Schindler v. Lyon
Filing
22
ORDER denying 16 Motion to Dismiss: For the reasons set forth herein, defendant's motion to dismiss is denied in its entirety. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/28/2013. (Pilmar, Philip)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-CV-5928 (JFB)(AKT)
_____________________
EDWIN D. SCHINDLER,
Plaintiff,
VERSUS
ROBERT E. LYON,
Defendant.
___________________
MEMORANDUM AND ORDER
August 28, 2013
__________________
JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Edwin D. Schindler
(“Schindler” or “plaintiff”) brings this
diversity action against pro se defendant
Robert E. Lyon (“Lyon” or “defendant”)
alleging that defendant was unjustly
enriched. Specifically, plaintiff claims that
defendant promised to compensate him for
legal services and that defendant has failed
to pay him the majority of what he is owed.
Defendant now moves to dismiss the
complaint, pursuant to Federal Rules of
Civil Procedure 12(b)(2) and (b)(3), for lack
of personal jurisdiction and improper venue.
For the reasons that follow, defendant’s
motion to dismiss is denied.1
1
In both his motion to dismiss and in his reply in
support of that motion, defendant makes several
comments regarding the merits of the action,
including that plaintiff has not presented any
I.
BACKGROUND
A. Factual Background
The following facts are taken from the
complaint and are not findings of fact by the
Court. These allegations are assumed to be
true for the purpose of deciding this motion
and are construed in a light most favorable
to plaintiff, the non-moving party.
“compelling evidence” or “proof” in support of
certain allegations in the complaint (Def.’s Reply at
3), and that the complaint does not allege the
existence of a written agreement between the parties
(an attorney and his client), the absence of which,
according to defendant, is an absolute bar to the
recovery of legal fees (Def.’s Mem. at 5). Defendant
chose to move to dismiss the complaint under Rules
12(b)(2) and (b)(3), and not 12(b)(6). Therefore, the
Court only addresses defendant’s arguments
regarding lack of personal jurisdiction and improper
venue, and does discuss whether the complaint fails
to state a claim.
e-mail that he sent defendant on June 20,
2009 with a bill for $6,000 as compensation
for the legal services plaintiff performed in
April and June 2009. (Id. Ex. 1.) Although
plaintiff did not receive payment for the
legal services noted in the June 20, 2009
bill, plaintiff states that he continued to work
on the underlying action at “the request of
Lyon, and out of a sense of ethical and
practical necessity to the client.” (Id. ¶ 25.)
On May 5, 2011 and on July 15, 2011,
defendant executed wire transfers to plaintiff
in the amounts of $1,250 and $2,000,
respectively. (Id. ¶¶ 26, 29.) However,
plaintiff has not been paid subsequently (id.
¶ 30), and alleges that the reasonable value
of legal services rendered to Lyon that he
has not yet received compensation for
exceeds $100,000 (id. ¶ 36).
Plaintiff is domiciled in Woodbury, New
York and is a citizen of New York. (Compl.
¶ 1.) He is an attorney and a member of the
Bar of the State of New York. (Id. ¶¶ 2, 4.)
Defendant lives in Palos Verdes, California,
and is a citizen of the state of California (Id.
¶ 5.) Defendant is also an attorney and is a
member of the Bar of the State of California.
(Id. ¶¶ 5-6.)
On November 17, 2003, Haggar
International
Corporation
(“Haggar”)
commenced a trademark infringement action
in this District. See Haggar Int’l Co. v.
United Co. for Food Industry Corp., No. 03CV-5789 (E.D.N.Y.) (“the underlying
action”). Defendant is the lead counsel for
Haggar in that matter. (Compl. ¶ 14.) On
August 4, 2004, defendant was granted
admission pro hac vice to the United States
District Court for the Eastern District of
New York for the limited purpose of
appearing on behalf of Haggar in the
underlying action. (Id. ¶ 9.)
B. Procedural History
On November 30, 2012, plaintiff filed
the complaint in this action. On February 13,
2013, defendant filed his motion to dismiss.
Plaintiff submitted his opposition to that
motion on February 27, 2013, and defendant
replied on March 8, 2013. The Court has
fully considered all of the parties’
submissions.
