Ahmed v. Purcell
Filing
70
OPINION AND ORDER re: 44 FIRST MOTION to Dismiss or Improper Venue or, in the alternative, Transfer Venue filed by Stephen Nathanael Purcell, 45 FIRST MOTION to Dismiss for Lack of Jurisdiction for Defendant Stephen Purcell . FIRST MOTION to Dismiss for Failure to State a Claim filed by Stephen Nathanael Purcell: For the foregoing reasons, Defendant's motion to dismiss under Rule 12(b)(6) and Rule 12(b)(2) is GRANTED. Plaintiff's fifth cause of action is dismissed under Federal Rule of Civil Procedure 12(b)(6), and Plaintiff's remaining causes of action are dismissed under Federal Rule of Civil Procedure 12(b)(2). The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 3/14/2016) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------X
:
SHAWN AHMED,
:
:
:
Plaintiff,
:
:
v.
:
STEPHEN NATHANAEL PURCELL,
:
:
Defendant. :
:
----------------------------------------------------- X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: March 14, 2016
______________
14 Civ. 7491 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
This case grew out of the troubled relationship between Plaintiff Shawn
Ahmed and Defendant Stephen Purcell, a relationship that began online in July
2011, involved a single month of in-person contact, and ended shortly
thereafter. On September 16, 2014, Plaintiff filed the instant action, seeking a
declaration that his conduct toward Defendant was not tortious, as well as
monetary relief for Defendant’s conduct toward him. On June 30, 2015,
Defendant filed a motion to dismiss one cause of action for failure to state a
claim on which relief could be granted and to dismiss the remaining causes of
action for lack of personal jurisdiction. Defendant also filed a motion to
dismiss the entire case for improper venue or, in the alternative, to transfer the
case to the United States District Court for the District of Arizona. For the
reasons set forth in the remainder of this Opinion, Defendant’s motions to
dismiss for failure to state a claim and lack of personal jurisdiction are
granted. As a result, there is no need for the Court to consider whether venue
lies in the Southern District of New York.
BACKGROUND 1
A.
Factual Background
1.
Plaintiff’s Relationship with Defendant
a.
The New York Component of the Relationship
In July 2011, Plaintiff connected with Defendant on a dating website.
(Am. Compl. ¶ 18). At the time, Plaintiff was a resident of Canada, and
Defendant was living in New Jersey. (See id. at ¶¶ 8, 59; Def. Aff. at 1).
Nevertheless, the two began to correspond online. (Am. Compl. ¶ 18).
In September 2011, Plaintiff traveled to New York City to attend a
summit for the United Nations Foundation. (Am. Compl. ¶ 23). While in New
York, Plaintiff met Defendant in person, and “for approximately one month, …
[Defendant] spent nearly every night with [Plaintiff,] first at [Plaintiff’s] hotel in
Manhattan and later in an apartment that [Plaintiff’s] friend had rented for
1
The facts contained in this Opinion are drawn from the Amended Complaint (“Am.
Compl.”) (Dkt. #32), and are taken as true for purposes of the pending motion. Faber v.
Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (when reviewing a complaint for
failure to state a claim, the court will “assume all well-pleaded factual allegations to be
true” (internal quotation marks omitted)). Furthermore, “because a motion to dismiss
for lack of personal jurisdiction requires the resolution of factual issues outside the
pleadings, the Court considers other relevant submissions from the parties at this
stage.” Elsevier, Inc. v. Grossman, 77 F. Supp. 3d 331, 338 n.1 (S.D.N.Y. 2015) (internal
quotation marks and citation omitted); accord Dorchester Fin. Sec., Inc. v. Banco BRJ,
S.A., 722 F.3d 81, 86 (2d Cir. 2013) (per curiam) (“[W]e have made clear that a district
court may [consider materials outside the pleadings] without converting a motion to
dismiss for lack of personal jurisdiction into a motion for summary judgment.”).
Specifically, the Court will consider Plaintiff’s Affidavit (“Pl. Aff.”) (Dkt. # 53) and
Defendant’s Affidavit (“Def. Aff.”) (Dkt. #46, Ex. 1). For convenience, the Court will refer
to Defendant’s opening brief on the motions to dismiss for failure to state a claim and
lack of personal jurisdiction as “Def. Br.” (Dkt. #44); Plaintiff’s opposition brief to those
motions as “Pl. Opp.” (Dkt. #52); and Defendant’s reply brief as “Def. Reply” (Dkt. #59).
2
him.” (Id. at ¶ 24). Plaintiff alleges that, during their time together, Defendant
“physically attacked [him] on no less than three separate occasions.” (Id. at
¶ 26).
First, Plaintiff alleges that, while he and Defendant were “walking on a
public sidewalk on Eastern Parkway in Brooklyn, [Defendant] struck [Plaintiff]
on the back of the head” because Plaintiff had “made a comment or joke that
[Defendant] did not approve of.” (Am. Compl. ¶ 27). Plaintiff alleged that “[t]he
strike was both sudden and forceful enough that it took [him] by surprise and
both shocked and scared him.” (Id.).
Second, Plaintiff alleges that Defendant hit him while the two were in a
restaurant. (Am. Compl. ¶ 29). Plaintiff explains that Defendant was “angered”
by Plaintiff’s suggestion that “‘parfaits’ are merely a fancy term for ‘ice cream,’”
so he “struck [Plaintiff] on top of the head using his hand.” (Id.). Defendant
allegedly hit Plaintiff with enough force to cause a “lingering headache,” and
Plaintiff says he “felt crippled by the sheer humiliation [that] he was being
physically attacked in a restaurant.” (Id.).
