Chassman et al v. Bezzabeh et al

Filing 101

MEMORANDUM OPINION AND ORDER re: 98 FIRST MOTION to Dismiss for Lack of Jurisdiction Revised memorandum of Law. filed by Yacob Mulugeta, Meley Mulugeta, 97 FIRST MOTION to Dismiss for Lack of Jurisdiction by Defendants Mulug etta. filed by Yacob Mulugeta, Meley Mulugeta, 99 MOTION to Dismiss for Lack of Jurisdiction Reply Affirmation in Further Support of Motion to Dismiss. filed by Yacob Mulugeta, Meley Mulugeta., The motion of defendants Meley Mul ugetta and Yacob Mulugetta to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(2) is GRANTED and they are dismissed from this case. The Clerk of Court is directed to remove Meley Mulugetta and Yacob Mulugetta from the list of defend ants in this matter, and to terminate the motions pending at Dkt. Nos. 97, 98 and 99. The Clerk of Court is further directed to send a copy of this order to Plaintiffs Margie Chassman and Samey Gebremengist by certified mail. (As further set forth in this Order.) Meley Mulugeta and Yacob Mulugeta terminated. (Signed by Judge Gregory H. Woods on 12/7/2016) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
MARGIE CHASSMAN and SAMEY
GEBREMENGIST,
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Plaintiffs,
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-against:
:
MULUGETA BEZZABEH, et al.
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Defendants. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 12/7/16

1:15-cv-4869-GHW
MEMORANDUM
OPINION AND ORDER

GREGORY H. WOODS, District Judge:
Plaintiffs pro se Margie Chassman and Samey Gebremengist brought this action against six
defendants, challenging a number of allegedly fraudulent acts committed by Mulugetta Bezzabeh
with respect to two corporations based in Ethiopia. The principal defendant, Mr. Bezzabeh, has
since died. The only remaining defendants are Alemtsehai Zerihun, Meley Mulugetta, and Yacob
Mulugetta, Mr. Bezzabeh’s wife, daughter and son, respectively. Meley Mulugetta and Yacob
Mulugetta (the “Mulugettas”) now move to dismiss the amended complaint for lack of personal
jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure. For the reasons that
follow, the Mulugettas’ motion is GRANTED.
I.

BACKGROUND
Plaintiffs filed their complaint on June 23, 2015 and their amended complaint on July 17,

2015. Dkt. Nos. 1, 6. The amended complaint contains a litany of allegations against Mr. Bezzabeh,
but beyond naming Meley and Yacob Mulugetta as defendants to this case, and listing their names
again in the section of the amended complaint entitled “Prayer for Relief,” it does not allege their
personal involvement in any of the alleged wrongdoing described in the amended complaint. The
affidavits submitted by the Mulugettas establish that they are the children of Mr. Bezzabeh. Meley

Mulugetta lives in Canada. Yacob Mulugetta lives in the United Kingdom.
During a November 9, 2016 conference, the Court granted the Mulugettas leave to file a
motion to dismiss the amended complaint pursuant to Rule 12(b)(2) of the Federal Rules of Civil
Procedure. The Court established a November 23, 2016 deadline for the motion and adopted Mr.
Gebremengist’s proposed deadline for Plaintiffs’ opposition to the motion. As of the date of this
order, Plaintiffs have not filed a timely opposition to the Mulugettas’ motion to dismiss, nor have
they requested an extension of time in which to do so.
II.

LEGAL STANDARD
Rule 12(b)(2) of the Federal Rules of Civil Procedure authorizes motions to dismiss on the

