Seldon v. Magedson et al

Filing 13

REPLY to Response to Motion re: 10 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Edward Magedson, Xcentric Ventures L.L.C.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Speth, Maria)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PHILIP SELDON,
Plaintiff,
Case No: 11-CV-6218

v.
EDWARD MAGEDSON, XCENTRIC
VENTURES, LLC, and JOHN
OR JANE DOE,
Defendants.

REPLY IN SUPPORT OF MOTION TO DISMISS
In response to the pending Motion to Dismiss, Mr. Seldon amended the
Complaint and submitted a response to the Motion. As set forth in the Motion to
Dismiss the Amended Complaint, the Amended Complaint did not cure the defects
in Plaintiff’s case. In addition, Mr. Seldon’s argument in favor of the exercise of
personal jurisdiction over Defendants lacks merit.
Mr. Seldon asserts that Defendants did not contest jurisdiction in the
Greenky v. Xcentric matter currently pending before the New York Supreme Court.
That is inaccurate. On February 16, 2011, Defendants moved to dismiss the
Greenky action on the basis of lack of jurisdiction as well as the Communications
Decency Act (“CDA”). (Exhibit “A”). That motion is still pending and has not yet
been ruled on.

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Mr. Seldon also points to the decision rendered in Intellect Art v. Millewski
that the Plaintiff in that case had pled sufficient facts to allege jurisdiction against
these same Defendants. It should be noted that the Judge in Intellect Art dismissed
the case on CDA grounds and, thus, there was no reason or opportunity to further
pursue the jurisdiction issue.
Mr. Seldon also fails to mention that the New York Supreme Court in A-1
Technology v. Magedson held that a Complaint that was very similar to Mr.
Seldon’s Complaint did not sufficiently allege jurisdiction against these
defendants. (Exhibit “B”).
Finally, Mr. Seldon alleges that his purported telephone conversations with
Mr. Magedson establishes jurisdiction. Telephone conversations are not enough to
establish jurisdiction. Mktg., Inc. v. Norm Thompson Outfitters, Inc., No. 99-Civ10411, 2000 U.S. Dist. LEXIS 95036, at *3 (S.D.N.Y. Apr. 20, 2000) (finding
telephone and fax contacts with New York insufficient for long-arm jurisdiction);
Nader v. Getshaw, No. 99-Civ-11556, 2000 U.S. Dist. LEXIS 14308, at *5
(S.D.N.Y. Sept. 29, 2000) (finding no C.P.L.R. 302(a)(l) or (a)(3) long-arm
jurisdiction because telephone and mail contacts of defendant were not sufficient
for purposes of statute); Sunward Elec., Inc. v. McDonald, 362 F.3d 17, 22–23 (2nd
Cir. 2004) (quoting Agency Rent A Car Sys., Inc. v. Grand Rent A Car Corp., 98
F.3d 25, 29 (2nd Cir. 1996)).

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Where a contract is supposedly formed over the telephone, the Courts will
look to the place of performance. See Cooper, Robertson & Partners, L.L.P. v.
Vail, 143 F.Supp.2d 367, 371 (S.D.N.Y. 2001) (stating that “[i]n determining
jurisdiction, the place of performance is more critical than the place of the
execution of a contract”) (emphasis added).
For the reasons above, Defendants Xcentric and Magedson respectfully
move the Court for an order dismissing this action for lack of personal jurisdiction,
for failure to state a claim upon which relief may be granted, and for lack of
subject matter jurisdiction.

Dated this 20th day of December, 2011.

/s/ Maria Crimi Speth
Attorney for Defendant

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CERTIFICATE OF SERVICE
I hereby certify that on December 20, 2011 I mailed a copy of the attached
document, First Class Mail, postage prepaid, to:
Philip Seldon
500 East 77th Street
New York, NY 10162
Plaintiff Pro Se

And a courtesy copy of the foregoing mailed to:
HONORABLE MICHAEL H. DOLINGER
United States Magistrate Judge
United States District Court
500 Pearl St.
New York, NY 10007-1312

/s/ Debra Gower

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