                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



Rhonda Eddy,                                                                       FILED
                                                                                  April 25, 2014
Plaintiff Below, Petitioner                                                  RORY L. PERRY II, CLERK

                                                                           SUPREME COURT OF APPEALS

vs) No. 13-0888 (Jefferson County 13-C-142)                                    OF WEST VIRGINIA




Ingenesis, Inc.,

Defendant Below, Respondent



                              MEMORANDUM DECISION
        Petitioner Rhonda Eddy, by counsel Harry P. Waddell, appeals the order of the Circuit
Court of Jefferson County, entered July 9, 2013, that dismissed her West Virginia Wage
Payment and Collection Act (“WPCA”) claim against her former employer, Respondent
Ingenesis, Inc., on personal and subject matter jurisdiction grounds. Respondent is a Texas
corporation whose primary business is providing federal contractors with healthcare personnel in
states other than West Virginia. Respondent filed a response by counsel Carol T. Stone.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Prior to her employment with respondent, petitioner worked for STGi, a corporation that
recruits healthcare workers for federal contractors. At STGi, petitioner was the program manager
for one of the federal contractors STGi served: Homeland Security, Immigration, and Customs
Enforcement Health Services Corporation (“HSIC”).

       In April of 2012, respondent submitted a bid to HSIC to replace STGi as HSIC’s
healthcare staff provider. Petitioner claims that respondent’s bid stated that petitioner had a
contingent offer of employment with respondent. Therefore, if respondent got the contract with
HSIC, petitioner would continue to be the HSIC’s program manager. On July 19, 2012, HSIC
awarded respondent a five year contract. Soon thereafter, respondent hired petitioner to serve as
HSIC’s “Director of Correctional and Detention Healthcare Staffing.”

        Shortly after it hired petitioner, respondent applied for and received a certificate of
authority to transact business in West Virginia from West Virginia’s Secretary of State.

       Petitioner entered into an employment contract with respondent that contained a choice of
law clause providing that the parties’ relationship would be governed by the laws of the State of

                                                1

Texas. Respondent designated petitioner as an employee at its San Antonio, Texas headquarters.
Further, petitioner’s e-mail signature identified her business address as respondent’s
headquarters in Texas, and her work phone had a Texas phone number. The parties agreed that
petitioner would work remotely from her home office in West Virginia and manage healthcare
personnel who worked primarily in Texas and Arizona.

       Petitioner claims that she conducted ninety percent of her work for respondent from her
home in West Virginia using a computer and phone provided by respondent. Petitioner also
claims that respondent based her travel reimbursement on the distance to and from her West
Virginia office, deducted West Virginia state income tax from her pay and sent it to the State of
West Virginia, and paid West Virginia unemployment tax on her behalf.

        Seven months after it hired petitioner, respondent terminated her employment, without
cause, on February 15, 2013. Ten days later, on February 25, 2013, respondent paid petitioner all
accrued wages and benefits.

       The WPCA, at West Virginia Code § 21-5-4(b), provides, in relevant part, as follows:

       Whenever a person, firm or corporation discharges an employee, the person, firm
       or corporation shall pay the employee’s wages in full no later than the next
       regular payday or four business days, whichever comes first . . . .

        On April 23, 2013, petitioner filed a complaint in West Virginia, in the Circuit Court of
Jefferson County, that alleged respondent had violated West Virginia Code § 21-5-4(b), by
failing to timely pay her wages and benefits following her termination from employment.
Thereafter, respondent’s counsel made a special appearance in the Circuit Court of Jefferson
County seeking dismissal of petitioner’s complaint on the ground that the circuit court did not
have personal jurisdiction over respondent or subject matter jurisdiction over petitioner’s WPCA
claim.

         On July 9, 2013, the circuit court, absent a hearing on the matter, granted respondent’s
motion to dismiss petitioner’s complaint. The circuit court found that it did not have personal
jurisdiction over respondent under West Virginia’s personal jurisdiction statutes, and that
respondent did not have sufficient minimum contacts with West Virginia to satisfy federal due
process considerations. The circuit court also found that it did not have subject matter
jurisdiction over petitioner’s WPCA claim because petitioner’s employment contract contained a
valid choice of law clause that mandated Texas law would govern any dispute between the
parties.

       Petitioner now appeals the circuit court’s order.

       This Court reviews a circuit court’s order granting a motion to dismiss a complaint under
a de novo standard. Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194
W.Va. 770, 461 S.E.2d 516 (1995).




                                                2

        On appeal, petitioner raises three assignments of error. Petitioner first argues that the
circuit court erred in concluding that it did not have personal jurisdiction over respondent.
Petitioner highlights that, pursuant to West Virginia Code § 31D-15-1501(d)(1), personal
jurisdiction may be asserted over a foreign corporation in West Virginia where “[t]he corporation
makes a contract to be performed, in whole or in part, by any party thereto in this state[.]”
Petitioner contends that because her employment contract was to be performed “in whole or in
part” from her home office in West Virginia, the circuit court did, in fact, have personal
jurisdiction over respondent. Petitioner also highlights that respondent obtained a certificate of
authority to transact business in West Virginia.

       This Court has determined that

               [a] court must use a two-step approach when analyzing whether personal
       jurisdiction exists over a foreign corporation or other nonresident. The first step
       involves determining whether the defendant’s actions satisfy our personal
       jurisdiction statutes . . . The second step involves determining whether the
       defendant’s contacts with the forum state satisfy federal due process.

