Saint Tropez Inc. v. Ningbo Maywood Industry and Trade Co., Ltd. et al

Filing 68

MEMORANDUM AND ORDER denying 39 Motion for Default Judgment; denying 22 Motion to Dismiss. Accordingly, for the foregoing reasons, we deny Ningbo's motion to dismiss the Complaint and deny without prejudice plaintiff's motion for default judgment against Retro Fox. (Signed by Judge Naomi Reice Buchwald on 7/16/2014) Copies Mailed by Chambers. (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
SAINT TROPEZ INC.,
Plaintiff,
MEMORANDUM AND ORDER

- against -

13 Civ. 5230 (NRB)

NINGBO MAYWOOD INDUSTRY AND TRADE CO.,
LTD. and RETRO FOX NEW YORK LLC,
Defendants.
---------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

On

July

(“plaintiff”)

26,
filed

2013,
this

plaintiff
action

Saint

against

Tropez

defendants

Inc.
Ningbo

Maywood Industry and Trade Co., Ltd. (“Ningbo”) and Retro Fox
New

York

LLC

(“Retro

Fox”)

to

obtain

damages

and

various

equitable relief as a result of Ningbo’s failure to properly
manufacture and deliver certain trademarked apparel identified
in two purchase order contracts.

The Complaint alleges that

roughly 41 percent of the goods identified in the contracts
were never delivered to plaintiff, and that those goods that
were delivered arrived late and were nonconforming.

In order

to mitigate its claimed damages, plaintiff moved by order to
show cause for seizure of the undelivered goods, which had been
shipped to Retro Fox, Ningbo’s New York-based consignee.

On

August 8 and 22, 2013, the Court ordered the goods seized.

On

October

10,

2013,

after

neither

defendant

had

made

an

appearance in the case, the Court permitted plaintiff to sell
the seized goods, and ordered that the proceeds be held in
escrow.
Retro Fox has not responded to the Complaint and has not
appeared in this action by counsel.

Ningbo appeared on October

28, 2013 for the limited purpose of opposing the jurisdiction
of

the

Court

and

moving

to

dismiss

the

Complaint.

Thus,

presently before the Court is Ningbo’s motion to dismiss the
Complaint pursuant to Federal Rule of Civil Procedure (“Rule”)
12(b)(5) for insufficient service of process, Rule 12(b)(2) for
lack of jurisdiction, and Rule 12(b)(6) for failure to state a
claim upon which relief can be granted.

Also before the Court

is plaintiff’s cross-motion for default judgment against Retro
Fox.

For

the

reasons

set

forth

below,

Ningbo’s

motion

to

dismiss the Complaint is denied and plaintiff’s cross-motion
for

default

judgment

against

Retro

prejudice.

2

Fox

is

denied

without

BACKGROUND1
I.

The Purchase Order Contracts
Plaintiff

marketing

is

company

an

apparel

manufacturing,

incorporated

in

Delaware

importing,

with

place of business in Miami Beach, Florida.

a

and

principal

Compl. ¶ 1.

On

January 16 and February 28, 2013, plaintiff entered into two
purchase

order

contracts

with

Ningbo,

a

Chinese

clothing

manufacturer, for the manufacture and delivery of goods labeled
with plaintiff’s trademarked “Black Ice” logo.

Id. ¶ 13.

The

contracts listed the goods to be delivered and provided the
following relevant information: (1) Ningbo, with an address in
China,

was

identified

as

the

vendor;

(2)

plaintiff

was

identified as the buyer, and the address listed under its name
was 214 West 39th Street in Manhattan, which is the address of
plaintiff’s exclusive sales and operations agent, Commonwealth
Licensing Corporation (“Commonwealth”) (Jacklone Aff. ¶ 1); (3)
in the “Ship To” field, the contracts simply stated, “TBA”2; (4)

1

While the following facts are derived primarily from the Complaint
(“Compl.”) and the exhibits annexed thereto, we also cite to the Declaration
of Michael Gruber (“Gruber Decl.”), filed July 31, 2013, and the exhibits
annexed thereto; the Affidavit of Dean Jacklone (“Jacklone Aff.”), filed
December 26, 2013; the Affidavits of Steven Ki, filed on December 26, 2013
(“2013 Ki Aff.”), January 23, 2014 (“Jan. 2014 Ki Aff.”), and March 31, 2014
(“March 2014 Ki Aff.”), and the exhibits annexed thereto; and the Affidavits
of Yafei Ge, filed on November 26, 2013 (“2013 Ge Aff.”), January 9, 2014
(“Jan. 2014 Ge Aff.”), and April 2, 2014 (“April 2014 Ge Aff.”).
2 However, three of the four bills of lading list “New York, NY” as both the
place of delivery and the port of discharge (the other lists “Los Angeles,
CA”).
Gruber Decl., Exs. 2-5.
The bills of lading also list Retro Fox,
with an address in Flushing, New York, as the consignee of the goods. Id.

