Kidney v. Webster et al

Filing 27

MEMORANDUM-DECISION AND ORDERED, that Kidneys Motion to Remand (Dkt. No. 21) is DENIED; and it is further ORDERED, that Defendants Motion to Dismiss (Dkt. No. 5) is GRANTED on the grounds that the Court lacks personal jurisdiction over the individual defendants and that Kidneys allegations fail to state a plausible claim for relief; and it is further ORDERED, that Kidneys Complaint (Dkt. No. 2) is DISMISSED with leave to amend; and it is further ORDERED, that the Clerk of the Court terminate Gre g Foran, Doug McMillon, David Stills, and the Vestal Wal-Mart Supercenter as defendants in this case; and it is further ORDERED, that if Kidney wishes to proceed with this action, he must file an amended complaint as set forth above within thirty (30 ) days of the filing date of this Memorandum-Decision and Order; and it is further ORDERED, that if Kidney does not move to amend his Complaint within the time provided, the Clerk of the Court shall enter judgment in favor of John Webster, Bill Shiohira, and Melissa Fahey, and terminate them as defendants, with prejudice, without further order of the Court. Signed by Senior Judge Lawrence E. Kahn on February 27, 2017. (Copy served via regular mail)(sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RICHARD F. KIDNEY,
Plaintiff,
-against-

3:16-CV-0831 (LEK/DEP)

JOHN WEBSTER, et al.,
Defendants.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
This case arises from an alleged slip and fall that took place at a Wal-Mart Supercenter in

Vestal, New York, on April 12, 2013. Dkt. No. 2 (“Complaint”) ¶¶ 3–10. On July 7, 2016,
Defendants removed this action to the Northern District of New York pursuant to 28 U.S.C.
§ 1441, asserting diversity jurisdiction under 28 U.S.C. § 1332. Dkt. No. 1 (“Notice of
Removal”) ¶ 13. Presently before the Court are Defendants’ motion to dismiss for lack of
personal jurisdiction, insufficient service of process, and failure to state a claim, and pro se
plaintiff Richard F. Kidney’s motion to remand. Dkt. Nos. 5 (“Motion to Dismiss”), 21 (“Motion
to Remand”). Defendants responded to the Motion to Remand, Dkt. No. 22 (“Response”), and
Kidney filed a reply, Dkt. No. 24 (“Reply”). For the following reasons, Defendants’ Motion is
granted and Kidney’s Motion is denied.

II.

BACKGROUND1
Kidney and his family live in Owego, New York. Compl. ¶ 1. The individual

defendants—John Webster, Bill Shiohira, Melissa Fahey, Greg Foran, Doug McMillon, and
David Stills—are all residents of Arkansas. Notice of Remand ¶¶ 4–9. Webster, Shiohira, and
Fahey work for Claims Management, Inc. (“CMI”), which is an arm of Wal-Mart Stores, Inc.
Compl. ¶ 2. Foran is the President and CEO of Wal-Mart U.S., McMillon is the President and
CEO of Wal-Mart Stores, Inc., and Stills is Vice President of Risk Management at Wal-Mart
Stores, Inc. Id. Kidney also named the Wal-Mart Supercenter in Vestal as a defendant, id. at 1,
but that store location is not a legal entity and so cannot be sued. The Supercenter in question is
operated by Wal-Mart Stores East, LP, which “is a Delaware Limited Partnership with a principal
place of business in the state of Arkansas.” Notice of Removal ¶ 10. Kidney appears to have
wanted to include Wal-Mart Stores, Inc. and CMI as defendants as well, since one of his causes
of action is asserted against “CMI” and “Wal-Mart.” Compl. ¶ 17.2 Yet neither is named in the
caption of the Complaint. Id. at 4. Finally, Kidney included “un-named others” in the caption, id.,
though the remainder of his Complaint fails to refer to any unnamed persons (not counting WalMart Stores, Inc. and CMI) as potential defendants.

1

Because this case is before the Court on a motion to dismiss, the allegations of the
Complaint are accepted as true and form the basis for this section. Boyd v. Nationwide Mut. Ins.
Co., 208 F.3d 406, 408 (2d Cir. 2000); see also Matson v. Bd. of Educ., 631 F.3d 57, 72 (2d Cir.
2011) (noting that, in addressing a motion to dismiss, a court must view a plaintiff’s factual
allegations “in a light most favorable to the plaintiff and draw[] all reasonable inferences in her
favor”).
2

Neither party provides the citizenship of Wal-Mart Stores, Inc., or CMI, though
Defendants assert that “all the Defendants are citizens of . . . Delaware and/or Arkansas.” Resp.
at 2.
2

