Letom Management Inc. v. Centaur Gaming, LLC et al

Filing 23

OPINION & ORDER. The Court grants Hoosier Park's motion to dismiss for lack of personal jurisdiction. The Clerk of the Court is respectfully directed to terminate the motion pending at Dkt. 13. So Ordered. (Signed by Judge Paul A. Engelmayer on 10/27/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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LETOM MANAGEMENT INC.,
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Plaintiff,
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-v:
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CENTAUR GAMING, LLC, HOOSIER PARK, LLC
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and HOOSIER RACING AND CASINO, LLC,
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Defendants.
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10/27/2017

17 Civ. 3793 (PAE)
OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:
This case arises from the alleged breach of contracts to book a venue in Anderson,
Indiana for a live concert entitled “I love the 90s: The Party continues.” Plaintiff Letom
Management, Inc. (“Letom”) alleges that defendants Hoosier Park, LLC (“Hoosier Park”),
Centaur Gaming, LLC (“Centaur Gaming”), and Hoosier Racing and Casino, LLC (“Hoosier
Racing and Casino”) breached their express or constructive contractual obligations by (a)
“cancel[ing] the contract,” (b) failing to pay Letom a guaranteed amount, and (c) refusing to
arbitrate. Dkt. 18 (“Pl’s Opp.”) at ¶ 8.
Pending now is a motion to dismiss by Hoosier Park, the only defendant whom Letom
has served. Hoosier Park argues that personal jurisdiction over it is lacking, requiring dismissal
under Federal Rule of Civil Procedure 12(b)(2). On the merits, Hoosier Park disputes that the
agreements between itself and Universal Attractions Agency (“UAA”)—the entity whose
interests Letom seeks to vindicate in this lawsuit 1—were enforceable. On its present motion to

1

The Court assumes arguendo that Letom has standing to bring this lawsuit. “In appropriate
circumstances, … a court may dismiss for lack of personal jurisdiction without first establishing
1

dismiss, Hoosier Park argues that, even if the agreements were enforceable, they do not support
exercise of personal jurisdiction, because (1) it is an out of state entity and (2) the contracts at
issue were initiated by a non-New York plaintiff and involved services to be performed entirely
outside this state. Hoosier Park argues that neither the jurisdictional requirements of New York
Civil Practice Law and Rule § 301 or § 302, nor those of federal due process, are met.
For the reasons that follow, the Court agrees, and grants Hoosier Park’s motion to dismiss
the claims against it under Rule 12(b)(2).
I.

Background 2
A.

The Parties

Letom is a New York-based corporation with its principal place of business in New York,
Dkt. 1 (“Compl.”) ¶¶ 8–11. Letom and UAA, on whose behalf Letom brings this lawsuit, Dkt.
14 (“Def’s Brief”) at 1, have a common CEO, Jeff Allen, Allen Decl. ¶ 1.
Hoosier Park is an Indiana limited liability company with its principal place of business
in Indiana. Compl. ¶ 12; Head Decl. ¶ 6. Letom has alleged that Hoosier Park does business as
Hoosier Park Racing, LLP and Hoosier Park Racing, LLC.

subject-matter jurisdiction.” See Magi XXI, Inc. v. Stato della Citta del Vaticano, 714 F.3d 714,
720 n.6 (2d Cir. 2013) (quoting Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S.
422, 431 (2007)); see also Pablo Star Ltd. v. Welsh Gov’t, 170 F. Supp. 3d 597, 602 (S.D.N.Y.
2016) (“[A] federal court has leeway to choose among threshold grounds for denying audience to
a case on the merits in the interests of judicial restraint and judicial economy. For example,
when the alleged defect in subject-matter jurisdiction raises a difficult and novel question, the
court does not abuse its discretion by turning directly to personal jurisdiction” (internal quotation
marks and citations omitted)). The contracts at issue—dated February 27, 2017, see Declaration
of Adam Head (“Head Decl.”) (Dkt. 15) Exs. 4 & 5; see also Pl’s Opp at 2—identify UAA, not
Letom, as the contracting party. If this litigation were to have proceeded, it would have been
necessary for Letom to demonstrate more clearly its standing to bring this lawsuit on behalf of its
apparent affiliate.
2

The Court’s account of the underlying facts of this case is drawn from the Complaint and from
the parties’ submissions on the motion to dismiss, including the Declarations of Adam Head,
Head Decl., and of Jeff Allen, Dkt. 18-1 (“Allen Decl.”), and the exhibits to these declarations.
2

Letom alleges that the other defendants to this suit, Centaur Gaming and Hoosier Racing
and Casino, are also “domestic corporation(s)” with “principal office(s)” in Indiana. Compl. ¶
12. However, despite the fact that the Complaint was filed on May 19, 2017, more than five
months ago, Centaur Gaming and Hoosier Racing and Casino do not appear to have been served.
They are not parties to the instant motion.
B.