Finally, Plaintiff states that Defendant struck him with a closed fist “[a]t
a residential location on Lefferts Avenue in Brooklyn.” (Am. Compl. ¶ 30).
Plaintiff also alleges, “[u]pon information and belief,” that Defendant recounted
some version of this incident “to a third party[,] saying[:] ‘I’m ashamed to admit
that during the relationship I lost my temper and hit [Plaintiff] with a pillow
harder than I had intended to.’” (Id. at ¶ 31).
3
b.
The Long-Distance Component of the Relationship
Plaintiff left New York City on October 8, 2011. (Am. Compl. ¶ 33).
Nevertheless, Plaintiff and Defendant remained in contact, in varying degrees of
intensity, between 2011 and 2013. (Id. at ¶ 37). During this time, Plaintiff
alleges that Defendant “criticize[d] [him] as too feminine and overweight.” (Id.).
According to Plaintiff, “[t]hese routine accusations and criticisms constituted a
dangerous pattern that [led] to [Plaintiff’s] routine starvation of himself.” (Id. at
¶ 38).
In addition, Plaintiff alleges that Defendant threatened to “expose
[Plaintiff’s] homosexuality” to Plaintiff’s conservative family. (Am. Compl.
¶¶ 54-57). Similarly, Plaintiff claims that Defendant “threatened to out
[Plaintiff] as gay to [a] circle of friends [Plaintiff] made through YouTube.” (Id.
at ¶ 62). Plaintiff claims that these threats to out him were particularly serious
because Plaintiff frequently travels to countries where it would be dangerous
for him to reveal his sexual orientation. (Id. at ¶¶ 13, 57-61).
Plaintiff claims that “he did not want to reveal his sexual orientation,”
but he “believed it was more important that he share his experiences of abuse
with others in the gay community … who [might] feel even more alone than
[Plaintiff[.” (Am. Compl. ¶ 68). As a result, “[i]n December 2012, [Plaintiff]
made a public video recorded statement regarding his sexual orientation and
the circumstances that led him to his forced disclosure of his homosexuality.”
(Id. at ¶ 70).
4
2.
Defendant’s Alleged Statements Regarding Minors
Plaintiff alleges that, over the course of his relationship with Defendant,
Defendant admitted to watching child pornography. (Am. Compl. ¶¶ 21, 41,
80-81). In addition “[Defendant] admitted that when he was 19 years old he
had sexual relations with at least one minor.” (Id. at ¶ 21). According to
Plaintiff, “[Defendant] threatened that if [Plaintiff] exposed [Defendant] as a
sexual deviant, [Defendant] would destroy the reputation [Plaintiff] took so long
to build.” (Id. at ¶ 97).
At some point, Plaintiff learned that Defendant was interested in a job
with a Japanese television company called NTVIC. (Am. Compl. ¶ 104). This
company “produces, among other things, content for minors.” (Id. at ¶ 105).
“Believing that [Defendant] posed a real threat to any minor working with or
near NTVIC, [Plaintiff] wrote a letter to the … company regarding [Defendant’s]
history with child pornography and relationship with at least one minor as an
adult.” (Id. at ¶ 106). NTVIC allegedly “thanked [Plaintiff] for the information
and confirmed that [Defendant] was never an employee.” (Id. at ¶ 107).
Plaintiff also began “blogging about [Defendant’s] sexual proclivities,”
though he insists that his blog posts did not mention Defendant by name.
(Am. Compl. ¶ 103). Plaintiff claims that his blogging was “a way of coping
with the stress of recalling and reporting such disturbing and distressing
conversations with [Defendant].” (Id.).
5
3.
Defendant’s Cease and Desist Letter
On July 25, 2014, Defendant sent Plaintiff a cease and desist letter.
(Am. Compl., Ex. B at 1). This letter “demand[ed]” that Plaintiff: (i) “stop
writing or e-mailing defamatory and privacy-invading statements about
[Defendant] in print or via the Internet”; (ii) “permanently delete all of the
defamatory and privacy-invading material [he had] published about [Defendant]
on the World Wide Web”; and (iii) “contact every website [Plaintiff] kn[e]w of
that mirrored or copied any of [his] publications about [Defendant] and order
them to delete them.” (Id.). The letter stated that, if Plaintiff did not comply
with these demands by Friday, August 8, 2014, Defendant would sue him “in
the United States District Court for the District of Arizona.” (Id. at 2). “At a
minimum,” the letter continued, the suit filed against Plaintiff would seek
“$700,000 in damages” for: “[i] defamation; [ii] invasion of privacy;
[iii] intentional infliction of emotion[al] distress; and [iv] intentional interference
with business relations.” (Id.). At the back of the demand letter, Defendant
included a draft of a civil complaint raising these four causes of action.
B.
Procedural Background
On September 14, 2014, Plaintiff filed the Complaint in this case, seeking
various forms of relief. (Dkt. #1). On April 17, 2015, Plaintiff filed the
Amended Complaint, seeking a declaratory judgment that Defendant did not
have an actionable claim for (i) defamation under Arizona or New York law;
(ii) public disclosure of private facts or invasion of privacy under Arizona law;
(iii) intentional infliction of emotional distress under Arizona or New York law;
6
and (iv) tortious interference with business relations under Arizona or New
York law. (Am. Compl. ¶¶ 116-38). Plaintiff also brought a cause of action for
intentional infliction of emotional distress under New York law. (Id. at ¶¶ 13945).
On June 30, 2015, Defendant filed motions to dismiss Plaintiff’s case,
arguing that: (i) the Amended Complaint fails to state a claim for intentional
infliction of emotional distress; (ii) this Court lacks personal jurisdiction over
the Defendant for Plaintiff’s remaining claims; and (iii) venue is improper in the
Southern District of New York. (Dkt. #44-45).