Syl. Pt. 5, Abbott v. Owens-Corning Fiberglas Corp., 191 W.Va. 198, 444 S.E.2d 285 (1994).
Further, in regard to a motion to dismiss for lack of personal jurisdiction, such as the one in this
case, we have said,

               “. . . the circuit court may rule on the motion upon the pleadings, affidavits
       and other documentary evidence or the court may permit discovery to aid in its
       decision. At this stage, the party asserting jurisdiction need only make a prima
       facie showing of personal jurisdiction in order to survive the motion to dismiss. In
       determining whether a party has made a prima facie showing of personal
       jurisdiction, the court must view the allegations in the light most favorable to such
       party, drawing all inferences in favor of jurisdiction. . . .” Syl. pt. 4, State ex rel.
       Bell Atlantic—West Virginia, Inc. v. Ranson, 201 W.Va. 402, 497 S.E.2d 755
       (1997).

Syl., Griffith & Coe Adver. Inc. v. Farmers & Merch. Bank & Trust, 215 W.Va. 428, 599 S.E.2d
851 (2004).

        We concur with the circuit court’s finding that petitioner failed to make a prima facie
showing that the circuit court had personal jurisdiction over respondent. Specifically, petitioner
failed to show that respondent satisfied any of the requirements of West Virginia § 56-3-33(a),
which provides, in relevant part, as follows:

       The engaging by a nonresident, or by his or her duly authorized agent, in any one
       or more of the acts specified in subdivisions (1) through (7) of this subsection
       shall be deemed equivalent to an appointment by such nonresident of the
       Secretary of State, or his or her successor in office, to be his or her true and lawful
       attorney upon whom may be served all lawful process in any action or proceeding
       against him or her, in any circuit court in this state, including an action or

                                                  3

       proceeding brought by a nonresident plaintiff or plaintiffs, for a cause of action
       arising from or growing out of such act or acts, and the engaging in such act or
       acts shall be a signification of such nonresident’s agreement that any such process
       against him or her, which is served in the manner hereinafter provided, shall be of
       the same legal force and validity as though such nonresident were personally
       served with a summons and complaint within this state:

               (1) Transacting any business in this state;

 (Emphasis added.) Petitioner argues that respondent transacted business in this state because she
worked from her home office in West Virginia. However, as the circuit court concluded,
petitioner failed to meet her prima facie burden of showing that respondent transacted business in
West Virginia. First, the bald fact that respondent obtained a certificate of authority to transact
business in West Virginia does not mean that respondent actually transacted business here.
Second, respondent had no contracts for healthcare staffing in West Virginia, and petitioner did
not manage any healthcare providers in West Virginia on respondent’s behalf. Consequently,
even when viewing petitioner’s allegations in the light most favorable to her, and drawing all
inferences in favor of jurisdiction, we find that the circuit court did not err when it determined
that petitioner failed to make a prima facie showing that West Virginia’s personal jurisdiction
statutes applied in this case.

        Petitioner next argues that the circuit court erred in concluding that respondent’s
activities in West Virginia did not establish sufficient minimum contacts to satisfy due process.

              “‘The standard of jurisdictional due process is that a foreign corporation
       must have such minimum contacts with the state of the forum that the
       maintenance of an action in the forum does not offend traditional notions of fair
       play and substantial justice.’ Syllabus Point 1, Hodge v. Sands Manufacturing
       Company, 151 W.Va. 133, 150 S.E.2d 793 (1966).”

Syl., S.R. v. City of Fairmont, 167 W.Va. 880, 280 S.E.2d 712 (1981). Further, “before a non­
resident . . . corporation can be haled into the courts of another state, there must first be a
showing of sufficient ties or connections to that state which demonstrate a purposeful interjection
into the forum state.” Grove v. Maheswaran, 201 W.Va. 502, 505, 498 S.E.2d 485, 488 (1997).
Finally, “[t]o what extent a nonresident defendant has minimum contacts with the forum state
depends upon the facts of the individual case. One essential inquiry is whether the defendant has
purposefully acted to obtain benefits or privileges in the forum state.” Syl. Pt. 3, Pries v. Watt,
186 W.Va. 49, 410 S.E.2d 285 (1991).

        In the case on appeal, the circuit court correctly determined that petitioner failed to make
a prima facie showing that respondent had sufficient minimum contacts with West Virginia to
satisfy due process. First, petitioner did not show that respondent purposefully acted to obtain
benefits or privileges in West Virginia. Second, as noted above, respondent does not transact
business in West Virginia. Third, petitioner does not claim that respondent hired her because her
office would be located in West Virginia. Fourth, respondent did not require petitioner to work
from West Virginia. Fifth, petitioner does not offer evidence of any benefit to respondent

                                                 4

resulting from the fact that petitioner’s office was located in West Virginia. Sixth, petitioner does
not contest that respondent designated her as an employee at its Texas headquarters; that her e-
mail signature identified petitioner’s business address as respondent’s headquarters in Texas; or
that her work phone had a Texas phone number. Based on this record, we cannot say that the
circuit court erred in ruling that respondent did not have sufficient minimum contacts with West
Virginia to satisfy due process. Consequently, because petitioner failed to satisfy either prong of
the Abbott v. Owens-Corning Fiberglas Corporation test, the circuit court did not err in finding
that it did not have personal jurisdiction over respondent.

         Petitioner’s third and final assignment of error is that the circuit court erred in concluding
that it lacked subject matter jurisdiction over petitioner’s WPCA claim. Petitioner argues that
even though her employment contract provided that her agreement with respondent “shall be
governed by the laws of Texas[,]” the contract was silent regarding payment of final wages and
benefits upon discharge.

        Petitioner’s employment contract with respondent contained a valid choice of law
provision that specifically stated the parties’ employment relationship would be governed by
Texas law. Therefore, the circuit court correctly determined that it did not have subject matter
jurisdiction over petitioner’s claim for monetary damages under the WPCA.

       For the foregoing reasons, we affirm.
                                                                                            Affirmed.

ISSUED: April 25, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




                                                  5

