Cernansky v. Lefebvre et al

Filing 17

OPINION AND ORDER denying 6 Motion to Dismiss for Failure to State a Claim; denying 9 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge William K. Sessions III on 1/28/2015. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
CHARLES CERNANSKY,
individually and in his
capacity as EXECUTOR OF THE
ESTATE OF PETER CERNANSKY,
Plaintiff,
v.
TYLER LEFEBVRE, PIONEERS
BOARD SHOP, INC., and RUSS
OWEN d/b/a SODA FACTORY
SKATE BOARDS,
Defendants.

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Case No. 2:14-cv-180

OPINION AND ORDER
On August 28, 2012, Peter Cernansky fell while riding a
skateboard-like device known as a longboard.

Peter hit his head

on the pavement, suffered severe head injuries, and died two days
later.

Peter’s father, plaintiff Charles Cernansky, acting

individually and as executor of Peter’s estate, now brings this
diversity action claiming failure to warn and wrongful death.
Pending before the Court are two motions to dismiss.
Defendant Tyler Lefebvre, Peter’s college roommate and owner of
the longboard, argues that he had no duty to warn of obvious
hazards and that Peter assumed the risk of longboarding.
Defendant Pioneers Board Shops, Inc. (“Pioneers”), the New
Hampshire shop that allegedly sold the longboard, argues lack of
personal jurisdiction and failure to state a claim.

For the

reasons set forth below, Lefebvre’s motion to dismiss is denied.

Pioneers’ motion to dismiss is denied without prejudice as to
personal jurisdiction.

The Court will allow Plaintiff 30 days in

which to conduct jurisdictional discovery with regard to
Pioneers’ contacts with Vermont.
Factual Background
On August 28, 2012, at approximately 4:30 p.m., Peter
Cernansky and his college roommate, Tyler Lefebvre, traveled to
Spruce Street in Burlington, Vermont to ride Lefebvre’s “Day
Walker” longboard.

Peter did not own a longboard, and prior to

that day had never ridden a longboard.

Although Lefebvre wore a

skate boarding helmet, Peter had no helmet.
The Complaint alleges that Lefebvre failed to provide Peter
with any safety instructions prior to taking him longboarding.
The Complaint further alleges, upon information and belief, that
Peter reached speeds over 25 miles per hour and “began to speed
wobble.”

ECF No. 1 at 3.

Peter lost control, fell backward, and

hit his head against the pavement, suffering occipital and
temporal skull fractures as a result of his fall.

He was taken

to Fletcher Allen Health Care, where he died on August 30, 2012
after being removed from life support.
Defendant Pioneers, a board shop in North Hampton, New
Hampshire, allegedly sponsored Lefebvre as a “longboard
ambassador” and provided him with the “Day Walker” board from
which Peter fell.

Lefebvre explains in an affidavit that as an

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ambassador for Pioneers, he “would periodically share photos
and/or video of myself riding, display a Pioneers sticker on my
equipment, and occasionally attend competitions listing Pioneers
as one of my sponsors.”

ECF No. 9-2 at 1.

In exchange for these

services, Lefebvre received discounted products.

Both Lefebvre

and Pioneers dispute the allegation that Pioneers sold or
otherwise provided the “Day Walker” board.
The Complaint alleges that Defendant Russ Owen d/b/a Soda
Factory Skate Board (“Owen”) manufactured the longboard.

Owen

has filed an answer to the Complaint and is proceeding pro se.
Levebvre and Pioneers have moved to dismiss.
Discussion
I.

Defendant Lefebvre’s Motion to Dismiss
Defendant Tyler Lefebvre moves to dismiss pursuant to Fed.

R. Civ. P. 12(b)(6), arguing (1) that he had no duty to warn of
obvious dangers and (2) that Peter assumed the risks associated
with longboarding.

A motion to dismiss for failure to state a

claim pursuant to Rule 12(b)(6) tests the legal sufficiency of
the plaintiff’s claim for relief.

See Patane v. Clark, 508 F.3d

106, 111–12 (2d Cir. 2007) (citation omitted).

In considering

such a motion, a court must accept as true all well-pleaded facts
in the complaint and draw all reasonable inferences in the
plaintiff’s favor.

See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd.,

493 F.3d 87, 98 (2d Cir. 2007) (citation omitted).

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This

presumption of truth does not extend to legal conclusions.