DISCUSSION
A.
Applicable Law
1.
Motions to Dismiss for Failure to State a Claim
When a court considers a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), it must “draw all reasonable inferences in Plaintiff[’s] favor,
assume all well-pleaded factual allegations to be true, and determine whether
they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co.,
648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted) (quoting
Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009)). A plaintiff will
survive a motion to dismiss if he alleges “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569
(2007); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007)
(“[W]hile Twombly does not require heightened fact pleading of specifics, it does
7
require enough facts to nudge [a plaintiff’s] claims across the line from
conceivable to plausible.” (internal quotation marks omitted)).
The Court is not, however, bound to accept “conclusory allegations or
legal conclusions masquerading as factual conclusions.” Rolon v. Hennenman,
517 F.3d 140, 149 (2d Cir. 2008) (citation omitted); accord Biro v. Conde Nast,
807 F.3d 541, 544 (2d Cir. 2015); see also Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009) (“[A]lthough a court must accept as true all of the allegations
contained in a complaint, that tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” (internal quotation marks omitted)).
2.
Motions to Dismiss for Lack of Personal Jurisdiction
When a defendant brings a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(2), “the plaintiff bears the burden of establishing that
the court has jurisdiction over the defendant.” DiStefano v. Carozzi N. Am.,
Inc., 286 F.3d 81, 84 (2d Cir. 2001) (citation omitted); accord In re Terrorist
Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013). “Prior to
discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the
motion by pleading in good faith, legally sufficient allegations of jurisdiction.
At that preliminary stage, the plaintiff’s prima facie showing may be established
solely by allegations.” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d
81, 84-85 (2d Cir. 2013) (per curiam) (citation omitted); accord In re Terrorist
Attacks, 714 F.3d at 673 (“In order to survive a motion to dismiss for lack of
personal jurisdiction, a plaintiff must make a prima facie showing that
8
jurisdiction exists.” (citation omitted)). All jurisdictional allegations “are
construed in the light most favorable to the plaintiff and doubts are resolved in
the plaintiff’s favor[.]” A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80
(2d Cir. 1993). However, the court “will not draw argumentative inferences in
the plaintiff's favor” and need not “accept as true a legal conclusion couched as
a factual allegation.” In re Terrorist Attacks, 714 F.3d at 673 (citations
omitted); accord Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d
50, 59 (2d Cir. 2012).
District courts deciding a motion to dismiss for lack of personal
jurisdiction must engage in a two-part analysis. First, the court must
determine whether there is “a statutory basis for exercising personal
jurisdiction.” Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 128 (2d Cir.
2013). When a court makes this determination, it “applies the forum state’s
personal jurisdiction rules” unless a federal statute “specifically provide[s] for
national service of process.” PDK Labs, Inc. v. Friedlander, 103 F.3d 1105,
1108 (2d Cir. 1997) (internal quotation marks omitted). Second, if there is a
statutory basis for personal jurisdiction, the court must decide whether the
exercise of jurisdiction comports with due process. Sonera Holding B.V. v.
Çukurova Holding A.Ş., 750 F.3d 221, 224 (2d Cir.) (per curiam), cert. denied,
134 S. Ct. 2888 (2014).
9
B.
Analysis
1.
Plaintiff Has Failed to State a Claim for Intentional Infliction
of Emotional Distress Under New York Law
“It is well established under New York law that a claim of intentional
infliction of emotional distress has a one-year statute of limitations.” Forbes v.
Merrill Lynch, Fenner & Smith, Inc., 957 F. Supp. 450, 455 (S.D.N.Y. 1997); see
also Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 491 (2007). Thus, when a
court assesses such a claim, it can only consider the defendant’s behavior in
the year before the claim was filed. See Mariani v. Consol. Edison Co. of New
York, 982 F. Supp. 267, 273 (S.D.N.Y. 1997), aff’d sub nom. Mariani v. Consol.
Edison Co., 172 F.3d 38 (2d Cir. 1998). There is only one exception to this
rule: If the defendant engaged in a course of conduct that began outside the
one-year limitations period, but ended within the limitations period, the court
may consider the defendant’s entire course of conduct. See id. at 273-74
(citing Santan-Morris v. N.Y. Univ. Med. Ctr., No. 96 Civ. 621 (MGC), 1996 WL
709577, at *4 (S.D.N.Y. Dec. 10, 1996); Drury v. Tucker, 621 N.Y.S.2d 822, 823
(4th Dep’t 1994)). For this exception to apply, however, the defendant’s actions
during the year before the plaintiff brought suit “must be sufficient to make out
a claim for intentional infliction of emotional distress, independent of those
acts that are part of the offending course of conduct but fall outside the time
bar.” Id. (internal quotation marks omitted).
Here, Plaintiff filed his claim on September 16, 2014. (Dkt. #1). As a
result, this Court must determine whether Defendant’s alleged actions after
September 16, 2013, are “sufficient to make out a claim for intentional
10
infliction of emotional distress.” Mariani, 982 F. Supp. at 273. Here, Plaintiff
only makes one allegation regarding tortious conduct that took place after
September 16, 2013. Specifically, Plaintiff alleges that Defendant sent him a
cease and desist letter, threatening to sue him if he did not delete some of his
internet posts. (Am. Compl. ¶ 108 & Ex. B; see also Pl. Opp. 18 (specifying
cease and desist letter as act falling within the limitations period)). But this
letter simply cannot support a claim for intentional infliction of emotional
distress.
