Dejana et al v. Marine Technology, Inc. et al
Filing
28
MEMORANDUM AND ORDER terminating 17 Motion to Dismiss for Lack of Jurisdiction. For the foregoing reasons, the Court concludes that it does not have personal jurisdiction over Defendants. The Clerk of the Court is directed to terminate Docket En try 17 and to transfer this action to the United States District Court for the Eastern District of Missouri. Case transferred to District of Missouri. SO ORDERED by JUDGE JOANNA SEYBERT on 9/26/11. C/ECF. ALL FILINGS ARE TO BE MADE IN THE TRANSFER COURT, DO NOT DOCKET TO THIS CASE. (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
LINDA DEJANA, as Personal
Representative of the Estate of
Philip Dejana, Deceased, and
WILLIAM T. GRAFF, as Personal
Representative of the Estate of
Kevin Graff, Deceased,
MEMORANDUM AND ORDER
10-CV-4029(JS)(WDW)
Plaintiffs,
-againstMARINE TECHNOLOGY, INC., and
RANDY M. SCISM,
Defendants.
----------------------------------X
APPEARANCES:
For Plaintiffs:
Daniel O. Rose, Esq.
Justin Timothy Green, Esq.
Kreindler & Kreindler LLP
100 Park Avenue, 18th Floor
New York, NY 10017
Michael Allweiss, Esq.
Allweiss & Allweiss
5363 Central Avenue
Saint Petersburg, FL 33710
Robert S. Moran, Jr., Esq.
McBreen & Kopko LLP
110 Summit Avenue
Montvale, NJ 07645
For Defendants:
Daniel Gerard McDermott, Esq.
Keith D. Heinold, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
Wall Street Plaza
88 Pine Street, 21st Floor
New York, NY 10005
SEYBERT, District Judge:
This suit arises out of a fatal 2008 boating accident
in the Great South Bay near Patchogue, Long Island.
Plaintiffs
Linda Dejana and William T. Graff (collectively, “Plaintiffs”)
are
the
personal
representatives
of
decedents
Philip
(“Dejana”) and Kevin Graff (“Graff”), respectively.
Dejana
Plaintiffs
sued Defendants Marine Technology, Inc. (“Marine”) and Marine’s
CEO and sole shareholder, Randy M. Scism (“Scism” and, with
Marine, “Defendants”) for products liability.
Pending before
the Court is Defendants’ motion to dismiss for lack of personal
jurisdiction. (Docket Entry 17.)
For the reasons that follow,
the Court concludes that it does not have personal jurisdiction
over Defendants and, in the interest of justice, transfers this
action
to
the
United
States
District
Court
for
the
Eastern
District of Missouri.
BACKGROUND
In
2008,
Dejana
and
Graff
were
racing
a
speedboat
called the “Aero Express” in the “Battle of the Bay” offshore
powerboat race on the Great South Bay.
(Am. Compl. ¶ 56.)
The
“Aero Express” capsized as it approached the course’s second
turn, and its canopy collapsed upon impact with the water.
cockpit flooded, and both operators were killed.
The
(Id. ¶¶ 64-
67.)
On behalf of Dejana and Graff, Plaintiffs sued Marine, the
Aero
Express’
manufacturer,
and
2
Scism,
Marine’s
president,
asserting
causes
of
action
for
defect, and failure to warn.
that
the
Aero
requirements.
Express’
design
defect,
manufacturing
The thrust of Plaintiff’s case is
canopy
did
not
meet
industry
(See id. ¶¶ 39, 66.)
Defendants argue that they are not subject to this
Court’s jurisdiction.
Marine is a Missouri corporation with its
principal place of business in Wentzville, Missouri.
Scism
Affidavit
(“Scism
Aff.”)
(Id. ¶ 1.)
domiciliary.
¶
3.)
Scism
is
a
(Randy
Missouri
Marine designs and builds custom-
ordered powerboats and sells them either directly to consumers
or through a Tennessee boat dealer.
approximately
Tennessee.
ten
boats
(Id. ¶ 6.)
per
year,
(Id.
mostly
¶ 9.)
in
It sells
Missouri
and
Since 1989, Marine has sold three boats
to New York residents (id. ¶ 9), but these boats were purchased
and delivered in either Missouri or Tennessee.
