Facchetti et al v. Bridgewater College et al

Filing 63

OPINION AND ORDER: For the foregoing reasons, Defendants' motion to dismiss is DENIED, Plaintiff's motion for leave to amend is DENIED, and Defendants' motion to transfer the case is GRANTED. This case is TRANFERRED to the United States District Court for the Western District of Virginia. The Clerk of the Court is directed to close the motions at docket numbers 7, 27, and 36, and to transfer this case to the United States District Court for the Western District of Virginia. (As further set forth in this Order) (Signed by Judge J. Paul Oetken on 6/16/2015) (kl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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)(

FEDERICA FACCHETTI,
Plaintiff,
14-CV-10018 (JPO)
-vOPINION AND ORDER
BRIDGEWATER COLLEGE, et al.,
Defendants.
-------------------------------~---------------------------- )(

J. PAUL OETKEN, District Judge:
Plaintiff Federica Facchetti brings this action against Defendants Bridgewater College
("Bridgewater"), several of its officers and employees 1 (collectively "College Defendants"), and
Tyler Vest, a former student at Bridgewater, asserting causes of action for violation of Title IX of
the Education Amendments Act of 1972, 20 U.S.C. § 1681, et seq. ("Title IX"); battery;
intentional and negligent infliction of emotional distress; and "premises liability." (Dkt. No. 1
("Complaint") ifif 55-107.). Defendants move to dismiss this case for lack of personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2) or, in the alternative, to transfer the
case to the Western District of Virginia pursuant to 28 U.S.C. § 1404(a), § 1406, or§ 1361.
Facchetti moves for leave to amend her Complaint. For the reasons that follow, Bridgewater's
motion to dismiss is denied, and the case is transferred to the Western District of Virginia.
Facchetti's motion for leave to amend is denied without prejudice.
I.

Background

1

The individual College Defendants move to dismiss the case against them under Federal Rule
12(b)(6). (Dkt. No. 7 at 3-7.) Facchetti concedes that she has failed to state a claim against
these Defendants and ask:s only for leave to amend her Complaint to do so. (Dkt. No. 31 at 1O;
Dkt. No. 36.) Because this Court is transferring the case to the Western District of Virginia, it
need not-and does not-rule on either of these motions.
1

Facchetti, an Italian citizen, was a foreign exchange student at Bridgewater, a college in
Virginia, for the 2013 to 2014 academic year. (Compl.

~

3.) She alleges that Vest, a former

student at Bridgewater, sexually assaulted her in a Bridgewater dormitory on February 5, 2014

(id.

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1), and that the College Defendants failed to follow proper procedures while investigating

the incident (id.). She further alleges that she continued to suffer from the effects of the incident
the following year, when she moved to New York City.

II.

(Id.~~

14, 52.)

Discussion
Defendants move to dismiss this case for want of personal jurisdiction or, in the

alternative, to transfer it to the Western District of Virginia. The Court finds that it lacks
personal jurisdiction over Defendants, and that the interests of justice are served by transferring
the case.

A.

Personal Jurisdiction

"Personal jurisdiction of a federal court over a non-resident defendant is governed by the
law of the state in which the court sits-subject, of course, to certain constitutional limitations of
due process." Robinson v. Overseas Military Sales Corp., 21F.3d502, 510 (2d Cir. 1994); see

also DiStefano v. Carozzi N Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001) (per curiam).
Accordingly, the Court must engage in a "two-part analysis." Bank Brussels Lambert v. Fiddler

Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). First, the Court must look to the
relevant jurisdictional statute of the state in which it sits: New York. Whitaker v. Am.

