JOHN MICHAEL VAZQUEZ, District Judge.
Plaintiff Peter Napoli sues Defendants First Choice Loan Services, Inc. ("FCLS"), Berkshire Hills Bancorp, Inc. ("BHLB"), Norman Koenigsberg, and William Schneider (collectively, "Defendants") for violations of the New Jersey Conscientious Employee Protection Act ("CEPA"), the New Jersey Law Against Discrimination ("NJLAD"), the Age Discrimination in Employment Act of 1967 ("ADEA"), and the Americans with Disabilities Act ("ADA"). D.E. 1-1. Currently pending before the Court is Defendant BHLB's motion to dismiss, D.E. 4, and Plaintiff's cross-motion to amend his Complaint, D.E. 8.
Defendant BHLB is a Delaware corporation that operates as a financial holding company. D.E. 4-3, Prescott Cert. ¶ 2. BHLB's headquarters is in Massachusetts. Id. ¶ 3. BHLB is the parent company of both Berkshire Bank and Berkshire Insurance Group, Inc.
Defendant FCLS was Plaintiff's employer from May 2009 until his termination in 2018. D.E. 8-1, Napoli Cert. ¶ 2; Compl. ¶¶ 5, 8. Defendant Koenigsberg is the COO and Senior Executive Vice President of FCLS; Defendant Schneider is the Senior Vice President Consumer Director of FCLS. Napoli Cert. ¶¶ 9-10. FCLS is a subsidiary of Berkshire Bank, which is itself a subsidiary of BHLB. Pl.'s Opp. at 3; Def.'s Br. at 9.
Plaintiff was employed by FCLS from 2009 to 2018. Compl. ¶¶ 5, 8; Napoli Cert. ¶ 2. Plaintiff alleges that from 2010 until his termination in 2018, Mr. Koenigsberg "embezzled money from FCLS and required Plaintiff and other FCLS employees" to participate. Compl. ¶ 8. Plaintiff claims that he "objected countless time[s] from 2010-2018 to Mr. Koenigsberg" and that "[e]ach time [] Plaintiff objected ... Mr. Koenigsberg and Mr. Schneider expressed anger towards him and retaliated against him." Id. ¶ 15-16. Plaintiff was terminated in October 2018. Id. ¶ 25.
Plaintiff initially filed his Complaint in state court, but Defendants subsequently removed the case to this Court on February 28, 2019. D.E. 1. Defendants FCLS, Koenigsberg, and Schneider answered the Complaint on March 25, 2019. D.E. 3. That same day, Defendant BHLB moved to dismiss Plaintiff's Complaint for lack of personal jurisdiction under Rule 12(b)(2) and for failure to state a claim under Rule 12(b)(6). D.E. 4. Plaintiff filed opposition, D.E. 8, to which Defendant BHLB did not reply.
Federal Rule of Civil Procedure 12(b)(2) permits a party to move to dismiss a case for "lack of personal jurisdiction." Fed. R. Civ. P. 12(b)(2). In such a motion to dismiss, the plaintiff "bears the burden of demonstrating the facts that establish personal jurisdiction." Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002). When a court "resolves the jurisdictional issue in the absence of an evidentiary hearing and without the benefit of discovery, the plaintiff need only establish a prima facie case of personal jurisdiction." Otsuka Pharm. Co. v. Mylan Inc., 106 F.Supp.3d 456, 461 (D.N.J. 2015). In such cases, a court "take[s] the allegations of the complaint as true." Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996). However, once a defendant raises a jurisdictional defense, the "plaintiff bears the burden of proving by affidavits or other competent evidence that jurisdiction is proper." Id. In other words, a court looks beyond the pleadings to all relevant evidence and construes all disputed facts in favor of the plaintiff. See Carteret Sav. Bank v. Shushan, 954 F.2d 141, 142 n.1 (3d Cir. 1992). Plaintiff must establish "with reasonable particularity sufficient contacts between the defendant and the forum state." Otsuka, 106 F. Supp. 3d at 462 (citing Mellon Bank (E) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992)). In addition, a court "may always revisit the issue of personal jurisdiction if later revelations reveal that the facts alleged in support of jurisdiction remain in dispute." Otsuka, 106 F. Supp. 3d at 462 n.5 (citing Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 331 (3d Cir. 2009)).