Factual Background

On September 9, 2016, a UAA representative, Adam Zagor, emailed Adam Head, the
Entertainment Director for Hoosier Park, seeking to book one of Hoosier Park’s venues in
Indiana. Head Decl. ¶¶ 9–10; Dkt. 15-1 (“Head Decl. Ex. A”). Zagor, Head, and another UAA
representative, Ross Brandes, agreed to meet in early October 2016 in Nashville, Tennessee
during the International Entertainment Buyers Association Conference to discuss the details of
the transaction. Head Decl. Ex. A.
In Tennessee, Head met with an unspecified “UAA representative,” who pitched the idea
of Hoosier Park’s hosting a concert entitled “I Love the 90’s: The Party Continues.” Head Decl.
¶ 11. On November 10, 2016, Head sent UAA an offer sheet. Id. at ¶ 12. After the initial offer,
UAA and Hoosier continued negotiating the contracts’ terms via phone and email. Id. at ¶ 13.
On January 11, 2017, after additional back and forth, a second term sheet was sent from Hoosier
to UAA. Id.
On March 1, 2017, Brandes emailed Head, alerting him that a potentially similar concert,
entitled “I Love the 90s[,] . . . would be playing at The Lawn @ White River State Park” on July
16, 2017. Dkt 18-1 (“Allen Decl. Ex. A”) at 9. Head said that this was not a problem. Id.
That same day, Head received two contracts from UAA dated February 27, 2017. Head
Decl. ¶ 14; Pl’s Opp. ¶ 2. Head made alterations to the contracts, signed them, and sent them
back. Of note here, Head changed from New York to Indiana the (1) choice of law provisions,
3

(2) locations in which the contracts were to be entered, and (3) locations for arbitration. See
Head Decl. Exs. 4 & 5. Payments for each were to be due in two parts, with the first round due
on July 12, 2017 and the second due just after the concert. Id. UAA appears to have signed
neither contract. Id. For the limited purposes of this motion, crediting plaintiffs’ claim of a
binding agreement, the Court assumes that the contracts were fully executed.
On April 28, 2017, Head emailed Jeff Epstein, a UAA employee, to alert him that Adam
Kallick, a Hoosier Park employee who had moved to Hoosier’s corporate office, would be
calling him to discuss the August 12, 2017 show. Allen Decl. Ex. A at 4.
On May 4, 2017, Epstein reminded Head about the White River concert, and suggested
that if Hoosier Park wished to cancel the concert at its venue because of low ticket sales and
marketing issues, it should alert UAA by the following day. Id. at 8. Epstein explained that
“once production [was] booked and paid for, [UAA would] not be in any position to offer a
reduction or accept a cancellation.” Id.
On May 5, 2017, Head emailed Epstein “accept[ing] [UAA’s] offer to cancel and/or
negotiate a price reduction, and by [its] email withdr[ew] the offer it made on March 8, 2017.”
Id. at 5. Head further noted that he had not, as of that day, received a written acceptance of his
offer. Id. Head’s email explained Hoosier Park’s change of course, noting, inter alia, that the
concert scheduled for The Lawn had been relocated to a closer and larger venue; that he had not
been previously known of that relocation; and that it would necessitate higher marketing
expenditures. Id. at 5–6. Head’s email set out terms on which Hoosier Park would nevertheless
agree to host the concert. Id. at 6.
A series of back and forth emails ensued in which Head and Allen discussed a reduced
payment to UAA and whether the concert would go forward. Id. at 10–11, 17–19, 25–26, 29–30,

4

38–39. On May 9, 2017, Allen emailed Head alleging that Hoosier had breached their contract,
that he was cancelling the concert date, and that he would sue. Id. at 49. No payments at any
point were made by Hoosier Park to UAA.
Hoosier Park has not transacted other business with UAA or Letom. Head Decl. ¶ 17.
II.