In November 2004, defendant retained
plaintiff, with Haggar’s consent, as cocounsel and local counsel in the underlying
action. (Id. ¶ 17.) Between November 2004
and September 2006, Haggar paid plaintiff
directly for the legal services performed on
its behalf. (Id. ¶ 18.) However, on October
1, 2006, the principal of Haggar passed
away following a car accident. (Id. ¶ 19.)
After the passing of its principal, Haggar
remitted only a small portion of the payment
due to plaintiff and subsequently ceased
paying him entirely. (Id. ¶ 20.)
II. DISCUSSION
A. Personal Jurisdiction
“On a Rule 12(b)(2) motion to dismiss
for lack of personal jurisdiction, the plaintiff
bears the burden of showing that the court
has jurisdiction over the defendant.” Metro.
Life Ins. Co. v. Robertson–Ceco Corp., 84
F.3d 560, 566 (2d Cir. 1996). However,
“[p]rior to discovery, a plaintiff may defeat a
motion to dismiss by producing legally
sufficient allegations of jurisdiction.” In re
Magnetic Audiotape Antitrust Litig., 334
F.3d 204, 206 (2d Cir. 2003) (per curiam).
In considering a Rule 12(b)(2) motion, the
The complaint alleges that, after Haggar
stopped paying him, defendant told plaintiff
that he “would now be responsible for
Schindler’s fees for the legal services
performed by Schindler, inasmuch as Lyon
requires the assistance of co-counsel to
adequately handle the workload . . . .” (Id.
¶ 22.) Plaintiff attached to his complaint an
2
defendant’s motion to dismiss the action for
lack of personal jurisdiction is denied.
pleadings and affidavits are to be construed
in the light most favorable to plaintiff, the
non-moving party, and all doubts are to be
resolved in plaintiff’s favor. DiStefano v.
Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d
Cir. 2001). However, a plaintiff’s
“unsupported allegations” can be rebutted
by “direct, highly specific, testimonial
evidence regarding a fact essential to
jurisdiction” if plaintiff does not “counter
that evidence.” Schenker v. Assicurazioni
Genereali S.p.A., Consol., No. 98 Civ. 9186,
2002 WL 1560788, at *3 (S.D.N.Y. July 15,
2002).
1. Long-Arm Jurisdiction
Under N.Y. C.P.L.R. § 302(a):
a court may exercise personal
jurisdiction
over
any
nondomiciliary, or his executor or
administrator, who in person or
through an agent: (1) transacts any
business within the state or contracts
anywhere to supply goods or
services in the state; or (2) commits a
tortious act within the state, except
as to a cause of action for defamation
of character arising from the act; or
(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
(i) regularly does or solicits business,
or engages in any other persistent
course of conduct, or derives
substantial revenue from goods used
or consumed or services rendered, in
the state, or (ii) expects or should
reasonably expect the act to have
consequences in the state and derives
substantial revenue from interstate or
international commerce; or (4) owns,
uses or possesses any real property
situated within the state.
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 personal jurisdiction
issues: (1) whether New York law would
confer jurisdiction by New York courts over
defendant, and (2) whether the exercise of
jurisdiction over defendant 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).
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. It is undisputed in this case
that defendant is not subject to general
jurisdiction in New York. However, as set
forth below, plaintiff’s complaint satisfies
both the strictures of New York law under
the state’s long-arm statute and the
requirements of due process. Accordingly,
N.Y. C.P.L.R. § 302(a).
To establish personal jurisdiction under
Section 302(a)(1), the only portion of the
statute that is relevant to the personal
jurisdiction inquiry in this particular case,
“two requirements must be met: (1) [t]he
defendant must have transacted business
within the state; and (2) the claim asserted
must arise from that business activity.” Sole
Resort, S.A. de C.V. v. Allure Resorts Mgmt.,
3
a.
LLC, 450 F.3d 100, 103 (2d Cir. 2006)
(citing McGowan v. Smith, 52 N.Y.2d 268
(1981)). “[T]he statute allows jurisdiction
only over a defendant who has ‘purposefully
availed himself of the privilege of
conducting activities within New York and
thereby invoked the benefits and protections
of its laws.”’ Fort Knox Music Inc. v.
