House v. Greenbaum et al

Filing 27

MEMORANDUM AND ORDER granting 12 Motion to Dismiss for Lack of Jurisdiction. For the foregoing reasons, the Moving Defendants' motion to dismiss the Complaint is GRANTED and, because the Court determines that Plaintiff has failed to make a p rima facie showing that the Court has personal jurisdiction over any of the Defendants, the Complaint is dismissed in its entirety, without prejudice. The Clerk of the Court is respectfully directed to terminate all pending motions, mail Plaintiff a copy of this Memorandum & Order, and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 12/6/11. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
HAROLD D. HOUSE,
Plaintiff,
-against-

MEMORANDUM & ORDER
10-CV-3627 (JS)(ETB)

ANDREW GREENBAUM, ARNON BERSSON,
DAVID BERSSON, NORM BERSSON, PRISM
TRADING GROUP LLC, PRISM GROUP LLC,
PRISM TRADING SCHOOL LLC, PRISM
TRADING LLC, SECURITIES TRADING
SCHOOL LLC, and NEIL GREENBAUM,
Defendants.
------------------------------------X
APPEARANCES:
For Plaintiff:
Harold D. House, pro se
P.O. Box 445
Greenport, NY 11944
For Defendants:
Andrew Greenbaum,
Prism Trading
Group LLC, Prism
Trading School
LLC, Prism Trading
LLC, Securities
Trading School LLC,
and Neil Greenbaum

Isaac M. Zucker, Esq.
600 Old Country Road, Suite 321
Garden City, NY 11530

Arnon Bersson,
David Bersson, Norm
Bersson, and Prism
Group LLC

No Appearances.

SEYBERT District Judge:
Pro se Plaintiff Harold House sued Defendants Andrew
Greenbaum,

Arnon

Bersson,

David

Bersson,

Norm

Bersson,

Prism

Trading Group LLC, Prism Group LLC, Prism Trading School LLC,
Prism

Trading

LLC,

Securities

Trading

School

LLC,

and

Neil

Greenbaum (collectively, “Defendants”) in what is essentially a
breach

of

contract

action.

Group

LLC,

Prism

Andrew

Trading

School

Greenbaum,
LLC,

Prism

Prism

Trading

Trading

LLC,

Securities Trading School LLC and Neil Greenbaum (the “Moving
Defendants”)

move

to

dismiss

this

case,

arguing

among

other

things that the Court lacks subject matter jurisdiction over
this action and personal jurisdiction over Defendants.

For the

reasons that follow, the Moving Defendants’ motion is granted,
and

this

case

is

dismissed

against

all

Defendants

without

prejudice.
BACKGROUND
According to his Complaint, Plaintiff entered into a
consulting contract with Prism Trading Group LLC in June 2009
under which he would help the business develop a marketing plan.
(Compl.

¶

4.)

Plaintiff

was

to

be

paid

$15,000

per

month

through December 2009 (id. ¶¶ 4, 7, 8), at which point the
contract would expire unless the parties agreed to an extension.
Plaintiff claims that he was not paid for November or December
2009 and that Defendants owe him at least $30,000 in contractual
consulting fees.
in January 2010.

(Id. ¶ 16.)

Prism Trading Group was dissolved

(Id. ¶ 14.)

Although Plaintiff does not

delineate how each Defendant was involved, the gravamen of his
case is that Defendants, “acting individually and in concert,
purposefully ran up debts in the Prism LLCs” in order to gain
2 

market share and experience and “then, when the obligations were
being pressed for payment, closed the LLCs and re-emerged with a
new LLC to carry on the business debt free.”

(Id. ¶ 18.)

Plaintiff seeks $900,000 in damages, a figure he arrived at by
tripling the $30,000 he believes he is owed under the consulting
contract and then multiplying it by the ten Defendants.

(Id. at

5.)
Plaintiff

has

filed

a

number

of

lawsuits

in

this

Court, including most recently a case very similar to this one.
See E.D.N.Y. Docket No. 10-CV-2157 (filed Apr. 30, 2010).