Procedural Background
On May 19, 2017, Letom filed its complaint claiming breach of contract. 3 Dkt. 1

(“Compl.”).
On July 24, 2017, Hoosier Park filed a motion to dismiss for lack of personal matter
jurisdiction, Dkt. 13, and a supporting memorandum, Dkt. 14 (collectively, “MTD”). On August
7, 2017, Letom filed a memorandum in opposition On August 14, 2017, Hoosier Park filed a
reply. Dkt. 19 (“Def’s Repl. Mem.”).
III.

Discussion
A.

Applicable Legal Standards

“[T]he 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) (quoting Bank
Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999)); see also
In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013). “[T]he showing a
plaintiff must make to defeat a defendant’s claim that the court lacks personal jurisdiction over it
‘varies depending on the procedural posture of the litigation.’” Dorchester Fin. Sec., Inc. v.

3

Letom’s Complaint alleged a breach of an implied or constructive contract. Compl. ¶ 1. In its
opposition brief, however, Letom appears to allege two actual contracts. Pl’s Opp. ¶ 9. Letom’s
submissions are further inconsistent as to whether there are one or two operative contracts.
Compare Pl’s Opp. ¶ 2 (“The parties operated under (2) two contracts…”), with id. ¶ 8
(“Defendants breached the contract threefold . . .”), and id. ¶ 13 (“[I]t is submitted that
Defendants established a continuing relationship between the parties for the purposes of the
contract in issue”). The Court has no occasion to resolve this ambiguity on the present motion.
5

Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (quoting Ball v. Metallurgie Hoboken–Overpelt,
S.A., 902 F.2d 194, 197 (2d Cir. 1990)).
“Where, as here, a district court in adjudicating a motion pursuant to Federal Rule of
Civil Procedure 12(b)(2) ‘relies on the pleadings and affidavits, and chooses not to conduct a
full-blown evidentiary hearing, plaintiffs need only make a prima facie showing of personal
jurisdiction.’” S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 138 (2d Cir. 2010)
(quoting Porina v. Marward Shipping Co., 521 F.3d 122, 126 (2d Cir. 2008)). “This showing
may be made through the plaintiff’s ‘own affidavits and supporting materials, containing an
averment of facts that, if credited, would suffice to establish jurisdiction over the defendant.’”
Id. (quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001)). The Court
“construe[s] the pleadings and affidavits in the light most favorable to plaintiffs, resolving all
doubts in their favor.” Dorchester, 722 F.3d at 85 (quoting S. New Eng. Tel., 624 F.3d at 138);
see also A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79–80 (2d Cir. 1993). Nevertheless,
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); Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d
Cir. 2012).
To make out a prima facie case of personal jurisdiction, whether based on general or
specific personal jurisdiction, plaintiffs must establish both “a statutory basis” for jurisdiction
and that exercise of such jurisdiction accords “with constitutional due process principles.”
Cortlandt St. Recovery Corp. v. Deutsche Bank AG, London Branch, No. 14-cv-01568(JPO),
2015 WL 5091170, at *2 (S.D.N.Y. Aug. 28, 2015) (quoting Reich v. Lopez, 38 F. Supp. 3d 436,
454 (S.D.N.Y. 2014)). General personal jurisdiction subjects a defendant to suits on all claims.

6

Id.; see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
Specific personal jurisdiction subjects a defendant to suits on only claims that arise from the
defendant’s conduct in the forum. Cortlandt, 2015 WL 5091170, at *2; see also Daimler AG v.
Bauman, 134 S. Ct. 746, 754 (2014).
Letom’s threadbare opposition memorandum largely uses the language of specific
jurisdiction. See Pl’s Opp., at ¶¶ 12–18 (discussing “purposeful activities,” “continuing
relationship,” “purposeful[] avail[ment] . . . invoking the benefits and protections of New York
Law,” and “minimum contacts”). However, Letom does not clearly commit to exclusively that
theory of personal jurisdiction. For completeness, the Court analyzes both general and specific
personal jurisdiction.
B.