A federal court "engages in a two-step inquiry to determine whether it may exercise personal jurisdiction": (1) "whether the relevant state long-arm statute permits the exercise of jurisdiction," and (2) "if so, [whether] the exercise of jurisdiction comports with due process" under the Fourteenth Amendment. Display Works, LLC v. Bartley, 182 F.Supp.3d 166, 172 (D.N.J. 2016) (citing IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 258-59 (3d Cir. 1998)); see also Fed. R. Civ. P. 4(k)(1)(A) (indicating that service "establishes personal jurisdiction over a defendant ... who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located"). "New Jersey's long-arm statute extends the state's jurisdictional reach as far as the United States Constitution permits, so the analysis turns on the federal constitutional standard for personal jurisdiction." Id. (citing IMO Industries, 155 F.3d at 259). Accordingly, the two steps are collapsed into one and "we ask whether, under the Due Process Clause, the defendant has certain minimum contacts with [New Jersey] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007) (internal quotation marks omitted). In other words, to establish personal jurisdiction, the Due Process Clause requires (1) minimum contacts between the defendant and the forum; and (2) that jurisdiction over the defendant comports with "`fair play and substantial justice.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 320 (1945)).
"Personal, or in personam, jurisdiction, [generally] divides into two groups: `specific jurisdiction' and `general jurisdiction.'" Display Works, 182 F. Supp. 3d at 172 (citing Burger King, 471 U.S. at 472 n. 14 (1985)). Specific jurisdiction "depends on an affiliatio[n] between the forum and the underlying controversy (i.e., an activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation)." Id. (quoting Walden v. Fiore, 571 U.S. 277, 284 n.6 (2014)). General jurisdiction "permits a court to assert jurisdiction over a defendant based on a forum connection unrelated to the underlying suit." Id. (quoting Walden, 571 U.S. at 284 n.6). If a defendant is subject to a forum's general jurisdiction, the defendant can be sued there on any matter. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). If, however, a defendant is solely subject to specific jurisdiction, the defendant may only face suit in the forum if its activities concerning the forum are related to the claims in the suit. Id.
General jurisdiction may be asserted over an out-of-state corporation "when [its] affiliations with the State are so `continuous and systematic' as to render them essentially at home in the forum State." Id. For an entity, its "place of incorporation and principal place of business are paradigm bases for general jurisdiction[.]" Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (internal quotation marks omitted). If general jurisdiction is established, a court may hear any and all claims against the defendant. Goodyear Dunlop Tires Operations, S.A., 564 U.S. at 919.
Here, Plaintiff has not demonstrated that the Court has general personal jurisdiction over BHLB. It appears that BHLB is neither incorporated in New Jersey nor has its principal place of business in New Jersey.
Specific jurisdiction requires the defendant to have "purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities." Burger King Corp., 471 U.S. at 472 (internal citations and quotation marks omitted). The Third Circuit has developed a three-part test in determining whether specific personal jurisdiction exists as to a particular defendant. O'Connor, 496 F.3d at 317 (internal quotation marks omitted). First, the defendant must have "purposefully directed [its] activities at the forum."
Here, Plaintiff has not demonstrated that the Court has specific personal jurisdiction over BHLB. The Complaint merely alleges that "Defendants maintain one of their corporate headquarters at [sic] `nerve center' is [sic] in the State of New Jersey" and that "Defendants transact business throughout the United States and New Jersey[.]" Compl. ¶ 2. But the Complaint does not indicate which specific Defendants have their headquarters in New Jersey, nor which specific Defendants transact business in New Jersey. Indeed, the Complaint fails to allege any facts from which the Court could reasonably infer that BHLB purposely directed any activity toward New Jersey. In fact, Plaintiff does not dispute BHLB's certification in support of its motion, which states that (1) it conducts no business in New Jersey; (2) does not own or lease any real estate, branch offices, executive offices, loan production offices, or operation centers in New Jersey; (3) has no office or mailing address in New Jersey; (4) does not pay New Jersey income, property, or franchise taxes; (5) has never been registered, licensed, or otherwise qualified to do business in New Jersey; (6) has not appointed a registered agent for service of process in New Jersey; (7) does not manufacture, provide, or place into the stream of commerce in New Jersey any product or any service, including banking, insurance, or mortgage services; and (8) does not engage in any advertising business in New Jersey. D.E. 4-3, Prescott Cert. ¶¶ 5-10.
Plaintiff responds that personal jurisdiction exists for a myriad of reasons, including:
Pl.'s Opp. at 10-11. However, Plaintiff fails to allege sufficient facts from which the Court can reasonably infer that BHLB, itself, purposefully directed any activity toward New Jersey, much less that the current litigation arose out of, or related to, at least one of those activities. Burger King Corp., 471 U.S. at 472 (explaining that specific jurisdiction requires the defendant to have "purposefully directed his activities at residents of the forum and the litigation result[] from alleged injuries that arise out of or relate to those activities"). The Court finds that Plaintiff has not carried its "burden of demonstrating the facts that establish personal jurisdiction." Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002).
