STATE OF MICHIGAN

IN THE WAYNE COUNTY CIRCUIT COURT

EMILY SIGMANN,

Plaintiff
Civil Action No. 19- -NO
Hon.
-V-

FRONTLINE MEDIA SOLUTIONS, INC,

ANDREW AGUILAR, and XAVIER ROBLES

Defendants.
_________________________________________________________________/
DEAN ELLIOTT PLC
DEAN D. ELLIOTT (P60608)
Attorney for Plaintiff
201 East Fourth Street
Royal Oak, Michigan 48067-3846
(248) 543-9000; (248) 543-9050
fax
Email: dean@deanelliottplc.com
LAW OFFICES OF SARAH M.
THOMAS PLLC
SARAH M. THOMAS (P76481)
Co Counsel for Plaintiff
300 Maple Park Blvd., Ste 304
St. Clair Shores, Mi 48081
(586) 879-0382/(586) 879-0367
sarah.thomas@sarahthomaslaw.com

_______________________________________________________________/

PLAINTIFF= S RESPONSE TO DEFENDANT= S MOTION TO DISMISS

INTRODUCTION

Plaintiff filed a complaint alleging Defendant Frontline was negligent in failing to

supervise, train, retain, and hire proper staff; to ensure that employees of the opposite sex

are not boarded together, to ensure that employees are not engaging in illegal behavior

while on work related trips, to exercise due care in ensuring the safety of employees, and to

ensure that employees are not supplying minors with alcohol in violation of MCL 436.1701.
Plaintiff also alleged that Frontline was negligent as a social host for providing alcohol to a

minor.

Defendant Frontline filed a motion for summary disposition alleging that there is

no personal jurisdiction. Plaintiff is not contesting the motion as to general personal

jurisdiction. However, given the circumstances, Defendant's motion regarding

jurisdiction under the long arm statute must be denied. It is patently absurd for

Frontline to suggest to this Court that it lacks sufficient minimum contacts with Michigan

and that jurisdiction cannot be established under Michigan's long arm statute when it

sent a work crew to perform work in Michigan and the tort was committed in Michigan.

Defendant's spurious contention that these contacts are insufficient to establish

personal jurisdiction, is totally without merit and based upon case law for businesses

advertising in Michigan not working. For the reasons that follow, the motion should be

denied.

APPLICABLE FACTS

At all times relevant Plaintiff and Defendants Robles and Aguillar resided in the State of

Virginia. Defendant, Frontline Media Solutions, Inc., is a North Carolina Corporation conducting

business within the State of Michigan, County of Wayne, at the time of the incident.

At the time of this assault, Emily was a 19-year old woman employed with Frontline

Media Solutions, Inc., working on liquidation sales. Frontline conducts business in multiple

states. (Exhibit 1, Webpage.) Emily was assigned to handle the liquidation of the Toys-R-Us

stores in Michigan. This assignment required Emily to travel to Michigan with her supervisor,

Robles, and a co-worker, Aguilar. At all material times while the parties were in Michigan, they

were conducting business on behalf of Frontline Media.

 The day of the rape, it had been a long day driving; Emily had driven around 12 hours

from Virginia to Michigan. When Emily, Aguilar and Robles were near the hotel they stopped to

get food. There was a liquor store right next to the restaurant. Aguilar and Robles purchased

alcohol to celebrate getting to Michigan. Robles bought a bottle of Jack Daniels and a case of

beer and Aguilar bought a small, flask sized bottle of Jagermeister. Robles rented a room for

himself and rented a separate room for Emily and Aguilar to share despite the fact that they were

not the same sex. When they arrived at the hotel room, Emily took the bed farthest from the

door. Once they were settled, Robles went to Aguilar and Emily's room and they had a few

drinks.