General Jurisdiction

In New York courts, general jurisdiction is exercised pursuant to C.P.L.R § 301.
See State Farm Fire & Cas. Co. v. Swizz Style, Inc., 246 F. Supp. 3d 880, 887 (S.D.N.Y. 2017).
Under C.P.L.R § 301, jurisdiction is proper when “a company ‘has engaged in such a continuous
and systematic course of “doing business” [in New York] that a finding of its “presence” [in
New York] is warranted.’” Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 224
(2d Cir. 2014) (quoting Landoil Res. Corp. v. Alexander & Alexander Servs., 565 N.E.2d 488,
490 (N.Y. 1990)) (citations omitted) (alterations in original); see also Wiwa v. Royal Dutch
Petroleum Co., 226 F.3d 88, 95 (2d Cir. 2000).
The Due Process Clause, however, is more restrictive. A court may exercise general
jurisdiction over foreign corporations only “when their affiliations with the State are so
‘continuous and systematic’ as to render them essentially at home in the forum State.” Goodyear
Dunlop Tires, 564 U.S. at 919. “[E]xcept in a truly ‘exceptional’ case, a corporate defendant
may be treated as ‘essentially at home’ [and, thus, amenable to general personal jurisdiction]
7

only where it is incorporated or maintains its principal place of business—the ‘paradigm’ cases.”
Brown v. Lockheed Martin Corp., 814 F.3d 619, 627 (2d Cir. 2016).
These standards are not met here as to Hoosier Park. Letom alleges in its complaint that
Hoosier Park is incorporated and has its principal place of business not in New York, but in
Indiana. And Letom’s pleadings are devoid of any allegation that Hoosier Park has done any
business in New York beyond the transaction at issue here. Indeed, Letom’s only allegations
even touching on New York, beyond the specific contracts at issue, are that Hoosier Park has two
corporate affiliates that are incorporated in, and do business in, New York. Although activities
by an affiliate can sometimes enable a finding of general jurisdiction, 4 such is not so here.
Letom has not alleged any facts indicating (1) the importance of these affiliates to Hoosier Park,
(2) the nature of the business, if any, that the affiliates transact for the benefit of Hoosier Park, or
(3) the degree of control Hoosier Park exercises over these affiliates. 5 Letom’s tenuous
allegations, therefore, are not enough to establish general jurisdiction.

4

Hoosier Park disputes its affiliation with these entities. For the purpose of this motion, the
Court treats Letom’s allegations as true. The Court also treats as true Letom’s allegation that
Centaur Gaming is the corporate office of Hoosier Park. But that allegation does not aid Letom,
as it agrees that Centaur Gaming is an Indiana corporation.
5

The Second Circuit has held that “the continuous course of ‘doing business’ in New York
‘do[es] not necessarily need to be conducted by the foreign corporation itself.’” Sonera Holding,
750 F.3d at 224 (quoting Wiwa, 226 F.3d at 95 (2d Cir. 2000)). It has “interpreted New York
law to include an agency theory of jurisdiction.” Id. This theory “focuses on a forum-state
affiliate’s importance to the defendant.” Id. at 225; see also Wiwa, 226 F.3d at 95 (under agency
theory, “a court of New York may assert jurisdiction over a foreign corporation when it affiliates
itself with a New York representative entity and that New York representative renders services
on behalf of the foreign corporation that go beyond mere solicitation and are sufficiently
important to the foreign entity that the corporation itself would perform equivalent services if no
agent were available.”). However, the Supreme Court has recently voiced disapproval of such
agency analysis and appeared to favor instead an inquiry, used in other jurisdictions, which
focuses on whether an affiliate is “so dominated” by the defendant “as to be its alter ego.”
Daimler, 134 S. Ct. at 759; see also Sonera Holding, 750 F.3d at 225. However the operative
test is conceived, Letom has not made a prima facie showing of general jurisdiction.
8

C.