In order to state a claim for intentional infliction of emotional distress
under New York law, a plaintiff must show that the defendant, “by extreme and
outrageous conduct[,] intentionally or recklessly cause[d] severe emotional
distress.” Murphy v. Am. Home Products Corp., 58 N.Y.2d 293, 303 (1983)
(quoting RESTATEMENT (SECOND) OF TORTS § 46); see also Howell v. N.Y. Post Co.,
81 N.Y.2d 115, 121 (1993). Conduct only qualifies as “extreme and
outrageous” if it is “so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.” Murphy, 58 N.Y.2d at 303
(quoting RESTATEMENT (SECOND) OF TORTS § 46, cmt. d); accord Howell, 81 N.Y.2d
at 122; Marmelstein v. Kehillat New Hempstead, 11 N.Y.3d 15, 22-23 (2008).
Applying these principles to the allegations in the Amended Complaint,
the Court concludes that Defendant’s cease and desist letter was not so
atrocious as to be “utterly intolerable in a civilized community.” Murphy, 58
N.Y.2d at 303 (quoting RESTATEMENT (SECOND) OF TORTS § 46, cmt. d). The cease
11
and desist letter was calm and direct: it set out the elements for defamation,
invasion of privacy, intentional infliction of emotional distress, and intentional
interference with business relations, and then explained why — from
Defendant’s perspective — Plaintiff’s conduct satisfied these elements. (Am.
Compl., Ex. B). The letter also informed Plaintiff that he could contact
Defendant’s attorney if he had any questions. (Id.). Thus, Defendant’s letter
cannot be considered extreme and outrageous.
Plaintiff insists that Defendant’s letter was extreme and outrageous
because it demanded that Plaintiff:
remove Internet posts that Plaintiff had no power to
remove because they were written and/or posted by
third parties on third party websites. As such, Plaintiff
reasonably interpreted the cease and desist letter as a
demand that he pay $700,000, since compliance with
Defendant’s ultimatum of removing certain posts from
the Internet was impossible to accomplish.
(Pl. Opp. 16-17). In point of fact, the cease and desist letter never asked
Plaintiff to remove material that was posted online by “third parties”; rather,
the letter asked Plaintiff to “contact” third parties and “order” them to remove
certain posts. (Am. Compl., Ex. B at 1 (emphasis added)). Defendant never
suggested that he would sue Plaintiff if the third parties failed to comply with
Plaintiff’s orders. (Id.). Similarly, although this is a finer point, the cease and
desist letter did not request, much less demand, any money from Plaintiff, and
it certainly cannot be seen as the functional equivalent of an extortion attempt;
it simply asked Plaintiff to change his behavior. (Id.).
12
Plaintiff also contends that the cease and desist letter was extreme and
outrageous because it reiterated an earlier threat “to destroy Plaintiff’s
reputation” so that Plaintiff would have a “hard time” continuing his work. (Pl.
Opp. 16). However, such a threat cannot be considered outrageous. See, e.g.,
Novak v. Rubin, 514 N.Y.S.2d 523, 524 (2d Dep’t 1987) (threat to ruin plaintiff’s
wife’s career was, “as a matter of law, simply not ‘outrageous’ enough to
support ... a claim [for intentional infliction of emotional distress]”); Yong Ki
Hong v. KBS Am., Inc., 951 F. Supp. 2d 402, 426 (E.D.N.Y. 2013) (threat that it
would be “‘very difficult’ for [the plaintiff’s] business to survive … [did] not rise
to the level of patent outrageousness”).
Finally, Plaintiff insists that the cease and desist letter was outrageous
because it threatened to bring a frivolous lawsuit. (Pl. Opp. 17). For starters,
while the Court must accept the well-pleaded allegations in the Complaint, it
need not accept Plaintiff’s characterization of any lawsuit contemplated by
Defendant as “frivolous.” In any event, while threatening to bring even a
frivolous lawsuit is certainly ill-advised, this Court cannot conclude that it is
“so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Murphy, 58 N.Y.2d at 303 (quoting
RESTATEMENT (SECOND) OF TORTS § 46, cmt. d).
Accordingly, because the Amended Complaint does not allege that
Defendant engaged in outrageous conduct after September 16, 2013, Plaintiff
13
has not stated a claim for intentional infliction of emotional distress under New
York law. See Mariani, 982 F. Supp. at 273-74. 2
2.
Plaintiff Has Not Made a Prima Facie Showing That the Court
Has Personal Jurisdiction Over Defendant
In order to defeat a motion to dismiss for lack of personal jurisdiction, a
plaintiff must make a prima facie showing that: (i) a New York statute allows
the defendant to be haled into court, see Marvel Characters, Inc., 726 F.3d at
128; and (ii) exercising personal jurisdiction over the defendant is consistent
with due process, see Sonera Holding B.V., 750 F.3d at 224. Plaintiff has not
demonstrated that there is a statutory basis for exercising personal jurisdiction
with respect to his first three causes of action, and has made only a marginal
showing as to the fourth. Even as to that cause of action, Plaintiff has not
demonstrated that exercising personal jurisdiction would be consistent with
due process. As a result, Plaintiff’s case must be dismissed.
2
Plaintiff’s response to Defendant’s motion to dismiss includes two exhibits that provide
background information about intimate partner violence in various communities. (Pl.
Br., Ex. A-B). Defendant filed a motion to strike these exhibits (Dkt. #63), arguing that
they could not be considered in connection with a motion to dismiss under Rule 12(b)(6)
because they did not qualify as “sources courts ordinarily examine when ruling on Rule
12(b)(6) motions to dismiss.” (Dkt. #65 at 1 (quoting Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007)). The Court agrees with Defendant, and will
therefore strike the exhibits. See In re Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013) (“In
adjudicating a motion to dismiss, a court may consider only the complaint, any written
instrument attached to the complaint as an exhibit, any statements or documents
incorporated in it by reference, and any document upon which the complaint heavily
relies.”).