Defendants knowingly provided alcohol to Emily despite the fact that they were aware she

had not yet reached age 21. At some point, Aguilar walked Robles back to his hotel room

because Robles was intoxicated. Emily stayed in her and Aguilar's hotel room. When Aguilar got

back, he continued drinking. He poured Emily drinks. Aguilar was sitting in a chair blocking the

way out of the hotel room, between his bed and the door. Aguilar kept pouring drinks for both

Emily and himself, while pressuring her to drink more. The last time Emily can remember seeing

on her phone before falling asleep was 11:45 pm.

The next time Emily looked at the time, it was around 3:15 am. Emily woke up naked, and

went to the bathroom. Emily then took a shower and dressed herself in a Deadpool t-shirt, a

white tank top, and a pair of orange, green and brown leggings. Emily then went to her own bed,

falling asleep by herself somewhere around 3:45 am. Emily woke up the next morning around

8:30 a.m. and found Aguilar next to her in bed naked, and her white tank top was missing.

Aguilar raped her while she was drunk and defenseless. Emily then got up to use the restroom

and to get ready for work. Emily looked in the mirror and noticed bruising on both sides of her

neck and her genital area was sore. Emily and Robles retrieved their belongings and left the hotel.
Emily then went to the hospital and a rape kit was performed confirming the sexual assault. She

made a police report with the Canton Police Department. Given the circumstances, Frontline

should reasonably have anticipated being hailed into a Michigan court over this dispute.

ARGUMENT

I. DEFENDANT IS SUBJECT TO PERSONAL JURISDICTION PURSUANT TO THE

MICHIGAN LONG ARM STATUTE.

A. THE COURT HAS SPECIFIC PERSONAL JURISDICTION OF

DEFENDANT.

When analyzing whether it is proper to exercise personal jurisdiction over a

defendant, we must determine whether the defendant's conduct falls within a provision

of a Michigan long-arm statute and whether the exercise of jurisdiction comports with

due process. Green v. Wilson, 455 Mich. 342, 351 (1997). Michigan's long-arm

statute provides for both Alimited@ jurisdiction over corporations pursuant to M.C.L. '

600.715.

MCL 600.715 is very broad and provides:

The existence of any of the following relationships between a corporation

or its agent and the state shall constitute a sufficient basis of jurisdiction
to enable the courts of record of this state to exercise limited personal
jurisdiction over such corporation and to enable such courts to render
personal judgments against such corporation arising out of the act or acts
which create any of the following relationships:

(1) The transaction of any business within the state.

(2) The doing or causing any act to be done, or consequences to occur, in the
state resulting in an action for tort.

(3) The ownership, use, or possession of any real or tangible personal property
situated within the state.

(4) Contracting to insure any person, property, or risk located within this state at
the time of contracting.

(5) Entering into a contract for services to be performed or for materials to be

furnished in the state by the defendant.
 MCL 600.715 provides for personal jurisdiction over corporations for suits

arising out of the act or acts constituting the transaction of any business within the

state. MCL ' 600.715(1). Therefore, if Sigmann’s suit against Frontline arises from the

Atransaction of ... business@ by Frontline in Michigan, then the assertion of jurisdiction

over Frontline is appropriate in this action.

ATransaction of any business@ is very broad, and is established by Athe slightest

act of business in Michigan.@ Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883,

888 (6th Cir.2002) (citing Lanier v. Am. Bd. of Endodontics, 843 F.2d 901, 906 (6th

Cir.1988). AThe word >any= means just what it says. It includes >each= and >every=.... It

comprehends the >slightest=.@ Sifers v. Horen, 385 Mich. 195, 199 n. 2, 188 N.W.2d 623

(1971) (quoted with approval in Lanier v. American Bd. of Endodontics, 843 F.2d 901,

905B06 (6th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988)).

In this case, Defendant=s in state activities of sending employees to Michigan to

conduct advertising for the Toys R Us liquidation sale over several days by placing

signs obviously satisfies the requirements of MCL 600.715.

B. THE EXERCISE OF SPECIFIC JURISDICTION PURSUANT TO THE

MICHIGAN LONG ARM STATUE IS CONSISTENT WITH THE
LIMITATIONS PLACED BY THE UNITED STATES CONSTITUTION
UPON THE EXERCISE OF PERSONAL JURISDICTION.

