IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PATRECE KING, §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-0026-D

VS. §

 §

ENTERPRISE LEASING COMPANY §

OF DFW, et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

Defendants Enterprise Rent-A-Car Company of Texas

(“Enterprise-Texas”) and Enterprise Rent-A-Car Company (“Enterprise

Company”) move under Fed. R. Civ. P. 12(b)(1), 12(b)(2), and

12(b)(6) to dismiss the claims against them. Both defendants move

to dismiss for lack of subject matter jurisdiction and failure to

state a claim on which relief can be granted. Enterprise Company

also moves to dismiss for lack of personal jurisdiction. For the

reasons that follow, the court denies the motions.

I

This is an action by plaintiff Patrece King (“King”) alleging

claims for race and sex discrimination and retaliation, in

violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e et seq., the Texas Commission on Human

Rights Act (“TCHRA”), Tex. Labor Code Ann. §§ 21.001-21.556 (Vernon

2006), and/or 42 U.S.C. § 1981, and a pendent state-law claim for

breach of contract. She originally sued defendants Enterprise

 

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1They do not explicitly address her breach of contract cause

of action. See, e.g., Ds. Dec. 28, 2005 Br. 4 (“this Court lacks

subject matter jurisdiction over Plaintiff’s claims of alleged

employment discrimination”).

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Leasing Company of DFW (“Enterprise-DFW”) and Enterprise-Texas.

She named the same two defendants in her first and second amended

complaints. King later obtained leave to file a third amended

complaint in order to add Enterprise Company as a defendant.

Accordingly, King now sues Enterprise-DFW, Enterprise-Texas, and

Enterprise Company. Enterprise-Texas and Enterprise Company

contend that Enterprise-DFW was King’s employer, and they move on

various grounds to dismiss the actions against them.

II

Enterprise Company and Enterprise-Texas first contend that the

claims against them under Title VII, TCHRA, and § 1981 must be

dismissed under Rule 12(b)(1) for lack of subject matter

jurisdiction because neither was King’s employer.1

The court denies this motion on the threshold ground that it

is not properly presented under Rule 12(b)(1). On an analogous

question, the Supreme Court decided just last month “that the

threshold number of employees for application of Title VII is an

element of a plaintiff’s claim for relief, not a jurisdictional

issue.” Arbaugh v. Y&H Corp., 546 U.S. ___, 126 S.Ct. 1235, 1245

(2006). Having considered the Court’s reasoning for this

conclusion, see id. at 1244-45, this court discerns no principled

 

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basis to hold that the question whether Enterprise Company or

Enterprise-Texas was King’s employer should be treated as an issue

of the court’s subject matter jurisdiction under Title VII or

§ 1981. Accordingly, the court denies defendants’ motion to

dismiss King’s Title VII and § 1981 claims under Rule 12(b)(1).

Nor does the court conclude that Texas law would treat the

question whether Enterprise Company or Enterprise-Texas was King’s

employer under TCHRA as one of subject matter jurisdiction.

“Especially in recent years, the trend among Texas courts has been

to view state statutory prerequisites for claims as mandatory but

not jurisdictional.” Ancira Enters., Inc. v. Fischer, 178 S.W.3d

82, 89 n.8 (Tex. App. 2005, no pet.) (citing Hubenak v. San Jacinto

Gas Transmission Co., 141 S.W.3d 172, 182-83 (Tex. 2004); Dubai

Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000)) (rejecting

contention that issue of whether defendants were plaintiff’s

employer under Tex. Labor Code Ann. § 21.002, the TCHRA antiretaliation provision, was one of subject matter jurisdiction).

Accordingly, the court also denies the motion insofar as it is

addressed to King’s TCHRA-based claims.

III

Enterprise-Texas and Enterprise Company next move to dismiss

King’s action under Rule 12(b)(6) on the ground that they are

separate entities from Enterprise-DFW, that King was employed only

by Enterprise-DFW, and that they were not her employer. King

 

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responds that there is a genuine issue of material fact whether

Enterprise Company, Enterprise-Texas, and Enterprise-DFW qualify as

her employer on the basis that they are a single integrated

enterprise. 

In deciding a 12(b)(6) motion, the court construes the

complaint in the light most favorable to King, accepts as true all

well-pleaded factual allegations, and draws all reasonable

inferences in her favor. See, e.g., Lovick v. Ritemoney Ltd., 378

F.3d 433, 437 (5th Cir. 2004). “The motion to dismiss for failure

to state a claim is viewed with disfavor and is rarely granted.”

Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc.,

677 F.2d 1045, 1050 (5th Cir. 1982) (internal quotation marks

omitted). “[D]ismissal of a claim on the basis of barebones

pleadings is a precarious disposition with a high mortality rate.”

Id. (internal quotation marks omitted). “The court may dismiss a

claim when it is clear that the plaintiff can prove no set of facts

in support of his claim that would entitle him to relief.” Jones

v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam) (Rule

12(c) decision).