Marine
attracts
customers
through
(Id. ¶¶ 9, 10.)
a
website
and
through its attendance at various boat shows, none of which are
held in New York.
Marine’s
boats
(Id. ¶¶ 12, 14-14.)
have
an
powerboat races worldwide.
¶¶ 4-5, 8.)
exceptional
Its website boasts that
performance
record
in
(See Pl. Ex. 5, Summ. Defs.’ Website
Although customers cannot complete a sale through
the computer, the website provides information regarding models,
prices, and further contact information.
3
(Id. ¶ 5.)
The prices
quoted on Marine’s website range from $199,000 to $899,000 per
boat.
(Id. ¶ 6.b, f.)
Dejana bought the Aero Express from Slug Hefner, a
Missouri
resident
and
longtime
customer,
in
2007,
(see
Am.
Compl. ¶ 25), and the parties dispute whether Marine or Scism
helped orchestrate the sale.
There is no question that Marine
sold Hefner the boat in 2004,1 but the parties disagree whether
Marine was “instrumental” in facilitating the sale from Hefner
to Dejana (Plaintiffs’ view) or whether Marine learned of the
deal only after it had been completed (Defendants’ view).
(See
Hefner Aff. ¶ 14 (stating that Dejana told him that Marine had
been “instrumental” in the sale).)
According to Plaintiffs,
Scism “personally spoke to [Dejana] on more than one occasion
touting [the Aero Express’] design, construction history, speed,
handling
and
Plaintiffs
factor
in
performance
claim
that
Dejana’s
capabilities.”
Scism’s
(Pl.
encouragement
final
purchase
was
Opp.
the
decision.
5.)
primary
(Id.)
Additionally, they maintain that Scism tried to sell Dejana a
new Marine boat at the time of his purchase from Hefner.
Defendants deny any involvement in the re-sale.
(Id.)
(Scism Aff.
20.)
1
When Hefner owned it, the Aero Express was called the “Dirty
Duck.” (Randy Scism Supplemental Affidavit ¶ 3.) For clarity’s
sake, the Court refers to the “Aero Express” throughout.
4
Plaintiffs
also
assert
that
Defendants
have
had
extensive contact with New York since Dejana bought the Aero
Express from Hefner.
They claim that Supercat Rigging, which is
partially owned by Scism, performed $22,000 of service on the
boat and billed Dejana in New York.
claim
that
Defendants
are
highly
(Pl. Opp. 18.)
active
in
They also
powerboat
racing
circles, and that Dejana and Graff raced the Aero Express in
several Offshore Powerboat Association events, including one in
New York, prior to August 2008.
Relatedly, Plaintiffs
(Id.)
assert that Dejana spoke with Scism about re-outfitting the Aero
Express to compete in a different class of New York races.
(Id.
11.)
DISCUSSION
Plaintiffs bear the burden of establishing personal
jurisdiction.
F.3d
560,
Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84
565
(2d
Cir.
1996).
The
Court
has
“considerable
procedural leeway” in resolving these motions; it may decide the
motion
on
the
basis
of
the
parties’
affidavits,
“permit
discovery in aid of the motion; or . . . conduct an evidentiary
hearing on the merits of the motion.”
Marine Midland Bank v.
Miller, 664 F.2d 899, 904 (2d Cir. 1981).
burden
depends
on
jurisdiction issue.
how
the
Court
A plaintiff’s precise
elects
to
address
the
Marine Midland Bank v. Miller, 664 F.2d
899, 904 (2d Cir. 1981).
Short of a “full-blown evidentiary
5
hearing on the motion, the plaintiff need make only a prima
facie
showing
materials.”
establish
through
Id.
its
own
affidavits
and
supporting
“Eventually, of course, the plaintiff must
the
evidence,
either at a pretrial evidentiary hearing or at trial.
But until
such
suffices,
a
jurisdiction
hearing
notwithstanding
is
any
by
a
held,
preponderance
a
prima
controverting
party, to defeat the motion.”
facie
of
showing
presentation
by
the
moving
Id.; see, e.g., Drake v. Lab.
Corp. of Am. Holdings, No. 02-CV-1924, 2007 WL 776818, at *8
(E.D.N.Y. Mar. 13, 2007).