On April 12, 2013, Kidney took his wife and two children to a Wal-Mart Supercenter in
Vestal, New York. Id. ¶ 7. Kidney was wearing “rubber soled sneakers with plenty of tread
(traction) on them.” Id. ¶ 9. Inside the Wal-Mart there was a tax preparation booth near the men’s
bathroom. Id. ¶ 7. Kidney decided to have his taxes done while his wife went shopping. Id. When
it was Kidney’s turn to have his taxes prepared, he sat down in a chair that faced the tax
preparer’s desk, “giving [him] a clear and open view of the men[’]s room.” Id. Kidney sat there
for somewhere between ninety and 150 minutes, and during that time he did not notice anyone
entering the men’s bathroom to perform cleaning. Id.
At some point, Kidney and his son entered the men’s bathroom. Id. ¶ 8. The sinks were
covered with yellow tape, presumably indicating that they were off-limits. Id. “There were no
other signs” in the bathroom, and Kidney saw “toilet paper and spills on the floor.” Id. Kidney’s
son used a urinal and Kidney entered a stall. Id. ¶ 9. The floor in the stall “had urine and toilet
paper laying along its base,” but Kidney asserts that he did not see the urine and toilet paper on
the floor while he was sitting on the toilet. Id. He also says he was “not distracted and was using
the bathroom for its proposed purpose.” Id. When Kidney got up from the toilet, he slipped and
fell, “banging [his] face[] and knees, while twisting [his] back.” Id. When he tried to get up from
the floor, he fell again. Id. His next attempt at standing up was successful, and this time he was
assisted by his son, who became upset when he saw that his father’s face was bleeding. Id. ¶ 10.
Kidney left the bathroom to find the rest of his family, and they went to customer service “to
warn [customer service] so no one else could get hurt.” Id. The manager sent some employees
into the bathroom and “assured [Kidney] that they would take care of the [situation].” Id. The
manager then asked Kidney to “fill out an incident report.” Id. Kidney’s wife had to fill out the
3

form because he had hurt his hands, but he signed it. Id. Within twenty-four hours of the slip and
fall, Kidney went to the emergency room. Id. ¶ 11.
Soon after the incident, “Walmart through CMI called [Kidney] asking that he not hire an
attorney.” Id. ¶ 18. Wal-Mart told him that the case could be settled if he submitted the
appropriate paperwork, and that Webster would be in charge of his case. Id. Kidney claims that
Webster and his coworkers at CMI then “tried to wear [him] down . . . by [engaging in] stalling
tactics.” Id. ¶ 19. Webster “fail[ed] to expedite litigation by repeatedly saying required medical
releases were missing.” Id. Webster also told lies and engaged in deception, for example by
changing his address from one in Arkansas to one in Kentucky without informing Kidney. Id.
¶ 20. As an another example of the deceit to which he was subjected, Kidney points to Webster
or CMI’s failure to respond to his request to see a copy of the incident report his wife had filled
out for him. Id. ¶ 22. Webster eventually made a settlement offer that Kidney considered too
small to “help with much more than a fraction of the debt caused” by the incident. Id. ¶ 21.
Shiohira, another CMI employee, also worked on Kidney’s case, and Kidney appears to
allege that Shiohira lied to and deceived him as well. Id. ¶¶ 28–30. Kidney says Shiohira sent him
a letter dated October 6, 2014, which stated that more information was needed before a
settlement offer could be made. Id. ¶ 29. This “contradict[ed the] previous letter from Webster
saying all medicals were received and a settlement offer was made.” Id. Fahey, who also worked
for CMI, sent another letter to Kidney on February 10, 2015. Id. ¶ 35. Kidney had never heard of
Fahey before he received this letter. Id. ¶ 37. In the letter, Fahey told Kidney that it appeared
Wal-Mart had exercised reasonable care, and it would typically not make a payment on this kind
of case. Id. But Fahey said the previous settlement offer of $5,000 would stand for twenty days
4

after the date of the letter. Id.; Reply Ex. B at 3.3 Kidney felt this offer was inadequate; he
describes it in the Complaint as “ridiculously low.” Compl. ¶ 37. Kidney does not explicitly say
in his Complaint that he rejected the offer, though he implies that he did so when he asserts that
“[e]ven though defendants have not paid anything to the plaintiff they reported . . . to Medicare
that they did.” Id. ¶ 60.4
The Complaint contains no indication that Foran, McMillon, or Stills had anything to do
with Kidney’s case, and Kidney appears to hold them responsible for what CMI and its
employees did to him under some kind of respondeat superior theory. Id. ¶¶ 43–44, 49–50,
55–56.
Kidney draws several other legal conclusions from the events just recounted. He says that
“Defendants devised and executed a scheme to defraud” him. Id. ¶ 23. He also claims that he was
the victim of intentional infliction of emotional distress at the hands of each individual
defendant. Id. ¶¶ 27, 33, 41, 47, 53, 59. He accuses Defendants of engaging in “racketeering
activity,” id. ¶ 36, and he notes that “at a certain time during discovery there should be enough
evidence to charge some or all of the defendants with crimes,” id. at 20.
On April 20, 2016, Kidney filed his Complaint in the Supreme Court of the State of New
York, County of Tioga. Compl. at 4. Beginning June 7, 2016, Defendants started to receive
copies of the Complaint that Kidney had sent them. Notice of Removal ¶ 2. Then, on July 7,
2016, Defendants removed this action to the Northern District of New York. Id. ¶ 15. Defendants

3

Presumably, Webster made the first offer for $5,000, though this is not clear from the
Complaint.
4