King alleges that, at the time of the events that are the

basis of her lawsuit, she worked as a Loss Control Specialist for

“Enterprise Rent-A-Car.” 3d Am. Compl. ¶ 2.01. This allegation,

which does not differentiate among Enterprise Company, EnterpriseTexas, and Enterprise-DFW, is similar to her assertion that she

 

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2

The court recognizes that resolving the question whether it

has personal jurisdiction over Enterprise Company should logically

precede deciding whether King has stated a claim against Enterprise

Company on which relief can be granted. In defendants’ combined

motion, however, they assert Enterprise Company’s Rule 12(b)(6)

motion before they raise the Rule 12(b)(2) motion, so the court is

taking up the motions in the order they are presented. Further,

for reasons the court will explain, it is denying the Rule 12(b)(2)

motion. It must therefore decide the Rule 12(b)(6) motion in any

event.

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“began her employment with the Defendant on April 19, 1996,” id.

(emphasis added), and the argument in her brief that all three are

a single integrated enterprise. Because the court must accept all

the well-pleaded facts of King’s complaint as true and view them in

the light most favorable to her, the allegations of her complaint

are sufficient at the Rule 12(b)(6) stage to aver that Enterprise

Company was her employer under Title VII, TCHRA, and § 1981. The

court therefore denies Enterprise Company’s Rule 12(b)(6) motion.2

Assuming arguendo that Enterprise-Texas did not waive its Rule

12(b)(6) motion by filing an answer on June 6, 2005 before it filed

the Rule 12(b)(6) motion on December 28, 2005, see 5C Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 1361,

at 92 (3d ed. 2004) (“If the defendant decides to assert a Rule

12(b) defense by motion, then he must do so before filing the

answer.”), the court denies the motion for the same reasons that it

denies Enterprise Company’s motion, i.e., that King has pleaded

that Enterprise-Texas was her employer. 

 

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IV

Enterprise Company moves to dismiss under Rule 12(b)(2) on the

ground that the court lacks personal jurisdiction over it. 

A

Enterprise Company’s Rule 12(b)(2) motion presents a different

question procedurally and is not resolved in King’s favor as the

inexorable consequence of the court’s prior rulings. Unlike a Rule

12(b)(6) motion, the court does not decide the instant motion based

only on a deferential view of King’s complaint. Instead, King must

present a prima facie case of personal jurisdiction. 

When a court rules on a motion to dismiss for

lack of personal jurisdiction without holding

an evidentiary hearing, it must accept as true

the uncontroverted allegations in the

complaint and resolve in favor of the

plaintiff any factual conflicts posed by the

affidavits. Therefore, in a no-hearing

situation, a plaintiff satisfies [her] burden

by presenting a prima facie case for personal

jurisdiction.

Latshaw, 167 F.3d at 211 (footnote omitted). “This liberal

standard, however, does not require the court to credit conclusory

allegations, even if they remain uncontradicted.” Panda Brandywine

Corp. v. Potomac Elec. Power Co., 2000 U.S. Dist. LEXIS 22714, at

*7-*8 (N.D. Tex. Sept. 15, 2000) (Fitzwater, J.), aff’d, 253 F.3d

865, 869 (5th Cir. 2001) (per curiam) (affirming, inter alia, this

conclusion). 

 

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B

In this case, the court has subject matter jurisdiction only

because of the presence of federal question causes of action (Title

VII and § 1981). The parties are not completely diverse citizens.

As the court recently explained,

[w]hen jurisdiction is founded upon a federal

statute that is silent as to service of

process, and a state long-arm statute is

therefore utilized to serve an out-of-state

defendant, Rule 4 requires that the state’s

standard of amenability to jurisdiction apply.

Title VII does not provide for nationwide

service of process. When a plaintiff invokes

federal question jurisdiction and serves

process under a state long-arm statute, a

federal court can assert jurisdiction only if

the state court could have done so. 

Berry v. Lee, No. 3:05-CV-0014-D, slip op. at 7 (N.D. Tex. Mar. 8,

2006) (Fitzwater, J.) (citations, internal quotation marks, and

brackets omitted). The court has located no case that holds that

§ 1981, unlike Title VII, provides for nationwide service of

process. Statutes that do so provide, such as the Employment

Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461,

contain an explicit provision that is not found in § 1981. See 29

U.S.C. § 1132(e)(2) (“Where an action under this subchapter is

brought in a district court of the United States, . . . process may

be served in any other district where a defendant resides or may be

found.”). It appears from the record that King served Enterprise

Company through the Texas Long-Arm statute, see, e.g., 3d Am.

Compl. ¶ 1.04 (describing manner in which service can be made), and

 

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Enterprise Company does not explicitly challenge the premise that

service was effected under this statute. Accordingly, the court

will decide Enterprise Company’s motion under the Due Process

Clause of the Fourteenth Amendment.

The Due Process Clause of the Fourteenth

Amendment permits the exercise of personal

jurisdiction over a nonresident defendant when

(1) that defendant has purposefully availed

himself of the benefits and protections of the

forum state by establishing minimum contacts

with the forum state; and (2) the exercise of

jurisdiction over that defendant does not

offend traditional notions of fair play and

substantial justice. To comport with due

process, the defendant’s conduct in connection

with the forum state must be such that he

should reasonably anticipate being haled into

court in the forum state.

Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999) (footnote

and internal quotation marks omitted). A defendant’s contacts with

the forum may support either specific or general jurisdiction over

the defendant. Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir.

1999). “Specific jurisdiction exists when the nonresident

defendant’s contacts with the forum state arise from, or are

directly related to, the cause of action. General jurisdiction

exists when a defendant’s contacts with the forum state are

unrelated to the cause of action but are ‘continuous and

systematic.’” Id. (citations omitted). For the court properly to

assert specific personal jurisdiction, Enterprise Company must have

purposefully directed its activities at a Texas resident, and the

litigation must result from alleged injuries that arise out of or

 

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3This holding, which would seem to exclude the conclusion that

Enterprise-Texas was also her employer, can be reconciled with that

determination in two ways. First, the earlier decision regarding

Enterprise-Texas was made under the Rule 12(b)(6) standard.

Second, King can maintain that Enterprise Company was her employer

and that Enterprise-Texas was also her employer under a single

integrated enterprise theory. The two premises are not mutually

exclusive.

4The court has not considered evidence that is supported only

by King’s subjective beliefs or those attributed to other

employees.

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relate to its activities directed at Texas. See Archer & White,

Inc. v. Tishler, 2003 WL 22456806, at *2 (N.D. Tex. Oct. 23, 2003)

(Fitzwater, J.). 

C

King maintains that the court can exercise personal

jurisdiction over Enterprise Company based on general or specific

jurisdiction. The court need only consider the issue of specific

jurisdiction. 

Although Enterprise Company vigorously disputes King’s

evidence, when the court resolves in her favor all factual

conflicts posed by the affidavits and declarations, it is clear

that she has made a prima facie showing that Enterprise Company was

her employer.3

 According to King’s proof, the Loss Control

Department of which she was a part (first as a management trainee,

then as a Loss Control Administrator, and finally as a Loss Control

Specialist) is a component of Enterprise Company. See P. Jan. 18,

2006 App. 54-55 & 86-90.4 She received direction, supervision, and

 

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work policies from Enterprise Company employees, id. at 54, her

employment benefits (health and life insurance, vacation, sick

leave, bonuses, retirement plans, stock option plans, and 401(k)

benefits) were all governed by Enterprise Company, id. at 54-55,

and she participated in the Enterprise Company profit sharing plan,

id. at 55. Enterprise Company Loss Control/Liability Rosters show

that its employees are located throughout parts of the United

States, Canada, and the United Kingdom, including several in Texas.

See id. at 60-74 & 77-84.

Because King has made a prima facie showing that Enterprise

Company was her employer and discriminated and retaliated against

her in Texas, where she was employed, she has likewise made a prima

facie showing of specific jurisdiction, i.e., that Enterprise

Company’s contacts with Texas arise from, or are directly related

to, the cause of action. 

D

The court next determines whether exercising personal

jurisdiction over Enterprise Company would offend traditional

notions of fair play and substantial justice. 

[O]nce minimum contacts are established, a

defendant must present a compelling case that

the presence of some consideration would

render jurisdiction unreasonable. In fact,

only in rare cases will the exercise of

jurisdiction not comport with fair play and

substantial justice when the nonresident

defendant has purposefully established minimum

contacts with the forum state.

 

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WRR Indus., Inc. v. Prologis, 2006 WL 247894, at *4 (N.D. Tex. Feb.

2, 2006) (Lindsay, J.) (citations, quotation marks, and some

brackets omitted). “[W]hen determining the fundamental fairness

issue this court will normally examine (1) the defendant’s burden;

(2) the forum state’s interests; (3) the plaintiff’s interest in

convenient and effective relief; (4) the judicial system’s interest

in efficient resolution of controversies; and (5) the shared

interest of the several states in furthering fundamental

substantive social policies.” Id. (citing Asahi Metal Indus. Co.

v. Superior Court, 480 U.S. 102, 113 (1987); World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 292 (1980)). 

Because Enterprise Company does not argue specifically that

exercising jurisdiction over it would offend traditional notions of

fair play and substantial justice, the court will not address these

factors in detail. It is sufficient to conclude that Enterprise

Company will not be unduly burdened by litigating a case in a state

where the plaintiff has made a prima facie showing that the company

does business as an employer, that Texas has an interest in

protecting Texas employees from discrimination and retaliation,

that King has an interest in obtaining convenient and effective

relief in Texas, that resolution of this controversy can be

accomplished efficiently here, and that the shared interest of the

several states in furthering fundamental substantive social

policies supports litigating the case in the state where the

 

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employee allegedly suffered discrimination and retaliation.

* * *

Enterprise Company and Enterprise-Texas may be able to obtain

summary judgment or to defeat King’s claims at trial on the basis

that they were not her employer. The court suggests no view on how

the merits of this issue would be resolved in procedural contexts

less deferential than those that apply to the Rule 12(b)(2) and

12(b)(6) motions at issue here. Defendants’ December 28, 2005

motions to dismiss are denied.

SO ORDERED.

March 28, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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