“A
plaintiff
can
make
this
[prima
facie]
showing
through its own affidavits and supporting materials, containing
a good faith averment of facts that, if credited . . . would
suffice to establish jurisdiction over the defendant.”
In re
Methyl Tertiary Butyl Ether Prod. Liab. Litig., 399 F. Supp. 2d
325, 330 (S.D.N.Y. 2005) (quoting Whitaker v. Am. Telecasting,
Inc., 261 F.3d 196, 208 (2d Cir. 2001) (internal quotations
omitted)).
When
the
issue
is
addressed
on
affidavits,
all
allegations are construed in the light most favorable to the
plaintiff and all doubts are resolved in the plaintiff's favor.
Id.; DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 85 (2d Cir.
2001).
Thus, the Court accepts Plaintiffs' evidence as true.
See In re Ski Train Fire, 343 F. Supp. 2d 208, 213 (S.D.N.Y.
2004) (“[A] court may consider materials outside the pleadings,
6
but
must
credit
the
plaintiff's
averments
of
jurisdictional
facts as true.”).
I. Determining Personal Jurisdiction
Whether
or
not
a
defendant
is
jurisdiction involves a two-part inquiry.
subject
to
personal
First, the Court asks
whether the defendant’s acts bring him within reach of the longFED. R. CIV. P.
arm statute of the state in which the Court sits.
4(k)(1)(a); Asahi Metal Indus. v. Superior Court of C.A., Solano
Cnty., 480 U.S. 102, 108-09, 107 S. Ct. 1026, 1030, 94 L. Ed. 2d
92 (1987).
Court’s
Second, if the state’s long-arm statute permits the
exercise
of
jurisdiction,
then
the
Court
determines
whether such exercise would be consistent with the due process
guarantees of the U.S. Constitution.
See id.
II. New York’s Long-Arm Statute
Plaintiffs
argue
that
Defendants
are
subject
to
personal jurisdiction under two provisions of New York’s long
arm
statute:
N.Y.
C.P.L.R.
Subsections
302(a)(1)
302(a)(3)(ii).
A. N.Y. C.P.L.R. 302(a)(1)
Subsection 302(a)(1) provides in part that:
Acts which are the basis of jurisdiction.
As to a cause of action arising from any of
the acts enumerated in this section, a court
may exercise personal jurisdiction over any
non-domiciliary . . . who in person or
through an agent:
7
and
1. transacts any business within the state
or contracts anywhere to supply goods or
services in the state . . . .
N.Y. C.P.L.R. 302(a)(1).
To be subject to jurisdiction under
this subsection, Defendants had to have transacted business in
New York or contracted to supply goods and services in New York.
Id.
Plaintiffs
apparently
assert
that
jurisdiction
is
proper under this provision because Supercat Rigging, a company
partly owned by Scism, performed work on the boat and later
billed
Dejana
in
New
York
and
because
Defendants
were
instrumental in Dejana’s decision to buy the Aero Express from
Hefner.
The
Court
agrees
with
Defendants
that
Plaintiff’s
allegations about Supercat Rigging, a non-party, are irrelevant
to whether the Court has jurisdiction over Marine and Scism,
particularly where there is no connection between Plaintiff’s
cause of action and the work Supercat Rigging performed on the
Aero Express.
See Johnson v. Ward, 4 N.Y.3d 516, 519, 797
N.Y.S.2d 33 (2005) (recognizing that a “substantial relationship
must be established between a defendant's transactions in New
York and a plaintiff's cause of action in order to satisfy”
jurisdiction
under
Subsection
302(a)(1)).
Plaintiff’s
allegations concerning Defendants’ facilitating a sale between
Hefner and Dejana might be relevant, but Plaintiffs have not
supported
these
allegations
with
8
admissible
evidence.
Plaintiffs rely on an affidavit from Hefner, who testified that
Dejana
told
him
that
Scism
and
Gary
Stray
(an
associate
of
Scism’s) spoke with Dejana and was “instrumental in his decision
to purchase it from me [Hefner].”
(Hefner Affidavit ¶ 14.)
This is hearsay and it cannot be used to defeat a motion to
dismiss for lack of personal jurisdiction.