Kidney appears to allege that Wal-Mart or CMI, rather than any individual defendant,
made this false report. Compl. ¶ 60.
5

moved to dismiss the Complaint on July 14, 2016, arguing that Kidney had failed to properly
serve Defendants, that the Court lacked personal jurisdiction over the individual defendants, that
any claims related to the incident at the Wal-Mart and its aftermath are barred by the applicable
statutes of limitations, and that the remaining allegations in the Complaint fail to state a plausible
claim for relief. Dkt. No. 5-2 (“Memorandum”) at 1. In lieu of responding to the Motion to
Dismiss, Kidney moved to remand on the ground that diversity jurisdiction is defeated by the
manager of the Vestal Wal-Mart, an alleged defendant residing in New York whose identity
remains unknown to Kidney because Defendants have withheld it from him. Mot. to Remand
¶¶ 6, 10.
III.

DISCUSSION
A. Motion to Remand
28 U.S.C. § 1441(a) permits a defendant to remove “any civil action brought in a State

court of which the district courts of the United States have original jurisdiction” to a district court
of the United States. The Second Circuit has recognized that, “[i]n light of the congressional
intent to restrict federal court jurisdiction, as well as the importance of preserving the
independence of state governments, federal courts construe the removal statute narrowly,
resolving any doubts against removability.” Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043,
1045–46 (2d Cir. 1991) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)).
But a court “should be cautious about remand, lest it erroneously deprive [a] defendant of the
right to a federal forum.” Contitrade Servs. Corp. v. Eddie Bauer Inc., 794 F. Supp. 514, 516
(S.D.N.Y. 1992) (quoting Manas y Pineiro v. Chase Manhattan Bank, N.A., 443 F. Supp. 418,
419 (S.D.N.Y. 1978)).
6

Moreover, federal courts may not hear a case in the absence of subject matter jurisdiction.
A lack of subject matter jurisdiction may not be waived and may be raised by motion or sua
sponte at any time. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d
105, 107 (2d Cir. 1997); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action.”). In the absence of
subject matter jurisdiction, federal courts must remand a removed case to state court. 28 U.S.C.
§ 1447(c).
Defendants argue that remand is inappropriate because the Court has diversity jurisdiction
over the case. Resp. at 2. Diversity jurisdiction requires “complete” diversity among the
parties—that is, no adverse parties may be citizens of the same state. Herrick Co. v. SCS
Commc’ns, Inc., 251 F.3d 315, 322 (2d Cir. 2000) (citing Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 373–74 (1978)); accord St. Paul Fire & Marine Ins. Co. v. Universal
Builders Supply, 409 F.3d 73, 80 (2d Cir. 2005) (“Diversity is not complete if any plaintiff is a
citizen of the same state as any defendant.”). For purposes of diversity jurisdiction, a corporation
is a citizen of any state in which it is incorporated, as well as the state where it maintains its
principal place of business. 28 U.S.C. § 1332(c)(1); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 94
(2005).
Diversity jurisdiction also requires that there be more than $75,000 in controversy. 28
U.S.C. § 1332(a). A removing defendant need show only “a ‘reasonable probability’ that the
claim is in excess of the statutory jurisdictional amount.” United Food & Commercial Workers
Union v. Centermark Props. Meriden Square, Inc., 30 F.3d 298, 304–05 (2d Cir. 1994) (quoting
Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994)). The burden of
7

meeting the amount-in-controversy requirement is “hardly onerous . . . for we recognize a
rebuttable presumption that the claim is in excess of the statutory jurisdictional amount.” Scherer
v. Equitable Life Assurance Soc’y of the U.S., 347 F.3d 394, 397 (2d Cir. 2003).
The amount-in-controversy requirement has been met here, because Kidney seeks at least
$2,050,000 in damages from Defendants. Compl. ¶ 60. Kidney is a New York citizen, and every
named defendant is either an Arkansas or Delaware citizen. Id. ¶¶ 1–2; Resp. at 2. But Kidney
argues that complete diversity is lacking because “one defendant,” the manager of the Vestal
Wal-Mart, is “also a resident from New York.” Mot. to Remand at 4. Kidney describes the
manager as “a witness and a critical part of the occurrences of the day of my injuries,” and he
claims that Defendants are preventing him from obtaining the manager’s identity. Id.
Section 1441(b)(1) provides that “[i]n determining whether a civil action is removable on
the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued
under fictitious names shall be disregarded.” In other words, “the citizenship of a fictitious
defendant . . . may be ignored in determining whether the requisite diversity exists. So as long as
there is complete diversity between each plaintiff and each of the known and named defendants,
the case may be removed.” Bowen v. Home Depot, No. 01-CV-2411, 2001 WL 920263, at *1
(E.D.N.Y. Aug. 1, 2001); see also Lederman v. Marriott Corp., 834 F. Supp 112, 113 (S.D.N.Y.
1993) (“So-called ‘Doe’ defendants are disregarded for purposes of determining diversity of
citizenship jurisdiction under 28 U.S.C. § 1332 in cases removed to United States district courts
pursuant to 28 U.S.C. § 1441.”).
Kidney included “un-named others” in the caption of his Complaint, Compl. at 4, and he
appears to argue that one of the unnamed defendants is the manager of the Vestal Wal-Mart. One
8

