VII against Movants. In May 2013, Plaintiff sought to serve Howell, who is listed on Riri SA's website as its agent in the United States, as Movants' representative. On May 3 and May 7, 2013, Magistrate Judge Roanne Mann granted Plaintiff leave to serve Howell as Movants' agent, stating that Movants could thereafter litigate whether Howell was authorized to accept process on its behalf. Howell accepted a waiver of service on May 8, 2013, and discovery was reopened for the purposes of determining whether the Court has jurisdiction over Movants. (Order dated January 7, 2014, Docket Entry No. 63.) Jurisdictional discovery closed on April 11, 2014. ( Id.) On May 9, 2014, Movants moved to dismiss the Second Amended Complaint pursuant to Rules 12(b)(2) and (6) of the Federal Rules of Civil Procedure, arguing that (1) the Court lacks personal jurisdiction over Movants, (2) Plaintiff fails to state a claim pursuant to Title VII because she failed to exhaust her administrative remedies against Movants, and (3) Plaintiff's NYSHRL claims against Movants are barred by the statute of limitations. For the reasons set forth below, the Court denies Movants' motion to dismiss as to Riri SA, but grants the motion as to Riri Group.

II. Factual Background

The Court assumes familiarity with the parties and background to this case, which is set forth in greater detail in its February 27, 2013 Memorandum and Order. Ingenito v. Riri USA, Inc., No. 11-CV-2569, 2013 WL 752201 (E.D.N.Y. Feb. 27, 2013). The facts necessary to decide the motions before the Court are outlined below.

a. Riri Group

According to Defendants, " Riri Group" is not a legal entity, but rather is an

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informal trade name, used primarily for marketing purposes and to refer to Riri SA and its affiliates. (Moretta Decl. ¶ 5.) Riri Group SA was, at one time, a separate corporate entity, but was merged into Riri SA in 2008, and " Riri Group" no longer exists as an entity incorporated in any jurisdiction. (Moretta Decl. ¶ 5.) It does not do business in the state of New York or anywhere else. (Moretta Decl. ¶ 5.) Riri Group is not a taxable entity and does not have income, assets, employees, or any separate business of its own. (Moretta Decl. ¶ 5.)

Plaintiff alleges that Howell is an employee and agent of Riri Group. (Second Am. Compl. (" SAC" ) ¶ 5, 8.) Because of this relationship, Plaintiff alleges that Riri Group is liable to Plaintiff for any discriminatory practices of its supervisors, managers, officers, employees or agents. (SAC ¶ 50.)

b. Riri SA

Riri SA is a Swiss corporation, with its principal place of business in Switzerland, that manufactures and distributes zippers, buttons, fasteners, and snaps internationally. (Moretta Decl. ¶ 4). Riri SA has several affiliate corporations, and is the parent corporation of Riri USA. (Cerni Aff. ¶ 3; Moretta Decl. ¶ 6.) Riri SA is the sole stockholder of Riri USA and maintains control over Riri USA's board of directors and executive personnel. (SAC ¶ ¶ 11, 22.) Riri SA does not directly solicit business in the United States, but instead acts through Riri USA as a sales and distribution representative. (Moretta Decl. ¶ ¶ 6, 17.) All Riri-affiliated product sales in the United States are made by and through Riri USA. (Moretta Decl. ¶ 21.) Riri SA does not own or lease any property in New York. (Moretta Decl. ¶ 11.) It does not own any assets located in New York. (Moretta Decl. ¶ 12.) During the time Plaintiff was employed with Riri USA, Riri SA's executive officers included Chief Executive Officer (" CEO" ) Andrea Cerni, (Cerni Aff. ¶ 1; SAC ¶ 28), and now Chief Financial Officer (" CFO" ) Andrea Moretta, (Moretta Decl. ¶ 1).