The Michigan long arm statute has been interpreted to extend the reach of

Michigan courts to the limits placed upon jurisdiction by the federal constitution. Green

v. Wilson, 455 Mich. 342, 350, 565 N.W.2d 813 (1997). The exercise of limited

personal jurisdiction must be consistent with the requirements of due process. Witbeck

v Bill Cody’s Ranch Inn, 428 Mich 659, 665–669 (1987).

The due process analysis generally focuses on minimum contacts with the
forum. Under International Shoe Co v Washington, 326 US 310, 319 (1945), a

defendant must “have certain minimum contacts with [the forum] such that the

maintenance of the suit does not offend ‘traditional notions of fair play and substantial

justice.’” The Michigan Supreme Court has stated the International Shoe test as follows:

First, the defendant must have purposefully availed himself of the privilege of
conducting activities in Michigan, thus invoking the benefits and protections of
this state’s laws. Second, the cause of action must arise from the defendant’s
activities in the state. Third, the defendant’s activities must be substantially
connected with Michigan to make the exercise of jurisdiction over the defendant
reasonable.
Jeffrey v. Rapid American Corp., 448 Mich 178, 186.
This test serves two purposes. First, it protects a defendant from litigating in

distant or inconvenient forums, and second, it ensures that a state does not extend its

judicial power beyond the limits imposed on all states by our federal system of

government. World-Wide Volkswagen Corp v Woodson, 444 US 286 (1980). Under

Jeffrey,

the criteria by which we mark the boundary line between those activities which
justify the subjection of a corporation to suit, and those which do not, cannot be
simply mechanical or quantitative …. Whether due process is satisfied must
depend rather upon the quality and nature of the activity in relation to the fair
and orderly administration of the laws which it was the purpose of the due
process clause to insure.
Jeffrey, 448 Mich at 187.
An important consideration is whether the defendant has purposely availed

himself or herself of the privilege of exploiting forum-based business opportunities. If

so, the defendant will have reason to foresee being “haled before” a Michigan court.

Khalaf v Bankers & Shippers Ins Co, 404 Mich. 134 (1978).

1. Defendant Purposely Availed Itself of the Privilege of Acting in

Michigan.
 With respect to the first prong of the due process analysis, a defendant may

submit himself to the jurisdiction of another state by reaching beyond his own state and

purposefully availing himself of the privilege of exploiting the other state's business

opportunities.” WH Froh, Inc. v. Domanski, 252 Mich. App. 220, 230–231.

“Purposeful availment” means something akin to either a deliberate undertaking

to do or cause an act or thing to be done in Michigan or conduct that properly
can be regarded as a prime generating cause of resulting effects in Michigan.
Something more than a passive availment of Michigan opportunities must exist
that gives the defendant reason to foresee being haled before a Michigan court.
[Id. at 231.]

This requirement ensures that a defendant will not be subject to jurisdiction

“solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the unilateral

activity of another party or a third person [.]” Burger King Corp v. Rudzewicz, 471 U.S.

462, 475; 105 S Ct 2174; 85 L.Ed.2d 528 (1985) (citations and quotation omitted). The

purposeful availment prong focuses on the defendant's actions. Vargas v. Hong Jin

Crown Corp, 247 Mich. App 278, 285 (2001).

“The defendant must deliberately engage in significant activities within a state,

or create continuing obligations between himself and residents of the forum to the

extent that it is presumptively not unreasonable to require him to submit to the burdens

of litigation in that forum as well.” Vargas, 247 Mich. App. At 285. (internal citation and

quotation marks omitted).

Here, Defendant Frontline advertises that it conducts business in Michigan.

Toys R Us entered into a contract with Frontline for it to provide advertising for the Toyz

r Us liquidation sale. In response, Frontline dispatched a team to Michigan to conduct

the advertising campaign. The very nature of the assignment for the team required

them to spend nights in Michigan. The manager in charge of the trip held a party and

supplied alcohol to a minor. The Frontline manager also required the minor to spend
the night in the same hotel room with a co-worker even though they were members of

the opposite sex. The manager provided alcohol to the minor in her shared hotel room

as part of socializing after arriving in Michigan. In sum, these facts satisfy the

purposeful availment requirement. 2. The Cause of Action Arose from

Defendants Contacts in Michigan.