problem with this argument is that the Complaint does not contain any indication that Kidney
regards the manager as a defendant. The manager makes only a brief appearance, sending a team
of employees into the men’s bathroom and asking Kidney to fill out an incident report. Id. ¶ 10.
Further, none of the causes of action in the Complaint is directed at the manager. Id. ¶¶ 19–60.
So while the caption includes a reference to “un-named others,” there is really nothing in the
Complaint to give Defendants notice that Kidney views the manager as a defendant. And
Kidney’s Motion to Remand refers to the manager as a “vital witness,” Mot. to Remand at 4,
lending further support to the idea that Kidney does not intend the manager to be a defendant in
this case. In any event, since § 1441(b)(1) forbids consideration of fictitious defendants in
determining whether removal was proper, and since all the named defendants are diverse from
Kidney, removal to this Court was indeed proper, and Kidney’s Motion must be denied.
Kidney suggests that Defendants are improperly maintaining diversity jurisdiction by
withholding the identity of the manager from him. Mot. to Remand at 4. But again, the most
plausible reading of Kidney’s filings is that he considers the manager a witness with important
information rather than a defendant. And the Court is aware of no authority requiring Defendants
to disclose the identity of someone such as the manager before discovery begins. See Newcombe
v. Adolf Coors Co., 157 F.3d 686, 690 (9th Cir. 1998) (finding, in the removal context, that “the
defendants were under no legal obligation to disclose the [potential defendant’s] identity prior to
discovery,” and that “[t]herefore, [the court] cannot agree with [the plaintiff] that the defendants
improperly concealed [the potential defendant’s] identity”).
Some courts have imposed heightened obligations on defendants opposing remand on the
ground that fictitious defendants cannot defeat diversity. These courts have held that the
9

prohibition on considering the citizenship of fictitious defendants does “not apply when the
complaint provide[s] a description of a fictitious defendant in such a way that his identity could
not reasonably be questioned.” Musical v. PTC All. Corp., No. 08-CV-45, 2008 WL 2559300,
at *3 (W.D. Ky. June 25, 2008) (collecting cases). This approach is particularly appropriate
where the named defendant is a corporation and the fictitious defendant is an employee of the
corporation, because the corporation is probably “in a better position than the plaintiff to
ascertain the citizenship of the [fictitious,] non-diverse defendant at the commencement of the
action in state court.” Marshall v. CSX Transp. Co., 916 F. Supp. 1150, 1152 (M.D. Ala. 1995).
But for the reasons discussed above, when Kidney commenced this action in New York state
court, it was far from clear that the manager was a defendant—indeed, it was not even clear that
Kidney considered him an important witness. The manager was simply a bit player in a drama
whose focus was elsewhere. Thus, this line of cases does not help Kidney, and removal was
proper.
B. Motion to Dismiss for Lack of Personal Jurisdiction
Where a party moves to dismiss an action for lack of personal jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(2), 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). Where a court relies only upon the pleadings and supporting affidavits, a
plaintiff need make only a prima facie showing of personal jurisdiction over a defendant. Grand
River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005); Cutco Indus., Inc. v.
Naughton, 806 F.2d 361, 364 (2d Cir. 1986).

10

“A prima facie showing of jurisdiction ‘does not mean that plaintiff must show only some
evidence that defendant is subject to jurisdiction; it means that plaintiff must plead facts which, if
true, are sufficient in themselves to establish jurisdiction.’” Tamam v. Fransabank Sal, 677 F.
Supp. 2d 720, 725 (S.D.N.Y. 2010) (quoting Bellepointe, Inc. v. Kohl’s Dep’t Stores, Inc., 975
F.Supp. 562, 564–65 (S.D.N.Y. 1997)). Pleadings that assert only “conclusory non-fact-specific
jurisdictional allegations” or state a “legal conclusion couched as a factual allegation” do not
meet this burden. Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 185 (2d Cir. 1998). While a
court should assume the truth of all well-pleaded factual allegations that support a finding of
personal jurisdiction, Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.
1990), it should “not draw ‘argumentative inferences’ in the plaintiff’s favor,” Robinson v.
Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994) (quoting Atl. Mut. Ins. Co. v.
Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir. 1992)).
In determining whether it may exercise personal jurisdiction, the Court must engage in a
two-part inquiry. “First, it must determine whether the plaintiff has shown that the defendant is
amenable to service of process under the forum state’s laws; and second, it must assess whether
the court’s assertion of jurisdiction under these laws comports with the requirements of due
process.” Metro. Life, 84 F.3d at 567. New York law provides two bases for personal
jurisdiction: New York Civil Practice Law and Rules (“N.Y. C.P.L.R.”) 301, which authorizes
general jurisdiction, and N.Y. C.P.L.R. 302(a), which authorizes long-arm jurisdiction.
Defendants argue that this Court lacks personal jurisdiction over the individual
defendants, namely, Webster, Shiohira, Fahey, Foran, McMillon, and Stills. Mem. at 5. Nothing
in the Complaint remotely suggests that any of these persons “engages in a continuous and
11