Plaintiff contends that Howell is an employee of Riri SA. (SAC ¶ 4.) On a website maintained by Movants, Howell is listed as an agent of " Riri Group." (SAC ¶ 26.) Movants also post on their website that " Riri Group" maintains an office in New York, New York. (SAC ¶ 26.) Riri SA contends that it does not have any " individuals on the payroll" in the United States, or any employees in New York. (Cerni Aff. ¶ 5; Moretta Aff. ¶ 10.)

c. Riri USA and Benjamin Howell

Riri USA is a Delaware corporation with its primary place of business in New York. (Howell Aff. ¶ 2; Moretta Decl. ¶ 6.) Riri USA sells zippers, snaps, buttons and rivets to high-end clothing manufacturers. (Moretta Decl. ¶ ¶ 4, 6.) Riri USA is a wholly-owned subsidiary of Riri SA and is part of " Riri Group." (Howell Aff. ¶ 3.) Riri USA " was formed to act as Riri SA's sales and distribution representative in the United States, as Riri SA does not directly solicit business in the United States." (Moretta Decl. ¶ 6.) Riri SA and Riri USA file separate tax returns, keep separate books and records, and maintain separate bank accounts. (Moretta Decl. ¶ ¶ 15, 18--19.) Over at least the past fourteen years, Riri SA has not loaned Riri USA money or extended it credit. (Moretta Decl. ¶ 20.) Andrea Moretta, the CFO of Riri SA, is a member of the Board of Directors of Riri USA. (Moretta Decl. ¶ 1.) Riri SA's Board of Directors holds meetings separate and apart from the regular meetings held by Riri USA's Board of Directors. (Moretta Decl. ¶ 23.)

At the time of Plaintiff's termination, Riri USA had three offices: one in New York with five employees, one in Los Angeles

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with one employee, and one in San Francisco with one employee. (Howell Aff. ¶ 29.) The employees in Los Angeles and San Francisco both functioned as salespersons. (Howell Aff. ¶ 29.) Riri SA and Riri USA do not share office space. (Moretta Decl. ¶ 11.)

Orders and sales of merchandise made by employees of Riri USA are reported to Riri SA, and Riri SA keeps the related sales documents and records. (SAC ¶ 32.) Riri SA generates and maintains, in Switzerland, all sales documents for Riri USA. (Dep. of Lawrence Benjamin Howell II, dated Feb. 16, 2012 (" Howell Dep." ), annexed to Pl. Opp'n as Ex. 4, at 64:3--16.) Riri SA sends Riri USA the documents periodically, which allows Riri USA to sort the sales documents by salesperson, client, or customer. (Howell Dep. 64:11--24.) Sales information is maintained in Swiss Francs. (Howell Dep. 68:2--24.) According to Howell, Riri USA maintains all of its records in Swiss Francs, because " [w]e're a Swiss company." (Howell Dep. 70:8--14.)

Riri USA has control over the decision to make sales in the United States and to extend credit to customers in the United States. (Moretta Decl. ¶ 21.) When Riri USA makes a sale or receives an order for product, Riri USA enters into purchase orders or agreements with customers in the United States. (Moretta Decl. ¶ 24.) Riri USA then enters the record of the sale into the Riri electronic system, which is a " big mainframe system" maintained in Switzerland by Riri SA. (Howell Dep. 64:3--7, 72:11--13.) For each sale, the computer system has a set price list for each individual account, which is how the cost of each product -- which may vary based on factors like zipper length and finish -- is determined. (Howell Dep. 74:17--25.) Once a sale is recorded, the system generates an electronic confirmation for the client and the salesperson. (Howell Dep. 72:12--15.) The goods are shipped, and the system generates an invoice. (Howell Dep. 72:15--17.) Once an invoice is generated, the sale is booked in the system. (Howell Dep. 72:18--20.) " [T]his is how Switzerland pays their taxes and does all the things that they do." (Howell Dep. 72:20--22.) While clients of Riri USA are billed in dollars, the reports of the sales are maintained in Swiss Francs. (Howell Dep. 73:12--16.) Riri SA compiles the sales report file on a monthly basis and sends it to Howell at Riri USA. (Howell Dep. 71:4--72:5.) Riri USA is able to extract from that report information related solely to its sales in the United States, and can sort the data by each sales agent or salesperson. (Howell Dep. 71:4--72:5.)

Howell is Riri USA's CEO. (SAC ¶ 35; Howell Aff. ¶ 1; Moretta Decl. ¶ 8.) He has held the position since he began working at the company eleven years ago. (Howell Aff. ¶ 1.) Howell has the authority to hire, fire, promote, transfer, discipline, and otherwise oversee the work activities of Plaintiff. (SAC ¶ 37.) As CEO of Riri USA, Howell is in charge of projections for profit and loss of the company, in charge of the employees, does some selling and some administrative work, and is the " liaison with the home office which is in Switzerland, the ...

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