Telecasting, Inc., 261 F .3d 196, 208 (2d Cir. 2001 ). Then, "[i]f the exercise of jurisdiction is
appropriate under that statute, the [C]ourt must decide whether such exercise comports with the
requisites of due process." Id.
Plaintiff has the burden of showing that the Court has personal jurisdiction over
Defendants. Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005).
2

But to survive a motion to dismiss under Rule 12(b)(2), she need only make a "prima facie
showing" of jurisdiction. Jazini v. Nissan Motor Co., Ltd., 148 F .3d 181, 184 (2d Cir. 1998).
"[T]he pleadings and any supporting affidavits are to be interpreted in the light most favorable to
the plaintiff." Rubinbaum LLP v. Related Corporate Partners V, L.P., 154 F. Supp. 2d 481, 486
(S.D.N.Y. 2001).
In support of personal jurisdiction, F acchetti alleges (1) that Bridgewater is registered as
a non-profit corporation with the New York Secretary of State; (2) that Bridgewater solicits
donations and recruits students in New York; and (3) that her injuries "manifested" in New York,
where she lived at the time she filed this suit. She argues that this Court has both general and
specific jurisdiction over Bridgewater and that the Court has specific jurisdiction over Vest. 2
1.

General Jurisdiction

Facchetti first contends that Bridgewater is subject to general jurisdiction in this Court
because it is registered with the New York Secretary of State as a foreign non-profit corporation
pursuant to New York Executive Law § 172, and, therefore, it has consented to general
jurisdiction in New York. (Dkt. No. 31at4-7.) But this is insufficient to give rise to
jurisdiction under New York law. See Nelson v. Massachusetts Gen. Hosp., No. 04 Civ. 5382
(CM), 2007 WL 2781241, at *26 (S.D.N.Y. Sept. 20, 2007) (holding that§ 172 registration is
insufficient to confer general jurisdiction), ajf'd, 299 F. App'x 78 (2d Cir. 2008) (affirming "for
substantially the same reasons stated in the District Court's comprehensive Memorandum
Decision."). Therefore, the Court need not-and does not-decide the interesting question
whether requiring foreign corporations to consent to general jurisdiction in order to do business
in the state is consistent with the Supreme Court's holding that general jurisdiction over a foreign

2

General jurisdiction allows a defendant to be sued in the forum on any cause of action; specific
jurisdiction requires that the action be connected to the forum.
3

corporation can be had only where the corporation is "essentially at home" in the forum state.

Daimler AG v. Bauman, 134 S. Ct. 746, 751 (2014) (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)).
Next, Facchetti contends that Bridgewater is subject to general jurisdiction in New York
because it solicits donations in New York and recruits students in New York. (Dkt. No. 31at7.)
Even if New York law would permit the exercise of jurisdiction under these circumstances-a
proposition that is extremely unlikely-jurisdiction would be unconstitutional because these
contacts do not even come close to rendering Bridgewater "essentially at home" in New York.

Id. Facchetti does not cite Daimler in her memorandum of law. And she does not allege that
Bridgewater is at home in New York. This Court lacks general jurisdiction over the College
Defendants. 3

2.

Specific Jurisdiction

Facchetti alleges that, although she was sexually assaulted in Virginia while she was a
resident of Virginia, she suffered continuing emotional distress in New York and received
treatment in New York for her injuries. Where a defendant intentionally causes injury in New
York, both New York law and the Constitution permit the exercise of jurisdiction over him. See
CPLR § 302; Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 (1985). But, in general, absent
other connections between the defendant and the forum, the effect in the forum state must be
reasonably foreseeable to the defendant in order for the exercise of personal jurisdiction to be
constitutional. See, e.g., RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 37 ( 1971 ); see also

Burger King, 471 U.S. at 475 ("Th[e] purposeful availment requirement ensures that a defendant
will not be haled into a jmrisdiction solely as a result ofrandom, fortuitous, or attenuated
3

Because Facchetti's argument for personal jurisdiction over the individual College Defendants
rests on her argument for personal jurisdiction over Bridgewater (Dkt. No. 31 at 7 n.3), it fails
also.
4

contacts.") (internal quotation marks and citations omitted). Here, Facchetti does not allege that
Vest or the College Defendants had any reason to believe the she would ever go to New York, let
alone that any injuries would manifest themselves there. Thus, although it is possible for
personal jurisdiction to lie in a forum where a defendant commits a tort elsewhere with the
knowledge that it may continue to cause harm to someone who moves to the forum, Facchetti
offers no allegations that this is the case here. Accordingly, the Court lacks specific jurisdiction
over Vest and the College.Defendants.