3

the contracts also stated that the goods were to be “LDP – NJ”3
and “In warehouse”4 by “6/6/2013” and “6/18/2013”; and (5) the
total

price

$954,000.
II.

for

the

contracts

was

listed

at

approximately

Compl., Exs. A, B.

The Negotiation of the Contracts
Dean Jacklone, an officer and principal of Commonwealth,

stated

in

an

affidavit

that,

while

working

on

behalf

of

plaintiff, he negotiated the contracts in New York with two
individuals who represented Ningbo: Steven Ki, Ningbo’s sales
agent, and Yafei Ge, Ningbo’s CEO.

Jacklone Aff. ¶¶ 5, 8.

In

addition to meeting with Ki and Ge in New York on several
occasions, Jacklone stated that he also negotiated with Ge’s
business partner Helen, who was in China.
to

Jacklone,

the

parties

delivered to New York.
Ki

submitted

Id. ¶ 5.

According

the

goods

were

to

corroborating

these

assertions.

agreed

that

be

Id. ¶¶ 5, 14.

affidavits

See 2013 Ki Aff.; Jan. 2014 Ki Aff.

Specifically, he stated:

(1) that he managed Ningbo’s sales and customer relationships
in New York; (2) that he helped Ningbo secure the purchase
order contracts with plaintiff; (3) that Ge and Helen directed
Invoices sent to Retro Fox further identify New York as the port of
discharge. Id., Exs. 2-4.
3
“LDP” is an abbreviation for “landed duty paid.”
According to Dean
Jacklone, the Commonwealth employee who negotiated the contracts on
plaintiff’s behalf, “LDP – NJ” means that “the Customs port of entry for the
goods would be the Port of New York and New Jersey, where container ships
dock and unload.” Jacklone Aff. ¶ 12.
4 The contracts do not specify the location of the warehouses.

4

him not to accept prices lower than certain amounts or agree to
delivery schedules without their consent; (4) that Ningbo had
agreed to pay him a commission for his work; (5) that he had
several meetings with Ge and Jacklone in New York regarding the
contracts with plaintiff; (6) that Ge was frequently in New
York for business, including Ningbo’s business with plaintiff,
and was in New York for a multi-month period when plaintiff’s
purchase orders were generated and in process; and (7) that
when

Ge

was

in

New

York,

she

Manhattan’s Garment District.
Aff.; March 2014 Ki Aff.

worked

out

of

an

office

in

See 2013 Ki Aff.; Jan. 2014 Ki

Attached to one of Ki’s affidavits

were emails between Ki, Ge, and Helen which supported Ki’s
statements regarding Ge’s presence in New York and Ki’s work as
a commissioned sales agent for Ningbo.

See Jan. 2014 Ki Aff.,

Exs. A-G.
Ge, in her affidavit, acknowledged that she did travel to
New York5 and at least once spoke to Ki in person.

Jan. 2014 Ge

Aff.

negotiations

¶

14.

regarding
email.
also

However,

the

she

contracts

claimed

with

that

plaintiff

all

were

conducted

2013 Ge Aff. ¶¶ 10-12; Jan. 2014 Ge Aff. ¶ 18.

argued

that

Ki,

who

“often

5

facilitated

via
She

communications”

In fact, an email between Ge (also known as “Jaen”), Helen, and Ki reveals
that Ge had a cell phone with a New York City area code. See 2013 Ki Aff.,
Ex. G.

5

between Ningbo and plaintiff, was neither an employee nor an
agent of Ningbo.6

Jan. 2014 Ge Aff. ¶¶ 6, 17, 19.

III. Ningbo’s Alleged Breach and the Instant Suit
According to the Complaint, 59 percent of the goods were
delivered to plaintiff, albeit late and with numerous defects.
Compl. ¶ 8.

The other 41 percent, which were shipped but not

delivered, were held in warehouses, consigned to Retro Fox.
Id.

¶

9.

Plaintiff

had

arranged

to

sell

the

customer in New York at a profit of $341,250.
Jacklone Aff. ¶ 5.
timely

delivery

goods

to

a

Id. ¶¶ 24, 28;

However, because of Ningbo’s failure to

non-defective

canceled its order.

goods,

Compl. ¶ 28.

plaintiff’s

customer

Consequently, plaintiff

alleges damages of $341,250 in lost profits plus an additional
$12,000 in warehouse charges and other expenses.

Id. ¶ 24.

On July 26, 2013, plaintiff sued Ningbo for breach of
contract

and

conversion

of

goods,

and

Retro

Fox

for

interference with contract, and requested an order of replevin
or for specific performance so that it could obtain and sell
the undelivered goods.

