Enderby et al v. Secrets Maroma Beach Riviera Cancun et al
Filing
32
ORDER granting 23 Motion for Summary Judgment. IT IS HEREBY ORDERED that, for the reasons set forth in the attached memorandum and order, the Court grants defendants' motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56, and the complaint is dismissed for lack of personal jurisdiction. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 12/1/2011. (O'Neil, Jacquelyn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-1015 (JFB) (WDW)
_____________________
DEBORAH ENDERBY AND WILLIAM ENDERBY,
Plaintiffs,
VERSUS
SECRETS MAROMA BEACH RIVIERA CANCUN AND AM RESORTS, LLC,
Defendants.
___________________
MEMORANDUM AND ORDER
December 1, 2011
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiffs Deborah Enderby and William
Enderby (“plaintiffs”) commenced this
personal injury action on March 8, 2010,
against defendants Secrets Maroma Beach
Riveria Cancun (hereinafter “the Hotel”),
which is owned and operated by Playa
Maroma Immuebles, S.A. de C.V., a
Mexican corporation (collectively “Playa
Maroma” or “the defendant”) and AM
Resorts, LLC.1
Specifically, plaintiff Deborah Enderby
alleges that defendant is liable for injuries
she sustained during a slip-and-fall accident
while on vacation at the hotel, and her
husband, William Enderby, alleges loss of
1
By stipulation dated June 21, 2010, plaintiffs
discontinued this action with prejudice against AM
Resorts, LLC. (See ECF No. 8.)
services and consortium and incurred
medical expenses related to her injuries.
Defendant Playa Maroma moved to
dismiss all claims against them, pursuant to
Federal Rule of Civil Procedure 12(b)(2),
for lack of personal jurisdiction. At oral
argument on October 22, 2010, in an
abundance of caution, the Court granted
plaintiffs limited discovery for the purposes
of establishing personal jurisdiction over
defendant. Following the conclusion of
discovery, defendant has moved for
summary judgment for lack of personal
jurisdiction.
For the reasons set forth below, the
Court grants defendant’s motion for
summary judgment in its entirety, and the
complaint is dismissed for lack of personal
jurisdiction. In particular, after carefully
York law, to create general jurisdiction.
Plaintiffs attempt to create personal
jurisdiction through two travel agencies in
New York – namely, Travel Impressions of
Farmingdale, New York and GoGo
Worldwide Tours of Lake Success, New
York – which plaintiffs argue have the
ability to confirm reservations, by contract,
with the defendant.
However, the
undisputed facts demonstrate that the
activities of those two travel agencies, as a
matter of law, are insufficient to create
personal jurisdiction in New York. First,
with respect to Travel Impressions, the
contract does not involve Playa Maroma;
rather, the agreement is between Hoteles De
Caribe (a British Virgin Islands company)
and Travel Impressions for rooms at the
Hotel. Moreover, the contract between these
two entities relates only to an allotment of
rooms and explicitly states that the sales
company (Hoteles De Caribe) can modify
the room allotment with prior notification to
Travel Impressions.
Similarly, it is
undisputed that Travel Impressions is a
wholesaler travel agent that solicits business
from other entities beyond Hoteles De
Caribe.
Also, with respect to GoGo
Worldwide Tours of Lake Success, the
contract at issue is not with the New York
entity; rather, it is between LibGo, a New
Jersey corporation, and the defendant. The
nature of the relationship between the New
Jersey corporation and the New York entity
has not been demonstrated by the plaintiff.
In any event, even assuming arguendo that
the New York entity had a contractual
relationship with the defendant through
LibGo in New Jersey, it is undisputed that
any grant of authority to LibGo to bind the
defendant only related to an allotment of
rooms. In other words, it is uncontroverted
that the travel agency has no grant of
authority outside the allotment, and provides
no other services for the defendant. In
addition, it is also undisputed that LibGo is a
reviewing the evidence in the light most
favorable to the plaintiffs, the non-moving
party, the Court concludes that the
undisputed facts demonstrate that there is no
basis for jurisdiction over the defendant
pursuant to New York’s general jurisdiction
statute, N.Y. C.P.L.R. § 301. As a threshold
matter, plaintiffs concede that they are not
asserting personal jurisdiction under New
York’s long-arm statute, but rather are
attempting to establish general jurisdiction
over defendant Playa Maroma pursuant to
N.Y. C.P.L.R. § 301. However, the Court
concludes, applying the applicable standard
under New York law, that the undisputed
evidence demonstrates as a matter of law
that no personal jurisdiction exists over
defendant Playa Maroma in New York. In
particular, it is undisputed that Playa
Maroma and the Hotel (1) have no business
operations within New York; (2) do not
conduct business in New York; (3) are not
authorized to do business in New York; (4)
own no property in New York; (5) have no
joint ventures within New York; (6) have no
officers, directors, shareholders, employees,
sale representatives or agents regularly or
routinely in the State of New York; (7) have
no bank accounts in New York; (8) have no
telephone numbers in New York; (9) do not
target residents in New York with
unsolicited telephone calls, facsimiles,
correspondence, or email; (10) do not pay
taxes or file tax returns in New York; and
(11) do not place advertisements in New
York. Given these undisputed facts, it is
clear that no general jurisdiction exists over
the defendant.
The mere facts that print advertisements
regarding the hotel are occasionally placed
through independent travel agents in New
York and that one New York travel agent
may book rooms at the Hotel from an
allotment of rooms made available by the
hotel are insufficient, as a matter of New
2
wholesaler travel agent with relationships
with other resorts. In short, there is no
evidence that the reservation services
provided by these travel agencies are so
important to defendant that, if they did not
supply them, defendant would be forced to
establish its own presence in New York to
replace them.
motion for summary judgment, the Court
shall construe the facts in the light most
favorable to plaintiffs, the non-moving
party. See Capobianco v. New York, 422
F.3d 47, 50 (2d Cir. 2001).
1. Discovery
As indicated supra, at oral argument on
October 22, 2010, the parties were permitted
to conduct discovery on jurisdictional issues.
Specifically, plaintiffs had argued that GoGo
Worldwide Tours of Lake Success, New
York (“GoGo Worldwide”) and Travel
Impressions, Ltd of Farmingdale, New York
Finally, although defendant has a web
page with information about the Hotel, as
counsel for plaintiffs’ counsel conceded at
oral argument, the fact that this website is
accessible to New Yorkers on the web is
insufficient
to
confer
jurisdiction.
Accordingly, as discussed in detail below,
defendant’s motion for summary judgment
for lack of personal jurisdiction is granted.
had to “decide whether to consider only the facts in
Defendants’ [uncontested] Rule 56.1 Statement or, in
an exercise of its discretion, to consider other facts
contained in the record”); Schroeder v. Suffolk Co.
Cmty. Coll., No. 07-CV-2060 (JFB), 2009 WL
1748869, at *1 n. 1 (E.D.N.Y. June 22, 2009)
(overlooking non-movants failure to file counterstatement of material facts pursuant to Local Rule
56.1; denying summary judgment); Pender v. State of
N.Y.
Office
of
Mental
Retardation
and
Developmental Disabilities, No. 02-CV-2438 (JFB),
2006 WL 2013863, at *1 n. 1 (E.D.N.Y. July 18,
2006) (overlooking party’s failure to submit counterstatement of material facts pursuant to Local Rule
56.1), aff’d, 225 Fed. Appx. 17 (2d Cir. May 25,
2007). In fact, courts need to be wary of use of that
rule as a technical vehicle to relieve the movant’s
burden in a motion for summary judgment. See
Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir.
2003) (noting that the fact that plaintiff failed to
comply with Local Rule 56.1 “does not absolve the
party seeking summary judgment of the burden of
showing that it is entitled to judgment as a matter of
law, and a Local Rule 56.1 Statement is not itself a
vehicle for making factual assertions that are
otherwise unsupported in the record”).
