United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER ACCEPTING IN PART THE MAGISTRATE
JUDGE'S JANUARY 31, 2018 REPORT AND RECOMMENDATION
G. Edmunds, United States District Judge
matter is before the Court on Magistrate Judge Stafford's
Report and Recommendation  to deny Defendant's Motion
to Dismiss , pursuant to Fed.R.Civ.P. 12(b)(2) for lack of
personal jurisdiction. Defendant has filed two objections
 to the Report and Recommendation. For the reasons that
follow, the Court adopts the unobjected to portion of the
Magistrate Judge's Report and Recommendation and DENIES
Defendant's Motion to Dismiss.
Court performs a de novo review of those portions of
Magistrate Judge Stafford's Report and Recommendation to
which Plaintiff has objected. 28 U.S.C. § 636(b). The
Court need not perform a de novo review of the
report's unobjected-to findings. Thomas v. Arn,
474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
Moreover, an objection that "does nothing more than
state a disagreement with a magistrate [judge]'s
suggested resolution, or simply summarizes what has been
presented before, is not an 'objection' as that term
is used in this context.'" Aldrich v. Bock,
327 F.Supp. 2d. 743, 747 (E.D. Mich. 2004). Indeed, the
purpose of an objection to a report and recommendation is to
provide the Court “with the opportunity to consider the
specific contentions of the parties and to correct any errors
immediately.” Id. (quoting United States
v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981)).
Shannon Keller, a Michigan resident, filed a pro se
complaint against Clean Harbors, Inc.
("Defendant"). The claim consisted of 1185
pages. Plaintiff's complaint references her
EEOC right to sue letter under Title VII and the Equal Pay
Act, and alleges unlawful termination, retaliation, gender
inequality, and sex stereotyping. (R&R; Dkt. 17, at 1;
PgID 1740.) Plaintiff does not, however, identify a specific
statute under which she is suing Defendant. Nonetheless, the
Sixth Circuit liberally construes pleadings of a pro
se litigant. Martiv v. Overton, 391 F.3d 710,
712 (6th Cir. 2004) (citing Haines v. Kerner, 404
U.S. 519, 520-21 (1972)); Herron v. Harrison, 203
F.3d 410, 414 (6th Cir. 2000) (pro se pleadings are
held to "an especially liberal standard");
Fed.R.Civ.P. 8(e) ("All pleadings shall be so construed
as to do substantial justice"). Based on the documents
Plaintiff provides, Magistrate Judge Stafford and this Court
assume these are Title VII and Equal Pay Act claims.
a Massachusetts holding company, believes Plaintiff should
have filed her complaint against non-party Clean Harbors
Environmental Services, Inc. ("Environmental
Services"), one of its wholly owned subsidiaries that
does business in Michigan. (D. Mot. to Dismiss; Dkt. 8, at 9;
PgID 1204.) Defendant's Motion to Dismiss, seeks to
dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(2), for
lack of personal jurisdiction. Defendant's arguments rely
almost exclusively on two declarations which contradict
Plaintiff's factual claims, those of Michael McDonald and
Julie Vacca-Hulak. Michael McDonald is the Senior Vice
President, General Counsel and Assistant Secretary for
Defendant and also Vice President of Environmental Services.
(Dkt. 17, at 10; PgID 1749.) Julie Vacca-Hulak is the Human
Resource Director for Environmental Services. Together these
declarations state Environmental Services alone employed
Plaintiff, and contradict the jurisdictional facts Plaintiff
asserts. Plaintiff's 419 page Response to Defendant's
Motion to Dismiss (Dkt. 10, ) amounted to a document dump,
although some of that evidence the Magistrate Judge found
helpful for resolving the motion. Defendant's August 2017
Reply in support of Defendant's Motion to Dismiss, again
emphasized the sworn declaration of Michael McDonald and then
addressed two pieces of the evidence Plaintiff included in
her voluminous response. Defendant noted that the
non-competition/confidentiality agreements Plaintiff executed
with Defendant, are all governed by the laws of
Massachusetts, meaning they did not avail themselves of
Michigan's laws. Defendant also emphasized that the EEOC
Charge of Discrimination identifies Plaintiff's employer
as Environmental Services and not Defendant.