In addition, the Court notes that, in connection with Defendant’s motion to strike, the
parties have agreed that Plaintiff’s affidavit should not be considered as the Court
resolves the Rule 12(b)(6) motion. (See Dkt. #67-68). Consequently, the Court will only
consider that affidavit as it analyzes the motion to dismiss under Rule 12(b)(2).
14
a.
The Statutory Basis for Personal Jurisdiction
Plaintiff contends that New York Civil Practice Law and Rules Section
302(a)(1), provides a statutory basis for this Court to exercise personal
jurisdiction over Defendant. Under that section, a court may exercise personal
jurisdiction over a defendant who “transacts any business within the state or
contracts anywhere to supply goods or services in the state,” so long as the
claims against the defendant “aris[e] from” his business or his contract. N.Y.
C.P.L.R. § 302(a)(1). Here, Plaintiff contends that Defendant “transact[ed] …
business” in New York in four separate ways. The Court will consider each of
these contentions in turn.
i.
Defendant’s Interactions with NTVIC
The Court largely agrees with Plaintiff’s argument that, when all of the
jurisdictional allegations and affidavits are construed in Plaintiff’s favor, they
suggest that Defendant “transact[ed] … business” in New York with a company
called NTVIC. (Pl. Opp. 20). A defendant “transacts … business” within New
York whenever he “purposely avail[s] [himself] of the privilege of conducting
activities within New York and thereby invoke[s] the benefits and protections of
its laws[.]” Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d
779, 787 (2d Cir. 1999) (quoting Parke-Bernet Galleries, Inc. v. Franklyn, 26
N.Y.2d 13, 18 (1970)). Whether a defendant has purposely availed himself of
state law depends on the “totality of the circumstances.” Agency Rent A Car
Sys., Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir. 1996).
15
Here, the relevant allegations and affidavits suggest that Defendant
purposely availed himself of New York law as he interacted with NTVIC.
Defendant’s cease and desist letter — attached to the Complaint as
Exhibit B — suggests that Defendant applied for a job at NTVIC, “the New
York-based subsidiary of … a Japanese TV and news station[].” (Am. Compl.,
Ex. B at 7). In other words, Defendant solicited business from a New Yorkbased company. See Bank Brussels Lambert, 171 F.3d at 787 (suggesting that
jurisdiction under N.Y. C.P.L.R. § 302(a)(1) could be “premised on solicitations”
of business in New York); cf. V Cars, LLC v. Israel Corp., 902 F. Supp. 2d 349,
364 (S.D.N.Y. 2012) (finding that a defendant had not purposely availed itself of
state law, in part because the defendant had not “solicit[ed] business in New
York”). Defendant also admits that he ultimately received an offer to work for
NTVIC. (Id.). Cf. V Cars, LLC, 902 F. Supp. 2d at 362 (explaining that
“unproductive” solicitations and meetings are “insufficient to establish [the]
requisite contacts with the state”). By Defendant’s own estimation, this offer
created a legally protected “business relation[ship]” between NTVIC and
himself. (Id.). Thus, under the totality of the circumstances, the Court
concludes that Defendant purposely — if briefly — availed himself of the
benefits of New York law. 3
3
Plaintiff does not discuss the possibility that Defendant contracted “to supply …
services” to NTVIC in New York. N.Y. C.P.L.R. § 302(a)(1). However, when the
jurisdictional allegations and affidavits are construed in the light most favorable to
Plaintiff, they suggest that Defendant had such a contract, albeit one of the briefest
duration. Notably, the cease and desist letter attached to the Amended Complaint
refers to NTVIC as Defendant’s “employer.” (Am. Compl., Ex. B at 6). In addition,
Plaintiff’s affidavit suggests that Defendant planned to move to New York to fulfill his
job responsibilities for NTVIC. (Pl. Aff. at 2). According to this affidavit, Defendant left a
16
As a result, the Court must determine whether any of Plaintiff’s claims
“aris[es] from” Defendant’s transactions with NTVIC. N.Y. C.P.L.R. § 302(a)(1).
As the Second Circuit has explained:
[A] claim “aris[es] from” a particular transaction when
there is “some articulable nexus between the business
transacted and the cause of action sued upon,”
[McGowan v. Smith, 52 N.Y.2d 268, 272 (1981)], or when
“there is a substantial relationship between the
transaction and the claim asserted,” Kreutter v.
McFadden Oil Corp., 71 N.Y.2d 460, 467[] (1988). A
connection that is “merely coincidental” is insufficient
to support jurisdiction. Johnson v. Ward, 4 N.Y.3d 516,
520[] (2005). This inquiry is a fact-specific one, and
when the connection between the parties’ activities in
New York and the claim crosses the line from
“substantially related” to “mere coincidence” is not
always self-evident.
Sole Resort, S.A. de C.V. v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d
Cir. 2006); see also Best Van Lines, Inc. v. Walker, 490 F.3d 239, 249 (2d Cir.
2007).
In this case, there is an “articulable nexus” between Plaintiff’s fourth
claim for declaratory relief and Defendant’s transactions with NTVIC. In his
fourth claim, Plaintiff seeks a declaration that he is not liable for tortiously
interfering with Defendant’s business. (Am. Compl. ¶¶ 134-38). Notably, the
body of the Amended Complaint contains only one statement regarding contact
comment on a friend’s Facebook page, stating that he was moving to New York. (Id.).