See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
To survive a motion to dismiss, a party need only plead “a
short and plain statement of the claim,” see Fed. R. Civ. P. 8(a)
(2), with sufficient factual “heft to show that the pleader is
entitled to relief.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

557 (2007) (internal quotation marks and alterations omitted).
Under this standard, the complaint’s “[f]actual allegations must
be enough to raise a right of relief above the speculative
level,” see id. at 555 (citation omitted), and present claims
that are “plausible on [their] face.”

Id. at 570.

Where a

plaintiff has “not nudged [his] claims across the line from
conceivable to plausible, [his] complaint must be dismissed.”
Id. at 570.
A.

Gratuitous Bailment - Failure to Warn

Lefebvre first argues that the act of lending Peter the
longboard created a gratuitous bailment, and that a gratuitous
bailor is only required to warn of a latent defect or hazard.
contends that in this case the danger of riding a longboard was

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not latent and was instead obvious.

He thus concludes that the

Complaint fails to state a plausible failure to warn claim.
In support of his gratuitous bailment argument, Lefebvre
cites Vermont case law from 1901 for the proposition that “‘[a]
bailment is the delivery of good[s] for some purpose, upon a
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contract, express or implied, that after the purpose has been
fulfilled they shall be redelivered to bailor . . . .”

ECF NO. 6

at 3 (quoting James Smith Woolen Mach. Co. v. Holden, 73 Vt. 396,
51 A. 2, 4 (1901)).

He next cites out-of-state cases to support

the contention that a gratuitous bailor only has a duty to warn
of a latent defect or hazard.

Id.

The failure to warn claim being brought against Lefebvre
sounds in negligence.

The Complaint alleges that Lefebvre owed a

duty of care to Peter, breached that duty of care by failing to
provide adequate instructions and warnings, and proximately
caused Peter’s fatal injuries.

ECF No. 1 at 3-4; see Endres v.

Endres, 2008 VT 124, ¶ 11, 185 Vt. 63, 968 A.2d 336 (setting
forth elements of negligence).

“Whether a defendant is negligent

depends on whether his or her action was objectively reasonable
under the circumstances; that is, the question is whether the
actor either does foresee an unreasonable risk of injury, or
could have foreseen it if he conducted himself as a reasonably
prudent person.”
336.

Endres, 2008 VT 124, ¶ 13, 185 Vt. 63, 968 A.2d

Under Vermont common law, “the degree of care that a

reasonably prudent person would exercise, and thus the scope of
the legal duty of ordinary care, is determined by the
foreseeability of the consequences of an individual’s acts or
omissions.”

Edson v. Barre Supervisory Union No. 61, 2007 VT 62,

¶ 10, 182 Vt. 157, 933 A.2d 200.

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Consistent with these general principles, the Complaint
alleges Lefebvre should have foreseen the potential for serious
injury based upon his knowledge of longboarding.

More

specifically, Lefebvre allegedly should have foreseen that
sending Peter, a first-time longboarder, down a hill without a
helmet or instruction presented a risk of harm giving rise to a
legal duty.

Plaintiff claims that Lefebvre breached that duty.

The fact that the longboard was loaned to Peter does not
alter the negligence analysis.

In the comparable context of

negligent entrustment, the “theory requires a showing that the
entruster knew or should have known some reason why entrusting
the item to another was foolish or negligent.”

Vince v. Wilson,

151 Vt. 425, 429, 561 A.2d 103, 105 (1989) (citation omitted).
That theory derives its rule from the Restatement of Torts, which
provides:
One who supplies directly or through a third person a
chattel for the use of another whom the supplier knows
or has reason to know to be likely because of his
youth, inexperience, or otherwise, to use it in a
manner involving unreasonable risk of physical harm to
himself and others whom the supplier should expect to
share in or be endangered by its use, is subject to
liability for physical harm resulting to them.
Restatement (Second) of Torts § 390.1

The comments to the

Restatement clarify that this rule “applies to anyone who

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The Vermont Supreme Court has endorsed use of the
Restatement to help define Vermont common law. See Doe v.
Forrest, 2004 VT 37, ¶ 49, 176 Vt. 376, 813 A.2d 48, 67.
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supplies a chattel for the use of another.

It applies to

sellers, lessors, donors or lenders, and to all kinds of bailors,
irrespective of whether the bailment is gratuitous or for a
consideration.”

