Bates v. Private Jet Commercial Group

2013 DNH 030

• Court: District Court, D. New Hampshire
• Decided: March 7, 2013
• Docket: 11-CV-547-SM
• Status: Published

Opinion

Bates v. Private Jet Commercial Group 11-CV-547-SM 03/07/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Katie M. Bates, Plaintiff

v. Case No. ll-cv-547-SM Opinion No. 2013 DNH 030 Private Jet Commercial Group, Inc., Private Jet Management Group, Inc., Private Jet Services Group, Inc., and Gregory Raiff, Defendants

O R D E R

Re: (Document No. 46.), Motion to Dismiss

Ruling: The motion to dismiss is granted. Counts I and II

are dismissed as to Defendant Raiff. Count V, which is brought

only against the corporate defendants, is dismissed in its

entirety.

Count I (Title VII): Plaintiff seeks to hold Raiff individually

liable for gender discrimination under Title VII. In this

circuit, however, "there is no individual employee liability"

under that statute.Fantini v. Salem State College, 557 F.3d 22,

30 (1st Cir. 2009). Plaintiff argues that Fantini does not

shield Raiff from liability, because she is seeking to hold him

accountable as her "employer," under the alter ego doctrine, and

not as an "employee." See PI. Br., doc. no. 51.

The practical effect of piercing the corporate veil under

the alter ego doctrine to impose individual liability upon Raiff

as an "employer" would seem to run counter to the holding in Fantini. Those courts of appeals that have addressed the issue

have reached similar conclusions. See Worth v. Tyler, 276 F.3d

249, 262 (7th Cir. 2001) (rejecting alter ego doctrine as

contrary to "Congress' aversion to individual liability under

Title VII."); Dearth v. Collins, 441 F.3d 931, 934 (11th Cir.

2 006) (same). See also Lafferty v. Owens, Schine & Nicola, P.C.,

2012 WL 162332, at *10-11 (D. Conn. Jan. 18, 2012) (rejecting

alter ego doctrine); Jacobs v. R&B Sunrise. Say You Say Me. Inc..

2008 WL 4630836, at *3 (D. Idaho Oct. 17, 2008) (same).

But the court need not resolve that issue here because

plaintiff has not adequately alleged grounds that might warrant

piercing the corporate veil under federal common law. See

Sheppard v. River Valiev Fitness One, L.P., 2002 WL 197976, at

*11-12 (D.N.H. Jan. 24, 2002) (applying the "federal common law

of veil piercing" in Title VII action). Under federal common

law, [f]raudulent intent is a sine qua non'" of the veil

piercing doctrine. .Id. Plaintiff has not alleged any fraudulent

intent in Raiff's use of the corporate form, and has not linked

his use of the corporate form to the alleged assault. See id.

see also NLRB v. Greater Kansas City Roofing, 2 F.3d 1047, 1053

(10th Cir. 1993) ("[T]he showing of inequity . . . must flow from

the misuse of the corporate form . . . . It is only when the

shareholders disregard the separateness of the corporate identity

and when that act of disregard causes the injustice or inequity

or constitutes the fraud that the corporate veil may be

2 pierced.") (emphasis in original). For these reasons, Count I is

dismissed as to Raiff.

Count II (RSA Ch. 354-A:7): Plaintiff makes the same veil

piercing argument with regard to Count II, in which she alleges a

violation of New Hampshire's employment discrimination statute.

See RSA ch. 354-A:7. The New Hampshire Supreme Court has yet to

decide whether liability under that statute can be assessed

against individuals.

But even assuming that it can, the amended complaint, again,

comes up short. Nothing is alleged that would support piercing

the corporate veil. Under New Hampshire law, a court may pierce

the corporate veil where "the owners have used the corporate

identity to promote an injustice or fraud on the plaintiff[s]."

Norwood Group, Inc. v. Phillips, 149 N.H. 722, 724 (2003). The

complaint here fails to allege that Raiff used the "corporate

identity" to promote an injustice against plaintiff. It is not

enough, as plaintiff posits, that Raiff's alleged wrongdoing took

place at the office while he and plaintiff were working, thus

making the alleged assault "convenient as to time and place."

Misuse or abuse of the "corporate identity" is not implicated in

that context. Count II, therefore, is necessarily dismissed as

to Raiff.

3 Count V (Vicarious Liability): The amended complaint seeks to

hold the corporate defendants vicariously liable for Raiff's

alleged state law torts of assault and battery and intentional

infliction of emotional distress. Under New Hampshire law, an

employer will be vicariously liable for the intentional torts of

its employee when the employee is acting within the scope of his

employment. Statchen v. Palmer, 2009 WL 2997982, at *11 (D.N.H.

Sept. 15, 2009) (DiClerico, J.) (citing Porter v. City of

Manchester. 155 N.H. 149, 152 (2007)). The employee's purpose or

motivation for his actions is critical to the inquiry. See

Daigle v. City of Portsmouth, 129 N.H. 561, 580-81 (1987); see

also Restatement (Second) of Agency, § 228(1)(c). The amended

complaint here alleges facts that give rise only to an inference

of personal motives for the alleged assault. Count V, therefore,

is dismissed for failure to state a claim.

Sjceven J./McAuliffe United States District Judge

Date: March 7, 2013

cc: Stephen C. Buckley, Esq. Kathleen A. Davidson, Esq. Clara A. Dietel, Esq. Steven M. Gordon, Esq. Jamie N. Hage, Esq. Benjamin T. S. Hillman, Esq.