Here,
although all of plaintiffs’ responses fail to comply
with Local Rule 56.1, plaintiffs’ memorandum of
law enumerates some of their denials with
appropriate record citations, which cures those
defects in Pls.’ 56.1. Accordingly, in the exercise of
its broad discretion, where plaintiffs have denied or
objected to an assertion by defendant, the Court
deems that assertion disputed where plaintiffs
provide admissible evidence to support their denial or
objection.
I. BACKGROUND
A. Facts
The facts described below are taken
from the parties’ affidavits, exhibits and the
parties respective Rule 56.1 statement of
facts (“Def.’s 56.1” and “Pls.’ 56.1”).
Unless otherwise noted, the facts are
undisputed.2 Upon consideration of the
2
As a preliminary matter, defendant contends that all
of the factual contentions set forth in Def.’s 56.1
should be deemed admitted. Specifically, defendant
argues that, although plaintiffs deny some of the
defendant’s contentions, plaintiffs fail to cite any
evidence to support their denials or provide any
allegations, even unsupported, explaining why
defendant’s factual contentions are inaccurate.
(Def.’s Reply Decl. ¶¶ 4-5.) Where a party, in its
counterstatement, fails to comply with Local Rule
56.1, a district court has “broad discretion ... to
overlook a party’s failure to comply with local court
rules” and otherwise review the record
independently, including where one of the parties has
failed to file a Local Rule 56.1 statement regarding
the disputed issues of material fact for summary
judgment. Holtz v. Rockefeller & Co., 258 F.3d 62,
73-74 (2d Cir. 2001); see also Di Rienzo v. Metro.
Transp. Auth., 237 Fed. App’x. 642, 646 (2d Cir.
June 20, 2007) (noting that on remand, district court
3
(“Travel Impressions”) (collectively the
“travel agencies”), are agents of the
defendant and, thus, the defendant is subject
to New York’s general jurisdiction statute,
N.Y. C.P.L.R. § 301. In November 2010,
plaintiffs requested document production
with respect to defendant’s contracts and
documents with the travel agencies.
Defendant had no responsive documents.
Subsequently, in December 2010, plaintiffs
subpoenaed the travel agencies for similar
documents. The travel agencies responded
and plaintiffs included the documents within
their opposition papers. Plaintiffs conducted
no further discovery. Discovery ended on
February 2, 2011.
2.
for Secret Resorts and Spas and attached a
copy of the front and back of an
identification card. (D. Enderby Aff. ¶ 5.)
On the front, the identification card reads:
AM Resorts
Master Agent
Deborah Enderby
EXP 08/28/2011
(Pls.’ Ex. 14.)
On the back, the identification card
states that the card is only valid for one year
after the date of issue and below that lists
various hotel brands: “Zoetry Wellness &
Spas,” “Secrets Resorts & Spas,” “Dreams
Resorts & Spas,” and “Now Resorts &
Spas” and says “TM Licensed to AM
Resorts.” Defendant contends that Ms.
Enderby’s designation as a Master Agent
has nothing to do with Playa Maroma or the
Hotel. (Gomez. Aff. ¶ 11.) First, the
defendant Hotel, Secrets Maroma Beach
Riviera Cancun, is not mentioned on the
card and defendant contends that neither
Playa Maroma nor the Hotel issue “the
designation of ‘Master Agent’ . . . and have
never issued such a designation to Ms.
Enderby.” (Gomez. Aff. ¶ 13.) Second,
defendant states that “AM Resorts is an
independent company that provides
advertising,
marketing
and
brand
management services to various hotel brands
in the Caribbean and Mexico, one of which
is Secrets Resorts & Spas.” (Gomez. Aff. ¶
12.)4 Secrets Resorts & Spas is comprised
of seven hotels, one of which is defendant’s
Hotel. (Id.). Finally, defendant has no
direct contractual relations with AM
Resorts. (Id.)
The Parties
Secrets Maroma Beach Riviera Cancun
is a hotel located in Solidaridad, Quintana
Roo, Mexico. (Def.’s 56.1 ¶ 2.) The Hotel
is the only property owned by Playa
Maroma S.A. de C.V., a Mexican
corporation. (Def.’s 56.1 ¶¶ 3-4; (Def.’s Ex.
A, Affidavit of Saul Gomez, Controller of
Playa Maroma (hereinafter “Gomez Aff.”)
¶¶ 1, 7.) The hotel is a luxury resort that
receives guests from around the world,
including from various states within the
United States of America. (Def.’s 56.1 ¶ 6.)
Plaintiff Deborah Enderby is a resident
of Shoreham, New York. (See Pls. Ex. 13,
D. Enderby Aff. ¶ 1.) Deborah Enderby has
been a travel agent for nine years and is
currently a travel agent for Elegant Touch
Travel. (Id. ¶ 5.) On October 5, 2008,
Deborah Enderby was involved in an
accident occurring at the Secrets Maroma
Beach Riviera Cancun hotel. (Pls. Ex. 13,
D. Enderby Aff. ¶ 3; Def.’s 56.1 ¶ 1.)3
Plaintiff claims to be a “Master Agent”
3
4
Plaintiffs have not provided any information
regarding how they booked their vacation at the
Hotel.
Indeed, by stipulation dated June 21, 2010,
plaintiffs discontinued this action with prejudice
against AM Resorts, LLC. See supra, footnote 2.
4
Avenue, Lake Success, New
York and Secrets Maroma Beach
Riviera Cancun.
3. Contacts with New York
a. Common Factors
It is undisputed that neither Playa
Maroma nor the hotel: (1) have any business
operations, are authorized to do business or
conduct business within the State of New
York (Def.’s 56.1 ¶¶ 7-9; Gomez Aff. ¶ 9.),
(2) own any property or have joint ventures
within the State of New York (Def.’s 56.1
¶¶ 10-11; Gomez Aff. ¶ 9.), (3) have
officers, directors, shareholders, employees,
sales representatives or agents “regularly or
routinely” in the State of New York (Def.’s
56.1 ¶ 12; Gomez Aff. ¶ 9.), (4) have any
bank accounts or phone numbers within the
State of New York (Def.’s 56.1 ¶¶ 13-14;
Gomez Aff. ¶ 9.), or (5) pay taxes or file tax
returns in the State of New York. (Def.’s
56.1 ¶ 16; Gomez Aff. ¶ 9.)
4. [A]ll written instructions and/or
directives for confirmations of
reservations and/or licensing
agreements
between
Travel
Impressions, Ltd., . . . and
Secrets Maroma Beach Riviera
Cancun.
(See Pls.’ Ex. 4.)
On December 9, 2010, defendant
responded that on October 5, 2008, Playa
Maroma “did not have written instructions
and/or directives for confirmations of
reservations and/or licensing agreements,”
or a contract “with GoGo Worldwide Tours,
Branch 227, 1979 Marcus Avenue, Lake
Success,
New
York”
or
“Travel
Impressions, Ltd., 465 Smith Street,
Farmingdale, New York 11735.” (See Pls.’
Ex. 5.)
b. Agency
On November 1, 2010, plaintiffs
demanded that defendant produce the
following true and correct copies of
documents that were in effect on or about
October 5, 2008:
In December 2010, plaintiff served both
GoGo Worldwide and Travel Impressions
with subpoenas demanding production of
the same above-referenced documents with
“Secrets Maroma Beach Riviera/Maya
Cancun, Playa Maroma Inmuebles S.A. De
CV or any affiliates.” (Pls.’ Ex. 6.)
1. [T]he contract between GoGo
Worldwide Tours, Branch 227,
1979 Marcus Avenue, Lake
Success, New York and Secrets
Maroma Beach Riviera Cancun.
i. GoGo Worldwide
2. [A]ll written instructions and/or
directives for confirmations of
reservations and/or licensing
agreements
between
GoGo
Worldwide Tours . . . and Secrets
Maroma Beach Riviera Cancun.
With respect to the subpoena served
upon GoGo Worldwide, plaintiffs received a
contract between LibGo Travel, Inc.