Standard of Review - Personal Jurisdiction
Fed.R.Civ.P. 12(b)(2), "[t]he plaintiff bears the burden
of establishing that jurisdiction exists."
Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th
Cir. 1991). However, when a court rules on a motion
to dismiss under Fed.R.Civ.P. 12(b)(2) without conducting an
evidentiary hearing, "th[at] burden on the plaintiff is
relatively slight." Air Prod. Controls,
Inc. v. Safetech Int'l, Inc., 503 F.3d 544, 549 (6th
Cir. 2007) (quoting Am Greets Corp. v. Cohn, 839
F.2d 1164, 1169 (6th Cir. 1988)).
district court has three procedural options when deciding a
12(b)(2) motion. Theunissen, 935 F.2d at 1458. It
may decide the motion based on (i) written submissions and
affidavits alone, (ii) hold an evidentiary hearing on the
merits of the motion, or (iii) order discovery limited to the
personal jurisdiction issue. Air Prod., 503 F.3d at
549; Theunissen, 935 F.2d at 1458. "[A]
defendant who alleges facts that would defeat the court's
personal jurisdiction can invoke the court's discretion
to order a pretrial evidentiary hearing on those facts."
Serras v. First Tenn. Bank Nat'l Ass'n, 875
F.2d 1212, 1214 (6th Cir. 1989). "[T]his rule prevents a
defendant from 'defeat[ing] personal jurisdiction merely
by filing a written affidavit contradicting jurisdictional
facts alleged by a plaintiff.' " Shneider v.
Hardesty, 669 F.3d 693, 697 ((6th Cir. 2012) (quoting
Serras, 875 F.2d at 1214).
neither party asked for limited discovery or for an
evidentiary hearing. The Magistrate Judge therefore proceeded
to resolve Defendant's motion based solely on the written
there has been no evidentiary hearing, the plaintiff need
only present a prima facie case in support of
jurisdiction to defeat dismissal. Theunissen, 935
F.2d at 1458. See also Miller v. AXA Winterthur Ins.
Co., 694 F.3d 675, 678 (6th Cir. 2012) (observing that
in order to defeat a motion to dismiss for lack of personal
jurisdiction, the plaintiff's affidavits must only make
out a prima facie showing and the pleadings and
affidavits are viewed in the light most favorable to the
plaintiff). A plaintiff may make a prima facie
showing of jurisdiction by "establishing with reasonable
particularity sufficient contacts between [the defendant] and
the forum state to support jurisdiction." Lexon Ins.
Co. v. Devinshire Land Dev., LLC, 573 Fed.Appx. 427, 429
(6th Cir. 2014).
district court must view all pleadings and affidavits in the
light most favorable to the plaintiff. Miller, 694
F.3d at 678. Also, the district court does "not weigh
the controverting assertions of the party seeking dismissal,
" Estate of Thomson ex rel. Estate of Rakestraw v.
Toyota Motor Corp. Worldwide, 545 F.3d 357, 360 (6th
Cir. 2008). See also Serras, 875 F.2d at 1214
("If [the plaintiff] meets [the prima facie]
burden the motion to dismiss should be denied,
notwithstanding any controverting presentation by the moving
party.") This prevents a defendant "from regularly
avoiding personal jurisdiction simply by filing an affidavit
denying all jurisdictional facts." CompuServe, Inc.
v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996).
factual disagreements with Plaintiff, and specifically
Defendant's two supporting sworn declarations, at this
stage are not weighed. Dismissal is only appropriate "if
all the specific facts which the plaintiff [ ] alleges,
collectively fail to state a prima facie case for
jurisdiction, " when viewed in the light most favorable
to Plaintiff. CompuServe, Inc., 89 F.3d at 1262.
plaintiff has presented a prima facie case for
personal jurisdiction, the party opposing jurisdiction
"remain[s] free to further contest the issue by
requesting an evidentiary hearing or by moving for summary
judgment if [ ] discovery reveals a material variance from
the facts" plaintiff presented in their pleadings.
Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d