systematic course of doing business in New York,” Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763
F.2d 55, 58 (2d Cir. 1985), the standard for establishing general jurisdiction over a defendant
under N.Y. C.P.L.R. 301. “[I]t is unclear whether existing New York general jurisdiction
jurisprudence remains viable” in light of the Supreme Court’s decision in Daimler AG v.
Bauman, 134 S. Ct. 746 (2014). Reich v. Lopez, 38 F. Supp. 3d 436, 455 (S.D.N.Y. 2014). But
the Court need not reach this issue, because “[f]or general jurisdiction over an individual to
comport with due process, Defendants must be domiciled in New York, served in New York, or
have otherwise consented to the court’s jurisdiction.” Id.; accord Minnie Rose LLC v. Yu, 169 F.
Supp. 3d 504, 512 (S.D.N.Y. 2016) (“For an individual, the paradigm forum for the exercise of
general jurisdiction is the individual’s domicile.” (quoting Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 924 (2011))). None of the individual defendants here is domiciled
in New York, so the Court could not exercise general jurisdiction over them without violating
due process.
Now the Court must consider whether it may exercise long-arm jurisdiction over the
individual defendants. New York’s long-arm statute provides for jurisdiction over an out-of-state
domiciliary who
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 . . . ; or
3. commits a tortious act without the state causing injury to person or
property within the state, . . . if he
(i) regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from
goods used or consumed or services rendered, in the state, or
12

(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). “Thus, jurisdiction is proper under section 302(a)(1) when: (1) the
defendant has transacted business in New York; and (2) the cause of action arises out the subject
matter of the transacted business.” Beatie & Osborn LLP v. Patriot Sci. Corp., 431 F. Supp. 2d
367, 387 (S.D.N.Y. 2006)
The Court does not have long-arm jurisdiction over Foran, McMillon, or Stills, all of
whom are senior executives at Wal-Mart. Compl. ¶ 2. The Complaint fails to allege that these
persons have had any contact with Kidney. Moreover, the Complaint does not suggest that they
ever set foot in New York, engaged in any conduct directed at New York, or committed any
tortious act in connection with the alleged slip and fall and its aftermath. Instead, Kidney alleges
that these persons “ratified” the conduct of Webster, Shiohira, and Fahey, all of whom were
involved in handling Kidney’s claim. Id. ¶¶ 43, 49, 55. But nothing in the Complaint indicates
that Foran, McMillon, or Stills had any inkling of what happened to Kidney, and a bare
allegation to that effect would be implausible in any event—why would senior executives at WalMart concern themselves with a single alleged slip and fall? Thus, the Court lacks personal
jurisdiction over Foran, McMillon, and Stills.
The trickier question is whether the Court has long-arm jurisdiction over Webster,
Shiohira, and Fahey. First, have these defendants “transact[ed] any business” in New York? N.Y.
C.P.L.R. 302(a)(1). A court must consider four nonexhaustive factors in deciding whether an outof-state defendant has transacted business in New York:

13

1) whether the defendant has an ongoing contractual relationship with
a New York corporation, 2) 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, 3) the existence and contents of any choice of law clause
in the contract, and 4) whether the contract requires . . . the defendant
to send notices or payments into New York or subjects the defendant
to supervision by a New York corporation.
Vista Food Exch., Inc. v. Champion Foodservice, LLC, 124 F. Supp. 3d 301, 307 (S.D.N.Y.
2015) (citing Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 22 (2d Cir. 2004)).
Kidney’s problem is that while “[a] settlement agreement . . . is a contract,” Saltzman v.
Louisiana Auction Exch., Inc., 997 F. Supp. 537, 540 (S.D.N.Y. 1998), he never accepted the
terms of the proposed settlement, and the four factors listed above appear to assume the existence
of a contract executed by the parties. For example, there could be no ongoing contractual
relationship between the parties in this case because there never was a contract to begin with. The
lack of a contract alone therefore makes it impossible for Kidney to satisfy any of the four
factors. See Fisher v. Int’l Student Exch., Inc., 38 F. Supp. 3d 276, 283 (E.D.N.Y. 2014) (finding
that because “there was never a valid, enforceable contract,” the factors outlined in Sunward
Electronics were largely inapplicable).
Even if the Court ignored the nonexhaustive four-factor test, case law interpreting the
New York long-arm statute would pose serious difficulties for Kidney. One district court in this
circuit held that the parties’ failure to execute any contract foreclosed long-arm jurisdiction under
N.Y. C.P.L.R. 302(a)(1) despite several exploratory meetings in New York between the plaintiffs
and the defendants. V Cars, LLC v. Israel Corp., 902 F. Supp. 2d 349, 361–63 (S.D.N.Y. 2012).
This result accords with the rule that “exploratory meetings taking place in New York, ‘leading
14