Baptiste, 203 F.3d 193, 196 (2d Cir. 2000)
(alteration omitted) (quoting Parke-Bernet
Galleries, Inc. v. Franklyn, 26 N.Y.2d 13,
18 (1970)).
Transaction of Business in New York
Several factors should be considered in
determining whether an out-of-state
defendant transacts business in New York,
including:
(i) whether the defendant has an ongoing contractual relationship with a
New York corporation; (ii) whether
the contract was negotiated or
executed in New York and whether,
after executing a contract with a New
York business, the defendant has
visited New York for the purpose of
meeting with parties to the contract
regarding the relationship; (iii) what
the choice-of-law clause is in any
such contract; and (iv) whether the
contract requires [defendant] to send
notices and payments into the forum
state or subjects them to supervision
by the corporation in the forum state.
Here, plaintiff alleges that Section
302(a)(1) is applicable to defendant because:
(1) the instant quasi-contract claim being
asserted against defendant concerns the
same matter for which Lyon was admitted
pro hac vice in this district, and, therefore,
the exercise of specific jurisdiction over
defendant is proper; or (2) defendant
purposefully availed himself of New York
when he hired a New York attorney to
perform legal work regarding a New York
lawsuit. Defendant asserts that performing
legal work in a forum pro hac vice does not
constitute transacting business within the
State as defined by the CPLR. Defendant
also argues that he did not avail himself of
the benefits or privileges of New York
because he did not benefit from plaintiff’s
activities; rather, Haggar was the sole
beneficiary of plaintiff’s legal work. For the
reasons set forth below, the Court finds that
the allegations contained in the complaint
comprise a “legally sufficient allegation of
jurisdiction” that defendant transacted
business within the state and that the claims
asserted arise from that business activity. In
re Magnetic Audiotape, 334 F.3d at 206.
Accordingly, defendant is subject to this
Court’s
jurisdiction
under
Section
302(a)(1).
Sunward Elec., Inc. v. McDonald, 362 F.3d
17, 22 (2d Cir. 2004) (quoting Agency Rent
A Car Sys., Inc. v. Grand Rent A Car Corp.,
98 F.3d 25, 29 (2d Cir. 1996)). None of
these factors is dispositive; “[t]he ultimate
determination is based on the totality of
circumstances.” Id. at 23.
Although the above-referenced factors
are not entirely applicable (because the
parties did not have a written contract), the
Court finds that the factors and the totality
of the circumstances strongly favor the
exercise of jurisdiction over defendant. As
to the first factor, defendant had an on-going
contractual relationship with plaintiff in
New York. By allegedly receiving and
benefiting from the legal services of plaintiff
on a continuous basis (over five years,
according to the complaint), defendant had
an on-going contractual relationship with the
New York-based plaintiff. See Assil Gem
Corp. v. Greyhound Leisure Servs., Inc., 00
4
were to be performed entirely in New York.
Id. This case is similar. Even if defendant
did not negotiate the contract in New York
or travel there for purposes of the
contractual relationship, he allegedly agreed
to pay for legal services that would be
performed entirely in New York. By paying
someone in New York to perform services
in this state, while simultaneously creating
an ongoing relationship with a New York
domiciliary regarding those services,
defendant should have known that he would
be subject to suit in New York if he failed to
pay for those services. Cf. George Reiner &
Co. v. Schwartz, 41 N.Y.2d 648, 653-54
(1977) (finding personal jurisdiction because
of, inter alia, the “purposeful creation of a
continuing relationship with a New York
corporation”).
CIV. 0072, 2000 WL 375244, at *3
(S.D.N.Y. Apr. 11, 2000) (holding that
although “defendant maintains no physical
presence in the State, as it has no offices,
bank accounts or sales agents here; . . . did
not negotiate or execute the transaction with
plaintiff in New York; . . . and [] the parties
have never even met in the State in
connection with the subject transaction,”
long arm jurisdiction was appropriate due to
the “the quality and nature of defendant’s
activities,” including “a six-year business
relationship with a New York domiciliary,
utilizing telephone calls, e-mail and fax
transmissions to communicate with its
supplier” and the fact that the “performance
of the contract was New York based”).