(hereinafter “LibGo Travel”) and Secrets
Maroma Beach Riviera Cancun, dated
January 24, 2009.5 (See Pls.’ Ex. 9.)
LibGo Travel is a company incorporated in
3. [T]he contract between Travel
Impressions, Ltd., 465 Smith
Street, Farmingdale, New York
11735 Branch 227, 1979 Marcus
5
The contract is a Playa Maroma business record.
(Gomez Aff. ¶ 18, Ex. 3.)
5
Further to your January 10th letter,
below is the description of all the
business done by FCUSA, Inc and
Secrets Maroma Beach.
the State of New Jersey. (Def.’s 56.1 ¶ 29;
Gomez Aff. Ex. 3; Pls.’ Ex. 9.)6 This
contract was negotiated and executed over
the internet. (Def.’s 56.1 ¶ 29; Gomez Aff.
¶ 25.)
FC USA Inc dba LibGo Travel
contracts with Secrets Maroma
Beach Riviera Cancun (“Secrets”) to
offer for the sale of rooms at the
Secrets property, to clients of FC
USA Inc dba GOGO Worldwide
Vacations, Liberty Travel and their
affiliates worldwide. Pursuant to the
contract, a number of hotel rooms for
the Secrets property are “allocated”
to LibGo Travel. Such allocations
are added to our database and offered
for sale to clients of GOGO
Worldwide
Vacations,
Liberty
Travel and FC USA Inc’s affiliates
worldwide. There is no obligation
on the part of LibGo Travel to sell
these rooms ‘allocated’.
LibGo
Travel is invoiced by Secrets only
after a client has stayed at Secrets,
not prior. Such invoices are received
and processed at LibGo Travel’s
head office in Ramsey, New Jersey.
By letter dated January 10, 2011,
plaintiffs’ counsel requested further
information from GoGo Worldwide about
the contract. (Pls.’ Ex. 10.)7 Specifically,
plaintiff’s counsel requested “documents or
letter concerning the manner in which GoGo
does
business
with
[defendant’s]
reservations, which the contract does not
make clear. . . . In other words, a detailed
description of all the business done by
GoGo, which [defendant] would do in New
York were it here by its officials beyond
“mere solicitation.” (Pls.’ Ex. 10.)
By letter dated January 17, 201[1],8 Ms.
Laurene
Taylor,
Manager-Legal
Department, of GoGo Worldwide Vacations,
located in Ramsey, New Jersey, responded.9
She explained:
6
Furthermore, on the first page of the contract,
under the heading of “PARTIES,” it states that LibGo
Travel is “a company incorporated in New Jersey.”
(Id. at 1.) In addition, further down the page, in
section 5(c), the contract specifies that all invoices
should be sent to “LibGo Travel, 69 Spring Street,
Ramsey, New Jersey 07446. (Id.)
(Pls.’ Ex. 11.)
Accordingly, between the defendant’s
submissions and correspondence received
from the New Jersey entity, it is undisputed
that defendant contracted with LibGo Travel
to provide an allotment of rooms for
booking through LibGo Travel’s reservation
system. (Def.’s 56.1 ¶ 25; Gomez Aff. ¶
7
The Court notes that, although the abovereferenced contract specified the party as LibGo
Travel, a New Jersey corporation, with a Ramsey,
New Jersey address, plaintiff’s counsel addressed his
inquiry to GoGo Worldwide, Lake Success, New
York.
8
The Court notes that the letter is addressed January
17, 2010. However, because the letter clearly in
response to plaintiffs’ letter dated January 10, 2011,
the Court concludes that the letter’s accurate date is
January 17, 2011.
Jersey responded. The Court notes that this is the
same address provided for LibGo Travel in the
above-referenced contract.
As discussed infra,
plaintiffs provide no evidence regarding the
relationship between LibGo Travel of Ramsey, New
Jersey, GoGo Worldwide Tours of Lake Success,
New York or GoGo Worldwide Vacations of
Ramsey, New Jersey.
9
As noted supra, although plaintiffs address the
January 10, 2011 letter to GoGo Worldwide Tours in
Lake Success, New York, GoGo Worldwide
Vacations, located 69 Spring Street, Ramsey, New
6
20.)10 However, LibGo Travel is under no
obligation to sell the allocated rooms and is
invoiced only after a client has stayed at the
Hotel.
(Pls.’ Ex. 11.)
Invoices are
processed at LibGo Travel’s headquarters in
Ramsey, New Jersey. (Pls.’ Ex. 11.)
contract between Hoteles De Caribe and
Travel Impressions. (Id.) Instead, defendant
contracted with Hoteles Del Caribe to
provide it with with an allotment of rooms
that are available for bookings. (Def.’s 56.1
¶ 21; Gomez Aff. ¶¶ 15-16.) Hoteles Del
Caribe allows independent travel agents to
book rooms at the hotel from its allotment
and deals with them directly. (Def.’s 56.1 ¶
22; Gomez Aff. ¶ 16.)
One of the
independent travel agents that Hoteles De
Caribe contracted with is Travel Impressions
of Farmingdale, New York. (Pls.’ Ex. 12.)12
LibGo Travel offers the rooms to its
worldwide affiliates and they use the
reservation system to book directly with
LibGo Travel. (Def.’s 56.1 ¶¶ 26, 28;
Gomez Aff. ¶¶ 21-22; Pls.’ Ex 11.) LibGo
has no independent authority to make
reservations on defendant’s behalf; it can
only book rooms at the Hotel through this
allotment. (Def.’s 56.1 ¶ 28; Gomez Aff. ¶
22.)
Plaintiffs provide no evidence
regarding the relationship between LibGo
Travel, GoGo Worldwide Vacations and
GoGo Worldwide Tours and no evidence
regarding whether any rooms were booked
from this allotment by the New York based
GoGo Worldwide Tours for New York
residents.
c. Internet Activity
It is undisputed that information for, and
bookings at, the defendant’s Hotel is
available
through
the
internet
at
“secretsresorts.com.” (Def.’s 56.1 ¶ 19-20.)
However, there is no evidence that you can
book reservations electronically through the
website. Plaintiffs have provided no
evidence regarding the number of
reservations made through, or revenue
derived from any website, or what
percentage of each is attributed to New York
residents.
ii. Travel Impressions
With respect to the subpoena served
upon Travel Impressions, plaintiffs received
a contract between Hoteles Del Caribe
Holdings, Ltd., a Tortola, British Virgin
Islands corporation (“Hoteles De Caribe”),
and Travel Impressions. (See Pls.’ Ex.
12.)11 Defendant is not a party to the
Plaintiffs
also
enclosed
various
screenshots of webpages within their
exhibits.13 (See Pls.’ Ex. 7.) However, these
demonstrate, defendant has neither contracts nor
documents responsive to plaintiffs’ request.
10
12
Defendant also provides information, including
but not limited to rates, amenities, booking conditions
and the cancellation policy, for posting on LibGo’s
reservation system (Def.’s 56.1 ¶¶ 23-24; Gomez Aff.
¶¶ 18-19, Ex. 3.)
Plaintiffs have attached what they allege is the
contract between Hoteles De Caribe and Travel
Impressions. Plaintiffs did not provide an affidavit
authenticating the contract, and defendant contends
that it is not a Playa Maroma business record. In any
event, even assuming arguendo that the contract is
admissible as a business record, there is still no
personal jurisdiction over defendant for the reasons
discussed infra.
