Argued and Submitted March 4, 2015, Portland, Oregon
Appeal from the United States District Court for the District of Oregon. D.C. No. 3:10-cv-01285-AC. Anna J. Brown, District Judge, Presiding.
Personal Jurisdiction/Forum Non Conveniens
The panel affirmed the dismissal, on grounds of lack of personal jurisdiction and forum non conveniens, of a complaint alleging sex and age discrimination in the workplace in violation of Title VII and the Age Discrimination in Employment Act.
The alleged discriminatory conduct occurred in the Netherlands. The panel held that the contacts with Oregon of the plaintiff's employer, a foreign subsidiary of Nike, Inc., were insufficient to make the subsidiary amenable to general personal jurisdiction there. In addition, the plaintiff did not show that the subsidiary was an alter ego of Nike, and thus that the district court could attribute Nike's contacts with the forum state to the foreign subsidiary for the purpose of exercising general personal jurisdiction over the subsidiary.
The panel affirmed the dismissal of claims against Nike under the doctrine of forum non conveniens because the Netherlands provided a more convenient forum than Oregon, and the Dutch Equal Treatment Commission was an adequate alternative forum and had already considered and rejected the plaintiff's claims.
Richard C. Busse (argued) and Kirsten Rush, Busse & Hunt, Portland, Oregon, for Plaintiff-Appellant.
Amy Joseph Pedersen (argued) and Laura E. Rosenbaum, Stoel Rives LLP, Portland, Oregon; Leonard J. Feldman and Charles E. Gussow, Stoel Rives LLP, Seattle, Washington, for Defendants-Appellees.
Before: Raymond C. Fisher, Richard A. Paez and Sandra S. Ikuta, Circuit Judges.
Raymond C. Fisher, Circuit Judge.
Plaintiff Loredana Ranza appeals the district court's dismissal of her complaint alleging sex and age discrimination in the workplace in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e-2, 2000e-3, and the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 623. Ranza brought claims in the District of Oregon against her former employer, Nike European Operations Netherlands, B.V. (NEON), and NEON's parent company, Nike, Inc., which is headquartered in Oregon. The alleged discriminatory conduct occurred in the Netherlands.
We first hold NEON's contacts with the state of Oregon are insufficient to make it amenable to general personal jurisdiction there, pursuant to Daimler AG v. Bauman, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). We then decide under what circumstances a court may attribute a parent company's contacts with the forum state to its foreign subsidiary for the purpose of exercising general personal jurisdiction over the subsidiary. We hold a court may do so upon a showing that the subsidiary is an alter ego of its parent, consistent with Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001). Because Ranza has not shown NEON is Nike's alter ego, we affirm the dismissal of the claims against NEON for lack of personal jurisdiction. Finally, we affirm the dismissal of the claims against Nike under the doctrine of forum non conveniens because the Netherlands provides a more convenient forum than Oregon to hear Ranza's claims, the Dutch Equal Treatment Commission is an adequate alternative forum and it has already considered and rejected Ranza's claims.
Nike is a global brand of footwear, apparel and sports equipment whose headquarters are in Oregon. NEON is a wholly owned subsidiary of Nike, organized as a private limited liability company under the law of the Netherlands. NEON enters into licensing agreements with Nike to sell Nike-branded products primarily in Europe.
Ranza is a United States citizen who resided in the Netherlands during the events giving rise to this action and has since moved to Germany. NEON hired her in September 1996 as a product line sales manager after a series of interviews with both NEON and Nike executives. She underwent four months of training with Nike in the United States before she began her job with NEON at the company's office in Hilversum, the Netherlands. Ranza alleges she was subjected to sex and age discrimination during her time at NEON and was terminated in October 2008 in retaliation for opposing this discrimination.
As required under Dutch law, NEON sought approval from a court located in Hilversum before terminating Ranza. Ranza was represented by counsel at this proceeding and was afforded a hearing before the Court of Hilversum. The court found Ranza's termination was " neutral," i.e., that no party was at fault, and granted NEON permission to terminate her employment. The court also awarded Ranza approximately $205,000 in severance pay. Although NEON asked the Dutch court to rule on whether Ranza had a legitimate claim of discrimination, the court expressly declined to do so, stating that such a claim should be brought before the Dutch Equal Treatment Commission (ETC) or a court in the United States.