As to the second factor, although the
complaint does not allege where the contract
was negotiated or executed, or whether
defendant has travelled to New York
regarding the relationship, a lack of physical
presence in the state does not remove
jurisdiction. See Parke-Bernet, 26 N.Y.2d at
17 (“It is important to emphasize that one
need not be physically present in order to be
subject to the jurisdiction of our courts
under CPLR 302 for, particularly in this day
of instant long-range communications, one
can engage in extensive purposeful activity
here without ever actually setting foot in the
State.”). In High Fashion Wigs, Inc. v. Peter
Hammond Adver., Inc., 32 N.Y.2d 583
(1973), the Court of Appeals stated that,
although defendant had travelled to New
York to accept the contract, personal
jurisdiction over the defendant would still
have been appropriate absent that presence
in New York because “looking at the
transaction as a whole, [defendant] engaged
in that kind of purposeful activity which . . .
renders it reasonable that he should answer
in New York.” Id. at 587 (internal
alterations, citations, and quotation marks
omitted). In reaching its decision, the court
noted that the contract involved services that
The Court notes that because there was
no written contract, the third and fourth
factors are not applicable to this action.
This action is directly analogous to the
Court of Appeals’ recent decision in
Fischbarg v. Doucet, 9 N.Y.3d 375 (2007).
In Fischbarg, defendants, a California
resident and her corporation, retained
plaintiff, a New York attorney, to represent
her corporation in a lawsuit in Oregon
federal court. Defendants never entered New
York and communicated with plaintiff
regarding the lawsuit solely through
telephone calls and e-mails. Eventually, a
dispute over plaintiff’s legal fees arose and
he filed an action in New York State court.
Id. at 377-79. The Court of Appeals held
that defendants’ retainer of a New York
attorney and the “ongoing attorney-client
relationship” subjected them to personal
jurisdiction in New York. Id. at 381. The
Court continued:
[D]efendants here have [] engaged in
sustained and substantial transaction
5
hac vice status in the underlying action;
rather, defendant is subject to personal
jurisdiction in New York because he
allegedly retained a New York attorney to
render services exclusively in New York and
had a substantial and ongoing business
relationship with a New York domiciliary.
The result of this motion would be the same
even if defendant were not an attorney and
never made an appearance in the courts of
this state. In short, although defendant’s pro
hac vice status cannot subject him to suit in
New York, so too can it not be used as a
shield to protect him against a suit properly
brought in New York based upon the other
above-referenced
factors
supporting
personal jurisdiction.
of business in New York. They
contacted plaintiff here to retain him
and thereby projected themselves
into our state’s legal services market.
Thereafter, on their own volition,
they continued their communications
with plaintiff here, utilizing his
services and thus invoking the
benefits and protections of our laws
relating to the attorney-client
relationship. It is the nature and
quality of these contacts, through
which defendants established a
substantial ongoing professional
commitment between themselves
and plaintiff, governed by the laws
of our state, which support long-arm
jurisdiction.
Defendant also appears to argue that he
may not be subject to long-arm jurisdiction
because he did not benefit from the alleged
contract. (Def.’s Reply at 6.) Although
unclear from his submission, it appears that
defendant is attempting to invoke the
fiduciary shield doctrine. Under the
fiduciary shield doctrine, “an individual
should not be subject to jurisdiction if his
dealings in the forum State were solely in a
corporate capacity. It is based upon the
notion that it is unfair to subject a corporate
employee personally to suit in a foreign
jurisdiction when his only contacts with that
jurisdiction have been undertaken on behalf
of his corporate employer.” Kreutter v.
McFadden Oil Corp., 71 N.Y.2d 460, 46768 (1988). However, in Kruetter, the Court
of Appeals explicitly rejected the fiduciary
shield doctrine, and, thus, it cannot be used
to defeat personal jurisdiction over
defendant. See id. at 472; see also Family
Internet, Inc. v. Cybernex, Inc., 98 CIV.
0637, 1999 WL 796177, at *4 (S.D.N.Y.
Oct. 6, 1999) (“Though the ‘fiduciary
shield’ doctrine was once vigorously applied
in this circuit to shield corporate officers and
employees from long-arm jurisdiction where
Id. at 382-83 (citations and internal
quotation marks omitted). Although all of
these reasons noted in Fischbarg support
personal jurisdiction over defendant in this
case, as noted supra, there is an additional
reason why personal jurisdiction is even
more appropriate here: the underlying action
for which plaintiff was retained occurred in
this state.
