United States District Court, S.D. West Virginia
CATHY L. HAGER, Plaintiff,
OMNICARE, INC., Defendant.
MEMORANDUM OPINION AND ORDER
W. Volk United Stales District Judge
are the Motion to Dismiss Plaintiff's Complaint [Doc. 9]
(“motion to dismiss”), filed August 23, 2019, and
Motion for a Protective Order and Stay Concerning October 31,
2019 Deadline and for an Expedited Briefing Schedule [Doc.
21] (“motion for stay”), filed by Defendant
Omnicare, Inc. (“Omnicare”) on October 28, 2019.
Cathy L. Hager, on behalf of herself and others similarly
situated, instituted a collective action on June 28, 2019,
against Omnicare alleging violations of the Fair Labor
Standards Act (the “FLSA”) [Doc. 1]. Omnicare is
a for-profit entity that sells and distributes medicine and
medical devices. It “conducts business throughout the
United States in medical and nursing facilities, senior
living facilities, and distribution centers in at least
forty-seven (47) states in the United States, including West
Virginia.” [Doc. 1 at 2]. In order to deliver the
products, Omnicare subcontracts with regional delivery
Hager alleges that she was a driver for one of those delivery
companies and that, “[f]rom approximately October 2018
to May 17, 2019, [she] delivered pharmaceutical products on
behalf of and at the direction of Defendant in West
Virginia.” [Doc. 1 at 2]. According to Ms. Hager,
Omnicare directs and supervises the drivers through the
intermediary delivery companies. She alleges, for example,
that Omnicare requires drug tests for the drivers, creates
mandatory schedules and routes for the drivers, and closely
monitors the drivers. Ms. Hager contends that this direction
and supervision is done both directly by Omnicare but also
indirectly through the third-party delivery companies.
complaint alleges that Omnicare has engaged in a practice of
unlawfully classifying delivery drivers as independent
contractors instead of as employees. As a result, the drivers
pay the costs associated with deliveries - such as tolls,
gas, maintenance, and insurance - rather than Omnicare. Ms.
Hager alleges that this practice effectively reduces driver
pay below the applicable federal minimum wage. This alleged
practice is the basis of Ms. Hager's FLSA claim.
August 23, 2019, Omnicare moved to dismiss the complaint for
lack of personal jurisdiction and improper venue. As to
personal jurisdiction, Omnicare asserts that the Court lacks
either general or specific jurisdiction over it. As to venue,
Omnicare asserts that none of the grounds for proper venue
are present in this case. In support of its motion, Omnicare
offers the affidavit of Thomas S. Moffatt, the Vice President
and Secretary of Omnicare [Doc. 9-1]. On September 6, 2019,
Ms. Hager responded in opposition. Ms. Hager attached
substantial evidence of Omnicare's general presence in
West Virginia over a considerable timeframe. On September 13,
2019, Omnicare replied [Doc. 18].
on October 28, 2019, Omnicare moved to stay [Doc. 21]. It
sought a protective order excusing it from compliance with
the October 31, 2019, initial disclosures deadline.
Additionally, Omnicare requested that the Court stay the
deadline until after adjudication of the motion to dismiss.
Ms. Hager has responded and Omnicare has replied. The matters
are now ready for adjudication.
A. Personal Jurisdiction
Rule of Civil Procedure 12 provides that “a party may
assert the lack of personal jurisdiction” by motion.
Fed.R.Civ.P. 12(b)(2). During the early stages of a case,
“[w]hen a district court considers a question of
personal jurisdiction based on the contents of a complaint
and supporting affidavits, the plaintiff has the burden of
making a prima facie showing in support of its assertion of
jurisdiction.” Universal Leather, LLC v. Koro AR,
S.A., 773 F.3d 553, 558 (4th Cir. 2014) (citations
omitted). This analysis “resembles the plausibility
inquiry governing motions to dismiss for failure to state a
claim under Rule 12(b)(6).” Hawkins v. i-TV
Digitalis Tavkozlesi zrt., 935 F.3d 211, 226 (4th Cir.
under Rule 12(b)(6), the Court “give[s] the
plaintiffs' allegations a favorable presumption, taking
the allegations in the light most favorable to the
plaintiff.” Sneha Media & Entm't, LLC v.
Associated Broad. Co., 911 F.3d 192, 196 (4th Cir.
2018). But, “[u]nlike under Rule 12(b)(6), the court
may also consider affidavits submitted by both parties,
although it must resolve all factual disputes and draw all
reasonable inferences in favor of the party asserting
jurisdiction.” Hawkins, 935 F.3d at 226;
see also Universal Leather, 773 F.3d at 560
(requiring courts to “assume the credibility of [the
plaintiff's] version of the facts, and to construe any
conflicting facts in the parties' affidavits and
declarations in the light most favorable to [the
plaintiff].”). Ultimately, “if the court denies a
Rule 12(b)(2) motion under the prima facie standard,
it can later revisit the jurisdictional issue when a fuller
record is presented because the plaintiff ‘bears the
burden of demonstrating personal jurisdiction at every stage
following [the defendant's jurisdictional]
challenge.'” Sneha Media, 911 F.3d at
196-97 (quoting Grayson v. Anderson, 816 F.3d 262,
267 (4th Cir. 2016)).
Court may properly exercise jurisdiction over a foreign
corporation only if: (1) jurisdiction is authorized by West
Virginia's long-arm statute; and (2) application of the
West Virginia long-arm statute is consistent with the Due
Process clause. See ESAB Grp., Inc. v. Zurich, Ins.
PLC, 685 F.3d 376, 391 (4th Cir. 2012). But,
“[b]ecause the West Virginia long-arm statute is
coextensive with the full reach of due process, it is
unnecessary in this case to go through the normal two-step
formula for determining the existence of personal
jurisdiction.” In re Celotex Corp., 124 F.3d
619, 627-628 (4th Cir. 1997).
the Fourteenth Amendment's Due Process clause, there are
two paths permitting a court to assert personal jurisdiction
over a nonresident defendant.” Universal
Leather, 773 F.3d at 559 (citations omitted). The first,
general jurisdiction, allows a court to “hear any and
all claims against [foreign corporations] when their
affiliations with the State are so ‘continuous and
systematic' as to render them essentially at home in the
forum State.” Daimler AG v. Bauman, 571 U.S.
117, 127 (2014) (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
“The paradigm forums in which a corporate defendant is
at home . . . are the corporation's place of
incorporation and its principal place of business.”
BNSF Ry. Co. v. Tyrrell, 137 S.Ct. 1549, 1558 (2017)
(internal quotation marks omitted).
second, specific jurisdiction, “may be established if
the defendant's qualifying contacts with the forum state
also constitute the basis for the suit.” Universal
Leather, 773 F.3d at 559. The specific jurisdiction
analysis “focuses on the relationship among the
defendant, the forum, and the litigation.” Walden
v. Fiore, 571 U.S. 277, 284 (2014) (internal quotation
marks omitted). To determine whether the exercise of specific
jurisdiction is appropriate, our Court of Appeals requires
analysis of “(1) the extent to which the defendant
purposefully availed itself of the privilege of conducting
activities in the State; (2) whether the plaintiffs'
claims arise out of those activities directed at the State;
and (3) whether the exercise of personal jurisdiction would
be constitutionally reasonable.” Perdue Foods LLC
v. BRF S.A., 814 F.3d 185, 189 (4th Cir. 2016) (internal
quotation marks omitted). A nonresident corporation has
purposefully availed itself of the privilege of conducting
activities in ...