The standard for determining that a claim arises out of a defendant's contacts

with the forum state is not a demanding one. The plaintiff's claim need not Aformally

>arise from= defendant's contacts with the forum;@ it is sufficient if the plaintiff's claim has

a Asubstantial connection with the defendant's in-state activities.@ Third Nat'l Bank. v.

WEDGE Group., Inc., 882 F.2d 1087, 1091 (6th Cir.1989). Likewise, AIf a defendant's

contacts with the forum state are related to the operative facts of the controversy, then

an action will be deemed to have arisen from those contacts. CompuServe, Inc. v.

Patterson, 89 F.3d 1257, 1267 (6th Cir. 1996) For limited personal jurisdiction to

attach, the cause of action must arise from the circumstances creating the jurisdictional

relationship between the defendant and the forum state.” Oberlies, 246 Mich. App. At

435. The standard is a lenient one. Bird v. Parsons, 289 F.3d 8565, 875 (2002).

In this case, Plaintff=s claims have a substantial connection with Frontline’s in-

state activities. Plaintiff was required to travel to Michigan to perform Frontline’s work

for Toys R Us. Plaintiff was required to spend the night in Michigan as part of her work.

She was forced to sleep in the same room with a co-worker. She was unlawfully

supplied alcohol by her manager and left in her room. These facts are sufficient to

establish that the cause of action arose from the circumstances creating the

jurisdictional relationship between Frontline and Michigan. Plaintiff was in Michigan to

perform Frontline’s work, was required to share a hotel room with a male co-worker,
and was unlawfully provided alcohol at a work party by her manager. This is sufficient

for due process.

3. Defendant’s reliance on the holding in Oberlies is misplaced.

Defendant cites Oberlies, for the proposition that “The relationship between the

cause of action and the business activity have to be close enough that the activity

“must, in a natural and continuous sequence, have caused the injuries forming the

basis of the plaintiffs cause of action”. Brief p. 7. Defendant then argues that this is

the same standard for proximate cause and then argued that Plaintiff’s case must be

dismissed because Frontline should not be liable for the criminal acts of its employees

because the criminal act was the proximate cause.

Oberlies is distinguishable on this point as this decision was applicable only to

whether the long arm statute applies to companies advertising in Michigan, not

companies who send workers into Michigan, negligently fail to supervise them, and

commit torts while in Michigan.

In Oberlies, the appellate court found that a Canadian ski resort's targeted

advertising of Michigan residents did not cause the alleged injury resulting from the

plaintiff's fall from a ski lift in Canada. Oberlies, 246 Mich. App. at 437.

Despite the Canadian resort's targeted advertising efforts, the appellate court

held that “the connection between plaintiff's cause of action and defendant's Michigan

advertising is so attenuated that it is unreasonable to exercise jurisdiction over

defendant in this case.” Id. at 435. In reaching this conclusion, the court explained:

[I]n order for a foreign defendant to be compelled to defend a suit brought in

Michigan where the defendant's contacts with Michigan are limited solely to
advertising aimed at Michigan residents, the defendant's instate
advertising activities must, in a natural and continuous sequence, have
caused the alleged injuries forming the basis of the plaintiff's cause of
action.
Id. at 437. (Emphasis supplied.)

Frontline’s argument that the harm suffered did not arise from a natural and

continuous sequence from Frontline’s business activities must be rejected. First,

Defendant cited law that is inapplicable. Plaintiff’s case does not arise from an injury

suffered outside of Michigan. It did not arise from advertising in Michigan. It arose

from requiring opposite sex co-workers to sleep in the same hotel room after having a

company party and supplying alcohol to a minor.