basis of lack of personal jurisdiction over a defendant. “In order to survive a motion to dismiss for
lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction exists.”
Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 167-68 (2d Cir. 2015) (quoting Licci ex rel. Licci v.
Lebanese Canadian Bank, SAL, 732 F.3d 161, 167 (2d Cir. 2013)). The plaintiff’s prima facie showing
“must include an averment of facts that, if credited by the ultimate trier of fact, would suffice to
establish jurisdiction over the defendant.” In re Terrorist Attacks on September 11, 2011, 714 F.3d 659,
673 (2d Cir. 2013) (quoting Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010)
(internal quotation marks omitted)).
“On a Fed. R. Civ. P. 12(b)(2) motion to dismiss for lack of personal jurisdiction, plaintiff
bears the burden of showing that the court has jurisdiction over the defendant.” See also Bank
Brussels Lamberts v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999) (“When responding
to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden
of establishing that the court has jurisdiction over the defendant.”); Sikhs for Justice v. Nath, 893 F.
Supp. 2d 598, 622 (S.D.N.Y. 2012) (“Once a defendant has raised a jurisdictional defense on a Rule
12(b) motion to dismiss, the plaintiff bears the burden of proving sufficient contacts with the
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relevant forum to establish jurisdiction over each defendant.”). It is well-established that “in
deciding a pretrial motion to dismiss for lack of jurisdiction a district court has considerable
procedural leeway” and it “may determine the motion on the basis of . . . affidavits alone.” Dorchester
Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (citation omitted).
“District courts resolving issues of personal jurisdiction must . . . engage in a two-part
analysis. First, they must determine whether there is jurisdiction over the defendant under the
relevant forum state’s laws . . . . Second, they must determine whether an exercise of jurisdiction
under these laws is consistent with federal due process requirements.” Bank Brussels Lamberts, 171
F.3d at 784. “To establish personal jurisdiction over a defendant, due process requires a plaintiff to
allege (1) that a defendant has ‘certain minimum contacts’ with the relevant forum, and (2) that the
exercise of jurisdiction is reasonable in the circumstances.” Sept. 11, 714 F.3d at 673 (citing Int’l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945)). “To determine whether a defendant has the necessary
‘minimum contacts,’ a distinction is made between ‘specific’ and ‘general’ personal jurisdiction.” Id.
“A court may assert general jurisdiction over a foreign defendant to hear any and all claims
against that defendant only when the defendant’s affiliations with the State in which the suit is
brought ‘are so constant and pervasive so as to render it essentially at home in the forum State.’”
Waldman v. Palestinian Liberation Org., 835 F.3d 317, 331 (2d Cir. 2016) (quoting Daimler AG v.
Bauman, 134 S. Ct. 746, 751 (2014)). “[W]hile Daimler involved corporations . . . there is no reason to
invent a different test for general personal jurisdiction depending on whether the defendant is an
individual, a corporation, or another entity.” Id. at 332. “Specific jurisdiction, on the other hand,
depends on an affiliation between the forum and the underlying controversy, principally, activity or
an occurrence that takes place in the forum State and therefore subject to the State’s regulation.” Id.
(quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).

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III.

DISCUSSION
It is not clear whether Plaintiffs seek to establish general or specific personal jurisdiction

over the Mulugettas. Nor do Plaintiffs identify a basis under New York law to find personal
jurisdiction over these defendants or explain why the exercise of such jurisdiction would be
consistent with constitutional due process. But what is clear is that Plaintiffs have failed to provide
any factual averments in support of the notion that such jurisdiction exists, either in the amended
complaint or in response to the Mulugettas’ motion to dismiss. As discussed, the amended
complaint simply contains no allegations concerning the Mulugettas, either with respect to their
involvement in the alleged wrongful acts described in the amended complaint or with respect to any
contacts of the Mulugettas with the New York forum. As the cases cited above make clear, it is
Plaintiffs’ burden to establish that this Court holds personal jurisdiction over the Mulugettas. The
Mulugettas have submitted affidavits in support of their motion to dismiss in which they attest that
they live abroad, do not own property, transact business in, or derive revenue from New York, and
have not travelled to New York in connection with matters relevant to this case. See Dkt. No. 97,
Ex. 3; Dkt. No. 97-2, Ex. 4. Plaintiffs, on the other hand, have attempted to make no showing in
support of their burden to establish the Court’s personal jurisdiction over the Mulugettas.
Accordingly, the Mulugettas’ motion to dismiss the amended complaint under Rule 12(b)(2) must be
granted.
IV.

CONCLUSION
The motion of defendants Meley Mulugetta and Yacob Mulugetta to dismiss the amended

complaint pursuant to Fed. R. Civ. P. 12(b)(2) is GRANTED and they are dismissed from this case.
The Clerk of Court is directed to remove Meley Mulugetta and Yacob Mulugetta from the
list of defendants in this matter, and to terminate the motions pending at Dkt. Nos. 97, 98 and 99.
The Clerk of Court is further directed to send a copy of this order to Plaintiffs Margie Chassman
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and Samey Gebremengist by certified mail.
SO ORDERED.
Dated: December 7, 2016
New York, New York

_____________________________________
_____________________
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___________
GREGORY H. WOODS
GREGORY
GOR
United States District Judge

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