Defendant argues that he cannot be
subject to personal jurisdiction in New York
because his pro hac vice appearance in New
York was for a limited purpose and,
therefore, that he did not purposefully avail
himself of the benefits and privileges of this
state. (Def.’s Mem. at 3-4 (citing E-Z Bowz,
L.L.C. v. Prof’l Prod. Research Co., 00 CIV
8670, 2003 WL 22064259, at *8 (S.D.N.Y.
Sept.
5,
2003)
(Report
and
Recommendation) (holding that attorney
was not subject to personal jurisdiction
when his only contact with forum was pro
hac vice representation of client)).)
However, that argument is entirely
misplaced. Personal jurisdiction is not being
created here because of the defendant’s pro
6
their activities were conducted solely in a
corporate capacity, the New York Court of
Appeals held in Kreutter . . . that this
doctrine is not available to defeat long-arm
jurisdiction that is otherwise valid under
section 302.”).2
marks omitted). “A connection that is
merely coincidental is insufficient to support
jurisdiction.” Id. (citation and internal
quotation marks omitted).
In this case, there is undisputedly an
articulable nexus between the business
transacted and the cause of action sued
upon. The basis for finding that defendant
transacted business in New York is his
retaining of a New York attorney to assist
him in a New York lawsuit and the
substantial relationship he had with this New
York attorney. This transaction is the basis
for plaintiff’s instant lawsuit for attorney’s
fees. Thus, there is an articulable nexus
between the quasi-contract claim asserted
here and the business transacted by
defendant in New York. Again, this action is
directly analogous to Fischbarg, in which
the Court of Appeals concluded that there
was a substantial relationship between
plaintiff’s action in New York for legal fees
and defendants’ solicitation of his legal
services and their communications with him
regarding the attorney-client relationship. 9
N.Y.3d at 384. The court held that the
connections to New York were “not merely
coincidental occurrences that have a
tangential relationship to the present case
[but that] [t]hey form the basis of this action
and, indeed, plaintiff[’]s claims for legal
fees are directly dependent upon them.” Id.
(citation and internal quotation marks
omitted).
Therefore, after carefully reviewing the
totality of defendant’s activities in New
York – notably, defendant’s hiring of a New
York based attorney to perform services
solely in New York, a substantial ongoing
attorney-client relationship regarding those
New York services, and the wiring of money
to a New York domiciliary as partial
payment for those services – the Court finds
that defendant purposefully availed himself
of the privilege of conducting activities in
New York.
b.
Relationship between Defendant’s
Conduct in New York and the Claims
Asserted
Section 302(a) also requires that the
claims asserted “aris[e] from any of the
acts” that provide the basis for exercising
jurisdiction. N.Y. C.P.L.R. § 302(a). “New
York courts have held that a claim arises
from a particular transaction when there is
some articulable nexus between the business
transacted and the cause of action sued upon
or when there is a substantial relationship
between the transaction and the claim
asserted.” Sole Resort, 450 F.3d at 103
(internal alteration, citations, and quotation
2. Requirements of Due Process
Having
concluded
that
personal
jurisdiction over defendant exists pursuant
to New York’s long-arm statute, the Court
must also determine whether the exercise of
jurisdiction over defendant comports with
the Due Process Clause of the Fourteenth
Amendment, which requires “some act by
which the defendant purposefully avails
itself of the privilege of conducting activities
2
The Court notes that, even if the fiduciary shield
doctrine were followed in New York, it would not
defeat jurisdiction in this case. The complaint does
not allege that defendant was acting in a corporate
capacity and that Haggar received all of the benefit of
plaintiff’s legal services, but rather that defendant
hired plaintiff to assist him with the underlying
action. In fact, according to the complaint, Haggar no
longer wished to pay for plaintiff’s services and it
was defendant who decided to re-hire plaintiff.