11
Plaintiffs’ counsel states that defendant’s response
“while literally correct, it was misleading and not
wholly forthcoming.” (J. Mulvehill Decl. ¶ 4.) The
Court disagrees. Plaintiffs’ request to produce
specifically requested documents and contracts
between defendant and GoGo Worldwide of Lake
Success, New York and Travel Impressions of
Farmingdale, New York. As the undisputed facts
13
The Court notes that plaintiffs do not reference
this exhibit within their papers. In an abundance of
caution, the Court has carefully examined all of the
exhibits submitted by plaintiffs to analyze whether
7
other
screenshots
simply
document
unsuccessful efforts by plaintiffs to locate
other internet sites that are related to the
Hotel or Playa Maroma.
moved for summary judgment on March 4,
2011. Plaintiffs filed their opposition on
April 1, 2011, and defendant filed its reply
on April 15, 2011. The Court heard oral
argument on June 22, 2011.16
B. Procedural History
This motion is fully submitted, and the
Court has considered all of the submissions
and arguments of the parties.
Plaintiffs filed their action on March 8,
2010. On August 2, 2010, defendant moved
to dismiss the complaint for lack of personal
jurisdiction or, in the alternative, for
dismissal under the forum non conveniens
doctrine. Plaintiffs filed their opposition to
defendant’s motion on September 3, 2010,
and defendant filed its reply on September
15, 2010. The Court heard oral argument on
October 22, 2010. At oral argument, the
Court permitted limited jurisdictional
discovery with respect to the nature of the
relationship between the travel agencies and
the defendant.14
II. STANDARD OF REVIEW
The standards for summary judgment are
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment “if
the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving
party bears the burden of showing that he or
she is entitled to summary judgment. See
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
The Court conducted two telephone
conferences, on January 5, 2011 and
February 2, 2011, with respect to the status
of discovery. As indicated supra, the parties
agreed that discovery was complete at the
February 2, 2011 conference.15 Defendant
defendant has such extensive and continuous contacts
with New York to confer jurisdiction under Section
301.
14
Specifically, plaintiffs contended that GoGo
Worldwide Tours, located in Lake Success, New
York and Travel Impressions, Ltd., located in
Farmingdale, New York, act as defendant’s agent in
New York. (See Affidavit of Deborah Enderby, filed
on September 3, 2010, in opposition of defendant’s
motion to dismiss, ¶ 5.)
15
At the same conference, the Court explained to the
parties how to proceed where the jurisdictional issue
is in dispute and discovery is complete. Specifically,
the Court cited Ball v. Metallurgie HobokenOverpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990) and
stated that, if defendant is asserting that undisputed
facts demonstrate the absence of jurisdiction, then
defendant should file a motion for summary
judgment.
16
The Court also considered additional
documentation submitted to the Court by plaintiffs’
counsel at oral argument.
8
judgment motions where the jurisdictional
issue is in dispute:
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(internal quotation marks omitted); see
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) (summary judgment is
unwarranted “if the evidence is such that a
reasonable jury could return a verdict for the
nonmoving party”).
If the defendant asserts in a Rule 56
motion that undisputed facts show
the absence of jurisdiction, the court
proceeds, as with any summary
judgment motion, to determine if
undisputed facts exist that warrant
the relief sought. If the defendant
contests the plaintiff’s factual
allegations, then a hearing is
required, at which the plaintiff must
prove the existence of jurisdiction by
a preponderance of the evidence.
Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material facts. .
. . The nonmoving party must come forward
with specific facts showing that there is a
genuine issue for trial.’” Caldarola v.
Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(emphasis in original) (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986)). As the Supreme
Court stated in Anderson, “[i]f the evidence
is merely colorable, or is not significantly
probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249-50
(internal citations omitted). Indeed, “the
mere existence of some alleged factual
dispute between the parties” alone “will not
defeat an otherwise properly supported
motion for summary judgment.” Id. at 24748 (emphasis in original).
Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials but must
set forth “‘concrete particulars’ showing that
a trial is needed.” R.G. Grp., Inc. v. Horn &
Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(quoting SEC v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
Accordingly, it is insufficient for a party
opposing summary judgment “‘merely to
assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).
Ball v. Metallurgie Hoboken-Overpelt, S.A.,
902 F.2d 194, 197 (2d Cir. 1990) (citations
omitted).
In the instant action, following
discovery, defendant filed a motion for
summary judgment regarding the issue of
jurisdiction. For the reasons stated below,
the Court concludes that the undisputed facts
demonstrate the absence of jurisdiction over
the defendant.17
III. DISCUSSION
Defendant has moved for summary
judgment for lack of personal jurisdiction.
Plaintiffs argue that this court has
jurisdiction over Playa Maroma on several
grounds. First, plaintiffs contend that GoGo
Worldwide Tours of Lake Success, New
17
The Court did not require a hearing for plaintiffs
to prove their facts by a preponderance of the
evidence because that is a standard of proof
appropriate for resolving disputed issues of fact and,
here, the Court has determined that the undisputed
facts demonstrate the absence of jurisdiction over the
defendant as a matter of law. See Ball, 902 F.2d at
197-98.
The Second Circuit has provided
additional guidance regarding summary
9
personal jurisdiction issues: (1) whether
New York law would confer jurisdiction by
New York courts over defendants; and (2)
whether the exercise of jurisdiction over
defendants comports with the Due Process
Clause of the Fourteenth Amendment. See
Grand River Enters. Six Nations, Ltd. v.
Pryor, 425 F.3d 158, 165 (2d Cir. 2005); see
Blakeman v. Walt Disney Co., 613 F. Supp.
2d 288, 301 (E.D.N.Y. 2009).
Here,
because the Court concludes that plaintiffs
have failed to raise any fact in dispute that
would show that the requirements of New
York’s general jurisdiction statute had been
met with respect to the defendant, no further
discussion of whether such jurisdiction
would satisfy due process is required. See
Bank Brussels Lambert v. Fiddler Gonzalez
& Rodriguez, 305 F.3d 120, 127 (2d Cir.
2002) (“as the New York Court of Appeals
has made clear, the constitutional analysis is
a distinct step from the statutory one; it is
only once the long-arm statute is deemed
satisfied that the court need examine
whether due process is likewise comported
with.”) (citing LaMarca, 95 N.Y.2d 210,
214, 713 N.Y.S.2d 304, 735 N.E.2d 883
(2000)); Bensusan Rest. Corp., 126 F.3d at
27 (“If the exercise of jurisdiction is
appropriate under that statute, the court then
must decide whether such exercise comports
with the requisites of due process”).
York
and
Travel
Impressions
of
Farmingdale, New York, are agents of the
defendant and, thus, the defendant is subject
to New York’s general jurisdiction statute,
N.Y. C.P.L.R. § 301. Second, plaintiffs
contend that defendant’s maintenance of a
website that is accessible to New York
residents is sufficient to confer jurisdiction.
For the reasons set forth below, the Court
grants defendant’s motion for summary
judgment in its entirety. Specifically, as a
threshold matter, plaintiffs have provided no
evidence that defendant has contracted with
either New York-based travel agency –
that is, GoGo Worldwide or Travel
Impressions – or that the travel agencies
have the power to bind the defendant. Even
assuming the defendant had contracted with
the travel agencies and they had the power
to bind the defendant, plaintiffs provide no
evidence that the travel agencies are doing
all the business that defendant could do if it
were here with its own officials. Indeed,
plaintiffs provide no evidence that defendant
derived any revenue from any New York
resident.
With respect to defendant’s
internet activity, plaintiffs provide no
evidence that defendant operates an
interactive website of such a nature to confer
jurisdiction. In short, the Court concludes
that the undisputed facts clearly demonstrate
the absence of personal jurisdiction over the
defendant.
Under New York law, there are two
bases for personal jurisdiction over out-ofstate defendants: (1) general jurisdiction
pursuant to N.Y. C.P.L.R. § 301, and (2)
long-arm jurisdiction pursuant to N.Y.
C.P.L.R. § 302. Here, plaintiffs rely only on
New York’s general jurisdiction statute,
N.Y. C.P.L.R. § 301.18 Plaintiffs assert that
A. Personal Jurisdiction
It is well settled that “[i]n diversity or
federal question cases the court must look
first to the long-arm statute of the forum
state, in this instance, New York.”