While the Court of Hilversum decision was pending, Ranza initiated a claim of discrimination before the ETC. According to an English translation of an ETC publication, the ETC is a " special 'enforcement institution'" established by the Dutch government to help implement the country's equal treatment laws. It is separate from the judiciary but shares some features in common with a judicial tribunal: its nine commissioners have salary protections, decisional independence and insulation from firing by the government. It " provides easy access to an independent and expert judgement in matters of alleged unequal treatment and/or discrimination, both for individuals and for private and public organisations and institutions." Its proceedings are " less formal than a court procedure," but litigants are permitted to submit evidence, present witnesses and argue their case at a hearing. When investigating a complaint, the ETC can make direct inquiries of the parties and call on independent experts to evaluate the facts.
The ETC does not provide direct relief, however; its power is in its ability to persuade the parties or a court of law to act in accordance with its conclusions and recommendations. It determines whether unlawful discrimination has occurred and publishes reasoned opinions applying the law to the facts of a case. It can also make recommendations to prevent future discrimination. But it has no authority to enforce its judgments or recommendations. After the Commission issues a judgment finding discrimination, it follows up with the parties to determine whether the defendant has taken remedial actions and to encourage compliance. Although the ETC cannot impose penalties or other sanctions on a defendant who fails to remedy discrimination, a complainant may try to persuade a court of law to enforce an ETC judgment, either through money damages or injunctive relief. In such a case, the Commission's determination that discrimination has occurred " can be of great value," according to the Commission, in part because the ETC takes considerable effort in drafting its judgments to make them persuasive to the parties and the courts. Additionally, the ETC itself may bring legal action in Dutch courts to enforce its judgments.
Here, the ETC held a hearing on Ranza's claims of discrimination in June 2009. Ranza and NEON representatives were present at the hearing (along with English translators) and were represented by counsel. At the conclusion of the hearing, the ETC initiated an investigation and requested further information from the parties. The ETC also asked its independent job evaluation expert to investigate Ranza's claims and provided the expert's findings to the parties to give them an opportunity to respond. After concluding its investigation, the ETC issued a thorough opinion in June 2010, finding NEON " ha[d] not discriminated [against] L. Ranza during her work on the basis of sex or age, nor ha[d] [it] acted in violation of the victimization prohibition [under Dutch law]." The opinion addressed each of Ranza's allegations, including her claims that NEON discriminated against her when it promoted a younger, less qualified male instead of her; that NEON paid Ranza less than her more junior male coworkers; and that NEON fired her because of her sex, age and in retaliation for her complaints of discrimination. The opinion presented the facts, law and positions of the parties on each of Ranza's claims before concluding they lacked merit.
While the two Dutch proceedings were pending in 2008, Ranza filed an employment discrimination claim with the U.S. Equal Employment Opportunity Commission (EEOC) against NEON, later adding parent-company Nike as a respondent. The EEOC denied the claim, stating it was deferring to the findings of the Dutch ETC.
Ranza then filed suit against NEON and Nike in the District of Oregon, and the case was referred to a magistrate judge. Nike and NEON moved to dismiss for lack of personal jurisdiction and other pleading defects. After permitting jurisdictional discovery, the magistrate judge concluded the court lacked personal jurisdiction over NEON because the Dutch company did not have sufficient contacts with Oregon to justify general jurisdiction. Although he found NEON was Nike's " alter ego," which is a concept borrowed from corporate law that courts use to impute a local entity's contacts to its foreign affiliate to extend jurisdiction to the latter, he nevertheless determined it would be unreasonable to exercise jurisdiction over NEON because of the burden it would place on the company and the inconvenience of litigating claims in which the relevant events and witnesses are " chiefly" located abroad. As for the claims against Nike, the magistrate judge rejected Nike's argument that Ranza had failed to exhaust her administrative remedies. But he recommended granting Nike's motion to dismiss because Ranza presented insufficient evidence that Nike controlled NEON, which is a prerequisite for extending ...