7
obligations, we have emphasized that parties
who reach out beyond one state and create
continuing relationships and obligations
with citizens of another state are subject to
regulation and sanctions in the other State
for the consequences of their activities”
(citation and internal quotation marks
omitted)).
within the forum State, thus invoking the
benefits and protections of its laws.” Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985) (citation and internal quotation marks
omitted); see also World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297 (1980)
(“[T]he defendant’s conduct and connection
with the forum State [must be] such that he
should reasonably anticipate being haled
into court there.”). There are two aspects of
the due process analysis: (1) the minimum
contacts inquiry, and (2) the reasonableness
inquiry. Chloe v. Queen Bee of Beverly
Hills, LLC, 616 F.3d 158, 171 (2d Cir.
2010). Although the constitutional due
process issue is a separate question,
“[o]rdinarily [] if jurisdiction is proper under
the CPLR, due process will be satisfied
because CPLR § 302 does not reach as far as
the constitution permits.” Topps Co. v.
Gerrit J. Verburg Co., 961 F. Supp. 88, 90
(S.D.N.Y. 1997).
With respect to the reasonableness
inquiry, even where an out-of-state
defendant is deemed to have purposefully
availed himself of the forum state, a plaintiff
“must still demonstrate that the exercise of
jurisdiction does not ‘offend traditional
notions of fair play and substantial justice’
and is thus reasonable under the Due
Process Clause.” Chloe, 616 F.3d at 172-73
(quoting Asahi Metal Indus. Co. v. Superior
Court of Cal., Solano Cnty., 480 U.S. 102,
113 (1987)). As set forth by the Supreme
Court, courts should consider five factors
when determining the reasonableness of a
particular exercise of jurisdiction:
The Court first turns to the minimum
contacts analysis. Because defendant
allegedly hired a New York lawyer to assist
him with a lawsuit in New York, and had a
substantial attorney-client relationship with
an attorney of this state, defendant had
sufficient contacts with New York such that
it should have been reasonably foreseeable
to him that he would be subject to suit in
New York. See Fishbarg, 9 N.Y. 3d at 385
(“Defendants here purposefully availed
themselves of New York’s legal services
market by establishing a continuing
attorney-client relationship with plaintiff.
Their contacts here were sufficient,
consisting of solicitation of plaintiff[’]s
services here and frequent communications
with him. Given these facts, they should
have reasonably expected to defend against
a suit based on their relationship with
plaintiff in New York.”); see also Burger
King, 471 U.S. at 473 (explaining that, for
purposes of the due process analysis and
“with respect to interstate contractual
A court must consider [1] the burden
on the defendant, [2] the interests of
the forum State, and [3] the
plaintiff’s interest in obtaining relief.
It also must weigh in its
determination [4] the interstate
judicial system’s interest in obtaining
the most efficient resolution of
controversies; and [5] the shared
interest of the several States in
furthering fundamental substantive
social policies.
Asahi Metal Indus., 480 U.S. at 113 (citation
and internal quotation marks omitted)).
“Where the other elements for jurisdiction
have been met, dismissals on reasonableness
grounds should be ‘few and far between.’”
Gucci Am., Inc. v. Frontline Processing
Corp., 721 F. Supp. 2d 228, 246 (S.D.N.Y.
2010) (quoting Metro. Life Ins., 84 F.3d at
575).
8
***
With respect to the first factor, there is
undoubtedly some burden on defendant if he
is forced to travel to New York for trial.
“The inconvenience, however, cuts both
ways since all of [plaintiff’s] witnesses
would have to travel to [California] if the
case were brought there.” Chloe, 616 F.3d at
173 (citing Bank Brussels Lambert v.
Fiddler Gonzalez & Rodriguez, 305 F.3d
120, 129-30 (2d Cir. 1999) (“Even if forcing
the defendant to litigate in a forum relatively
distant from its home base were found to be
a burden, the argument would provide
defendant only weak support, if any,
because the conveniences of modern
communication and transportation ease what
would have been a serious burden only a
few decades ago.”)). The second factor
favors keeping New York as the forum state,
since “a state frequently has a ‘manifest
interest in providing effective means of
redress for its residents,’” Chloe, 616 F.3d at
173 (quoting Burger King, 471 U.S. at 483),
as does the third factor, as plaintiff is located
in New York and the underlying action
occurred in New York. With respect to the
fourth factor, “courts generally consider
where witnesses and evidence are likely to
be located.” Metro. Life Ins., 84 F.3d at 574.