Id., comment a (emphasis supplied); see also

Vince, 151 Vt. at 428, 561 A.2d at 105.
Here, it is alleged that Peter was inexperienced, and that
Lefebvre should have foreseen the risk of serious harm and taken
certain precautions based upon his knowledge of longboarding.
“Foresight of harm lies at the foundation of negligence.”
v. LaFaso, 126 Vt. 90, 94, 223 A.2d 814, 818 (1966).

LaFaso

While

Lefebvre allegedly loaned the longboard to Peter, that act did
not affect foreseeability.

The Court therefore finds that

Plaintiff has stated a plausible claim of negligent failure to
warn under Vermont common law.
B.

Assumption of Risk

Lefebvre next argues that Peter assumed the risk of
longboarding and that recovery is therefore barred under 12
V.S.A. § 1037.

Section 1037 of Title 12 provides:

“[n]otwithstanding the provisions of [Vermont’s comparative
negligence statute], a person who takes part in any sport accepts
as a matter of law the dangers that inhere therein insofar as
they are obvious and necessary.”

12 V.S.A. § 1037.

Lefebvre

contends that the dangers of longboarding were obvious, and that
Section 1037 thus prohibits recovery.

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Plaintiff submits that the

questions of obvious and necessary should go to the jury, and
that any dismissal under Section 1037 would be premature.
The first Vermont Supreme Court decision to construe Section
1037 involved a skier who was injured when he collided with an
unpadded, wooden lift-corral post.

See Estate of Frant v.

Haystack Group, Inc., 162 Vt. 11, 641 A.2d 765 (1994) (“Frant”).
The trial court granted summary judgment to the ski area,
concluding that under Section 1037 the injured skier had accepted
the “obvious and necessary” risk posed by the post.

The Vermont

Supreme Court reversed, citing plaintiff’s expert evidence of
safer construction techniques, the common use of padding on lift
poles, and the expert’s opinion that “Frant’s injury was
foreseeable and resulted from “‘a well known avoidable hazard in
the ski industry.’”

Id. at 13, 641 A.2d at 766.

The court also

concluded that “whether the ski area’s use of wooden corral posts
was an ‘obvious and necessary’ risk should have been a threshold
question of fact decided by the jury.”

Id.

Lefebvre points the Court to Nelson v. Snowridge, Inc., 818
F. Supp. 80, 83 (D. Vt. 1993), in which a skier was injured when
she slipped and fell while skiing over a patch of ice.

Judge

Parker entered judgment as a matter of law in favor of the
defendant under Section 1037.

While the decision noted that

“[t]he question of what dangers are obvious and necessary and
therefore inhere in a sport is generally one for a jury to

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decide,” Judge Parker nonetheless found “no reasonable mind could
fail to immediately conclude that ice is a necessary and obvious
danger of skiing in Vermont.”

818 F. Supp. at 83.

In the instant case, Plaintiff alleges Lefebvre failed to
warn not only of the risk of high speeds, but also of a
phenomenon known as “speed wobble.”

Whether that risk was

readily obvious, like the ice in Nelson, or involved more
specialized knowledge as in Frant, is a matter in dispute and may
be explored during discovery.

Plaintiff also disputes whether

the level of risk encountered by Peter was necessary, and is
again entitled to discovery on that question.

The Court

therefore finds that dismissal under 12 V.S.A. § 1037 is not
warranted at this early stage of the case, and Lefebvre’s motion
to dismiss is denied.
II.

Defendant Pioneers’ Motion to Dismiss
Defendant Pioneers adopts Lefebvre’s arguments for dismissal

(which are denied as explained above), and also moves to dismiss
under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction.
Relevant to the issue of personal jurisdiction, the Complaint
cites Lefebvre’s relationship with Pioneers as a “longboard
ambassador,” and claims upon information and belief that Pioneers
sold or otherwise provided the “Day Walker” longboard.

In

briefing on the motion to dismiss, Plaintiff further highlights
the Pioneers’ website, its Vermont-specific blog, and its

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advertized ability to conduct out-of-state deliveries.

Pioneers

argues that a product ambassador is not an agent, denies that it
sold or otherwise provided the “Day Walker” board, and disputes
Plaintiff’s contention that it solicits business in Vermont.
On a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(2), the plaintiff bears the burden of
establishing personal jurisdiction.
702 F.3d 725, 727 (2d Cir. 2012).

MacDermid, Inc. v. Deiter,
A district court may determine

a Rule 12(b)(2) motion on the basis of pleadings and affidavits
alone, may permit discovery, or may conduct an evidentiary
hearing on the merits.