Gosain v. State Bank
of India, 689 F. Supp. 2d 571, 582 (S.D.N.Y. 2010) vacated in
part on other grounds 414 Fed. Appx. 311 (2d Cir. 2011) (“While
it is proper for a court to rely on affidavits to establish
jurisdictional facts, hearsay evidence submitted by a plaintiff
is not sufficient to defeat a motion to dismiss for lack of
personal jurisdiction.”); Shaoulian-Tehrani v. Khatami, No. 06CV-6868, 2008 WL 1790386, at *2 (S.D.N.Y.
Apr. 21, 2008); Ariel
Maritime Grp., Inc. v. Pellerin Milnor Corp., No. 88-CV-6447,
1989 WL 31665, at *2 n.4
(S.D.N.Y. Mar. 29, 1989) (“[H]earsay
evidence submitted by a plaintiff is not sufficient to defeat a
motion to dismiss for lack of personal jurisdiction.”).
Defendants maintain a website, but it is well-settled
that
websites
“that
only
‘passively’
provide[]
information
accessible to any person browsing the internet is insufficient”
to subject the website’s owner to personal jurisdiction.
Zibiz
Corp. v. FCN Tech. Solutions, 777 F. Supp. 2d 408, 423 (E.D.N.Y.
2011).
In any event, there is nothing to suggest the required
relationship
between
the
website
9
and
Plaintiffs’
causes
of
action.
See id.
For example, there is no evidence that Dejana
visited the site or relied on it in purchasing the Aero Express.
B. Subsection 302(a)(3)(ii)
Plaintiffs
also
argue
that
jurisdiction
is
proper
under Subsection 302(a)(3)(ii), which provides in part:
As to a cause of action arising from any of
the acts enumerated in this section, a court
may exercise personal jurisdiction over any
non-domiciliary . . . who in person or
through an agent:
. . .
3. commits a tortious act without the state
causing injury to person or property within
the state, except as to a cause of action
for defamation of character arising from the
act, if he
. . .
(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)(iii).
Long-arm jurisdiction under this
provision has five elements:
First, that defendant committed a tortious
act outside the State; second, that the
cause of action arises from that act; third,
that the act caused injury to a person or
property within the State; fourth, that
defendant expected or should reasonably have
expected the act to have consequences in the
State; and fifth, that defendant derived
substantial
revenue
from
interstate
or
international commerce.
10
LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 214, 713 N.Y.S.2d
304 (2000); see also Penguin Grp., Inc v. Am. Buddha, 609 F.3d
30, 35 (2d Cir. 2010).
1.
The First, Second, Third and Fifth Elements
For the limited purposes of this motion, the first,
second, third and fifth elements are not seriously in dispute.
Plaintiffs
York:
accuse
strict
Defendants
products
of
committing
liability
in
torts
connection
outside
with
New
their
manufacture and sale of a defective speed boat.
Plaintiffs’
causes
Defendants’
conduct
of
action
allegedly
arise
from
caused
that
conduct,
decedents’
injuries
and
in
New
York.
Defendants virtually concede that they are engaged in interstate
commerce, the fifth element.
2.
The
(Def. Rep. 4.)
The Fourth Element: Foreseeability
issue,
then,
is
whether
Defendants
should
reasonably have expected a sale of a defective speed boat to
have
consequences
in
New
York.
This
is
an
objective
test.
Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 241 (2d Cir. 1999).2
2 There
is some disagreement whether courts should read in a
“purposeful availment” element to the foreseeability element of
Subsection 302(a)(3)(ii).
Prior to 2000, at least, “New York
courts
.
.
.
sought
to
avoid
conflict
with
federal
constitutional due process limits on state court jurisdiction by
applying the ‘reasonable expectation’ requirement in a manner
consistent with United States Supreme Court precedent.” Kernan
v. Kurz-Hastings, Inc., 175 F.3d 236, 241 (2d Cir. 1999).
“Thus, New York courts . . . asserted that the simple likelihood
or foreseeability ‘that a defendant's product will find its way
11
The Court agrees with Plaintiffs that Defendants ought to have
foreseen their boats being used in New York because Defendants
marketed
power
boats
to
customers
who
raced
them
on
racing
circuits whose events included races in Buffalo, New York and on
Long
Island.