The

Court dismissed that case sua sponte for lack of subject matter
jurisdiction because there was not complete diversity between
Plaintiff, a New Yorker, and certain Defendants who were alleged
to reside and do business in New York.

(Docket No. 10-CV-2157,

Docket Entry 9 at 3.)
DISCUSSION
The Moving Defendants argue that the Complaint must be
dismissed for (1) lack of subject matter jurisdiction; (2) lack
of personal jurisdiction; (3) improper venue; (4) failure to
state
fraud.

a

claim;

and

(5)

legally

(See Def. Br. 1-2.)

insufficient

allegations

of

Because the Court concludes that

Plaintiff has not made a prima facie showing that the Court has
personal jurisdiction over any of the Defendants, it dismisses

3 

the Complaint without prejudice and does not reach the Moving
Defendants’ remaining arguments.
Plaintiff bears the burden of establishing personal
jurisdiction.

At this stage of the litigation, where the Court

has not conducted an evidentiary hearing, Plaintiff need only
make a prima facie showing of personal jurisdiction.

S. New

England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 138 (2d Cir.
2010).

He may satisfy his burden with affidavits and other

supporting

materials,

and

to

the

extent

that

the

facts

disputed, the Court will credit Plaintiff’s version.
To

establish

a

prima

facie

case

for

jurisdiction,

are

See id.
Plaintiff

must, among other things, establish that personal jurisdiction
is proper under the law of the forum state.

E.g., M. Shanken

Commc’ns, Inc. v. Variant Events, LLC, No. 10-CV-4747, 2010 WL
4159476, at *4 (S.D.N.Y. Oct. 7, 2010).

New York law provides

for personal jurisdiction when a defendant is present or “doing
business” in the state, see N.Y. C.P.L.R. 301, and in certain
situations when a plaintiff’s cause of action arises out of an
out-of-state defendant’s activities, see N.Y. C.P.L.R. 302.
Here, however, Plaintiff alleges no facts, either in
his

Complaint

Defendants’

or

motion,

in
to

his

limited

suggest

opposition

that

the

to

Court

the
has

Moving

personal

jurisdiction over any of the Defendants in this action.

There

is no allegation that any of the Defendants are present or do
4 

business in New York.

To the contrary, Plaintiff asserts that

“defendants are individuals and entities doing business in Boca
Raton,

Florida,

and

residing

in

Florida.”

(Compl.

at

1.)

Plaintiff has also failed to put forth any facts suggesting that
New

York’s

contract

long-arm

case

statute

arising

out

of

applies.
a

This

consulting

is

a

breach

agreement

of

whereby

Plaintiff contracted to work for Florida businesses in Florida.
(Compl. ¶¶ 3-4.)

There is no hint that any of the Defendants

“transact[ed]

business

anywhere

to

any

supply

goods

within”
or

New

services

York
in”

or
New

“contract[ed]
York.

N.Y.

C.P.L.R. 302.
The Court emphasizes that because it determined that
it lacks personal jurisdiction over the Defendants, it has not
reached the Moving Defendants’ remaining arguments.

Although it

may, in the interest of justice, transfer the case rather than
dismiss it, 28 U.S.C. § 1631, it declines to do so here because,
among other reasons, the statute of limitations on Plaintiff’s
breach of contract claim has likely not run, see FLA. STAT. ANN. §
95.11(2), and Plaintiff is free to re-file this case in Florida
state court.
CONCLUSION
For

the

foregoing

reasons,

the

Moving

Defendants’

motion to dismiss the Complaint is GRANTED and, because the
Court determines that Plaintiff has failed to make a prima facie
5 

showing that the Court has personal jurisdiction over any of the
Defendants, the Complaint is dismissed in its entirety, without
prejudice.

The Clerk of the Court is respectfully directed to

terminate all pending motions, mail Plaintiff a copy of this
Memorandum & Order, and mark this case CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

December
6 , 2011
Central Islip, New York

6