Also on July 26, plaintiff moved by

order to show cause for seizure of the goods.

Later that day,

another District Judge, sitting in Part I, signed the order to
show cause.
6

However, emails between Ge, Helen, and Ki show that Ningbo had arranged to
pay Ki a commission for his work involving the contracts with plaintiff.
See 2013 Ki Aff., Ex. D; Jan. 2014 Ge Aff., Ex. 1.

6

IV.

Service of Process
Plaintiff

served

Retro

Fox

on

July

29,

2013

via

UPS

overnight mail (ECF No. 12), and again on August 2, 2013 by
“nail and mail” service (ECF No. 8).

Plaintiff attempted to

effectuate service on Ningbo by mailing a copy of the summons
and complaint to Ningbo at its address in China and to Retro
Fox’s address in New York (under the theory that Retro Fox
could accept service on Ningbo’s behalf).
In addition, on July 29, 2013, Jacklone provided a copy of
the

summons,

complaint,

and

order

to

show

Jacklone Aff. ¶¶ 19, 20; 2013 Ki Aff. ¶ 22.

cause

to

Ki.

Ki stated that he

gave these documents to Ge later that day in an office on West
37th Street in Manhattan where Ge frequently worked when she was
in New York.

March 2014 Ki Aff. ¶ 2.

Ki also helped Ge find

an attorney in Flushing, New York to represent Ningbo.
Aff.

¶

22.

At

a

hearing

on

May

20,

2014,7

the

2013 Ki
attorney,

Terrence Worms, testified that he had spoken with Ki on the
phone and had met with Ge on two occasions in August 2013 to
discuss the possibility of representing Ningbo.8
15.

Tr. 5, 9, 13-

Worms further testified that Ge had given him a copy of

the summons and complaint before one of their meetings.
19.

Tr.

The testimony of Worms, combined with the affidavits of

7

References preceded by “Tr.” refer to the transcript of the hearing held on
May 20, 2014 regarding service of process.
8 Ultimately, Ningbo did not to retain Worms.
Tr. 10.

7

Jacklone and Ki, provide convincing evidence that Ge was served
with process.9
V.

Tr. 25, 26.

Seizure of the Goods
After the time expired for Ningbo and Retro Fox to respond

to the Complaint and order to show cause, the Court ordered the
goods seized and permitted them to be sold, provided that the
proceeds would be held in escrow pending the outcome of the
litigation or further order of the Court.
plaintiff’s

counsel

informed

the

On October 31, 2013,

Court

in

a

telephone

conference that all of the goods had been sold.

During a

telephone conference on April 9, 2014, counsel stated that the
proceeds of the sales amounted to approximately $100,000.
VI.

The Present Motions
On

November

25,

2013,

Ningbo

moved

to

dismiss

the

Complaint and to vacate the prior orders of the Court on three
grounds: first, that Ningbo was not properly served under the
Hague

Convention;

jurisdiction
sufficient
Complaint
incorrectly

second,

over

Ningbo

contacts
fails

to

relies

that

the

Court

lacks

because

the

company

does

with

New

York;

and

cause

of

action

state
on

not

finally,

a

personal

the

Uniform

Commercial

that

because
Code

have
the
it

(“UCC”)

rather than the United Nations Convention on Contracts for the
9

Although Ge, in an affidavit, denied receiving a copy of the summons and
complaint, the evidence is otherwise, as the Court so found at the May 20
hearing. Tr. 25, 26.

8

International Sale of Goods (“CISG”).
plaintiff

filed

its

opposition

and

On December 26, 2013,
cross-moved

for

default

judgment against Retro Fox.
DISCUSSION
I.

Motion to Dismiss Under Rule 12(b)(5)
Ningbo first argues that the Complaint should be dismissed

because plaintiff’s attempt to serve it through registered mail
does

not

Judicial

comply
and

with

the

Extrajudicial

Convention
Documents

on
in

Service
Civil

or

Abroad

of

Commercial

Matters (the “Hague Convention”), Nov. 15, 1965, 20 U.S.T. 361,
T.I.A.S.

6638.

While

Ningbo

is

correct

that

the

Hague

Convention applies to service abroad on a Chinese corporation,
and that plaintiff failed to follow the proper procedures for
serving process under that Convention, service was nonetheless
properly effected here through the delivery of the summons and
complaint to Ge, Ningbo’s CEO.

Indeed, under Rule 4(h)(1)(B),

a foreign corporation may be served in a judicial district of
the United States “by delivering a copy of the summons and
complaint to an officer or agent authorized to receive service
of process.”