Bensusan Rest. Corp. v. King, 126 F.3d 25,
27 (2d Cir. 1997). “If the exercise of
jurisdiction is appropriate under that statute,
the court then must decide whether such
exercise comports with the requisites of due
process.” Id. Thus, the district court should
engage in a two-part analysis in resolving
18
Plaintiffs neither allege nor argue that defendant
“transacts any business within the state or contracts
anywhere to supply goods or services in the state,”
and that their cause of action arose out of that
activity, or that the tortious act was committed within
New York, or that the tortious act was committed
10
there are two bases for finding that the Court
has personal general jurisdiction over
defendant: (1) defendants use of travel
agents with New York, and (2) defendant’s
website. As set forth below, the Court
concludes that the undisputed facts
demonstrate that neither of plaintiffs’ bases
for personal jurisdiction can satisfy the
requirements of § 301.
Accordingly,
defendant’s motion is granted in its entirety.
Cir. 2000) (quoting Landoil Resources
Corp. v. Alexander & Alexander Servs., Inc.,
918 F.2d 1039, 1043 (2d Cir. 1990). To
determine whether a foreign corporation is
doing business in New York, courts focus on
a set of common factors, including: whether
the company has an office in the state;
whether it has any bank accounts or other
property in the state; whether it solicits
business in the state; whether it has a phone
listing in the state; whether it does public
relations work in the state; and whether it
has individuals permanently located in the
state to promote its interests. See Wiwa, 226
F.3d at 98 (citing Hoffritz, 763 F.2d at 58;
Frummer, 19 N.Y.2d at 537); see also Sound
Around Inc. v. Audiobahn, Inc., No. 07 CV
773 (RJD)(CLP), 2008 WL 5093599, at *4
(E.D.N.Y. Nov. 24, 2008). However, these
factors are only intended to provide
guidance – they do not amount to a
“formula” for testing jurisdiction. As the
Second Circuit has noted, “[t]here is no
talismanic significance to any one contact or
set of contacts that a defendant may have
with a forum state; courts should assess the
defendant’s contacts as a whole.” Metro Life
Ins. Co. v. Robertson-Ceco Corp., 84 F.3d
560, 570 (2d Cir. 1996) (emphasis in
original); see also Wiwa, 226 F.3d at 95
(citing Landoil Res. Corp., 918 F.2d at
1043) (a fact-specific inquiry is necessary to
determine whether a corporation’s contacts
with New York demonstrate “continuous,
permanent and substantial activity.”)
1. General Jurisdiction
Under New York’s general jurisdiction
statute, N.Y. C.P.L.R. § 301, a New York
court may exercise general personal
jurisdiction
over
a
non-domiciliary
corporation that is “doing business” in New
York. See McGowan v. Smith, 52 N.Y.2d
268, 272 (1981) (internal quotation marks
omitted). The “doing business” standard is
“stringent, because a defendant who is found
to be doing business in New York in a
permanent and continuous manner may be
sued in New York on causes of action
wholly unrelated to acts done in New York.”
Overseas Media, Inc. v. Skvortsov, 407 F.
Supp. 2d 563, 567-68 (S.D.N.Y. 2006). A
corporation is “doing business” in New
York “if it does business in New York ‘not
occasionally or casually, but with a fair
measure of permanence and continuity.”’
Hoffritz for Cutlery, Inc. v. Amajac, Ltd.,
763 F.2d 55, 58 (2d Cir. 1985) (quoting
Tauza v. Susquehanna Coal Co., 220 N.Y.
259, 267 (1917)); see also Wiwa v. Royal
Dutch Petroleum Co., 226 F.3d 88, 95 (2d
Here, turning to the common factors
assessed in a determination of whether a
defendant is subject to jurisdiction under
N.Y. C.P.L.R. § 301, it is undisputed that
defendant does not maintain an office, a
phone listing or employees in New York,
and does not have bank accounts or other
property in New York. Furthermore, it is
undisputed that defendant’s employees do
not travel to New York and it does no public
outside of New York “causing injury to person or
property within the state.”
§ 302(a)(1)-(3).
Furthermore, at oral argument and in papers,
plaintiffs conceded that they are not asserting that the
Court has jurisdiction pursuant to New York’s longarm statute. Accordingly, the Court need not address
whether the Court has personal jurisdiction pursuant
to New York’s long-arm statute, N.Y. C.P.L.R. §
302(a).
11
agency agreement, nor that the defendant
exercised direct control over its putative
agent. The agent must be primarily
employed by the defendant and not engaged
in similar services for other clients.” Wiwa,
226 F.3d at 95 (citation omitted); see, e.g.
Frummer v. Hilton Hotels Int’l Inc., 19
N.Y.2d 533, 537, 227 N.E.2d 851, 281
N.Y.S.2d 41 (1967) (finding jurisdiction
over foreign hotel chain based on the
activities of affiliated New York-based
reservations service); Miller v. Surf
Properties, Inc., 4 N.Y.2d 475, 481, 151
N.E.2d 874, 176 N.Y.S.2d 318 (1958)
(holding that independent contractors with
many clients are not considered agents of
their individual clients for jurisdictional
purposes); see also Jazini v. Nissan Motor
Co., Ltd., 148 F.3d 181, 184 (2d Cir. 1998)
(to establish agency, “the plaintiff must
show that the subsidiary does all the
business which [the parent corporation]
could do were it here by its own officials.”);
Welinsky v. Resort of the World D.N.V., 839
F.2d 928, 929 (2d Cir. 1988) (applying
Frummer to find jurisdiction over foreign
hotel corporation due to reservation
activities of subsidiary located in New
York); Gelfand v. Tanner Motor Tours, Ltd.,
385 F.2d 116, 120-21 (2d Cir.1967)
(applying Frummer to find jurisdiction over
tour operator based on the activities of
affiliated travel agent located in New York.)
relations work in New York. (Def.’s 56.1 ¶¶
7-14, 16; Gomez Aff. ¶ 9.) Accordingly, the
Court concludes that the undisputed facts do
not support the conclusion that defendant is
present in New York on a continuous and
systematic basis. However, the Court must
determine, then, whether defendant can be
deemed to be soliciting business in this State
– namely, whether the travel agencies
identified by plaintiffs can be considered
agents of the defendant for jurisdictional
purposes, and whether these factors,
together or separately, properly confer
jurisdiction.
2. Agency
Plaintiffs contend that GoGo Worldwide
Tours of Lake Success, New York and
Travel Impressions of Farmingdale, New
York, are agents of the defendant and, thus,
the defendant is subject to New York’s
general jurisdiction statute, N.Y. C.P.L.R. §
301. The Court disagrees. The Court
concludes that plaintiffs have failed to
provide any evidence to demonstrate that the
travel agencies acted as agents for the
defendant.
Under certain circumstances, the
continuous presence and substantial
activities that satisfy the requirement of
“doing business” do not necessarily need to
be conducted by the foreign corporation
itself but, rather on account of its
relationship with a subsidiary that is doing
business in the state.
Under those
circumstances, the foreign parent is said to
be doing business here because a domestic
entity is either a “mere department” or
“agent” of the foreign parent, and so
attribution of the subsidiary’s contacts to the
parent is warranted. Koehler v. Bank of
Bermuda Ltd., 101 F.3d 863, 865 (2d Cir.
1996). “To come within the rule, the
plaintiff need demonstrate neither a formal
As an initial matter, it is undisputed that
the defendant did not contract with either
New York-based travel agency.
With
respect to Travel Impressions, the contract
provided by plaintiffs is between Hoteles De
Caribe, a company incorporated in the
British Virgin Islands, and Travel
Impressions.
With respect to GoGo
Worldwide, the contract is between LibGo, a
New Jersey corporation, and defendant.
