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Hager v. Omnicare, Inc.

United States District Court, S.D. West Virginia

November 19, 2019

CATHY L. HAGER, Plaintiff,
OMNICARE, INC., Defendant.


          Frank W. Volk United Stales District Judge

         Pending 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.


         Plaintiff 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 companies.

         Ms. 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.

         The 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.

         On 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].

         Subsequently, 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.

         II. A. Personal Jurisdiction

         Federal 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. 2019).

         Like 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)).

         The 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).

         “Under 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).

         The 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 ...

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