See Volkswagenwerk Aktiengesellschaft v. Schlunk,

486 U.S. 694, 707 (1988) (“The only transmittal to which the
[Hague]

Convention

required
testimony

as
of

a

applies

necessary
Worms

and

is

a

part
the

of

transmittal
service.”).

affidavits

9

abroad

of

that

Because

Jacklone

and

is
the
Ki

demonstrate that Ge was furnished with a copy of the summons
and complaint while she was in New York, we hold that plaintiff
has

satisfied

its

burden

of

proving

adequate

service.10

Dickerson v. Napolitano, 604 F.3d 732, 752-53 (2d Cir. 2010)
(“When a defendant moves to dismiss under Rule 12(b)(5), the
plaintiff

bears

the

burden

(internal

alterations

and

of

proving

quotation

adequate

marks

service.”

omitted)).

We

therefore deny Ningbo’s motion to dismiss the Complaint under
Rule 12(b)(5).
II.

Motion to Dismiss Under Rule 12(b)(2)
Ningbo also contends that the Complaint must be dismissed

because the Court lacks personal jurisdiction over it.

To

defeat a Rule 12(b)(2) motion to dismiss for lack of personal
jurisdiction before discovery is conducted, a plaintiff “need
only

make

personal
Carozzi

a

prima

facie

jurisdiction
N.A.,

Inc.,

showing

over

the

286

F.3d

that

the

court

defendant.”
81,

84

possesses

DiStefano

(2d

Cir.

v.

2001).

“Plaintiffs can make this showing through their own affidavits
and supporting materials . . . that, if credited, would suffice
to establish jurisdiction over the defendant.”

In re Ski Train

Fire in Kaprun, Austria on Nov. 11, 2000, 230 F. Supp. 2d 376,
10

We therefore need not address plaintiff’s argument that Ki was an agent
who could receive service of process on behalf of Ningbo.
If he was an
agent, then service was properly effected by Jacklone’s delivery of the
summons and complaint to him.
If he was not an agent, then he was an
appropriate person under Rule 4(c)(2) to serve the summons and complaint on
Ge.

10

381 (S.D.N.Y. 2002) (citing Whitaker v. Am. Telecasting Inc.,
261 F.3d 196, 208 (2d. Cir. 2001)).

In deciding whether a

plaintiff has met this burden, “all allegations are construed
in the light most favorable to the plaintiff and doubts are
resolved

in

the

plaintiff’s

favor,

notwithstanding

a

controverting presentation by the moving party.”

A. I. Trade

Fin.

Cir.

v.

Petra

Bank,

989

F.2d

76,

79-80

(2d

1993).

However, where a “defendant rebuts plaintiff[’s] unsupported
allegations with direct, highly specific, testimonial evidence
regarding a fact essential to jurisdiction -- and plaintif[f]
do[es]

not

counter

deemed

refuted.”

that

evidence

Merck

&

Co.,

--

the

Inc.

allegation
v.

Mediplan

may

be

Health

Consulting, Inc., 425 F. Supp. 2d 402, 420 (S.D.N.Y. 2006).
“In deciding a question of personal jurisdiction, district
courts must conduct a two-part analysis, looking first to the
state’s

long-arm

statute

and

then

analyzing

jurisdiction comports with federal due process.”

whether

Mario Valente

Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 264 F.3d
32, 37 (2d Cir. 2001).
A. New York’s Long-Arm Statute
Under New York’s long-arm statute, a New York court may
exercise personal jurisdiction over a non-domiciliary who in
person or through an agent: (1) “transacts any business within
the

state”;

or

(2)

“contracts

11

anywhere

to

supply

goods

or

services

in

the

state.”

N.Y.

C.P.L.R.

§

302(a)(1).

For

jurisdiction under this statute, the claims must arise out of
the acts that form the basis for personal jurisdiction.

Id.

As discussed below, plaintiff has adequately made a prima facie
showing of personal jurisdiction under both the “transacting
business” and “supplying goods” prongs.
1. Ningbo Transacted Business in New York
“A nondomiciliary ‘transacts business’ under C.P.L.R. §
302(a)(1) when he purposefully avails himself of the privilege
of conducting activities within New York, thus invoking the
benefits and protections of its laws.”
Naughton,

806

F.2d

361,

365

(2d

CutCo Indus., Inc. v.
Cir.

alterations and quotation marks omitted).

1986)

(internal

“No single event or

contact connecting the defendant to the forum state need be
demonstrated; rather, the totality of all defendant’s contacts
with

the

forum

state

must

indicate

jurisdiction would be proper.”

Id.

that

the

exercise

of

“While the defendant need

not be physically present in the state for a court to exercise
personal

jurisdiction,

there

must

be

some

transaction

attributable to the one sought to be held which occurs in New
York.”

JP Morgan Chase Bank, N.A. v. Law Office of Robert Jay

Gumenick, P.C., 08 Civ. 2154 (VM), 2011 U.S. Dist. LEXIS 46319,
at *12-13 (S.D.N.Y. Apr. 21, 2011) (internal quotation marks
omitted).