B.

Transfer

Where, as here, the transferor court lacks personal jurisdiction over the defendants,
transfer motions are complicated. See CHARLES ALAN WRIGHT, ET AL., 15 FEDERAL PRACTICE &
PROCEDURE JURISDICTION§ 3842 (4th ed. 2014) ["WRIGHT & MILLER"]. Three statutes, 28
U.S.C. § 1404, § 1406, and§ 1361, potentially apply in this situation, and courts are deeply
divided over which to apply when. See id. In Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465
(1962), the Supreme Court held that§ 1404 permits a court to transfer an action when it lacks
personal jurisdiction over the defendants. But Goldlawr was decided before § 1361 was passed,
and some courts reason that the better course now is to use the latter statute. See WRIGHT &
MILLER§ 3842 n.33. Others continue to follow Goldlawr. Id. n.32.
This Court is persuaded by the argument that, in this circumstance at least, it does not
matter which statute applies. See In re Ski Train Fire Case, 257 F. Supp. 2d 717, 733-34
(S.D.N.Y. 2003); but see WRIGHT & MILLER§ 3842 ("[T]he conclusion that no distinction need
be drawn between or among the transfer provisions is potentially problematic because the
appealability of the transfer decision is not treated consistently under the three provisions in all
respects."). Courts appear to agree that an order transferring the case for want of personal
jurisdiction is not appealable regardless of the statutory basis, see id. § 3914.12, and, therefore,
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which statute is chosen likely makes no difference. And, either way, whether or not such an
order is appealable is a decision to be made by the Court of Appeals. (Whether that will be the
Fourth Circuit or the Second Circuit depends, in part, on when the appeal, if there is one, is
permitted. Id.) Thus, the question is simply whether the interest of justice would be served by
transferring the case instead of dismissing it. See Ski Train, 257 F. Supp. 2d at 733.
Facchetti does not explain why transfer would be in the interest of justice; she merely
states that she might be "deprived of her day in court" ifthe case is dismissed. (Dkt. No. 31 at
9.) In any event, the Court concludes that the interests of justice would be served by transferring
the case. Both Facchetti's personal injury claims and her Title IX claims are probably still
timely under Virginia's two-year statute of limitations, compare Stanley v. Trustees of California

State Univ., 433 F.3d 1129, 1134 (9th Cir. 2006) ("It appears that every circuit to consider the
issue has held that Title IX ... borrows the relevant state's statute oflimitations for personal
injury."), with V.A. CODE§ 8.01-243 ("Unless otherwise provided ... , every action for personal
injuries ... shall be brought within two years after the cause of action accrues."). But, although
Facchetti's arguments in support of jurisdiction here are without merit, the Court cannot
conclude that this is indicative of bad faith. Instead, this is most likely the result of a mistake by
Facchetti's counsel. 4 No party disputes that the Western District of Virginia can exercise
personal jurisdiction over Defendants and that venue would be proper there. Dismissing this
case and having Facchetti simply refile it in Virginia seems both cumbersome and unnecessary.
Defendants' motion to transfer is therefore granted.

III.

Conclusion

4

The College Defendants mention Rule 11 in their reply memorandum oflaw (Dkt. No. 55 at 1),
but they do not formally move for sanctions. Thus, the Court need not-and does not--decide
whether Facchetti's counsel is properly subject to sanctions in this case.
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For the foregoing reasons, Defendants' motion to dismiss is DENIED, Plaintiffs motion
for leave to amend is DENIED, and Defendants' motion to transfer the case is GRANTED. This
case is TRANFERRED to the United States District Court for the Western District of Virginia.
The Clerk of the Court is directed to close the motions at docket numbers 7, 27, and 36,
and to transfer this case to the United States District Court for the Western District of Virginia.

SO ORDERED.

Dated: June 16, 2015
New York, New York

United States District Judge

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