Conversely, however, Plaintiff makes clear in the Amended Complaint that NTVIC
confirmed to Plaintiff that Defendant “was never an employee.” (Am. Compl. ¶ 107). A
reasonable factfinder could infer from all of these facts that: (i) Defendant had a valid,
at-will employment contract to perform work in New York; but (ii) NTVIC terminated this
contract before Defendant had an opportunity to move to New York and begin his work.
Cf. Peters v. MCI Telecomm. Corp., 685 F. Supp. 411, 414 (S.D.N.Y. 1988) (noting that a
valid “employment contract” had been formed, even though the contract was an “at-will
agreement” and was terminated before the plaintiff began working).
17
between Plaintiff and any of Defendant’s business associates: namely, that
Plaintiff sent a letter to NTVIC, warning the company about Defendant’s alleged
“history with child pornography and sexual relationship with at least one minor
as an adult.” (Id. at ¶ 106). Thus, the Court will construe Plaintiff’s fourth
claim as a request for a declaration that Plaintiff is not liable for tortious
interference with the relationship between Defendant and NTVIC. Because
Plaintiff is seeking a declaration that he is not liable for disrupting the business
that tied Defendant to New York, the Court concludes that Plaintiff’s fourth
claim “aris[es] from” Defendant’s in-state transactions. N.Y. C.P.L.R.
§ 302(a)(1). 4 As a result, Section 302(a)(1) provides a statutory basis for this
Court to exercise personal jurisdiction over Defendant for Plaintiff’s fourth
claim.
By contrast, there is no “articulable nexus” or “substantial relationship”
between Plaintiff’s other claims for declaratory relief and Defendant’s
transactions with NTVIC. Plaintiff’s first three claims seek declarations that:
(i) Plaintiff is not liable for defamation; (ii) Plaintiff is not liable for invasion of
privacy; and (iii) Plaintiff is not liable for intentional infliction of emotional
distress. Each of these three claims concerns an injury to Defendant’s
reputation or feelings, rather than an injury to Defendant’s business
relationship with NTVIC. Consequently, the Court cannot say that Plaintiff’s
first three claims “aris[e] from” Defendant’s contacts with New York.
4
Similarly, to the extent Plaintiff’s fourth claim is seeking a declaration that Plaintiff is
not liable for interfering with Defendant’s contract to provide services to NTVIC in New
York, Plaintiff’s claim “aris[es] from” that contract. N.Y. C.P.L.R. § 302(a)(1).
18
ii.
Defendant’s Travel to New York in 2014
Plaintiff also points to Defendant’s statements that he had traveled to
New York in 2014 to support his contention that there is a statutory basis for
personal jurisdiction. (Pl. Opp. 20). Presumably, Plaintiff wishes the Court to
infer that Defendant’s travel to New York amounted to a business transaction
under Section 302(a)(1). However, traveling to New York, without more, is
insufficient to establish personal liability under Section 302(a)(1). See, e.g.,
Eastboro Found. Charitable Trust v. Penzer, 950 F. Supp. 2d 648, 660 (S.D.N.Y.
2013); PaineWebber Inc. v. Westgate Grp., Inc., 748 F. Supp. 115, 120 (S.D.N.Y.
1990). Furthermore, even if Defendant’s 2014 travel to New York did
constitute a business transaction, Plaintiff has not explained how any of his
four claims for declaratory relief might be related to that transaction. As a
result, the Court cannot conclude that any of Plaintiff’s claims “ar[ose] from”
Defendant’s 2014 travel. N.Y. C.P.L.R. § 302(a)(1).
iii.
Defendant’s Preparations to Move to New York
in 2014
Plaintiff also ascribes significance to Defendant’s statements that he was
moving to New York, as well as Defendant’s decision to join a Facebook group
for individuals who “have a need for housing” in New York City. (Pl. Opp. 2021). The Court does not believe that Defendant’s plans to move to New York, or
his decision to seek housing in New York, constitutes a business transaction
under Section 302(a)(1). See V Cars, LLC, 902 F. Supp. 2d at 362 (explaining
that “exploratory” meetings are insufficient to establish that a defendant
19
transacted business in New York). However, even if Defendant explored and
moved to New York in 2014, and even if the Court could consider the
exploration or the move to be a business transaction, Plaintiff has not made
any attempt to explain how the exploration or the move might be related to the
claims he advances in this litigation. In other words, Plaintiff has not shown
that any of the claims made in this case “aris[es] from” Defendant’s alleged
relocation to New York. N.Y. C.P.L.R. § 302(a)(1).
iv.
Defendant’s Film Screening in New York in 2014
Finally, Plaintiff notes that “Defendant was a producer on a film that
fundraised in New York City and screened in New York City in 2014.” (Pl.
Opp. 22). Here, too, Plaintiff has failed to explain how the film has any
connection to the claims in this case. Thus, Plaintiff has not made a prima
facie showing that there is a statutory basis for this Court to exercise personal
jurisdiction over Defendant as to Plaintiff’s first three claims for declaratory
relief.
b.
The Constitutional Basis for Personal Jurisdiction
As the preceding analysis underscores, whether Defendant’s contacts
with NTVIC were sufficient to trigger a statutory basis for personal jurisdiction
is a very close question, and a strong argument can be made that Defendant’s
ultimately abortive job search is analytically closer to the “exploratory” efforts
that have been found to be insufficient to warrant the exercise of personal
jurisdiction. The Court has concluded that a statutory basis exists for it to
exercise personal jurisdiction over Plaintiff’s fourth claim for declaratory
20
relief — in part because the relevant materials are to be construed in Plaintiff’s
favor, and in part because these same materials make clear that the Court
cannot exercise personal jurisdiction over Defendant without offending due
process.