“[T]he overriding criterion necessary to establish a

12

transaction of business is some act by which the defendant
purposefully

avails

itself

of

activities within New York.”

the

privilege

of

conducting

Licci ex rel. Licci v. Lebanese

Canadian Bank, SAL, 673 F.3d 50, 61 (2d Cir. 2012) (internal
quotation marks omitted).
Plaintiff alleges several examples of Ningbo transacting
business in New York: Ki, acting as Ningbo’s sales agent,11
frequently met with Jacklone, plaintiff’s agent, in New York to
negotiate

the

terms

of

the

purchase

order

contracts;

Ge,

Ningbo’s CEO, traveled to New York to participate in several of
these

negotiations;

and

Ningbo

arranged

to

have

Retro

Fox,

located in Flushing, New York, serve as the consignee of the
goods, which, according to the bills of lading, were to be
delivered

to

New

York

and

eventually

sold

to

plaintiff’s

customer in New York.
These
transacted

are

legally

business

in

sufficient
New

York.

11

allegations
See

SAS

that

Group,

Ningbo
Inc.

v.

As dictated by the statute, the transaction of business can be conducted
either by defendant “in person or through an agent.”
N.Y. C.P.L.R. §
302(a)(1). The term “agent” is broadly interpreted in this context. Grove
Press, Inc. v. Angleton, 649 F.2d 121, 122 (2d Cir. 1981).
Rather than
require a formal agency relationship, the Court looks to the realities of
the commercial situation.
CutCo, 806 F.2d at 366.
To be considered an
agent for jurisdictional purposes, one must have transacted business in New
York “for the benefit of, and with the knowledge and consent of” the
defendant.
Id.
Under this standard, Ki qualifies as Ningbo’s agent, and
his actions may be imputed to Ningbo. The fact that he was never ultimately
paid a commission for his work is of no moment.
Scholastic, Inc. v.
Stouffer, No. 99 Civ. 11480 (AGS), 2000 U.S. Dist. LEXIS 11516, at *18-19
(S.D.N.Y. Aug. 14, 2000) (finding agency relationship despite the fact that
agent was never paid for his services).

13

Worldwide Inventions, Inc., 245 F. Supp. 2d 543, 549 (S.D.N.Y.
2003)

(“[C]ontract

302(a)(1)

if

the

negotiations
discussions

in

New

York

substantially

will

satisfy

advanced

or

§

were

essential to the formation of the contract or advanced the
business

relationship

to

a

more

solid

level.”

(internal

alterations and quotations marks omitted)); Scholastic, Inc.,
2000 U.S. Dist. LEXIS 11516, at *13 (activity sufficient to
establish

a

jurisdictional

presence

“may

include

the

solicitation of business by defendants, contract negotiations
between the parties, meetings at which defendants were present,
or

letters

sent

and

phone

calls

made

by

defendants

to

plaintiffs”).
Moreover, there is no question that these activities are
closely connected to plaintiff’s claims against Ningbo, thus
satisfying § 302(a)(1)’s requirement that each cause of action
must arise out of the acts that form the basis for personal
jurisdiction.

See Best Van Lines, Inc. v. Walker, 490 F.3d

239, 246 (2d Cir. 2007) (“[A} suit will be deemed to have
arisen out of a party’s activities in New York if there is an
articulable nexus, or a substantial relationship, between the
claim

asserted

and

the

actions

that

(internal quotation marks omitted)).

14

occurred

in

New

York”

Accordingly,
exercise

the

personal

Court

finds

jurisdiction

over

sufficient
Ningbo

grounds

pursuant

to

to
the

“transacting business” prong of § 302(a)(1).
2. Ningbo Contracted to Supply Goods in New York
The “supplying goods” prong of § 302(a)(1) provides an
additional
Under

this

ground

upon

prong,

which

to

a

defendant

find
may

personal

be

subject

jurisdiction.
to

personal

jurisdiction in New York if it “contracts anywhere to supply
goods . . . in the state.”

N.Y. C.P.L.R. § 302(a)(1).

Here,

although the two purchase order contracts at issue say “LDP –
NJ,” and the goods were ultimately sent to warehouses in New
Jersey and California, plaintiff has offered several reasons to
believe that Ningbo intended for the goods to be shipped to New
York.

First, three of the four bills of lading list New York

as the place of delivery and the port of discharge.
Decl., Exs. 2-4.

Gruber

The bills of lading also list Retro Fox, with

its New York address, as the consignee.

Id.

Invoices sent to

Retro Fox confirm that New York was the designated port of
discharge.

Id.

Finally, Jacklone stated in his affidavit that

he “obtained Ningbo’s commitment to specially manufacture and
deliver to New York the goods,” and that “LDP – NJ” meant that
the “Customs port of entry for the goods would be the Port of
New York and New Jersey.”