to nothing more than a proposal that was itself the subject of further negotiations over the phone,
by mail, and in meetings outside New York,’ are not sufficient contacts to constitute the
transaction of business.” Aquiline Capital Partners LLC v. FinArch LLC, 861 F. Supp. 2d 378,
388 (S.D.N.Y. 2012) (quoting C–Life Grp. Ltd. v. Generra Co., 652 N.Y.S.2d 41, 41 (App. Div.
1997)). Another district court held that “meetings in [New York] that are exploratory,
unproductive, or insubstantial are insufficient to establish requisite contacts with the state.”
Benson & Assocs., Inc. v. Orthopedic Network of N.J., No. 98-CV-1020, 1998 WL 388531,
at *4 (S.D.N.Y. July 13, 1998) (emphasis added). The court then noted that several New York
meetings “were unproductive, in that no contracts were ever formed.” Id. The discussions
between Kidney and Webster, Shiohira, and Fahey in this case were similarly unproductive, since
Kidney refused to accept the settlement offer, which he considered too low. Finally, in Kash ‘n
Gold, Ltd. v. ATSPI, Inc., 690 F. Supp 1160, 1163 (E.D.N.Y. 1988), the court made explicit
what is implicit in the cases just canvassed, namely that “where no contract is formed and there is
no other activity substantial enough to be deemed the transaction of business, then jurisdiction
under C.P.L.R. § 302(a)(1) will not lie.”
Suppose the parties’ failure to execute a contract were not enough to foreclose long-arm
jurisdiction under N.Y. C.P.L.R. 302(a)(1). Kidney would still have to face the fact that neither
Webster, Shiohira, nor Fahey ever visited New York. These defendants merely communicated
with Kidney via telephone and mail. E.g., Compl. ¶¶ 20, 29, 35. That makes their contacts with
New York even more attenuated than those in (for example) V Cars, in which the defendants
actually visited New York. 902 F. Supp. 2d at 361–62. Moreover, “[t]elephone calls and written
communications” are typically not enough to “provide a sufficient basis for personal jurisdiction
15

under the long-arm statute.” Liberatore v. Calvino, 742 N.Y.S.2d 291, 293 (App. Div. 2002).
True, “[i]f the purpose of the calls [or other communications] is for the defendant to actively
participate in business in New York, then they alone may support a finding of New York long
arm jurisdiction under C.P.L.R. § 302(a)(1).” Carlson v. Cuevas, 932 F.Supp. 76, 78 (S.D.N.Y.
1996); accord Kulas v. Adachi, No. 96-CV-6674, 1997 WL 256957, at *7 (S.D.N.Y. May 16,
1997) (“Only in cases where the telephone call or communication clearly shows that the
defendant intends to project itself into ongoing New York commerce, such as where a defendant
directly conducts market activity or securities transactions in New York over the telephone, do
New York courts sustain jurisdiction based on telephone calls or facsimile transmissions
alone.”). But the Court is bound to apply the nonexhaustive four-factor test devised by the
Second Circuit for determining whether a defendant has transacted business in New York, and
neither that test nor the relevant case law appears to contemplate the possibility that a defendant
can be subject to long-arm jurisdiction under N.Y. C.P.L.R. 302(a)(1) if the parties never entered
a contract and the defendant never set foot in New York. Thus, long-arm jurisdiction over
Webster, Shiohira, and Fahey cannot be premised on N.Y. C.P.L.R. 302(a)(1).
The Court also does not have long-arm jurisdiction over Webster, Shiohira, and Fahey
under N.Y. C.P.L.R. 302(a)(2), which confers personal jurisdiction where the defendant
“commit[ed] a tortious act within the state.” Nor does it have jurisdiction via N.Y. C.P.L.R.
302(a)(3), which requires, among other things, an allegation that the defendant committed a tort
outside the state causing injury within the state. Stripped of conclusory assertions, Kidney’s
Complaint alleges that Webster, Shiohira, and Fahey failed to expeditiously settle his case
against Wal-Mart, that they offered him a settlement amount that he considered too low, that they
16

sent him contradictory letters about the need for further medical information, that they refused to
provide him with the incident report his wife completed for him at the Vestal Wal-Mart, and that
they failed to inform him of CMI’s address change. Compl. ¶¶ 19, 21–22, 29, 37. These
allegations boil down to the assertion that Wal-Mart, through CMI, was playing hardball during
the settlement negotiations.
True enough, courts must “construe a pro se complaint liberally.” Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009). But “a pro se complaint may not survive dismissal if its factual
allegations do not meet the basic plausibility standard.” Davis v. Malloy, No. 16-CV-1614, 2017
WL 20912, at *1 (D. Conn. Jan. 2, 2017) (citing Fowlkes v. Ironworkers Local 40, 790 F.3d 378,
387 (2d Cir. 2015)). Construed liberally, Kidney’s allegations about the three defendants
employed by CMI fail to state a plausible tort claim. Perhaps the defendants in question were less
forthcoming and diligent than Kidney had hoped, but dragging one’s feet during a settlement
negotiation does not give rise to any tort claim with which this Court is familiar. Since Kidney’s
allegations about Webster, Shiohira, and Fahey fail to suggest that they committed a tort, the
Court cannot exercise long-arm jurisdiction over them under N.Y. C.P.L.R. 302(a)(2) or (3). See
World Sports Grp. v. Motion Picture Acad. of Arts & Sci., 709 N.Y.S.2d 56, 57 (App. Div.
2000) (finding that long-arm jurisdiction under N.Y. C.P.L.R. 302(a)(3) was improper because
the plaintiffs had “neither alleged nor offered proof of the commission of the jurisdictionally
requisite tort”). The Court therefore lacks personal jurisdiction over these three defendants.
Indeed, it lacks personal jurisdiction over any of the individual defendants.5
5