Specific Jurisdiction

In New York, specific jurisdiction is exercised pursuant to C.P.L.R. § 302. See Swizz
Style, Inc., 246 F. Supp. 3d at 887. It identifies four categories of conduct that can justify
exercise of personal jurisdiction over a party. Three are clearly inapplicable: These concern (1)
tortious acts in New York, (2) tortious acts outside New York, and (3) ownership of property in
New York. 6 The fourth—which subjects a party that “transacts any business within the state or
contracts anywhere to supply goods or services in the state” to the court’s jurisdiction, id.
§ 302(a)(1)—merits further discussion.
“To establish personal jurisdiction under section 302(a)(1), two requirements must be
met: (1) [t]he defendant must have transacted business within the state; and (2) the claim asserted
must arise from that business activity.” Barrett v. Tema Development (1988), Inc., 251 Fed.
App’x 698, 700 (2d Cir. 2007) (internal citation omitted). The Court’s primary consideration is
“[t]he quality of the defendants’ New York contacts.” Fischbarg v. Doucet, 880 N.E.2d 22, 26
(N.Y. 2007). In a proper case, a single act within New York can satisfy the requirements of
§ 302(a)(1); where that is not so, “an ongoing course of conduct or relationship in the state may.”
Licci, 673 F.3d at 62. In making the § 302(a)(1) determination, courts take a holistic, totality of
the circumstances approach. See, e.g., id.; Bank Brussels Lambert, 171 F.3d at 787 (2d Cir.
1999); Farkas v. Farkas, 36 A.D.3d 852, 853 (N.Y. App. Div. 2007). As for the due process
standard, “[b]ecause CPLR 302 does not reach as far as the constitution permits, if a defendant is
amenable to long-arm jurisdiction in New York, the constitutional standard is
satisfied.” Vasquez v. Torres Negron, 434 F. Supp. 2d 199, 201 (S.D.N.Y. 2006) (citing Firma

6

Letom has not alleged that Hoosier Park committed tortious acts against it or anyone else or
that it owns property in the state. Head attests that Hoosier Park does not own any property in
New York, see Head Decl. ¶ 7, and Letom does not dispute this.
9

Melodiya v. ZYX Music GMBH, No. 95 Civ. 6798 (DC), 1995 WL 28493, at *3 (S.D.N.Y. Jan.
25, 1995)).
The Second Circuit has identified four factors to guide the § 302(a)(1) inquiry. They are:
(i) whether the defendant has an on-going contractual relationship with a New York
corporation;
(ii) whether the contract was negotiated or executed in New York and whether, after
executing a contract with a New York business, the defendant has visited New York
for the purpose of meeting with parties to the contract regarding the relationship;
(iii) what the choice-of-law clause is in any such contract; and
(iv) whether the contract requires franchisees to send notices and payments into the
forum state or subjects them to supervision by the corporation in the forum state.
Sunward Electronics, Inc. v. McDonald, 362 F.3d 17, 22–23 (2d Cir. 2004) (quoting Agency
Rent A Car Sys., Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir. 1996)). Because the
test turns on the totality of the circumstances, no “one factor is dispositive and other factors may
be considered.” Id. at 23.
Here, Letom alleges that Hoosier Park transacted business in New York by drafting,
entering into, and breaching two contracts with a New York entity, by communicating and
negotiating with a New York entity, by waiving an arbitration process that would have applied
Indiana law, by “elect[ing] to apply New York choice of law,” and by having affiliates in New
York State. Compl. ¶¶ 14-16, 20–29; Pl’s Opp. ¶¶ 10–17. Letom argues that these facts support
exercise of specific jurisdiction, Pl’s Opp. ¶ 18, and that the lack of a clause limiting venue to
non-New York forums points to the same result, id. ¶ 9.
The Court considers Letom’s claims in light, first, of the four factors identified by the
Second Circuit.
(i) Ongoing contractual relationship with a New York corporation: A single, short-term
transaction between the parties does not create an “ongoing contractual relationship.” See, e.g.,
Gordian Grp., LLC v. Syringa Expl., Inc., 168 F. Supp. 3d 575, 584–85 (S.D.N.Y. 2016);
10

