ELMER v. KOHLI

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

BRIANNA ELMER on behalf of herself and all others similarly situated Plaintiff, v. AMOL R. KOHLI; AARK HOSPITALITY; AARK ENTERPRISES; AARK ENTERPRISES, INC.; AARK RESTAURANT GROUP, LLC; AARK ENTERPRISES PA, INC.; AARK HOSPITALITY BENSALEM FR, INC.; AARK HOSPITALITY CHADDS FORD, INC.; AARK HOSPITALITY CWH FR, INC.; AARK HOSPITALITY DANVILLE FR, LLC; AARK HOSPITALITY DUNMORE FR, 1:22-cv-02303-NLH-AMD LLC; AARK HOSPITALITY EAST OPINION & ORDER STROUDSBURG FR, LLC; AARK HOSPITALITY FRAZER, INC.; AARK HOSPITALITY FTW FR, INC.; AARK HOSPITALITY GLASSBORO FR, LLC; AARK HOSPITALITY GLOUCESTER INC.; AARK HOSPITALITY LANGHORNE FR, INC.; AARK HOSPITALITY MEDIA, INC.; AARK HOSPITALITY MOORESTOWN, INC.; AARK HOSPITALITY MORRISVILLE FR, INC.; AARK HOSPITALITY MT.

LAUREL, INC.; AARK HOSPITALITY MT. LAUREL II, INC.; AARK HOSPITALITY NORRISTOWN, INC.; AARK HOSPITALITY NORTHFIELD, INC.; AARK HOSPITALITY PENNSDALE FR, LLC; AARK HOSPITALITY PHILADELPHIA, INC.; AARK HOSPITALITY SCRANTON FR, LLC; AARK HOSPITALITY SICKLERVILLE TK, INC.; AARK HOSPITALITY SICKLERVILLE, LLC; AARK HOSPITALITY SPRINGFIELD, INC.; AARK HOSPITALITY VINELAND MALL, INC.; AARK HOSPITALITY VINELAND, INC.; AARK HOSPITALITY VOORHEES, INC.; AARK HOSPITALITY VOORHEES II, INC.; AARK HOSPITALITY WILKS BARRE FR, LLC; and, DOE DEFFENDANTS 1- Defendants.

APPEARANCES: Gerald D. Wells, Esq.

Connolly Wells & Gray, LLP Lindenwood Drive - Suite 225 Malvern, PA 19355 Lawrence Kalikhman, Esq.

Kalikhman & Rayz, LLC 1051 County Line Road - Unit 102 Huntingdon Valley, PA 19006 Representing Plaintiff Benjamin David Salvina, Esq.

Marzzacco Niven & Associates East Park Drive - Suite 103 Harrisburg, PA 17111 Claire Blewitt Ghormoz, Esq.

Dilworth Paxson LLP 1500 Market Street - Suite 3500e Philadelphia, PA 19102 Representing Defendants

HILLMAN, District Judge WHEREAS, on April 20, 2022, Plaintiff filed a Complaint on behalf of herself and all others similarly situated, against Defendants under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (for Tip Credit and Minimum Wage violations) and the New Jersey Minimum Wage and Hour Law, N.J.S.A. 34:11-56a, et seq. (ECF No. 1); and WHEREAS, on August 26, 2022, all Defendants except AARK Hospitality Gloucester, Inc. and Amol R. Kohli filed a Motion to Dismiss Plaintiff’s Complaint (ECF No. 12); and WHEREAS, on August 26, 2022, Defendants AARK Hospitality Gloucester, Inc. and Amol R. Kohli filed an Answer to Plaintiff’s Complaint (ECF No. 13); and WHEREAS, on September 6, 2022, Plaintiff filed an Amended Complaint (ECF No. 16), thereby rendering the previously filed Motion to Dismiss (ECF No. 12) moot (ECF No. 25); and WHEREAS, on September 20, 2022, all Defendants filed a Motion to Dismiss Plaintiff’s Amended Complaint (ECF No. 19), partially on the basis of lack of personal jurisdiction; and WHEREAS, when a plaintiff alleges sufficient facts to establish jurisdiction over a defendant, the court must accept these allegations as true and construe disputed facts in favor of the plaintiff. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330-31 (3d Cir. 2009) (citing Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 457 (3d Cir. 2003)); and WHEREAS, upon review of Plaintiff’s Amended Complaint in conjunction with all briefing pertaining to Defendants’ Motion (ECF Nos. 19-1, 22-23), this Court is not satisfied that Plaintiff has established personal jurisdiction over all Defendants; and WHEREAS, “[o]nce challenged, the plaintiff bears the burden of establishing personal jurisdiction.” O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007) (citing Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001)); see also Carteret Sav. Bank v. Shushan, 954 F.2d 141, 142 n.1 (3d Cir. 1992) (reiterating that when a motion to dismiss is made, the plaintiff must establish a prima facie case of personal jurisdiction)(citations omitted); and WHEREAS, “[i]n the Third Circuit, jurisdictional discovery is [] available to assist a plaintiff in establishing the contacts necessary for the exercise of personal jurisdiction.”

Everything Yogurt Brands, LLC v. M.A.R. Air Foods, Inc., No.Civ.A.09-4847, 2009 U.S. Dist. LEXIS 94601, at *3 (D.N.J. Oct. 9, 2009) (citing Metcalfe, 566 F.3d at 336); and WHEREAS, Jurisdictional discovery is generally allowed unless the claim of jurisdiction is “clearly frivolous.” Toys "R" Us, 318 F.3d at 456l; and WHEREAS, in order to demonstrate that the claim is not clearly frivolous, the plaintiff must “present[] factual allegations that suggest ‘with reasonable particularity’ the possible existence of the requisite ‘contacts between [the party] and the forum state[.]’” Id. (internal citation omitted); and WHEREAS, in this case, Plaintiff has demonstrated her claims are not clearly frivolous; the determination of personal jurisdiction over several Defendants in this matter involves a detailed analysis of the corporate structures of Defendants, their obligations and liabilities to and for one another, and whether they have purposefully availed themselves to the state of New Jersey; and WHEREAS, because this Court is unable to engage in this analysis without more facts, jurisdictional discovery is appropriate.

THEREFORE, it is on this 10th day of April 2023, ORDERED that this matter is REFERRED to United States Magistrate Judge Ann Marie Donio for purposes of defining the scope and setting a schedule for jurisdictional discovery and oversight of same; and it is further ORDERED that Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint (ECF No. 19), be, and the same hereby is, DENEID WITHOUT PREJUDICE.

/s/ Noel L. Hillman At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.