Muente v. M1 Support Services, L.P. et al

Filing 34

OPINION re: 15 FIRST MOTION to Dismiss for Lack of Jurisdiction Dismiss Amended Complaint. filed by M1 Support Services, L.P., 6 MOTION to Dismiss for Lack of Jurisdiction. filed by M1 Support Services, L.P. (Signed by Judge Thomas P. Griesa on 8/30/2012) (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
KIRK MUENTE,
:
Plaintiff,
:
:
– against –
:
:
M1 SUPPORT SERVICES, L.P., et al.,
:
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Defendants.
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:
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11 Civ. 6420 (TPG)
OPINION

Plaintiff Kirk Muente brings this action against defendant M1 Support
Services, L.P. (“M1 Support Services”) and three additional defendants, Rio
Vista-Cadence Joint Venture, Rio Vista Management, LLC, and Cadence
Contract Services, LLC (collectively, “Rio Vista and Cadence”), for negligence
and violation of New York law as a result of injuries suffered by plaintiff when
he fell down an elevator shaft. Following the filing of an amended complaint,
Rio Vista and Cadence served an answer asserting cross-claims against M1
Support Services for common law indemnification and contribution.
M1 Support Services now moves to dismiss the amended complaint and
the cross-claims under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction.
Plaintiff requests that the court deny the motion or, in the alternative, grant
jurisdictional discovery.
Defendant’s motion is granted. Plaintiff’s request for jurisdictional
discovery is denied.

The complaint makes the following allegations about the accident:
Plaintiff is a New York City firefighter and a member of the New York
National Guard. On March 16, 2012, plaintiff was participating in a
firefighting training exercise at Louis F. Garland Fire Academy located on
Goodfellow Air Force base in Denton, Texas. Plaintiff alleges that during the
exercise he was injured when he fell down an elevator shaft. He alleges that he
fell because of the defendants’ failure to properly secure a door that would have
prevented access to the elevator shaft, failure to inspect the area, and failure to
supervise plaintiff during the training exercise. Plaintiff alleges that Ml
Support Services was responsible for operating, maintaining, and otherwise
controlling all aspects of the training exercise.
Jurisdictional Submissions
Plaintiff’s complaint alleges that M1 Support Services “has transacted
business and contracted with New York business organizations to perform
services and provide products both within the State of New York and outside
the State of New York on a national basis in all fifty (50) states and
internationally in foreign countries and territories.” Plaintiff further alleges
that in order to “develop this relationship with New York business associations,
numerous trips into New York have been made on a regular basis” and that
defendant “routinely solicits business in New York, by in person visit, mail,
telephone, e-mail and other methods.” More specifically, plaintiff alleges that
defendant has entered into a multi-state contract with the U.S. military that
requires defendant to perform services “at government locations worldwide,”
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including in New York. Plaintiff alleges that the contract requires defendant to
perform services wherever they are needed, including in New York. Based on
this fact, plaintiff alleges that defendant has availed itself of the benefits and
protections of New York law. Plaintiff alleges that defendant’s involvement in
the training exercise in which plaintiff was injured arose out of this multi-state
contract.
Plaintiff asserts that the court has personal jurisdiction over M1 Support
Services under New York C.P.L.R. § 302(a)(1), which states that
a court may exercise personal jurisdiction over any nondomiciliary . . . 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;
Under this section, “a defendant is subject to personal jurisdiction if he or she
has transacted business within New York, and the plaintiff’s cause of action
arises from that transaction.” Scottevest, Inc. v. AyeGear Glasgow Ltd., 2012
WL 1372166, at *2 (S.D.N.Y. 2012) (citing CutCo Indus. v. Naughton, 806 F.2d
361, 365 (2d Cir.1986)).
Defendant responds with an affidavit of William J. Shelt, an executive
with M1 Support Services. Shelt avers, regarding M1 Support Services, that:


it does not do business in New York;



it is not licensed to do business in New York;



it has made no sales in New York since the company began operations in
2003;



it does not have an office in New York;
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

it has no employees who work in or who conduct business in New York;



it has no agent in New York for any purpose;



it does not advertise or market in New York;



it does not own or lease property in New York;



it does not target customers in New York;



it does not derive revenue from business activities in New York;



it does not designate an agent for service of process in New York;



it does not maintain any bank account in New York;



it does not supply goods or services in New York;



it has made no contract in New York to supply goods or services since
the company began operations in 2003;



it does not have any parent, subsidiary, or affiliated company or
business entity with offices or agents in New York.
In response, plaintiff submitted an affidavit of Thomas A. Boyle, Jr., an