Dorchester Fin. Sec., Inc. v. Banco BRJ,

S.A., 722 F.3d 81, 84 (2d Cir. 2013) (per curiam) (quoting Marine
Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)).
Those pleadings and affidavits must be construed in the light
most favorable to Plaintiff, as the non-moving party, and all
doubts are to be resolved in his favor.

Id. at 85.

That said,

the Court is not obligated to draw “argumentative inferences” in
favor of the Plaintiff.

Robinson v. Overseas Military Sales

Corp., 21 F.3d 502, 507 (2d Cir. 1994) (citing Atl. Mut. Ins. Co.
v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir.
1992)).

Similarly, the Court is not bound to accept as true

legal conclusions couched as factual allegations.

See Jazini v.

Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998).
If the court relies on pleadings and affidavits to resolve
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the motion, rather than a full evidentiary hearing, Plaintiff
need make only a prima facie showing of personal jurisdiction.
DiStefano v. Carozzi North America, Inc., 286 F.3d 81, 84 (2d
Cir. 2001).

To meet his burden, Plaintiff must plead facts

sufficient to support a finding that personal jurisdiction is
proper under Vermont’s long-arm statute and the Due Process
Clause of the Fifth and Fourteenth Amendments.

In re Roman

Catholic Diocese of Albany, 745 F.3d 30, 37-38 (2d Cir. 2014).
Because Vermont’s long-arm statute, 12 V.S.A. § 913(b), extends
personal jurisdiction to the outer limits permitted by the
federal Due Process Clause, the Court must analyze whether
personal jurisdiction comports with due process.

Id. at 38.

The Due Process Clause requires that a defendant
“purposefully establishes minimum contacts within the forum State
. . . ‘such that he should reasonably anticipate being haled into
court there.’”

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476

(1985) (quoting World–Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980)).

Once such minimum contacts are determined, the

Court must decide whether the exercise of personal jurisdiction
is reasonable and acceptable under “traditional notions of fair
play and substantial justice.”

Int’l Shoe Co. v. Washington, 326

U.S. 310, 316 (1945).
Personal jurisdiction may be specific or general.

“Specific

jurisdiction exists when a State exercises personal jurisdiction
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over a defendant in a suit arising out of or related to the
defendant’s contacts with the forum; a court’s general
jurisdiction, on the other hand, is based on the defendant’s
general business contacts with the forum state and permits a
court to exercise its power in a case where the subject matter of
the suit is unrelated to those contacts.”

Metro. Life Ins. Co.

v. Robertson-Ceco Corp., 84 F.3d 560, 567–68 (2d Cir. 1996)
(quotation marks and citation omitted).

For specific

jurisdiction, “minimum contacts exist where the defendant
purposefully availed itself of the privilege of doing business in
the forum and could foresee being haled into court there.”

Bank

Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120,
127 (2d Cir. 2002).

General jurisdiction is only appropriate

where a party’s “affiliations with the State are so ‘continuous
and systematic’ as to render them essentially at home in the
forum State.”

Goodyear Dunlop Tires Operations, S.A. v. Brown,

131 S. Ct. 2846, 2851 (2011); see also In re Terrorist Attacks on
September 11, 2001, 714 F.3d 659, 674 (2d Cir. 2013) (explaining
that because “general jurisdiction is not related to the events
giving rise to the suit, . . . courts impose a more stringent
minimum contacts test”).

In evaluating the strength of contacts

with the forum, a court looks to the totality of the
circumstances.

Chloe v. Queen Bee of Beverly Hills, LLC, 616

F.3d 158, 164 (2d Cir. 2010).
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A.

Specific Jurisdiction

Plaintiff’s specific jurisdiction argument hinges primarily
upon Lefebvre’s role as an “ambassador” for Pioneers.

That role,

Plaintiff argues, made Lefebvre an agent of Pioneers, as he was
tasked with promoting both the sport of longboarding and the
business of Pioneers.

Pioneers counters that it was nothing more

than a sponsor of an athlete, had no control over Lefebvre’s
actions, and therefore cannot be held vicariously liable for his
conduct.

Pioneers has also offered affidavits from Pioneers

owner Stephen O’Hara and Lefebvre attesting to the lack of any
controlling or other agency relationship between Lefebvre and
Pioneers.
An agent is a person authorized by another to act on that
other’s account.

Among other things, agency requires a

“‘manifestation by the principal that the agent shall act for
[it].’”