This factor is neutral because most of the
evidence is stored electronically and the two
primary witnesses are the parties. The final
factor is also neutral. The Court finds,
therefore, that asserting jurisdiction over
Lyon “comports with traditional notions of
fair play and substantial justice, such that it
satisfies the reasonableness inquiry of the
Due Process Clause.” Chloe, 616 F.3d at
173 (citation and internal quotation marks
omitted).
In sum, construing the pleadings in the
light most favorable to plaintiff, the
nonmoving party, and resolving all doubts in
his favor, the Court concludes that plaintiff
has adequately alleged a prima facie case of
personal jurisdiction over defendant.
Accordingly, defendant’s motion to dismiss
for lack of personal jurisdiction is denied.
B. Venue
Defendant also argues that this action
should be dismissed for improper venue. For
the reasons set forth below, plaintiff has
demonstrated that the Eastern District of
New York is a proper venue for this action.
1. Legal Standard
Under 28 U.S.C. § 1391, “[a] civil action
may be brought in . . . a judicial district in
which a substantial part of the events or
omissions giving rise to the claim occurred .
. . .” Id. § 1391(b)(2). Although defendant’s
submissions are unclear, it appears
undisputed that this “substantial part”
provision of Section 1391(b)(2) directs the
venue inquiry in this case. (Def.’s Mem. at
8.)
Courts conduct a two-part inquiry to
determine whether venue is appropriate
under Section 1391(b)(2). First, the Court
must “identify the nature of the claims and
the acts or omissions that the plaintiff
alleges give rise to those claims.” Daniel v.
Am. Bd. of Emergency Med., 428 F.3d 408,
432 (2d Cir. 2005). Second, the Court
determines whether “a substantial part of
those acts or omissions occurred in the
district where suit was filed, that is, whether
significant events or omissions material to
those claims have occurred in the district in
question.” Id. (internal alterations, citations,
and quotation marks omitted). As to the
Having
conducted
the
requisite
minimum contacts and reasonableness
inquiries, the Court concludes that its
exercise of jurisdiction over Lyon comports
with the principles of due process.
9
First, the alleged agreement required that
defendant make payments to New York, i.e.,
the agreement mandated performance by
defendant in New York. See Concesionaria,
307 F. Supp. 2d at 561 (“It was the activities
of the defendants in . . . failing to make
payments into [plaintiff’s New York bank]
accounts, together with the other activities in
negotiating the agreements, that have drawn
them into this District.”). Similarly, the
alleged breach occurred in New York when
defendant failed to make payments to
plaintiff in New York. See Saltzman v. La.
Auction Exch., Inc., 997 F. Supp. 537, 541
(S.D.N.Y. 1998) (finding venue appropriate
in New York because, inter alia, “payment
under the terms of [the parties’] agreement
was due to plaintiff in New York”). In
addition, all of the legal services plaintiff
was hired to perform occurred in this
District for a lawsuit that was proceeding in
this District. See Fisher v. Hopkins, 02 CIV
7077, 2003 WL 102845, at *3 (S.D.N.Y.
Jan. 9, 2003) (finding venue appropriate
when “a significant portion of the services
under the alleged agreement were to be
performed in New York”).
second part of this inquiry, the Court notes
that “‘[s]ubstantiality’ for venue purposes is
more a qualitative than a quantitative
inquiry, determined by assessing the overall
nature of the plaintiff’s claims and the
nature of the specific events or omissions in
the forum, and not by simply adding up the
number of contacts.” Daniel, 428 F.3d at
432–33. As such, “[w]hen material acts or
omissions within the forum bear a close
nexus to the claims, they are properly
deemed ‘significant’ and, thus, substantial,
but when a close nexus is lacking, so too is
the substantiality necessary to support
venue.” Id. at 433. “Once an objection to
venue has been raised, plaintiff bears the
burden of proving that venue is proper.”
Hsin Ten Enter. USA, Inc. v. Clark Enters.,
138 F. Supp. 2d 449, 457 (S.D.N.Y. 2000).
Finally, the Court notes that “venue is
appropriate in each district where a
substantial part of the events or omissions
occurred, and thus venue may [be]
appropriate in this district even if a greater
portion of events occurred elsewhere.”
Concesionaria DHM, S.A. v. Int’l Fin.
Corp., 307 F. Supp. 2d 553, 559 (S.D.N.Y.