associate in the offices of plaintiff’s attorney. Essentially, Boyle does not
contradict the assertions in the Shelt affidavit. Boyle, however, relies on the
assertion that M1 Support Services has a contract with the U.S. Government to
provide services at locations arranged with the Government. There is no
specific allegation that any work under this contract has actually been done
within New York. This matter is discussed further in a subsequent affidavit of
Shelt, which will be discussed later in this opinion.
Plaintiff also alleges that defendant entered into a contract with a New
York business association, L-3 Communications. Plaintiff alleges that this
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contract demonstrates that defendant’s statement that it “has not entered into
any contract with any New York business association to provide goods in New
York or elsewhere” is patently false. Plaintiff also states that the falsity of that
statement should be considered adversely when judging the accuracy of
defendant’s remaining assertions.
Plaintiff alleges that under the L-3 Communications contract, defendant
agrees to support L-3 Communications in a $440 million contract with the U.S.
Army. However, plaintiff provided a press release detailing information on this
agreement, and the press release indicates that the party to the contract was
the Systems Field Support division of L-3 Communications (“L-3 SFS”).
According to its website, L-3 SFS is a “portfolio company” of L-3
Communications.
Shelt submitted a further affidavit in response to the Boyle affidavit. In
this second affidavit, Shelt avers as follows: M1 Support Services does indeed
have a contract with the U.S. military, specifically the U.S. Air Force. However,
the services at Goodfellow Air Force Base were not performed pursuant to that
contract. Furthermore, Shelt avers that plaintiff misstates the nature of the
contract. Shelt states that the contract allows M1 Support Services, along with
ten other companies, to bid on work for which the Government issues a task
order. Bidding on the work does not ensure being awarded a task order. Shelt
further avers that defendant has never done work in New York pursuant to a
government task order.
In response to plaintiff’s allegations regarding the L-3 Communications
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contract, Shelt’s second affidavit states that the contract entity with which
defendant does business is based in Delaware. Under the contract, M1
Support Services is required to conduct work for a customer located in
Mississippi. Shelt reaffirms that M1 Support Services has performed no
services in New York pursuant to this or any other contract. He also states
that the contract with L-3 SFS is unrelated to the work done by defendant at
Goodfellow Air Force Based where plaintiff’s accident occurred.
Discussion
As noted above, defendant moves to dismiss the complaint under Rule
12(b)(2) for lack of personal jurisdiction, while plaintiff asks that the court deny
the motion or, in the alternative, grant jurisdictional discovery.
On a “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, 567 (2d
Cir. 1996). In the absence of or prior to jurisdictional discovery, the court
presumes the truth of the complaint’s allegations, construes the complaint in
its most favorable light, and resolves all doubt in favor of the plaintiff, who
need make only a prima facie showing of jurisdiction based on his own
pleadings and evidentiary submissions to the court. See DiStefano v. Carozzi
N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001).
The plaintiff’s burden “is satisfied even when the moving party makes
contrary allegations that place in dispute the factual basis of plaintiff’s prima
facie case.” Bensusan Rest. Corp. v. King, 937 F. Supp. 295, 298 (S.D.N.Y.
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1996). In other words, “a plaintiff may defeat a motion to dismiss based on
legally sufficient allegations of jurisdiction.” In re Magnetic Audiotape Antitrust
Litig., 334 F.3d 204, 206 (2d Cir. 2003). The court, however, will not draw
“argumentative inferences” in the plaintiff’s favor. Robinson v. Overseas
Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994) (internal quotation
omitted).
New York law supplies the requirements for personal jurisdiction for an
action in this district under 17 U.S.C. § 501. See Fort Knox Music Inc. v.
Baptiste, 203 F.3d 193, 196 (2d Cir. 2000). If these requirements are met, the
court must then decide whether the exercise of jurisdiction in the case
comports with due process. See Kernan v. Kurz-Hastings, Inc., 175 F.3d 236,
240 (2d Cir. 1999).
As stated above, New York C.P.L.R. § 302(a)(1) provides for personal
jurisdiction over a defendant who contracts to supply goods or services in New
York. However, under this section, plaintiff’s cause of action must actually
arise from that transaction. See Scottevest, 2012 WL 1372166, at *2. “Even if
a defendant has engaged in purposeful acts in New York, there must also exist
a substantial relationship between those particular acts and the transaction
giving rise to the plaintiff’s cause of action.” Pramer S.C.A. v Abaplus Intl.
Corp., 76 A.D.3d 89, 95 (1st Dept. 2010).
In this case, plaintiff’s key jurisdictional allegation relates to defendant’s
contract with the U.S. Air Force. As described above, defendant states that
this contract does not relate to New York in any way. Although, under the
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contract, defendant may bid on work for which the Government issues a task
order, and although such a task order may involve work in New York,
defendant has made no such bid for work in New York. Plaintiff does not allege
otherwise. There is no indication that defendant has conducted any business
in New York, let alone that plaintiff’s injury was related in any way to such
business. Plaintiff has made no prima facie showing of jurisdiction, and,
accordingly, there is no basis on which the court may assert personal
jurisdiction.
However, plaintiff has requested jurisdictional discovery. The failure to
make out a prima facie showing of jurisdiction does not always bar
jurisdictional discovery. Ehrenfeld v. Mahfouz, 489 F.3d 542, 550 n.6 (2d Cir.
2007). Rather, the plaintiff should receive such discovery if “facts may exist” to
support jurisdiction. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904
(2d Cir. 1981). But if the plaintiff offers only “speculations or hopes . . . that
further connections to New York will come to light in discovery,” the court
should dismiss the complaint. Rosenberg v. PK Graphics, 2004 WL 1057621,
at *1 (S.D.N.Y. May 10, 2004).
Again, there is nothing in the complaint, the amended complaint, or
plaintiff’s submissions in opposition to the motion to dismiss that indicates
that “facts may exist” to support jurisdiction. See Marine Midland Bank, 664
F.2d at 904. Plaintiff has put forward only conclusory allegations, and
defendant should not be subjected to the burdens of discovery when there is
nothing to indicate that it may be subject to personal jurisdiction in New York.
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Plaintiffs request for jurisdictional discovery is denied, and defendant's motion
to dismiss the complaint, the amended complaint, and counterclaims against it
is granted.
Conclusion
For the foregoing reasons, the court grants defendant Ml Support
Services' motion to dismiss the complaint, the amended complaint, and crossclaims filed against M 1 Support Services because the court lacks personal
jurisdiction over the defendant.
This memo resolves the motions listed as item numbers 6 and 15 on the
docket.
SO ORDERED.
Dated: New York, New York
August 30,2012

,
Thomas P. Griesa
U.S. District Judge

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