Sandoval v. Abaco Club on Winding Bay, 507 F. Supp. 2d 312, 317 (S.D.N.Y. 2007). In
Gordian Group, a plaintiff allegedly “provided investment banking services to and for the
benefit of [the defendant] and all of its subsidiaries” for six months pursuant to one contract. 168
F. Supp. 3d at 584–85. Similarly, in Sandoval, the plaintiff allegedly performed for 10 months
on a contract to install an irrigation system. 507 F. Supp. 2d at 314. In each case, the district
court did not find an ongoing business relationship.
The same is so here. The parties here did not transact business before or after the instant
dispute over the scheduling of a concert. Head Decl. ¶¶ 16–17. And the period for performance
that was contemplated here was far shorter than in Gordian Group or Sandoval. Even if UAA
performed from the date the contract allegedly began, February 27, 2017, through May 9, 2017,
when the contract was allegedly “cancelled,” or even through May 19, 2017, the date Letom filed
the complaint, the performance period still lasted under three months. That Letom has portrayed
the disputed transaction as technically involving two contracts, not one, does not change the end
result. See Capstone Bus. Funding, LLC v. Denark Constr., Inc., No. 16 CV 2141-LTS, 2017
WL 398411, at *3 (S.D.N.Y. Jan. 30, 2017) (two estoppel certificates were “single, short-term
contracts, and d[id] not establish an ongoing contractual relationship”). The contracts here were
negotiated together and were designed to enable a one-day event. The parties had no ongoing
contractual relationship.
(ii) Location of negotiation and execution: “So far as [this Court is] aware, no court has
extended § 302(a)(1) to reach a nondomiciliary who never entered New York, who was solicited
outside of New York, who performed outside of New York such services as were performed, and
who is alleged to have neglected to perform other services outside of New York.” Mayes v.
Leipziger, 674 F.2d 178, 185 (2d Cir. 1982)); cf. Parke-Bernet Galleries, Inc. v. Franklyn, 256

11

N.E.2d 506, 508 (N.Y. 1970) (defendant transacted business within § 302 because he was an
active participant, over the telephone, in a New York auction). This is true even when a
defendant has communicated “with [a] plaintiff in New York by phone, fax and possibly mail.”
Bank Brussels Lambert, 171 F.3d at 788–89; see also Penn Grp., LLC v. Slater, No. 07 Civ. 729
(MHD), 2007 WL 2020099, at *10 (S.D.N.Y. June 13, 2007) (“[E]ven substantial negotiations
conducted by mail, telephone, or electronic communications often do not confer jurisdiction.”);
Palace Expl. Co. v. Petroleum Dev. Co., 41 F. Supp. 2d 427, 433 (S.D.N.Y. 1998) (iIt is “wellsettled that, generally, telephone and mail contacts do not constitute ‘transacting business’ under
the statute.”). Such is the case here. The contracting process was initiated not by Hoosier Park
but by Letom, and the initial (and only in-person) meeting about the agreement was held in
Tennessee. Head Decl. ¶¶ 9–11, 16. Afterwards, the agreement was negotiated exclusively over
email and phone. Id. ¶¶ 16, 18. And, at least as alleged, Hoosier Park’s performance was to
have been conducted entirely or almost entirely in Indiana. This factor, too, disfavors finding
specific jurisdiction.
(iii) Choice-of-law clause: Although not dispositive, “[a] choice of law clause is a
significant factor in a personal jurisdiction analysis because the parties, by so choosing, invoke
the benefits and protections of New York law.” Sunward Elecs., Inc., 362 F.3d at 23. Here,
however, Hoosier Park chose Indiana, not New York, law. This factor also disfavors specific
jurisdiction.
Letom notes that Hoosier Park applied New York law in its brief seeking dismissal for
lack of personal jurisdiction. Pl’s Opp. ¶ 12. That fact is irrelevant. Because Letom filed this
case in this District, Hoosier (and Letom) of necessity had to apply New York authorities on this
motion, because “the amenability of a foreign corporation to suit in a federal court in a diversity

12

action is determined in accordance with the law of the state where the court sits.” Bank Brussels
Lambert, 171 F.3d at 784 (quoting Arrowsmith v. United Press Int’l, 320 F.2d 219, 223 (2d Cir.
1963) (en banc)). Hoosier Park’s citation of such cases does not signify its consent to the use of
this forum, or indicate that, were jurisdiction here proper, New York substantive law would
apply. Quite the contrary, given the agreement’s choice of law provision, Indiana law would
almost certainly apply. See Follman v. World Fin. Network Nat’l Bank, 721 F. Supp. 2d 158,
161 (E.D.N.Y. 2010) (“[B]ecause defendant’s principal place of business is in Ohio, and
defendant’s cardholder agreement instructs that Ohio law governs the agreement, its choice-oflaw provision will be enforced.”); see also TransAtlantic Lines LLC v. Amergent Techs, LLC,
No. 16 Civ. 3549 (PAE), 2017 WL 78511, at *4 n.6 (S.D.N.Y. Jan. 6, 2017) (collecting cases).
(iv) Notices or payments; supervision: Letom has not alleged that Hoosier Park was
required to send notices of any kind into New York, or that Hoosier was subject to supervision in
New York (or elsewhere). However, had the agreement been fulfilled, Hoosier Park’s payments
to UAA were to be sent to a New York bank account. Head Decl. Exs. 4 & 5. Payments into the
forum state can inform the personal jurisdiction inquiry and be a “significant contact.” First City
Fed. Sav. Bank v. Dennis, 680 F. Supp. 579, 586 (S.D.N.Y. 1988); see also e.g., Al Rushaid v.
Pictet & Cie, 68 N.E.3d 1, 11 (N.Y. 2016) (finding personal jurisdiction where, inter alia, “the
defendants actively used a correspondent bank to further a scheme that caused harm”). This
factor therefore assists Letom’s argument for specific jurisdiction. But it falls well short of
carrying the day. “[C]ommunications with and payments to New York merely to ensure
compliance with contract terms negotiated and executed outside of New York do not ‘project’ a
defendant into the state sufficiently to confer personal jurisdiction over it under Section
302(a)(1).” Hau Yin To v. HSBC Holdings PLC, No. 15CV3590-LTS-SN, 2017 WL 816136, at