2004) (emphasis added).
Therefore, plaintiff has satisfied his
burden of demonstrating that venue is
appropriate in this District because a
substantial part of defendant’s acts or
omissions occurred in New York. Defendant
not only allegedly hired a New York
attorney and made (or failed to make)
payments into a New York attorney’s bank
account, but that attorney was hired to
perform services in this District. Even if a
substantial number of activities relevant to
this litigation occurred in California, venue
is still appropriate in this District because a
substantial part of the alleged activities
2. Application
“In determining whether venue is proper
for a breach of contract action . . . courts
consider a number of factors, including
where the contract was negotiated or
executed, where it was to be performed, and
where the alleged breach occurred.” PI, Inc.,
v. Quality Prods., Inc., 907 F. Supp. 752,
758 (S.D.N.Y. 1995). Although this is not a
breach of contract action, the Court finds
that these factors assist the Court in
determining that the acts underlying the
quasi-contract claim bear a “close nexus” to
defendant’s activities in this District; thus,
the Court concludes that venue is proper
here. Daniel, 428 F.3d at 433.
10
occurred in the Eastern District of New
York.3
III. CONCLUSION
For the foregoing reasons, defendant’s
motion to dismiss is denied in its entirety.4
3
Defendant filed a motion to dismiss this action for
improper venue pursuant to Rule 12(b)(3) and has
never suggested that he intended, in the alternative, to
file a motion to transfer venue pursuant to 28 U.S.C.
§ 1404(a). However, in his reply, defendant writes:
“Hence, if the Court is prone to dismiss this case
under Fed. R. Civ. P. 12(b)(2) but is considering
instead the transfer of the case to California, where
Schindler is already litigating another case against
Lyon, venue would be appropriate and convenient
there.” (Def.’s Reply at 7.) The Court notes that, even
if defendant intended to also file a motion to transfer
venue, such a motion would be denied. Under 28
U.S.C. § 1404(a), “[f]or the convenience of parties
and witnesses, in the interest of justice, a district
court may transfer any civil action to any other
district or division where it might have been brought
or to any district or division to which all parties have
consented.” In determining whether to transfer venue,
courts examine (1) whether the action could have
been brought in the proposed forum, and (2) whether
“the transfer would promote the convenience of
parties and witnesses and would be in the interests of
justice.” Coker v. Bank of Am., 984 F. Supp. 757, 764
(S.D.N.Y. 1997) (citation and internal quotation
marks omitted). “Among the factors to be considered
in determining whether to grant a motion to transfer
venue are, inter alia: (1) the plaintiff’s choice of
forum, (2) the convenience of witnesses, (3) the
location of relevant documents and relative ease of
access to sources of proof, (4) the convenience of
parties, (5) the locus of operative facts, (6) the
availability of process to compel the attendance of
unwilling witnesses, and (7) the relative means of the
parties.” N.Y. Marine & Gen. Ins. Co. v. Lafarge N.
Am., Inc., 599 F.3d 102, 112 (2d Cir. 2010) (citation
and internal quotation marks omitted)). Based upon
the record before the Court, the Court believes that a
transfer of venue would not be in the interest of
justice. Most notably, “plaintiff’s choice of venue is
entitled to significant consideration and will not be
disturbed unless other factors weigh strongly in favor
of transfer.” Royal Ins. Co. of Am. v. United States,
998 F. Supp. 351, 353 (S.D.N.Y.1998) (citations
omitted). In addition, the locus of operative facts
occurred in this District because defendant’s
retaining of plaintiff occurred in this District and the
underlying action was a lawsuit brought in this
District. Accordingly, to the extent that defendant is
suggesting that the case should be transferred to
SO ORDERED.
_____________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 28, 2013
Central Islip, New York
* * *
Plaintiff is proceeding pro se and defendant
is proceeding pro se.
California under Section 1404(a), the Court
concludes that there is no basis to do so.
4
In a declaration filed on August 21, 2013, plaintiff
advises the Court that an application for an attorney’s
lien is pending in the underlying action, and that
there is another litigation regarding a different fee
dispute between the same parties pending in the
Central District of California. The fact that those
matters are pending does not impact the Court’s
determination of the pending motion in this case as
set forth in this Memorandum and Order.
11
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