Likewise, Frontline’s argument that it is not responsible for the criminal acts of its

employee is also inapplicable. While true that employers are not typically liable for the

criminal acts of their employees, Michigan law holds employers responsible for actions

such as the ones that Frontline took in this case.

In Michigan, social host liability turns on the control over, or active participation

in, supplying a minor with alcohol. In Rodriguez v Solar, 191 Mich. App. 483, (1991),

the court held an employer that held a party for employees could not avoid liability as

social host as matter of law for serving minors alcohol. Finally, Frontline has liability for

its willful and wanton misconduct of providing alcohol to a minor and forcing her to

share a room with a male. In Mesleh v. Young, No. 262514, 2005 WL 2292657, at *1

(Mich. Ct. App. Sept. 20, 2005) the Court held that a social host has a duty to control

guests, but only to the extent that the host refrain from willful and wanton misconduct

that results in one guest injuring another guest. The Court set forth the required

elements for willful and wanton misconduct, which are

(1) knowledge of a situation requiring the exercise of ordinary care and

diligence to avert injury to another, (2) ability to avoid the resulting harm
by ordinary care and diligence in the use of the means at hand, and (3)
the omission to use such care and diligence to avert the threatened
 danger, when to the ordinary mind it must be apparent that the result is
likely to prove disastrous to another.

If the Court accepts Frontlines argument that Plaintiff must prove that the harm

suffered did not arise from a natural and continuous sequence from Frontline’s

business activities, the motion must still be denied. As set forth above, Plaintiff’s

complaint clearly states a claim for negligence, social host liability and wanton and

willful misconduct.

3. It is Reasonable to Exercise Jurisdiction over of exercise of jurisdiction

The third factor considers whether defendant's activities were "substantially

connected with Michigan to make the exercise of jurisdiction over the defendant

reasonable." Id. at 433 (quotation omitted). In determining whether the exercise of

personal jurisdiction is reasonable, the burden on the defendant is this Court's primary

concern. WH Froh, Inc, 252 Mich.App at 232.

However, in appropriate cases, this Court should consider other relevant factors,
including: the forum State's interest in adjudicating the dispute; the plaintiff's
interest in obtaining convenient and effective relief, at least when that interest is
not adequately protected by the plaintiff's power to choose the forum; the
interstate judicial system's interest in obtaining the most efficient resolution of
controversies; and the shared interest of the several States in furthering
fundamental substantive social policies.... [Id. at 232-233 (quotations omitted).]

In this case, all of the factors demonstrate that it is reasonable for this Court to

exercise personal jurisdiction over Frontline. There is no burden on Frontline as it sent

its employees to Michigan to conduct on the ground advertising for Toys R Us. First,

Michigan has a strong interest in adjudicating this dispute. This state seeks to ensure

that persons who are sexually assaulted in Michigan as the result of negligence in

Michigan are compensated. Second, if the Court were to dismiss this case, Plaintiff

would have to file in North Carolina as Frontline has no contacts with Plaintiff’s home
state, Virginia. Both Virginia and North Carolina follow the doctrine of contributory

negligence which would bar recovery in this action if filed there. As a result, a

dismissal will deprive Plaintiff of her opportunity to seek compensation for injuries

suffered in Michigan. This element weighs in favor of jurisdiction.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny

Defendant=s motion.

Respectfully submitted,

S/Dean Elliott

Dean Elliott, PLC

201 East Fourth Street

Royal Oak, Michigan 48067

(248) 543-9000 Ext. 14
E-mail Dean@DeanElliottPLC.Com
P-60608
Dated: January 23, 2020
 CERTIFICATE OF SERVICE
I hereby certify that on December 13, 2017, I presented the foregoing paper to the
Clerk of Court for filing and uploading to the ECF system which will send notification to
of such filing to the above listed attorneys of record.
Respectfully Submitted,
S/Dean Elliott

Dean Elliott, PLC

201 East Fourth Street

Royal Oak, Michigan 48067
(248) 543-9000 Ext. 14
E-mail Dean@DeanElliottPLC.Com
P-60608
Dated: January 23, 2020