Cowder v. Administration for Children and Families (ACF) et al
Filing
38
MEMORANDUM AND ORDER: Dale's motion to dismiss is granted under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction. The Clerk of Court is directed to close the case. C/M. Forwarded for judgment. Ordered by Judge Raymond J. Dearie on 5/10/2012. (Chee, Alvin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GULNAZ COWDER, individually and on behalf
Of MAD INA COWDER, infant,
Plaintiff,
- against -
MEMORANDUM AND ORDER
09 CV 0628 (RJD) (LB)
STEVE DALE, individually,
Defendants.
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DEARIE, District Judge.
On September 27, 2010, the Court dismissed the claims plaintiff brought against the
Vermont Department for Children and Families ("DCF") and Steve Dale ("Dale") in his official
capacity as Commissioner of DCF. See Cowder v. Dep't for Child. & Fam. (DCF), No. 09 CV
0628(RJD)(LB), 2010 WL 3834008 (Sept. 27, 2010). As the defendants' motion papers did not
request dismissal of the claims against Dale in his individual capacity, the Court did not address
such claims. See id. at *1 n. 2. On October 7, 2010, Dale then moved separately to dismiss
plaintiffs claims against him in his individual capacity under Federal Rule of Civil Procedure
12(b)(2), (3), and (5) for failure to serve Dale in his individual capacity, lack of personal
jurisdiction, and improper venue. ECF Docket # 31. Although plaintiff was served with Dale's
Notice of Motion, Memorandum accompanying the Motion, and Notice to Pro Se Litigant Who
Opposes a Rule 12(b) Motion, plaintiff did not respond. See ECF Docket # 35, Certificate of
Service. Because plaintiff has failed to demonstrate any factual predicate authorizing the Court to
eJ{ercise personal jurisdiction over Dale under New York's long-arm statute, N.Y. C.P.L.R. §
302(a) (McKinney 2008), Dale's motion to dismiss is granted under Fed. R. Civ. P. 12(b)(2).
The Court thus need not address venue or defect in service.
DISCUSSION
In evaluating a motion to dismiss for lack of personal jurisdiction under Fed. R. Civ. P.
12(b)(2), "[t]he plaintiff bears the burden of establishing that the court has jurisdiction over the
defendant," and may do so "by pleading in good faith ... legally sufficient allegations of
jurisdiction." Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001) (internal
quotations omitted). Personal jurisdiction is assessed in the first instance by looking to the "Iongarm statute of the forum state, in this instance New York." Id. New York's long-arm statute, in
pertinent part, allows the Court to
exercise personal jurisdiction over any non-domiciliary ... [whoI commits a
tortious act without the state causing injury to person ... within the state ... if
he (i) regularly does or solicits business, or engages in any other persistent
course of conduct, or derives substantial revenue from goods used or consumed
or services rendered, in the state, or (ii) expects or should reasonably expect the
act to have consequences in the state and derives substantial revenue from
interstate or international commerce.
N.Y. C.P.L.R. §§302(a)(3)(i)-(ii). New York's long-arm statute thus has two jurisdictional
requirements: (1) plaintiff must have suffered an injury in New York and (2) defendant must
have purposefully availed himself of the privileges and protections of the laws of New York
through one or more of the means specified in subsections (i) andlor (ii) of N.Y. C.P.L.R. §
302(a)(3).
The Court need not reach the second jurisdictional requirement-which, in any case,
plaintiff would be unable to establish-because, as both the complaint and Dale's affidavit
attached to his Motion to Dismiss make clear, all of the events giving rise to the lawsuit and all
of the alleged injuries occurred in Vermont, not New York. See ECF Docket # 1, Complaint
("Comp!.") at 3-5; ECF Docket # 32, Dale Affidavit
~~
2-4, 7-10. It is immaterial that plaintiff
ultimately moved back to New York where she alleges that she continued to suffer "extreme
humiliation, pain and suffering, terror, mental anguish, severe emotional distress and depression"
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and her daughter continued to suffer from "recurrent and intrusive recollections of the past
events, as well as other symptoms associated with ... PTSD and clinical depression." Compl. at
5, 10- I 4. "Courts determining whether there is injury in New York sufficient to warrant §
302(a)(3) jurisdiction must generally apply a situs-of-injury test, which asks them to locate the
original event which caused the injury." Whitaker, 261 F.3d at 209 (internal quotations omitted);
see also Mareno v. Rowe, 910 F.2d 1043, 1046 (2d Cir. 1990) ("An injury ... does not occur
within the state simply because the plaintiff is a resident. The situs of the injury is the location of
the original event which caused the injury, not the location where the resultant damages are felt
by the plaintiff") (internal quotations omitted) (emphasis added).
Plaintiff did not carry her burden to establish that the Court may exercise personal
jurisdiction over Dale in his individual capacity.
CONCLUSION
For the foregoing reasons, Dale's motion to dismiss is granted under Fed. R. Civ. P.
12(b)(2) for lack of personal jurisdiction. The Clerk of Court is directed to close the case.
SO ORDERED.
Dated: Brooklyn, New York
May 1f),2012
s/ Judge Raymond J. Dearie
RAY~EARIE
United States District Judge
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