“Because the motion to dismiss based on lack of personal jurisdiction is granted, [the
Court] need not address improper service of process . . . .” In re Ski Train Fire in Kaprun, Austria
on Nov. 11, 2000, No. 01-MDL-1428, 2003 WL 22909153, at *1 n.4 (S.D.N.Y. Dec. 9, 2003).
17

C. Statutes of Limitations
Defendants argue that jurisdictional issues aside, any claims stemming from the alleged
slip and fall on April 12, 2013, are barred by the relevant statutes of limitations. Mem. at 8–9.
Under N.Y. C.P.L.R. 214(5), “an action to recover damages for a personal injury” must be
brought within three years. Further, N.Y. C.P.L.R. 215(3) provides that a one-year statute of
limitations applies to intentional torts. See Callahan v. Image Bank, 184 F. Supp. 2d 362, 363
(S.D.N.Y. 2002) (finding that N.Y. C.P.L.R. 215(3) “requires that an action for an intentional tort
be commenced within one year of the alleged injury”). Kidney filed this suit in New York state
court on April 20, 2016. Compl. at 4. Defendants therefore argue that “any claim for damages”
arising from the alleged slip and fall, which would presumably be based on a negligence theory,
is barred by the three-year statute of limitations. Mem. at 9. They also say that any claims about
the aftermath of the incident, which would probably involve intentional torts of one kind or
another, are barred by the one-year statute of limitations, since “not one of the events alleged by
[Kidney] in his Complaint took place any later than February 10, 2015.” Id.
Since the Court lacks personal jurisdiction over the defendants involved in the aftermath
of the alleged slip and fall, it need not reach the question whether any claims arising from their
conduct are barred by the statute of limitations. But the Court undoubtedly has personal
jurisdiction over Wal-Mart Stores East, LP, which operates the Vestal Wal-Mart Supercenter.
Notice of Removal ¶ 10.6 Kidney did not name Wal-Mart Stores East, LP as a defendant, but “in
view of [his] pro se status, his failure to list [Wal-Mart Stores East, LP] as [a] defendant[] in the

6

Notably, Defendants argue that the Court lacks personal jurisdiction only over the
individual defendants. Mem. at 5.
18

caption of the complaint may be excused as a technical irregularity.” Jones v. Armstrong, No.
05-CV-450, 2006 WL 860095, at *2 (D. Conn. Mar. 31, 2006). For purposes of deciding
Defendants’ Motion to Dismiss, then, the Court will consider whether any claims against WalMart Stores East, LP stemming from the alleged slip and fall are time barred.
“Where jurisdiction rests upon diversity of citizenship, a federal court sitting in New
York must apply the New York . . . statutes of limitations.” Stuart v. Am. Cyanamid Co., 158
F.3d 622, 626 (2d Cir. 1998). “Under New York law, the statute of limitations for a personal
injury action is three years from the date of injury.” Tomabene v. Marcial, No. 89-CV-8277,
1990 WL 165697, at *1 (S.D.N.Y. Oct. 26, 1990) (citing N.Y. C.P.L.R. 214(5)); see also
Rothstein v. Tenn. Gas Pipeline Co., 616 N.Y.S.2d 902, 906 (App. Div. 1994) (“As a general
rule, a cause of action does not accrue until an injury is sustained.”); Fleishman v. Eli Lilly &
Co., 465 N.Y.S.2d 735, 736 (App. Div. 1983) (“In general . . . a cause of action for personal
injuries . . . accrues at the time of injury.”). Here, the injury occurred when Kidney slipped and
fell at the Vestal Wal-Mart on April 12, 2013. Compl. ¶¶ 8–10. Since he filed this case in New
York state court on April 20, 2013, any claims stemming from the injuries he sustained on that
day are barred by the three-year statute of limitations.7
Kidney finds no relief from the doctrine of equitable estoppel, which prevents “a
defendant from using the statute of limitations as a defense ‘where it is the defendant’s
affirmative wrongdoing . . . which produced the long delay between the accrual of the cause of
action and the institution of the legal proceeding.’” Putter v. N. Shore Univ. Hosp., 858 N.E.2d
7

Of course, to the extent that any of these claims involve intentional torts, they are time
barred as well under the one-year statute of limitations applicable to intentional torts. N.Y.
C.P.L.R. 215(3).
19