Cabrera v. Jakabovitz, 24 F.3d 372, 386 (2d Cir. 1994)

(quoting Restatement (Second) of Agency § 1 cmt. b (1958));
accord Springfield Hydroelectric Co. v. Copp, 172 Vt. 311, 779
A.2d 67, 72–73 (2001) (citing Restatement (Second) of Agency §
1).

“‘An essential element of agency” is also “the principal’s

right to control the agent’s actions.’”

Hollingsworth v. Perry,

133 S. Ct. 2652, 2666 (2013) (quoting 1 Restatement (Third) of
Agency § 1.01, Comment f (2005)).
According to the O’Hara affidavit, Lefebvre’s role as an

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ambassador meant that he “would periodically share photos and/or
videos of himself riding, display a Pioneers sticker on his
equipment, and occasionally attend competitions listing Pioneers
as his sponsor.”

ECF 9-1 at 1.

O’Hara attests that there was no

contract or employment relationship between Pioneers and
Lefebvre, and that Pioneers had no control over Lefebvre’s
actions.

Id.

Lefebvre’s affidavit similarly states that

“Pioneers never required me to perform any work, attend any
event, or act in any way on its behalf.
any way to control my actions.”

Pioneers never acted in

ECF 9-2 at 2.

Furthermore, on

the day in question Lefebvre was “not acting in any way as an
agent, representative, ambassador, sponsored athlete, or in any
other role of any kind on behalf of Pioneers.”

Id.

In light of

this testimony, the Court cannot accept Plaintiff’s conclusory
assertion of personal jurisdiction based upon an agency
relationship.

See Jazini, 148 F.3d at 184–85.

Plaintiff also alleges, upon information and belief, that
Pioneers sold or provided the “Day Walker” longboard to Lefebvre.
“Conclusory allegations showing the presence of jurisdiction,
particularly those stated only upon information and belief, are
insufficient to establish that the court has personal
jurisdiction over the defendant.”

Guo Jin v. EBI, Inc., 2008 WL

896192, at *2 (E.D.N.Y. March 31, 2008) (internal quotation marks
and citation omitted).

Also, while the Court has discretion to

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permit jurisdictional discovery, see Best Van Lines, Inc. v.
Walker, 490 F.3d 239, 255 (2d Cir. 2007), discovery is not
warranted where “the defendant submits an affidavit that provides
all the necessary facts and answers all the questions regarding
jurisdiction.”

A.W.L.I. Group, Inc. v. Amber Freight Shipping

Lines, 828 F. Supp. 2d 557, 575 (E.D.N.Y. 2011); see also Merck &
Co., Inc. v. Mediplan Health Consulting, Inc., 425 F. Supp. 2d
402, 420 (S.D.N.Y. 2006).
Here, Plaintiff’s assertion that Pioneer provided the
longboard is countered by both the O’Hara and Lefebvre
affidavits.

O’Hara states that “Pioneers never carried and/or

sold any Soda Factory ‘Daywalker’ skateboards at any time,” while
Lefebvre attests under oath that he purchased the board directly
from the manufacturer in Rhode Island.
1.

ECF 9-1 at 2; ECF 9-2 at

Plaintiff has not contested either affidavit.

The Court

therefore finds no basis for allowing jurisdictional discovery on
the question of whether Lefebvre obtained the longboard from
Pioneers.
Absent any plausible allegations of either an agency
relationship or Pioneers’ provision of the longboard, there is
insufficient support for the assertion of specific jurisdiction.
Pioneers did not sell the “Day Walker” longboard, and Peter’s
fall occurred when a sponsored athlete over whom Pioneers had no
control allegedly failed to provide proper warnings and

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instructions.

Given the totality of these facts, the Court finds

that Pioneers, through its relationship with Lefebvre, did not
“purposefully avail[] itself of the privilege of doing business
in [this] forum” and “could [not] foresee being haled into court
[here].”

Bank Brussels Lambert, 305 F.3d at 127 (internal

quotation marks omitted).

Accordingly, specific jurisdiction

over Pioneers does not lie.
B.

General Jurisdiction

As noted above, general jurisdiction requires “continuous
and systematic” contacts with the forum state.
Ct. at 2851.

Goodyear, 131 S.

The U.S. Supreme Court recently reiterated this

standard: “the inquiry under Goodyear is not whether a foreign
corporation’s in-forum contacts can be said to be in some sense
‘continuous and systematic,’ it is whether that corporation’s
‘affiliations with the State are so “continuous and systematic”
as to render [it] essentially at home in the forum State.’”
Daimler AG, 134 S. Ct. at 761 (quoting Goodyear, 131 S. Ct. at
2851).