Although plaintiffs need not demonstrate a
formal agency agreement to come within the
12
replace them.19
rule (see Wiwa, 226 F.3d at 95), plaintiffs
seem to concede in their opposition papers
(and at oral argument) that the contract with
LibGo is the only piece of evidence relied
upon to establish agency. Indeed, plaintiffs
assert “Lib/Go Travel, Inc., is the
contracting agent for GoGo Worldwide
Vacations and GoGo Tours, GoGo and
Travel Impressions, Ltd.” (J. Mulvehill
Decl. ¶ 17.) However, that argument is
unsupported as plaintiffs provide no
evidence regarding the relationship between
LibGo Travel and the enumerated entities.
Plaintiffs are merely asserting a conclusion
to cure the evidence adduced through
discovery. As such, “‘conclusory non-factspecific jurisdictional allegations’ ... are
insufficient to establish even a prima facie
showing of personal jurisdiction under §
301.” Cornell v. Assicurazioni Generale,
Consol., 97 Civ. 2262 (MBM), 98 Civ.
9186(MBM), 2000 WL 284222, at *1
(S.D.N.Y. Mar. 16, 2000) (quoting Jazini,
148 F.3d at 185); Anderson, 477 U.S. at
247-48 (it is insufficient for a party
opposing summary judgment to rely on
conjecture and “merely to assert a
conclusion without supplying supporting
arguments or facts”) Plaintiffs “must do
more than simply show that there is some
metaphysical doubt as to the material facts.”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986)).
First, with respect to binding the
defendant, it is undisputed that “[p]ursuant
to the contract, a number of hotel rooms for
the Secrets property are ‘allocated’ to LibGo
Travel” (see Pls.’ Ex. 11) and, thus, LibGo
did not have a grant of authority to make
reservations on defendant’s behalf; it can
only book rooms at the Hotel through this
allotment. (Def.’s 56.1 ¶ 28; Gomez Aff. ¶
22.) See Brown v. Grand Hotel Eden, 00
Civ. 7346 (NRB), 2003 WL 21496756, at *3
(S.D.N.Y. June 30, 2003) (courts
interpreting Frummer have required that
hotels grant full confirmation powers to their
New York agents in order to assert
jurisdiction); see, e.g., Welinsky v. Resort of
the World D.N.V., 839 F.2d 928, 929-930
(2d Cir. 1988) (finding that hotel was
subject to general jurisdiction in forum
because a wholly-owned subsidiary was
19
Here, because the Court concludes that plaintiffs
have failed to raise any fact in dispute that would
show Travel Impressions is an agent of defendant, no
further discussion of that travel agency is necessary.
In any event, the contract between these two entities
relates only to an allotment of rooms and explicitly
states that the sales company (Hoteles De Caribe) can
modify the room allotment with prior notification to
Travel Impressions. Similarly, it is undisputed that
Travel Impressions is a wholesaler travel agent that
solicits business from other entities beyond Hoteles
De Caribe. Thus, even if there were a contractual
relationship with the defendant, Travel Impressions
would not provide a basis for personal jurisdiction in
this case. See, e.g., McCrann v. Riu Hotels S.A., No.
09 Civ. 9188 (CM), 2010 WL 5094396, at *4
(S.D.N.Y. Dec. 6, 2010) (“Travel Impressions
performs similar services for numerous clients other
than Riu…. In opposing the motion to dismiss,
Plaintiffs – who have the burden of establishing
jurisdiction – offer not a scintilla of evidence that
Travel Impression is primarily employed by RDC
Defendants. Therefore, the RDC Defendants (and
specifically, Delta, which is the only RDC defendant
that actually had a contract with Travel Impressions)
are not subject to a New York court’s jurisdiction on
the basis of Delta’s contractual relationship with
Travel Impressions.”).
In any event, even assuming that LibGo
Travel was a New York entity or that GoGo
Worldwide was a party to the contract,
plaintiffs provide no evidence that the travel
agency could bind the defendant or that the
services provided by the travel agency are so
important that, if they were not there to
provide them, defendant would be forced to
establish its own presence in New York to
13
located in forum and that such subsidiary
had “the authority to make and confirm
reservations without checking with the
defendant”); accord Heidle v. Prospect Reef
Resort, Ltd., 364 F. Supp. 2d 312,
315 (W.D.N.Y. 2005) (“Absent an outright
grant of authority to confirm reservations, an
agent is not ‘doing business’ on behalf of a
hotel.”) In other words, here, the travel
agencies do not have the authority to bind
defendant because defendant has already
confirmed the reservations, in advance, by
providing allocated rooms during time
periods of defendant’s choosing to the travel
agency. See Brown, 2003 WL 21496756, at
*5 (“Hotel Eden withholds from Summit the
right to book rooms during time periods of
Hotel Eden’s choosing and thus Summit’s
power to reserve rooms is subject to the
hotel’s grant of authority. Absent an outright
grant of authority to confirm reservations, an
agent is not ‘doing business’ on behalf of a
hotel.”).20
In any event, plaintiffs provide no
evidence as to whether LibGo is primarily
employed by the defendant and not engaged
in similar services for other clients. Indeed,
the LibGo contract explicitly provides that
“nothing in this agreement obliges [LibGo]
to book all or any of the [allocated rooms].
Pls.’ Ex. 9 ¶ 4; see also Pls.’ Ex. 11 (“There
is no obligation on the part of LibGo Travel
to sell these rooms ‘allocated’.”). Thus,
because there is no obligation to do any
business on behalf of defendant, the Court
concludes LibGo is not “primarily
employed” by defendant within the meaning
of Wiwa. See, e.g., Reers v. Deutsche Bahn
AG, 320 F. Supp. 2d 140, 152 (S.D.N.Y.
2004) (quoting Wiwa for the proposition
that, “[t]o find that a corporation is doing
business in New York through an agent, a
plaintiff must show that the agent is
‘primarily employed by the defendant and
not engaged in similar services for other
clients’”) (citation omitted); see also Miller,
4 N.Y.2d 481 (1958) (holding that
independent contractors with many clients
are not considered agents of their individual
clients for jurisdictional purposes).
20
In their opposition papers, to support their
argument that the travel agencies are agents of
defendant, plaintiffs rely on Frummer, 19 N.Y.2d 533
and Engebretson v. Aruba Palm Beach Hotel, 587 F.
Supp. 844 (S.D.N.Y. 1984).
Those cases are
inapposite. First, in Engebretson, the foreign hotel
defendant contracted with a local agent that did all
the business the hotel could do if it were here in New
York. Engebretson, the local travel agent, entered
into an agreement to serve as the Aruba hotel’s
representative in North America for two years.
Under the agreement, Engebretson would solicit,
make, and confirm reservations in the Aruba hotel,
would promote the hotel, and would attend trade fairs
to promote business and create demand for the hotel.
In return for Engebretson’s representation, the Aruba
defendants would pay Engebretson three percent of
the gross revenues generated from North America,
irrespective of the source of the business. Second, in
Frummer, defendant Hilton (U.K.) and the local
contact Hilton Reservation Service shared a common
owner. Furthermore, the reservation service did more
than solicit clients for Hilton’s hotels; it accepted
reservations and confirmed them and it also actively
promoted Hilton, leading the court to conclude that it
did all that Hilton could do were it in New York.
Nor do plaintiffs provide evidence with
respect to whether defendant derived any
revenue from New York with respect to its
relationship with the travel agencies.21 See
Gelfand, 385 F.2d at 121) (finding
jurisdiction where the local travel agent
provided the foreign tour operators with
three-sevenths of their business on a
particular tour, totaling $120,000 a year).
Indeed, the LibGo contract that plaintiffs
rely upon never even mentions New York;
rather, defendant’s allocated rooms are made
21
The Court notes that this is not a case in which
plaintiffs’ efforts to marshal evidence with respect to
this issue were frustrated by defendant’s inability or
unwillingness to supply revenue information.
Plaintiffs’ simply failed to inquire what portion of
revenue resulted from bookings of New York
residents.
14
defendant. In any event, plaintiffs provide
(1) no evidence that the travel agencies are
primarily employed by the defendant and
not engaged in similar services for other
clients, and (2) no evidence that defendant
derived any revenue from New York
through its purported New York agents.