Jacklone Aff. ¶¶ 5, 12.

These

statements are supported by an email attached to his affidavit

15

in which Helen, Ningbo’s co-owner, indicated her understanding
that the port of discharge for the goods was supposed to be New
York.

Jacklone Aff., Ex. 1 (“The port should be N.Y [sic] not

LA ,[sic] right?”).
APC Commodity Corp. v. Ram Dis Ticaret A.S., 965 F. Supp.
461 (S.D.N.Y. 1997), is instructive on this issue.

In that

case, the Court found that the defendant had contracted to
supply goods to New York even though the goods were ultimately
shipped to Port Elizabeth, New Jersey.
465.

APC, 965 F. Supp. at

The Court relied on a fax sent by the plaintiff to the

defendant

providing

for

“C&F

NY,”

invoices

sent

by

the

defendant stating “CFR / New York,” and bills of lading which
listed New York as the port of discharge.

Id.

that

at

this

“purposeful

sufficient

to

302(a)(1)].”
418,

425

confer

activity
personal

directed

jurisdiction

The Court held
New

York

pursuant

[wa]s
to

[§

Id.; see also Bohn v. Bartels, 620 F. Supp. 2d

(S.D.N.Y.

2007)

(“New

York

courts

may

exercise

jurisdiction over a nondomiciliary who contracts outside this
State to supply goods or services in New York even if the goods
are never shipped or the services are never supplied in New
York” (internal quotation marks omitted)); Laumann Mfg. Corp.
v. Castings USA, 913 F. Supp. 712, 717 (E.D.N.Y. 1996) (“The
key issue is that the nondomiciliary contracted and intended to
send goods to New York.”).

16

Thus,

we

find

that

plaintiff

has

made

a

prima

facie

showing that Ningbo contracted to supply goods in New York.
Because plaintiff’s claims arose out of these contracts, we
hold that the Court has personal jurisdiction over Ningbo under
the second prong of § 302(a)(1).
B. Due Process is Satisfied
Having concluded that there is an adequate basis for the
exercise of personal jurisdiction over Ningbo, the Court must
next determine whether the exercise of jurisdiction over it
comports

with

Amendment,

the

which

purposefully

Due

Process

requires

avails

“some

itself

of

Clause
act

the

by

of

the

which

privilege

the
of

Fourteenth
defendant
conducting

activities within the forum State, thus invoking the benefits
and protections of its laws.”

Burger King Corp. v. Rudzewicz,

471 U.S. 462, 475 (1985) (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
separate

the

question,

constitutional
“[o]rdinarily

17

due
.

.

process
.

if

issue

is

jurisdiction

a
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

(S.D.N.Y. 1997).

J.

Verburg

Co.,

961

F.

Supp.

88,

90

Here, Ningbo had sufficient minimum contacts

with New York that the exercise of personal jurisdiction over
it satisfies due process for the same reasons discussed above:
Ki and Ge negotiated the contracts with Jacklone in New York,
Ningbo designated New York as the place of delivery and port of
discharge for most of the goods, and Ningbo consigned the goods
to Retro Fox.

See Chloe, 616 F.3d at 171 (concluding that

“assertion of personal jurisdiction over [defendant] comports
with due process for the same reasons that it satisfies New
York’s long-arm statute”).
With respect to the reasonableness inquiry, even where an
out-of-state defendant is deemed to have purposefully availed
itself 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’

reasonable under the Due Process Clause.”

and

is

thus

Id. at 173 (quoting

Asahi Metal Indus. Co. v. Superior Court of Cal., Solano Cnty.,
480 U.S. 102, 113 (1987)).

In determining the reasonableness

of exercising jurisdiction, courts must consider the following
factors: (1) “the burden on the defendant,” (2) “the interests
of the forum State,” (3) “the plaintiff’s interest in obtaining

18

relief,”

(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.”
113

(internal

elements

for

quotation

marks

jurisdiction

Asahi, 480 U.S. at

omitted).

have

been

“Where
met,

the

other

dismissals

reasonableness grounds should be ‘few and far between.’”

on

Gucci

Am., Inc. v. Frontline Processing Corp., 721 F. Supp. 2d 228,
246

(S.D.N.Y.

2010)

(quoting

Metropolitan

Life

Ins.

Co.

v.

Robertson-Ceco Corp., 84 F.3d 560, 575 (2d Cir. 1996)).
Although there may be some burden on Ningbo in defending
itself

in

New

York,

its

decision

to

conduct

substantial

business here suggests that it is not an unreasonable burden.
See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305
F.3d 120, 129-30 (2d Cir. 2002) (“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.” (internal quotation
marks omitted)).

The second factor appears to be neutral in

this case, as do the fourth and fifth factors.
factor

favors

keeping

New

York

as

the

forum

And the third
state

since

plaintiff has a strong interest in obtaining redress for its

19

claims, and New York may be the only place in the United States
in which Ningbo is subject to personal jurisdiction on these
claims.