1140, 1142 (N.Y. 2006) (alteration in original) (quoting Zumpano v. Quinn, 849 N.E.2d 926, 929
(N.Y. 2006)). A defendant is equitably estopped from asserting a statute-of-limitations defense
when she engages in “fraud, misrepresentations, or deception [that is] affirmative and specifically
directed at preventing the plaintiff from bringing suit.” Twersky v. Yeshiva Univ., 993 F. Supp.
2d 429, 442 (S.D.N.Y. 2014). “Moreover, the plaintiff must demonstrate reasonable reliance on
the defendant’s misrepresentations.” Zumpano, 849 N.E.2d at 929. Equitable estoppel is an
“extraordinary remedy [that] is only applicable in circumstances where there is evidence that
plaintiff was lulled into inaction by defendant in order to allow the statute of limitations to
lapse.” E. Midtown Plaza Hous. Co., Inc. v. City of New York, 631 N.Y.S.2d 38, 38 (App. Div.
1995). Further, “[t]he courts are not free to extend the [s]tatute of [l]imitations, and certainly may
not invent tolling provisions simply because to do so might seem necessary in order to avoid
results thought to be unfortunate in particular cases.” Roldan v. Allstate Ins. Co., 544 N.Y.S.2d
359, 367 (App. Div. 1989).
Kidney has not come close to showing that Defendants intentionally “lulled [him] into
inaction in order to allow the statute of limitations to expire.” Neil v. City of New York, 944
N.Y.S.2d 533, 534 (App. Div. 2012). According to the Complaint, the defendants involved in
handling Kidney’s claim were a little disorganized and less than forthcoming. But there is no
indication that anything they did was designed to prevent him from bringing suit before the
expiration of any statute of limitations. And “[i]t is well-settled law in New York that the mere
fact that settlement negotiations have been ongoing between parties is insufficient to estop a
party from asserting the [s]tatute of [l]imitations as a defense.” Kiernan v. Long Island R.R., 619
N.Y.S.2d 723, 724 (App. Div. 1994) (collecting cases). This rule is especially apt here since
20

Kidney has offered no reason to believe that “by engaging in protracted settlement discussions,
defendant[s] intended to lull [him] into inactivity and to induce [him] to continue negotiations
until after the statute of limitations had run.” Murphy v. Wegman’s Food Mkt., Inc., 529
N.Y.S.2d 648, 649 (App. Div. 1988).
Although Kidney is proceeding pro se, that does not affect the statute-of-limitations
analysis. See Green v. Manhattan Cmty. Bd. 10, 12 N.Y.S.3d 63, 64 (App. Div. 2015)
(“Petitioner’s pro se status is not a basis to reach the merits of her claim. Because the proceeding
is time-barred, we do not have discretion to hear it.”). And while it does seem harsh to deem an
action time barred when the plaintiff missed the deadline by a little over a week, there is no
exception to statutes of limitations for actions that are filed a few days late, and New York courts
regularly use statutes of limitations to bar actions that are filed only one day late. E.g., Torres v.
Greyhound Bus Lines, Inc., 852 N.Y.S.2d 521, 522 (App. Div. 2008); Spirig v. Evans, 809
N.Y.S.2d 212, 213 (App. Div. 2006). The Court is therefore compelled to hold that any claims
Kidney may have against Wal-Mart Stores East, LP relating to the alleged slip and fall are time
barred.
D. Opportunity to Amend
A court “should not dismiss [a pro se complaint] without granting leave to amend at least
once when a liberal reading of the complaint gives any indication that a valid claim might be
stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). There is no indication that a valid claim might be
brought against Foran, McMillon, Stills, or the Vestal Wal-Mart Supercenter (or Wal-Mart
Stores East, LP), so these defendants will be dismissed from this action. But a liberal reading of
21

the Complaint suggests a slight possibility of valid claims against Webster, Shiohira, and Fahey
as to their conduct during the settlement negotiations.8 So Kidney can file an amended complaint,
which must allege facts sufficient to show both that this Court may exercise personal jurisdiction
over Foran, McMillon, Stills, and that these persons committed actionable wrongdoing against
him.
IV.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Kidney’s Motion to Remand (Dkt. No. 21) is DENIED; and it is

further
ORDERED, that Defendants’ Motion to Dismiss (Dkt. No. 5) is GRANTED on the
grounds that the Court lacks personal jurisdiction over the individual defendants and that
Kidney’s allegations fail to state a plausible claim for relief; and it is further
ORDERED, that Kidney’s Complaint (Dkt. No. 2) is DISMISSED with leave to
amend; and it is further
ORDERED, that the Clerk of the Court terminate Greg Foran, Doug McMillon, David
Stills, and the Vestal Wal-Mart Supercenter as defendants in this case; and it is further
ORDERED, that if Kidney wishes to proceed with this action, he must file an amended
complaint as set forth above within thirty (30) days of the filing date of this
Memorandum-Decision and Order; and it is further

8

Defendants note that none of the events described in the Complaint took place after
February 10, 2015. Mem. at 9. The Court urges Kidney to keep this date in mind if he decides to
amend his complaint, because as discussed above, New York imposes a one-year statute of
limitations on intentional torts. N.Y. C.P.L.R. 215(3).
22

ORDERED, that if Kidney does not move to amend his Complaint within the time
provided, the Clerk of the Court shall enter judgment in favor of John Webster, Bill Shiohira, and
Melissa Fahey, and terminate them as defendants, with prejudice, without further order of the
Court; and it is further
ORDERED, that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

February 27, 2017
Albany, New York

23