“To establish personal jurisdiction over a defendant, due process requires
a plaintiff to allege [i] that a defendant has certain minimum contacts with the
relevant forum, and [ii] that the exercise of jurisdiction is reasonable [under]
the circumstances.” Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 168-69
(2d Cir. 2015) (quoting In re Terrorist Attacks, 714 F.3d at 673 (internal
quotation marks omitted)); see also Int’l Shoe Co. v. Washington, 326 U.S. 310,
316 (1945)). A defendant’s contacts with the forum state can satisfy the
“minimum contacts” requirement if they show that the defendant “purposefully
availed [himself] of the privilege of doing business in the forum,” such that the
defendant “could foresee being haled into court there,” and the plaintiff’s
claims arose out of that business. Eades, 799 F.3d at 169; see also Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985)).
As noted, when all the relevant allegations and affidavits are construed in
the light most favorable to Plaintiff, they suggest that Defendant purposely
availed himself of New York law by soliciting and accepting an offer of
employment from NTVIC. (See supra at 15-16 & n.3). In addition, the Court
believes that Plaintiff’s fourth claim for declaratory relief arises out of
Defendant’s contacts with this state. Thus, Defendant had the requisite
21
minimum contacts with New York, and the Court must consider whether the
exercise of jurisdiction would be reasonable. See Eades, 799 F.3d at 168-69.
When a defendant has the requisite minimum contacts with the forum
state, he must “present a compelling case that the presence of some other
considerations would render jurisdiction unreasonable.” Licci, 732 F.3d 161,
173 (quoting Burger King, 471 U.S. at 477). When courts assess whether the
exercise of jurisdiction would be reasonable, they consider:
[i] the burden that the exercise of jurisdiction will
impose on the defendant; [ii] the interests of the forum
state in adjudicating the case; [iii] the plaintiff's interest
in obtaining convenient and effective relief; [iv] the
interstate judicial system’s interest in obtaining the
most efficient resolution of the controversy; and [v] the
shared interest of the states in furthering substantive
social policies.
Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 164 (2d Cir. 2010). As
the Court considers each of these factors, it will be guided by the Supreme
Court’s admonition that the reasonableness inquiry ultimately turns on
whether the exercise of personal jurisdiction “would comport with fair play and
substantial justice.” Burger King, 471 U.S. at 476; see also Licci, 732 F.3d at
170.
The Second Circuit has stated that a defendant can “rare[ly]” show that
the exercise of personal jurisdiction to be unreasonable if he has sufficient
minimum contacts with the forum state. Eades, 799 F.3d at 168 (quoting Licci,
732 F.3d at 170). However, it is not impossible for a defendant to make this
showing, especially in a case where the defendant’s contacts with the forum
22
state are weak. See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560,
575 (2d Cir. 1996) (holding that a defendant had sufficient minimum contacts
with the forum state, but that exercise of personal jurisdiction would be
unreasonable: “The present case is not one in which subjecting Robertson to
jurisdiction in Vermont would merely be inconvenient; Met Life’s interest in
pursuing its action in Vermont and Vermont’s interest in adjudicating the case
are so attenuated, if not nonexistent, that the exercise of personal jurisdiction
would violate our basic sense of ‘fair play and substantial justice’ — and
deprive the defendants of the due process guaranteed by the Constitution.”).
The slender margin by which Plaintiff has shown the requisite minimum
contacts informs the Court’s reasonableness analysis. While the Court can
infer that Defendant availed himself of the benefits of New York law by entering
into a contractual agreement to work for NTVIC, that agreement was fleeting,
and it is undisputed that the agreement was repudiated before either party
began performing any contractual obligations. (See Am. Compl. ¶ 107
(conceding that NTVIC “confirmed that [Defendant] was never an employee”)).
Thus, the Court must be particularly careful to ensure that the exercise of
personal jurisdiction would be reasonable. See Metro. Life Ins. Co., 84 F.3d at
568 (“[D]epending upon the strength of the defendant’s contacts with the
forum state, the reasonableness component of the constitutional test may have
a greater or lesser effect on the outcome of the due process inquiry.”). After a
careful examination of the relevant factors, the Court concludes that it cannot
23
exercise personal jurisdiction over Defendant for Plaintiff’s fourth claim for
declaratory relief.
i.
The Burden on Defendant
Defendant argues that litigation in this state will be burdensome for him
because he lives in Arizona, his attorney is based in Arizona, and he would like
to call Arizona witnesses at trial. Ordinarily, the Court would give this factor
very little weight because the Court can take steps to mitigate these burdens,
such as holding telephonic conferences or accepting electronic documents. See
Bank Brussels Lambert, 305 F.3d at 129-30; Metro. Life Ins. Co., 84 F.3d at 574
(noting that the burden of an out-of-state defendant weighed slightly against
the exercise of personal jurisdiction). However, in order to ensure that notions
of “fair play” are respected, Burger King, 471 U.S. at 476, the Court is inclined
to place additional emphasis on the burden to an out-of-state defendant where,
as here, the plaintiff’s conduct severed the defendant’s connection to the forum
state. In other words, because Plaintiff’s intentional conduct ended the
inchoate business relationship that was Defendant’s only jurisdictionallysignificant tie to New York, the Court is willing to place some extra weight on
the burdens that Defendant will face if he is forced to litigate this case from
afar.
ii.