Accordingly, the Court concludes that, after
construing
plaintiffs’
affidavits
and
documents in the light most favorable to
plaintiffs, plaintiffs have failed as a matter
of law to provide any facts that would
warrant a finding that defendant is “doing
business” in New York under an agency
theory.
available in LibGo’s “Global Product
Reservation System” for its customers
worldwide. (Pls.’ Ex. 9 ¶ 1, 13; Gomez Aff.
¶ 19.); see also Pls.’ Ex. 11 (“allocations are
added to [LibGo’s] database and offered for
sale to clients . . . [and] affiliates
worldwide.”). In addition, as discussed
supra, according to the contract, LibGo is
under no obligation to provide any business
to defendant.
Accordingly, the Court
concludes that there is no evidence that
LibGo does all the business that, if it were
not there to provide such business services,
defendant would be forced to establish its
own presence in New York to replace
LibGo. See Jazini, 148 F.3d at 184 (to
establish agency, “the plaintiff must show
that the subsidiary ‘does all the business
which [the parent corporation] could do
were it here by its own officials’”); see also
Schottenstein v. Schottenstein, No. 04 Civ.
5851 (SAS), 2004 WL 2534155, *11
(S.D.N.Y. Nov. 8, 2004) (“Where the total
amount of revenue derived from customers
in New York is, for instance, 5% or less of a
foreign defendant’s revenues, courts … have
found that the foreign defendant is not
“doing business” in New York.”) (collecting
cases); accord Holey Soles Holdings v.
Foam Creations, Inc., No. 05 CV 6939,
2006 WL 1147963, at *5 (S.D.N.Y. May 1,
2006) (finding that one percent of revenues
derived from New York did not amount to
“substantial solicitation”); Hutton v.
Priddy’s Auction Galleries, Inc., 275 F.
Supp. 2d 428, 437 (S.D.N.Y. 2003) (finding
the same where New York sales amounted
to less than three percent of total revenue).
Thus, any relationship by defendant with
LibGo does not provide a basis for personal
jurisdiction over the defendant in New York.
3. Internet Activity
Plaintiffs contend that defendant solicits
business through its internet site and, thus, is
subject to jurisdiction by this Court. For the
reasons stated below, the Court concludes
that the undisputed facts demonstrate the
absence of personal jurisdiction over the
defendant based upon any internet activity.
The website “secretsresorts.com” – which
contains information about defendant’s
Hotel and is operated by Secrets Resorts – is
not of such an interactive nature as to confer
jurisdiction under C.P.L.R. § 301.
As discussed supra, N.Y. C.P.L.R. §301
confers general jurisdiction over a defendant
who engages in a continuous and systematic
course of doing business such that the
defendant is “present” in New York. When
solicitation involves a website, “the fact that
a foreign corporation has a website
accessible to New York is insufficient to
confer jurisdiction under C.P.L.R. § 301.”
Sound Around, 2008 WL 5093599, at *6
(quoting Spencer Trask Ventures, Inc. v.
Archos S.A., No. 01 CV 1169, 2002 WL
417192, at *6 (S.D.N.Y. Mar.18, 2002; see
also Garcia v. Nationwide Mach. Sales, No.
08 CV 4167 (SJF), 2009 WL 2992574, at *
In sum, plaintiffs provide no evidence
that there is a contractual relationship
between defendant and either New York
travel agency or that either can “bind” the
15
subject to jurisdiction by this Court.23 This
argument lacks merit. First, the Court
agrees with defendant’s contention that
plaintiffs have failed to identify a website
operated by defendant.24 As noted supra,
plaintiffs attached a number of different
screenshots of webpages. In Exhibit 7,
plaintiffs
identify
a
website,
http://www.amresorts.com/email_list/,
listing email address for different resorts,
presumably for the proposition the
defendant solicits business in New York.25
(See Pls.’ Ex. 7.)
Although the site
mentions the defendant’s hotel in its listings,
3 (E.D.N.Y. Sept. 16, 2009) (“[M]ere
solicitation of business in the state without
more is insufficient for jurisdiction.”) A
court must “examine the nature and quality
of the activity” on the website, which may
range from “passive websites that display
but do not permit an exchange of
information” to “interactive [websites],
which permit the exchange of information
between the defendant and [website]
viewers,” to “cases in which the defendant
clearly does business over the internet.”
Hollins v. U.S. Tennis Ass’n, 469 F. Supp.
2d 67, 74 (E.D.N.Y. 2006) (internal citations
and quotations omitted).22 An interactive
website “may support the proposition that
the defendant is doing business in the state.”
Id.
23
In their opposition papers, plaintiffs state that
“[defendant] seeks and gets business through its
solicitations 24 hours per day, 7 days per week, 365
days per year. It solicits and gets business directly in
New York from the 8 million residents of the City of
New York and another 8 million residents of the
State of New York.” (Pls.’ Mem. of Law at 2.). That
argument is simply insufficient. First, it is simply
unsupported by any facts and is merely conclusory.
See BellSouth Telecomms., Inc. v. W.R. Grace & Co.,
77 F.3d 603, 615 (2d Cir. 1996) (“It is insufficient for
a party opposing summary judgment ‘merely to assert
a conclusion without supplying supporting arguments
or facts.’) (citations omitted). Second, plaintiffs
provide no evidence that defendant derived any
revenue from a New York resident using its website.
Plaintiffs contend that defendant solicits
business through its internet site and, thus is
22
Most cases considering whether internet activity
supports jurisdiction in New York do so in
connection with NY CPLR § 302, which confers
specific jurisdiction only, requiring a nexus between
the cause of action and New York. In assessing
whether internet activity is sufficient to confer
jurisdiction, courts within the Second Circuit have
taken the approach of evaluating where along a
“spectrum” of internet activity a particular
defendant’s conduct falls. See Citigroup Inc. v. City
Holding Co., 97 F. Supp. 2d 549, 565 (S.D.N.Y.
2000) (collecting cases). At one end of the spectrum
are “passive” sites: those sites that merely make
information available on a website which can be
viewed in New York and anywhere else the sites can
be accessed. Id. Activity at this lower end of the
spectrum, standing alone, does not amount to
transacting business in the state for purposes of §302
and, thus, does not confer personal jurisdiction over
the defendant. Id.; See Bensusan, 126 F. 3d at 26-29.
In the middle of the spectrum are “interactive” web
sites allowing users in the state to exchange
information with the defendant and, at the far end of
the spectrum, are websites over which the defendant
is actively conducting business. See Citigroup Inc.,
97 F. Supp. 2d at 565; see also Nat’l Football League
v. Miller, No. 99 Civ. 11846 (JSM), 2000 WL
335566, at *1 (S.D.N.Y. Mar. 30, 2000).
24
The Court notes that, although plaintiffs state that
“[defendant] solicits directly through the Internet
under
the
name
secretsmaromabeachrivieracancun.com, (see Pls.’
Mem. of Law at 2.), plaintiffs have failed to provide
any documents referencing that website. Indeed, this
statement contradicts their other statement that
defendants do business through secretsresorts.com
(See D. Enderby Aff. ¶ 2.). As discussed infra,
plaintiffs have adduced no evidence that
secretsresorts.com is operated by defendant.
25
The Court notes that plaintiffs do not reference
this exhibit. Although the Court is not required to dig
through the submissions by the parties, in an
abundance of caution, the Court has carefully
examined all of the exhibits submitted by plaintiffs to
analyze whether defendant has such extensive and
continuous contacts with New York to confer
jurisdiction under NY CPLR § 301.
16
by virtue of its Uniform Resource Locator
(“URL”)
of
http://www.amresorts.com/email_list,
it
appears that this website is from AM
Resorts and is not operated by the defendant.