(Pl.
Opp.
13-14.)
Gary
Stray,
whose
rigging
company worked closely with Marine and Scism to outfit Marine’s
racing
boats
(Stray
Aff.
¶
5),
testified
that
manufacturing
racing boats was a significant part of Marine’s business and
that
Marine
international
sold
boats
racing
for
competition
circuits
(id.
¶
on
9).
American
These
and
racing
organizations hold events in New York, including the “Battle of
the Bay” race in Patchogue, Long Island (Poplin Aff. ¶ 16), and
an American Powerboat Association event in Buffalo, where Marine
made its racing debut in 2000 (Stray Aff. ¶ 12).
Marine’s website is also evidence that Defendants knew
or should have known that their boats would be used in New York.
into New York does not satisfy this element, and that purposeful
availment of the benefits of the laws of New York such that the
defendant may reasonably anticipate being haled into New York
court is required.’” Id. (quoting In re DES Cases, 789 F. Supp.
552, 570-71 (E.D.N.Y. 1992)).
In 2000, New York’s Court of
Appeals decided LaMarca v. Pak–Mor Manufacturing Co., 95 N.Y.2d
210, 713 N.Y.S.2d 304, 735 N.E.2d 883 (2000), which made clear
that purposeful availment is not a requirement of the long-arm
statute but rather only a due process issue. See Bank Brussels
Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 n.3
(2d Cir. 2002). Whether or not LaMarca effectively overruled
Kernan remains unresolved. See id.; see also Gucci Am., Inc. v.
Frontline Processing Corp., 721 F. Supp. 2d 228, 243 n.4
(S.D.N.Y. 2010).
12
It is replete with indications that Defendants intended their
products
to
worldwide.
be
used
by
power
boat
racers
on
racecourses
(See, e.g., Pl. Ex. 5, Summ. Defts.’ Website ¶ 3.a
(“The 55 Pleasure/Race series models feature . . . engineering
advantages
that
have
made
us
multi-time
world
and
national
champions on racecourses worldwide.”), ¶ 3.b (“The success with
the
new
design
has
earned
the
44’
an
impressive
list
of
championships and race wins.”), ¶ 4.a (“Designed for the most
extreme
classes
in
offshore
racing,
the
48
Race
Series
is
designed to take on the biggest, fastest, most demanding race
courses
and
Defendants
conditions
list
their
found
boats’
anywhere
successes
in
on
the
world.”).)
various
powerboat
racing circuits (id. ¶ 13), and they promote their involvement
on circuits that list races in New York (id. ¶ 14.b, 14.e).
The
statements strongly suggest that Defendants foresaw that their
boats
would
be
used
in
New
York.
Accordingly,
the
Court
concludes that jurisdiction over the Defendants is proper under
Subsection 302(a)(3)(ii) of New York’s long-arm statute.
III. Due Process
Having
established
that
Defendants
fall
within
the
reach of New York’s long-arm statute, the next issue is whether
the Court’s exercise of jurisdiction over Defendants comports
with the U.S. Constitution’s due process guarantees.
95
N.Y.2d
at
216.
These
guarantees
13
are
LaMarca,
satisfied
when
defendants have certain minimum contacts with the forum such
that
maintenance
of
the
suit
would
not
“offend
notions of fair play and substantial justice.”
traditional
Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed.
95
(1945)
(internal
quotation
marks
omitted).
The
analysis
involves two related inquiries: the “minimum contacts” inquiry
and the “reasonableness” inquiry.
53.
Here,
not
See Kernan, 175 F.3d at 242-
Defendants
do
satisfy
show
Defendants
the
minimum
contacts
requisite
minimum
inquiry.
To
that
have
the
contacts with the forum, Plaintiffs must show that Defendants
purposely availed themselves of the privilege of doing business
in New York and that they could foresee being haled into court
here.
Chaiken v. VV Pub. Corp., 119 F.3d 1018, 1028 (2d Cir.
1997).
In J. McIntyre Machinery, Ltd. v. Nicastro, the Supreme
Court
recently
means
in
attempted
to
stream-of-commerce
clarify
cases
what
by
“minimum
explaining
contacts”
that,
“as
a
general rule, it is not enough that the defendant might have
predicted that its goods will reach the forum State.”