13

*5 (S.D.N.Y. Mar. 1, 2017) (citing Roper Starch Worldwide, Inc. v. Reymer & Assocs., Inc., 2 F.
Supp. 2d 470, 474–75 (S.D.N.Y. 1998)). The planned payments are insufficient to make out a
prima facie showing of personal jurisdiction.
Other factors: The Court considers as well the other factors on which Letom relies.
First, Letom argues that the fact that Hoosier Park “waived” arbitration in Indiana—
which would have been governed by Indiana law—favors exercise of personal jurisdiction here.
Pl’s Opp. ¶ 14. Letom does not cite any authority for that proposition. And nothing about
Hoosier Park’s having forgone alternative dispute resolution in another state enhances its ties to
this forum. Hoosier Park’s alleged refusal to arbitrate does not suggest, at all, that it intended to
avail itself of the laws of New York.
Second, as noted in connection with the general jurisdiction discussion, Letom relies on
the fact that Hoosier Park has New York affiliates. But Letom does not explain why these
support a finding of specific jurisdiction, which requires that “the claim asserted . . . arise from
[the New York] business activity.” Barrett, 251 Fed. App’x at 700. There are no such claims
here.
Third, Letom states that that the absence of a forum selection clause in the two contracts
is “noteworthy.” Pl’s Opp. ¶ 9. Again, however, this fact does not affirmatively signal assent to
a New York court’s jurisdiction in connection with the contract, any more that it supports
jurisdiction in any of the other 49 states.
Letom’s case authorities: The Court, finally, consider the two cases on which Letom
relies for his claim of personal jurisdiction: George Reiner & Co. v. Schwartz, 363 N.E.2d 551
(N.Y. 1977) and Singer v. Walker, 209 N.E.2d 68 (N.Y. 1965) (which is more properly cited as
Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc.). Each is inapposite.

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In Reiner, defendant Schwartz entered an employment contract in New York with a New
York corporation to be a salesman for the company in New England. 363 N.E.2d at 551–52. He
was then employed by the company for more than four years. Id. at 552. Schwartz was later
sued by the New York corporation, and the New York Court of Appeals ultimately found
personal jurisdiction proper. Id. at 554. Reiner, however, is inapposite because the facts there
amply supported a finding of an ongoing contractual relationship: After responding to an
advertisement, Schwartz came to New York, signed the contract in New York, and worked for
the New York company for four years. There are no like facts here.
In Longines-Wittnauer Watch Co., the New York Court of Appeals found personal
jurisdiction in New York proper over an Illinois company. It noted that the company “transacted
business” by “shipping substantial quantities of its products into [New York],” id. at 81, that the
defective hammer that was the subject of the suit was one of those products, id., and that “the
cause of action asserted [was] clearly one ‘arising from’ the purposeful activities engaged in by
the appellant in [New York] in connection with the sale of its products in the New York market,”
id. at 82. Again, there are no similar facts here.
In sum, considering the totality of the circumstances, Letom has failed make a prima
facie showing of specific personal jurisdiction over Hoosier Park.
CONCLUSION
For the reasons above, the Court grants Hoosier Park’s motion to dismiss for lack of
personal jurisdiction. The Clerk of the Court is respectfully directed to terminate the motion
pending at Dkt. 13.

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