(See Def.’s Reply Decl. ¶ 26).26 Likewise,
plaintiffs argue that “secretsresorts.com”
accepts reservations (see D. Enderby Aff. ¶
2.), but offers no evidence that this website
is operated by the defendant. (See Def.’s
Reply Decl. ¶ 14) (“Upon information and
belief, “secretsresorts.com” is the website
for
Secrets
Resorts
and
Spas.”).
Furthermore, with respect to plaintiffs’
Exhibit 8, the “Google” and “Yahoo” search
pages, the Court concludes that they are
insufficient to establish jurisdiction over the
defendant. The attached webpages merely
display search results after the user entered
If New York
the name of the Hotel.27
courts were to consider a foreign corporation
to be “present” in the state by virtue of its
website appearing in search results, every
foreign corporation with a website would be
subject to jurisdiction by New York courts
without any regard to the website’s level of
interactivity or its contacts with the forum
state.
“secretsresorts.com” website, plaintiff has
adduced no evidence that it is more than a
passive website and, thus, “the fact that a
foreign corporation has a website accessible
to New York is insufficient to confer
jurisdiction under C.P.L.R. § 301.” Sound
Around, 2008 WL 5093599, at *6; see also
McCrann v. Riu Hotels S.A., 2010 WL
5094396, at *4 (“[N]othing in the record
suggests that Riu Hotels’ website is
purposefully directed towards New York. It
appears that the website is accessible to
anyone with an Internet connection.
Therefore, under settled New York law, the
existence of the website does not provide a
basis for concluding that Riu Hotels – or any
of the RDC Defendants – was ‘doing
business’ in New York on a continuous and
systematic basis as required for an assertion
of general jurisdiction under C.P.L.R. §
301.”); Garcia, 2009 WL 2992574, at * 3
(“[M]ere solicitation of business in the state
without
more
is
insufficient
for
jurisdiction.”); accord Telebyte, Inc. v.
Kendaco, Inc., 105 F. Supp. 2d 131, 136
(E.D.N.Y. 2000) (“[T]he mere existence of a
web site accessible from New York is
insufficient to establish ‘solicitation’ for
purposes of personal jurisdiction.” (citing
Bensusan, 126 F.3d at 29)). Plaintiffs only
argue that the website accepts reservations
because defendant advertises its phone
number on its website. (Pls.’ Mem. of Law
at 8-9.) As initial matter, it is undisputed
that defendant has no phone number within
New York State. (Def.’s 56.1 ¶¶ 13-14.) In
any event, notwithstanding the fact that the
phone number referenced by plaintiffs and
displayed on the site is a Mexican phone
number (see Def.’s Reply Decl. ¶ 30; Pls.’
Ex. 8.), it is well-established that this
argument is woefully insufficient for the
Court to find jurisdiction over the defendant.
See, e.g. Cornell, 2000 WL 284222, at *2
(“A firm does not ‘do[ ] business’ in New
York simply because New York citizens can
In any event, with respect to the
26
As indicated supra, by stipulation dated June 21,
2010, plaintiffs discontinued this action with
prejudice against AM Resorts, LLC.
27
For the Yahoo search pages, at the top of the web
page there is a banner that states “Secrets Maroma
Beach Riviera Cancun – Yahoo Search Results and
the URL at the bottom of the web pages reads:
http://www.search.yahoo.com/search?p=Secrets+Mar
oma+Beach+Riviera+Cancun&ei=utf-8f... .
With
respect to the Google search pages there is a banner
that states “secretsmaromabeachrivieracancun.com.Google Search.” In addition, the “Google” trademark
name is displayed to the left of the search text box
and the URL at the bottom of the web pages reads:
“http://www.google.com/search?client=safari&rls=en
&q=secretsmaromabeachrivieracancun.com.&ie=UT
F-8&&oe=UTF-8”
17
04 CV 5223, 2005 WL 612848, at *6
(S.D.N.Y. Mar. 15, 2005) (without any
specific evidence of the volume and extent
of defendants’ solicitation in the documents
submitted in opposition to the motion to
dismiss, the court found that plaintiff had
failed to make the requisite prima facie
showing under C.P.L.R. § 301 where
defendants
maintained an “interactive”
website where customers could place orders
for products and exchange emails and chats
with
company
representatives);
c.f.
Schottenstein, 2004 WL 2534155 (The court
found jurisdiction under § 301 where an
Ohio company that built homes in a number
of states other than New York operated an
interactive website that derived twenty
percent of its revenues from New York
customers.
The Web site not only
advertised the company’s products, but
permitted viewers to exchange information
with the company, view sample homes in
specific neighborhoods, and use an
interactive calculator to determine how
much they could spend. The site also
enabled users to contact a customer service
representative); accord Garcia, 2009 WL
2992574, at *3.
contact the firm via the worldwide web.”)
Indeed, courts have held that websites that
allow users to check on room availability,
make reservations and interact with the
foreign hotel are insufficient to confer
jurisdiction. See Rodriguez v. Circus Circus
Casinos, Inc., No. 00 Civ. 6559 (GEL),
2001 WL 21244, at *2 (S.D.N.Y. Jan. 9,
2001) (“For jurisdictional purposes, there is
no material difference between using the
internet to make a reservation with an outof-state entity and placing a telephone call to
that entity for the same purpose.”) (citing
Tripmasters, Inc. v. Hyatt Int’l Corp., 696 F.
Supp. 925, 933, 933 n. 8 (S.D.N.Y.1988)
(additional citations omitted)); see also
Hearst Corp. v. Goldberger, 96 Civ. 3620
(PKL)(AJP), 1997 WL 97097 (S.D.N.Y.
Feb. 26, 1997) (defendant's e-mail
correspondence with New Yorkers and
maintenance of a website accessible here are
insufficient to establish that defendant is
“doing business” under C.P.L.R. § 301); see
Brown, 2003 WL 21496756, at *4 (“The
only interactivity Hotel Eden’s website
allows is the opportunity for users to inquire
into room availability. Upon receiving these
inquiries, the hotel responds, through e-mail
or fax, with an offer if a suitable room is
available; the user then must respond to the
hotel to accept the offer. This type of
interaction is similar to corresponding
through a telephone and is insufficient to
establish jurisdiction over the defendant.”).
In other words, plaintiffs have submitted
no evidence that this website is more than a
passive website, and no evidence that
defendant derives any revenue through it
from New York. In sum, the Court, after
construing
plaintiffs’
affidavits
and
documents in the light most favorable to
plaintiffs, finds that plaintiffs have failed to
provide any facts that would warrant a
finding that defendant is “doing business” in
New York through its internet activity.
Finally, plaintiffs have provided no
evidence of defendant’s sales derived from
New York, if any, through the website. See
Sound Around, 2008 WL 5093599, at *5
(when looking at whether a defendant
corporation has solicited business in New
York, “the volume of the defendant’s sales
in New York as a fraction of its total sales”
is considered when determining whether a
“solicitation-plus” [finding] can be made.”);
see also Allojet PLC v. Vantage Assocs., No.
Accordingly, based upon a careful review
of the record, the Court concludes that the
undisputed facts demonstrate that defendant
has not engaged in a continuous, permanent
or substantial course of business in New
18
York such that jurisdiction would be proper
under § 301. Accordingly, defendant’s
motion for summary judgment on personal
jurisdiction grounds is granted in its entirety.
IV. CONCLUSION
For the foregoing reasons, the Court
grants defendants’ motion for summary
judgment, pursuant to Federal Rule of Civil
Procedure 56, and the complaint is
dismissed for lack of personal jurisdiction.
The Clerk of the Court shall enter judgment
accordingly and close this case.
SO ORDERED.
________________________
Judge Joseph F. Bianco
United States District Judge
Date: December 1, 2011
Central Islip, NY
Attorney for plaintiffs is John Mulvehill,
220 Cambon Avenue, St. James, New York
11780. Attorney for defendant is Patrick
Denis Geraghty, Wilson, Elser, Moskowitz,
Edleman & Dicker, LLP, 150 East 42nd
Street, New York, New York 10017-5639.
19
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