__ U.S.
__, 131 S. Ct. 2780, 2788, 180 L. Ed. 2d 765 (2011) (plurality
opinion).
Rather,
“[t]he
defendant’s
transmission
of
goods
permits the exercise of jurisdiction only where the defendant
can be said to have targeted the forum . . . .”
opinion).
Id. (plurality
For reasons already discussed, Defendants ought to
14
have
predicted
its
boats
would
reach
New
York.
The
real
question is whether they “targeted” New York within the meaning
of the Supreme Court’s minimum contacts jurisprudence.
Although
it is a close question, the Court thinks that Defendants have
not.
Defendants
sold
specialized,
expensive
racing
boats
meant to be used on racing circuits that include events in New
York.
In this sense, they targeted customers whom they expected
to bring their product into New York.
satisfies
the
purposeful
availment
But to say that this
requirement
would
be
to
conflate foreseeability and the minimum, affirmative contacts
that the Supreme Court has held necessary for a defendant to be
subject to a court’s power.
The plurality in McIntyre spoke to
this point with an example:
The owner of a small Florida farm might sell
crops to a large nearby distributor, for
example, who might then distribute them to
grocers
across
the
country.
If
foreseeability
were
the
controlling
criterion, the farmer could be sued in
Alaska or any number of other States' courts
without ever leaving town.
131 S. Ct. at 2790 (plurality opinion).
foreseeability
jurisdiction
is
over
required
before
Defendants;
the
Something more than
the
Court
must
have
can
exercise
“engage[d]
in
activities” in New York “that reveal an intent to invoke or
benefit
from
the
protection
of
15
its
laws.”
Id.
at
2791
(plurality opinion).
As far as the Court can tell, Defendants
have not taken any such steps; for example, they do not have
representatives in New York, they have not delivered boats to
New York, and they do not solicit sales in New York.
The Court
finds that Defendants do not have the requisite minimum contacts
with New York, and thus they are not subject to the Court’s
jurisdiction.3
IV. Transfer in the Interest of Justice
The Court declines to permit jurisdictional discovery
because the Plaintiffs did not specifically ask for it, see
Skrodzki v. Marcello, No. 10–CV–5191, 2011 WL 3792418, at *19
(E.D.N.Y. Aug. 19, 2011), and, in any event, because the Court
doubts
that
it
would
yield
relevant
already available to the parties.
evidence
that
was
not
Instead, in the interest of
3
Of course, a builder of high-end powerboats is a far cry from a
local farmer, and the Supreme Court, recognizing that the
“economic realities of the market the defendant seeks to serve
will differ across cases,” left “judicial exposition” to
“clarify the contours” of its decision in McIntyre. 131 S. Ct.
at 2790 (plurality opinion).
This Court can envision an
argument that by selling an expensive luxury item to a
relatively small pool of potential customers (wealthy boating
enthusiasts) with the knowledge that the customers will use the
product in a handful of states that host powerboat races, the
seller is “targeting” customers in those states in a manner that
satisfies the minimum contacts requirement.
In the Court’s
view, however, this argument does not justify a departure from
McIntyre’s core reasoning, which emphasized the need for
defendants to engage in activities within the forum.
Id. at
2789 (“[I]t is the defendant’s actions, not his expectations,
that empower a State’s courts to subject him to judgment.”)
(plurality opinion).
16
justice pursuant to 28 U.S.C. § 1406(a), the Court will transfer
this action to the United States District Court for the Eastern
District of Missouri, the venue where Marine is headquartered.
The statute of limitations has likely run on Plaintiffs’ claims,
and this is a “compelling reason” for a transfer.
See Daniel v.
Am. Bd. of Emergency Med., 428 F.3d 408, 435 (2d Cir. 2005).
CONCLUSION
For the foregoing reasons, the Court concludes that it
does not have personal jurisdiction over Defendants.
The Clerk
of the Court is directed to terminate Docket Entry 17 and to
transfer this action to the United States District Court for the
Eastern District of Missouri.
See 28 U.S.C. § 1406(a).
SO ORDERED
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
DATED:
September
26 , 2011
Central Islip, New York
17
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