Otherwise, the continuous and systematic “formulation . .

. is unacceptably grasping.”

Id.

Here, the Complaint alleges Pioneers is incorporated in New
Hampshire.

The O’Hara affidavit establishes that Pioneers’

principal place of business is also in New Hampshire.

O’Hara

further attests that Pioneers has no direct mail business, does
not travel to Vermont or attend shows or events here, and does

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not advertise or sell product in Vermont.
In his briefing on the motion to dismiss, Plaintiff contends
Pioneers has created and maintains a website that (1) broadcasts
its ability to take orders over the phone and ship anywhere and
(2) contains a Vermont-specific blog.

The mere creation of a

website containing product information viewable by persons within
a forum does not establish personal jurisdiction.

See Royalty

Network, Inc. v. Dishant.com, LLC, 638 F. Supp. 2d 410, 418
(S.D.N.Y. 2009) (noting that “passive” websites that merely make
information available to viewers “have ‘been analogized to an
advertisement in a nationally-available magazine or newspaper,
and do[ ] not without more justify the exercise of jurisdiction
over the defendant.’”) (quoting Citigroup Inc. v. City Holding
Co., 97 F. Supp. 2d 549, 565 (S.D.N.Y. 2009)); American
Wholesalers Underwriting, Ltd. v. American Wholesale Ins. Group,
Inc., 312 F. Supp. 2d 247, 258-59 (D. Conn. 2004).

Furthermore,

the ability to accept orders by phone as a result of information
placed on a website is generally insufficient to establish
personal jurisdiction.

See, e.g., Mink v. AAAA Development LLC,

190 F.3d 333, 336-37 (5th Cir. 1999) (finding no personal
jurisdiction over Vermont company whose “website provides users
with a printable mail-in order form, AAAA’s toll-free telephone
number, a mailing address and an electronic mail (“e-mail”)
address.”); Brown v. Web.com Group, Inc., 2014 WL 5471927, at *5
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(S.D.N.Y. Oct. 28, 2014) (“[W]eb-based sales and solicitations .
. . usually are not satisfactory grounds for general
jurisdiction.”).
A Vermont-specific blog, however, creates the prospect of
advertisements and other marketing efforts targeting this
judicial district directly.

The nature of the blog, its content,

and its relationship to sales and marketing may all be important
factors in the totality assessment of minimum contacts, see,
e.g., Pitbull Prods., Inc. v. Universal Netmedia, Inc., 2008 WL
1700196, at *6 (S.D.N.Y. Apr. 4, 2008) (finding jurisdiction
lacking where defendant’s website contained only message boards
and a blog and did not permit users to purchase goods or
services), but the current record is insufficient for the Court
to undertake that analysis.

The Court will therefore permit

limited discovery on those and related questions.
At the jurisdictional stage, “district courts enjoy broad
discretion in deciding whether to order discovery.”

In re

Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d 765, 811
(S.D.N.Y. 2005), aff’d, 538 F.3d 71 (2d Cir. 2008).

Courts

often permit jurisdictional discovery where the plaintiff has
made a “sufficient start” toward establishing jurisdiction, see,
e.g., Hollins v. U.S. Tennis Ass’n, 469 F. Supp. 2d 67, 70–71
(E.D.N.Y. 2006), but will not permit jurisdictional discovery for
the purpose of a “fishing expedition,” see Wego Chem. & Mineral
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Corp. v. Magnablend Inc., 945 F. Supp. 2d 377, 386 (E.D.N.Y.
2013) (citations omitted).

Here, the Plaintiff has asserted the

existence of a website with Vermont-specific material.

The Court

will therefore allow 30 days for discovery with respect to its
potential jurisdiction over Pioneers.

Pioneers’ motion to

dismiss for lack of personal jurisdiction is denied without
prejudice, and may be supplemented and resubmitted after the 30day discovery period has closed.
Conclusion
For the reasons set forth above, Defendant Lefebvre’s motion
to dismiss for failure to state a claim (ECF No. 6) is denied,
and Defendant Pioneers’ motion to dismiss for lack of personal
jurisdiction (ECF No. 10) is denied without prejudice.

Plaintiff

is granted 30 days from the date of this Opinion and Order in
which to conduct jurisdictional discovery with respect to
Pioneers.
Dated at Burlington, in the District of Vermont, this 28th
day of January, 2015.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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