Lastly, Plaintiff argues that there exists personal jurisdiction over BHLB because BHLB, Berkshire Bank, and Berkshire Insurance Group, Inc., collectively, "are one employer pursuant to applicable law." Pl.'s Opp. at 9-10. It appears that Plaintiff seeks to impute the jurisdictional contacts of Berkshire Bank and Berkshire Insurance Group, Inc. onto BHLB under an "alter ego" theory. However, even assuming Berkshire Bank and Berkshire Insurance Group, Inc. have sufficient contacts with New Jersey, "[i]t is well-established in New Jersey that the forum contacts of a subsidiary corporation will not be imputed to a parent corporation for jurisdictional purposes without a showing of something more than mere ownership." Seltzer v. I.C. Optics, Ltd., 339 F.Supp.2d 601, 609 (D.N.J. 2004) (citing State, Dep't of Environ. Prot. v. Ventron Corp., 468 A.2d 150, 164 (N.J. 1983)). "In this context, courts in this Circuit will consider `whether the subsidiary was merely the alter ego or agent of the parent, and whether the independence of the separate corporate entities was disregarded.'" Id. (quoting Lucas v. Gulf & Western Indus., Inc., 666 F.2d 800, 806 (3d Cir. 1981)).
To this point, courts will not pierce the corporate veil of a wholly-owned subsidiary vis-à-vis its parent entity unless "(1) `the parent so dominated the subsidiary that it had no separate existence but was merely a conduit for the parent,' and (2) `the parent has abused the privilege of incorporation by using the subsidiary to perpetrate a fraud or injustice, or otherwise to circumvent the law.'" Pathfinder Mgt., Inc. v. Mayne Pharma PTY, No. 06-2204, 2008 WL 3192563, at *5 (D.N.J. Aug. 5, 2008) (quoting Craig v. Lake Asbestos of Quebec, Ltd., 843 F.2d 145, 149 (3d Cir. 1988); see also Seltzer, 339 F. Supp. 2d at 610 ("In New Jersey, a subsidiary will be deemed to be the alter ego or `mere instrumentality' of its parent if `the parent so dominated the subsidiary that it had no separate existence but was merely a conduit for the parent.'") (quoting State, Dept. of Envtl. Protec. v. Ventron Corp., 468 A.2d 150, 164 (N.J. 1983)). "Various factors may be considered in making these determinations, including, inter alia, failure to observe corporate formalities, gross undercapitalization, absence of corporate records, siphoning of funds of the corporation, and the corporation's existence as a facade for the operations of the dominant stockholder." Westfield Ins. Co. v. Interline Brands, Inc., No. 12-6775, 2013 WL 6816173, at *21 (D.N.J. Dec. 20, 2013) (citing Craig, 843 F.2d at 150 (3d Cir. 1988)).
Here, Plaintiff provides no factual allegations to suggest that BHLB so dominated Berkshire Bank or Berkshire Insurance Group, Inc. such that the subsidiaries "had no separate existence but [were] merely a conduit for [BHLB]," much less any factual allegations suggesting that BHLB "abused the privilege of incorporation by using [its] subsidiar[ies] to perpetrate a fraud or injustice, or otherwise to circumvent the law." See Pathfinder Mgt., Inc., 2008 WL 3192563, at *5. Indeed, BHLB asserts that "it is a legally and factually separate corporate entity, distinct from its subsidiaries[] Berkshire Bank and Berkshire Insurance Group, Inc." Prescott Cert. ¶ 4. BHLB also asserts that it "has its own board of directors and officers and maintains its own independent corporate structure," and that BHLB's subsidiaries likewise "maintain[] [their] own independent corporate, partnership, or limited liability company status, identity, and structure." Id. Plaintiff provides no evidence to the contrary, nor sets forth any facts otherwise showing that BHLB is an "alter-ego" of its subsidiaries. Accordingly, BHLB's subsidiaries' forum contacts, if any, will not be imputed to BHLB.
In sum, after having looked at the evidence in the light most favorable to Plaintiff, as well as "considering New Jersey's strong presumption against attributing a subsidiary's forum contacts to its corporate parent," Seltzer, 339 F. Supp. 2d at 613, the Court finds that Plaintiff has failed to establish "with reasonable particularity sufficient contacts between [BHLB] and the forum state."
For the foregoing reasons, the Court grants Defendant BHLB's motion to dismiss for lack of personal jurisdiction, D.E. 4. Plaintiff's cross-motion to amend his Complaint is granted. Pl.'s Opp. at 3, 8. Plaintiff is provided with thirty (30) days to file an amended complaint that cures the deficiencies noted herein. If Plaintiff fails to do so, then his Complaint as to BHLB will be dismissed with prejudice. An appropriate Order accompanies this Opinion.