Moreover,

New

York

is

where

key

witness

such

as

Jacklone and Ki are located and where Ningbo’s consignee and
codefendant Retro Fox is headquartered.
Having considered these factors, the Court concludes that
this is not one of the few and far between cases in which the
exercise of jurisdiction would be unreasonable despite the fact
that plaintiff has satisfied the state law and minimum contacts
analyses.
Ningbo

In short, the exercise of personal jurisdiction over

“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

(internal citation and quotation marks omitted).
III. Motion to Dismiss Under Rule 12(b)(6)
Finally, Ningbo moves to dismiss the Complaint pursuant to
Rule 12(b)(6) on the grounds that plaintiff improperly brought
this action under the UCC rather than the CISG.

On a motion to

dismiss under Rule 12(b)(6), the Court must accept as true all
factual allegations in the complaint and draw all reasonable
inferences in the plaintiff’s favor.

ATSI Commc’ns, 493 F.3d

at 98; Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d
Cir. 1998).

20

The

CISG

is

“a

self-executing

treaty,

binding

on

all

signatory nations, that creates a private right of action in
federal

court

under

federal

law.”

Hanwha

Corp.

v.

Cedar

Petrochemicals, Inc., 760 F. Supp. 2d 426, 430 (S.D.N.Y. 2011).
It

“automatically

applies

to

international

sales

contracts

between parties from different contracting states unless the
parties

agree

to

exclude

its

application.”

Weihai

Textile

Group Imp. & Exp. Co. v. Level 8 Apparel, LLC, No. 11 Civ. 4405
(ALC), 2014 U.S. Dist. LEXIS 53688, at *15 (S.D.N.Y. Mar. 28,
2014)

(internal

alterations

and

quotation

marks

omitted).

Plaintiff is located in the United States and Ningbo is located
in China, both of which are signatories to the CISG.
at

*16

(noting

signatories).

both

the

United

States

and

China

See id.,
are

CISG

There is no allegation that the parties agreed

to exclude the application of the CISG to the contracts at
issue in this case.

Thus, plaintiff’s claims are governed by

the CISG.12
Ningbo argues that the Complaint must be dismissed because
it is erroneously premised on the applicability of the UCC.
However, the Complaint cites neither the CISG nor the UCC.13

12

Unfortunately, “there are few cases discussing claims arising under the
CISG.”
Profi-Parkiet Sp. Zoo v. Seneca Hardwoods LLC, No. 13 Civ. 4358
(PKC)(LB), 2014 U.S. Dist. LEXIS 71289, at *10 (E.D.N.Y. May 23, 2014).
However, “the available case law establishes . . . that federal district
courts have subject matter jurisdiction over such claims.” Id.
13 Although plaintiff relied on the UCC in its applications to seize and sell
the goods, it did not explicitly rely on it in the Complaint.

21

Rather, it simply alleges that Ningbo failed to timely deliver
conforming goods as required by its contracts with plaintiff,
and seeks various forms of equitable relief, including replevin
and specific performance, to mitigate the resulting damages.
This is not incompatible with the CISG.
Indeed, the CISG permits buyers to obtain damages when
sellers breach their contractual obligations, and it does not
prohibit a court from ordering replevin, specific performance,
or

other

damages.

equitable

relief

when

necessary

to

mitigate

those

Under the CISG, “[t]he seller must deliver the goods,

[] if a date is fixed by or determinable from the contract, on
that date,” CISG art. 33(a), and “must deliver goods which are
of

the

quantity,

quality

and

description

required

by

the

contract and which are contained or packaged in the manner
required by the contract,” id. art. 35(1).

“The seller is

liable in accordance with the contract and [the CISG] for any
lack

of

conformity

which

exists

passes to the buyer . . . .”

at

the

time

Id. art. 36(1).

when

the

risk

“If the seller

fails to perform any of its obligations under the contract or
[the

CISG],

45(1)(b)

--

the

buyer

which

may

“consist

.

.

.

claim

of

a

sum

damages,”
equal

to

id.
the

art.
loss,

including loss of profit, suffered . . . as a consequence of
the breach,” id. art. 74 -- and “may require performance by the

22

seller of his obligations,” id. art. 46(1).14
permits

plaintiff

to

seek

damages

for

Thus, the CISG

Ningbo’s

failure

to

satisfy its contractual obligations and authorizes the Court to
order specific performance.
Therefore, because the Complaint states claims and seeks
relief

that

are

not

inconsistent

with

the

CISG,

we

deny

Ningbo’s motion to dismiss the Complaint under Rule 12(b)(6).
IV.