The Forum State’s Interest
New York has a very weak interest in adjudicating Plaintiff’s fourth claim
for declaratory relief. Neither party to this action is a citizen of New York. See
Metro. Life Ins. Co., 84 F.3d at 574 (suggesting that Vermont had a weak
24
interest in adjudicating a particular dispute, in part because the injured party
was not a Vermont citizen). Furthermore, while New York may have an interest
in ensuring that business relationships formed under the laws of New York are
not disturbed, this interest is “adequately protected” by laws that allow the
parties to these relationships to sue in New York courts. Id. In this case,
neither party involved in the relevant business relationship wishes to utilize a
New York forum to protect is rights. In fact, the only individual who wishes to
litigate in New York is Plaintiff, who was not affected by Defendant’s
relationship with NTVIC or by the dissolution of that relationship. As a result,
New York has a very weak interest in adjudicating Plaintiff’s fourth claim for
declaratory relief. 5 This factor “weighs heavily against the reasonableness of
the court’s exercise of [personal] jurisdiction.” Id.
iii.
Plaintiff’s Interest
Plaintiff argues that exercising personal jurisdiction over Defendant will
help him obtain more convenient and effective relief than he could obtain in an
alternative forum. In that regard, Plaintiff contends that it would be more
convenient for him to litigate any issues surrounding Defendant’s relationship
with NTVIC in this forum than it would be to litigate in Arizona. (Pl. Opp. 25).
Plaintiff also emphasizes that he wishes to call witnesses who are located here
5
Whatever the merits of Plaintiff’s claim that New York has an interest in protecting the
speech of individuals discussing events that took place in New York (see Pl. Opp. 25),
that argument is inapposite here. Plaintiff has not alleged that he told NTVIC anything
about Defendant’s allegedly abusive conduct in New York; rather, he has only alleged
that that he told NTVIC about Defendant’s alleged “history with child pornography and
sexual relationship with at least one minor as an adult.” (Am. Compl. ¶ 106).
25
and it is easier to travel from Toronto (where he lives) to New York than to
travel from Toronto to Arizona. (Id.). However, Plaintiff, like Defendant, must
recognize that the burdens of travel to an alternative forum can be minimized
through the use of modern technology. See Bank Brussels Lambert, 305 F.3d
at 129-30. As a result, this factor tips only slightly in favor of the exercise of
personal jurisdiction.
iv.
The Interest of the Interstate Judicial System
The exercise of personal jurisdiction with respect to Plaintiff’s fourth
claim for declaratory relief would disserve the interstate judicial system’s
interest in “obtaining the most efficient resolution” of the controversy between
Plaintiff and Defendant. Chloe, 616 F.3d at 164. Notably, Defendant has filed
his own action, which is currently pending in the District of Arizona, seeking to
hold Plaintiff liable for invasions of privacy and intentional infliction of
emotional distress. (Def. Br., Ex. 2; see Dkt. #69). The facts underlying those
claims overlap to a degree with the facts underlying Plaintiff’s fourth claim for
declaratory relief. Thus, it would be inefficient for the parties to litigate the
entirety of Defendant’s case in Arizona, while simultaneously addressing only
Plaintiff’s fourth claim for declaratory relief in New York. Rather, it would be
more efficient for Plaintiff to adjudicate all the potential legal problems arising
out of his relationship with Defendant in one forum. See Kernan v. KurzHastings, Inc., 175 F.3d 236, 245 (2d Cir. 1999). Consequently, this factor
weighs against the exercise of personal jurisdiction.
26
v.
Substantive Social Policies
The parties have not identified any substantive social policies that will be
furthered by litigating this action in one forum rather than another. Plaintiff
submits an Arizona jury is more likely to be prejudiced against him. (See Pl.
Aff. 9 (“I … fear that an Arizona jury will assume that, if abuse occurred, I was
the abuser because of my racial and ethnic background[.]”)). However, this
Court will not countenance the suggestion that Plaintiff (or, indeed, either
party) would receive anything other than fair process in a sister federal court.
Thus, the “substantive social polic[y]” factor “does not favor either party in [the]
assessment of the reasonableness criteria.” Metro. Life Ins. Co., 84 F.3d at 575.
Taking all of the relevant factors into consideration, the Court concludes
that exercising personal jurisdiction over Defendant would be unreasonable.
Under the unique facts of this case, where: (i) the only contacts between
Defendant and New York that could support jurisdiction are Defendant’s brief
interactions with NTVIC; (ii) no one affected by the relationship between
Defendant and NTVIC wants to litigate any claim in New York; (iii) it is
undisputed that the relationship between Defendant and NTVIC ended because
of Plaintiff’s conduct; and yet (iv) Plaintiff wants to hale Defendant back to New
York to obtain a declaration that it was lawful to send the letter that severed
Defendant’s ties to the forum, despite the fact that (v) Plaintiff and Defendant
are already engaged in litigation in Arizona, the exercise of personal jurisdiction
“would violate our basic sense of fair play and substantial justice.” Metro. Life
Ins. Co., 84 F.3d at 575 (internal quotation marks omitted).
27
Because this Court cannot exercise personal jurisdiction over Plaintiff’s
four claims for declaratory relief, those four claims are dismissed. See Fed. R.
Civ. P. 12(b)(2).
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss under
Rule 12(b)(6) and Rule 12(b)(2) is GRANTED. Plaintiff’s fifth cause of action is
dismissed under Federal Rule of Civil Procedure 12(b)(6), and Plaintiff’s
remaining causes of action are dismissed under Federal Rule of Civil Procedure
12(b)(2). The Clerk of Court is directed to terminate all pending motions,
adjourn all remaining dates, and close this case.
SO ORDERED.
Dated:
March 14, 2016
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
28
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