Plaintiff’s Cross-Motion for Default Judgment Against
Retro Fox
Lastly, we address plaintiff’s cross-motion for default

judgment against Retro Fox, which has not appeared in this
action despite having been served with process on August 2,
2013.

Plaintiff alleges that Retro Fox interfered with its

contracts “by refusing to allow Plaintiff its goods,” and seeks
damages “in at least the sum of $75,000 to be proven at trial.”
Compl. ¶ 43.
If plaintiff wishes to pursue a default judgment against
Retro Fox, it must first seek a certificate of default from the
Clerk of Court and then submit a proposed order of default
judgment to this Court pursuant to Rule 55 and Local Civil Rule
55.2.

Because

plaintiff

has

not

14

followed

these

procedural

Notably, the CISG allows courts to look to domestic law when deciding
whether to order specific performance. Article 28 states in pertinent part
that “a court is not bound to enter a judgment for specific performance
unless the court would do so under its own law in respect of similar
contracts of sale not governed by this Convention.” CISG art. 28.

23

requirements, we deny its motion without prejudice to renewal
upon compliance with the applicable rules.

See Kendall v.

Cuomo, 12 Civ. 3438 (ALC), 2013 U.S. Dist. LEXIS 138424, at *4
(S.D.N.Y. Sept. 26, 2013) (holding that because plaintiff had
not “sought, nor been issued, a certificate of default from the
Clerk of the Court . . . he did not meet the first step for
obtaining an entry of default judgment and his motion must be
denied”); Badalamenti v. Country Imported Car Corp., No. 10
Civ. 4993 (SJF), 2012 U.S. Dist. LEXIS 46267, at *6-7 (E.D.N.Y.
Feb. 22, 2012) (denying motion for default judgment due to
plaintiff’s

failure

to

append

the

Clerk’s

certificate

of

default).
However, if plaintiff pursues a default judgment against
Retro Fox, it should be aware that a determination of damages
will not be made until after the claims against Ningbo are
resolved,

and

will

require,

at

a

minimum,

a

hearing

to

determine how and to what extent Retro Fox caused plaintiff
damages.

See Long Island Hous. Servs. v. Greenview Props., No.

07 Civ. 0352 (ADS)(WDW), 2007 U.S. Dist. LEXIS 95976, at *2
(E.D.N.Y. Dec. 3, 2007), Report and Recommendation, adopted by
2008 U.S. Dist. LEXIS 5704 (E.D.N.Y. Jan. 11, 2008) (“When
there are multiple defendants who may be jointly and severally
liable for damages alleged by plaintiff, and some but less than
all of those defendants default, the better practice is for the

24

district court to stay its determination of damages against the
defaulters until plaintiff’s claim against the nondefaulters is
resolved.”).
Moreover,

because

the

Complaint

seeks

monetary

damages

against Retro Fox “in at least the sum of $75,000 to be proved
at trial,” and provides no basis for calculating these damages,
a default judgment will be limited to $75,000.

See Fed. R.

Civ. P. 54(c) (“A default judgment must not differ in kind
from,

or

exceed

in

amount,

what

is

demanded

in

the

pleadings.”); Silge v. Merz, 510 F.3d 157, 160 (2d Cir. 2007)
(“By limiting damages to what is specified in the ‘demand for
judgment,’

[Rule

54(c)]

ensures

that

a

defendant

who

is

considering default can look at the damages clause, satisfy
himself that he is willing to suffer judgment in that amount,
and then default without the need to hire a lawyer.”); Berkley
Reg’l Ins. Co. v. James T. Redding, Inc., No. ELH-12-2578, 2013
U.S. Dist. LEXIS 144205, at *2-3 (D. Md. Oct. 3, 2013), Report
and Recommendation, adopted by 2013 U.S. Dist. LEXIS 150640 (D.
Md.

Oct.

21,

2013)

(requiring

plaintiff

to

file

amended

complaint in order to obtain default judgment in excess of
amount demanded in original complaint despite use of the term
“at least” before the amount); 10 Moore’s Federal Practice §
55.34 (3d ed. 2014) and cases cited therein.

25

CONCLUSION

Accordingly,
motion

to

dismiss

for

the

the

foregoing

Complaint

reasons,

and

deny

we

deny Ningbo' s

without

prejudice

plaintiff's motion for default judgment against Retro Fox.

Dated:

New York, New York
July 16, 2014

NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

Copies of the foregoing Order have been mailed on this date to
the following:
Attorneys for Plaintiff

Richard Turyn, Esq.
Daniele Dermesropian, Esq.
Ballon Stoll Bader & Nadler, P.C.
729 Seventh Avenue, 17th Floor
New York, NY 10019
Attorney for Defendant Ningbo

Ripal J. Gajjar, Esq.
Law Offices of Joe Zhenghong Zhou and Associates, PLLC
136-20 38th Avenue, Suite lOH
Flushing, NY 11354

26