THOMAS J. McAVOY, Senior United States District Judge.
Plaintiff Lauren Minholz commenced this action to recover for personal injuries she received on February 11, 2014 in Antarctica while deployed with the New York State Air National Guard 109th Airlift Wing. Compl. ¶¶ 5-9. Defendants Weather-Port Shelter Systems LLC ("WeatherPort"), Lockheed Martin Corporation ("Lockheed Martin"), and Alaska Structures, Inc. ("Alaska Structures") move to dismiss the action against them pursuant to Fed. R. Civ. P. 12(b)(2) on the grounds that the Court lacks personal jurisdiction over each defendant. See dkt. # 36 (WeatherPort's motion); dkt. # 44 (Lockheed Martin's motion); dkt. # 52 (Alaska Structures' motion). WeatherPort and Alaska Structures also move to dismiss pursuant to Fed. R. Civ. P. 12(b)(3), asserting that venue in this court is improper. Plaintiff opposes the motions, and each defendant has filed a reply. For the reasons that follow, the Fed. R. Civ. P. 12(b)(2) motions are granted and the Fed. R. Civ. P. 12(b)(3) motions are denied as moot.
On February 11, 2014, Plaintiff Lauren Minholz was deployed with the 109
After Plaintiff was injured, she was evacuated and returned to New York, her State of residence. See Minholz Aff. (attached as Exhibit "A" to Iseman Aff.). Once she returned to New York, her medical care was provided by medical professionals located in the Northern District of New York. Id. Due to her physical injury,
Plaintiff alleges that "[a]t all times herein relevant, both the winch system and the shelter were negligently manufactured, engineered, procured, sold, assembled, installed, repaired and maintained by the Defendants as described herein." Compl. ¶ 9. Alaska Structures is sued under theories of negligence (First and Third Causes of Action), strict products liability (Second Cause of Action), and breach of warranty (Fourth Cause of Action). Lockheed Martin is sued under a theory of negligence (Fifth Cause of Action). WeatherPort is sued under theories of strict products liability (Tenth Cause of Action), negligence (Eleventh Cause of Action), and breach of warranty (Twelfth Cause of Action).
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. "On a Rule 12(b)(2) motion ... the plaintiff bears the burden of showing that the court has jurisdiction over the defendant." Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566-567 (2d Cir. 1996). "In reviewing a Rule 12(b)(2) motion, `a court may consider documents beyond the pleadings in determining whether personal jurisdiction exists.'" SPV OSUS Ltd. v. UBS AG, 114 F.Supp.3d 161, 167 (S.D.N.Y. 2015) (quoting Greatship (India) Ltd. v. Marine Logistics Solutions (Marsol) LLC, No. 11-cv-420, 2012 WL 204102, at *2 (S.D.N.Y. Jan. 24, 2012)).
"Where ... the issue of personal jurisdiction `is decided ... without discovery, the plaintiff need show only a prima facie case' of jurisdiction on a motion under Rule 12(b)(2)." Bonkowski v. HP Hood LLC, 2016 WL 4536868, at *1 (E.D.N.Y. Aug. 30, 2016) (quoting Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir. 1984)); see Troma Entm't, Inc. v. Centennial Pictures Inc., 729 F.3d 215, 217 (2d Cir. 2013) (Courts require that "[a]t this stage of the proceedings" a plaintiff make a "prima facie showing that jurisdiction exists."). 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, 2001, 714 F.3d 659, 673 (2d Cir. 2013) (citing Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010) (internal quotation marks omitted)); see Troma, 729 F.3d at 217 (To survive a motion to dismiss for lack of personal jurisdiction, the allegations in the complaint when taken as true must be "legally sufficient allegations of jurisdiction.").
In considering a Rule 12(b)(2) motion, the pleadings and affidavits are to be construed in the light most favorable to Plaintiff, and all doubts are to be resolved in Plaintiff's favor. Bonkowski, 2016 WL 4536868, at *1. Plaintiffs allegations must provide "factual specificity necessary to confer jurisdiction." Jazini by Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998). "[C]onclusory statements" without any supporting facts are insufficient. Id. The Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Moreover, "where a defendant `rebuts [a plaintiff's] unsupported allegations with direct highly specific,
"It is well settled under Second Circuit law that, even where plaintiff has not made a prima facie showing of personal jurisdiction, a court may still order discovery, in its discretion, when it concludes that the plaintiff may be able to establish jurisdiction if given the opportunity to develop a full factual record." Leon v. Shmukler, 992 F.Supp.2d 179, 194 (E.D.N.Y. 2014) (citing In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 208 (2d Cir. 2003)). Thus, jurisdictional discovery is appropriate when the party has made a "colorable basis for personal jurisdiction, which could be established with further development of the factual record." Id. (internal citation omitted); see Ikeda v. J. Sisters 57, Inc., 2015 WL 4096255, at *8 (S.D.N.Y. July 6, 2015)(same). However, "[w]here [a plaintiff does] do not establish a prima facie case that the district court has jurisdiction over the defendant, the district court does not err in denying jurisdictional discovery." Chirag v. MT Marida Marguerite Schiffahrts, 604 Fed.Appx. 16, 18-19 (2d Cir. 2015) (citing Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 186 (2d Cir. 1998)).
To make this prima facie showing, a plaintiff must demonstrate a statutory basis for personal jurisdiction over the defendant, and that the Court's exercise of jurisdiction over the defendant is in accordance with constitutional due process principles. Stroud v. Tyson Foods, Inc., 91 F.Supp.3d 381, 385 (E.D.N.Y. 2015) (citing Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59-60 (2d Cir. 2012)). Plaintiff asserts that personal jurisdiction over Defendants is obtained pursuant to New York's general jurisdiction statute, New York Civil Practice Law and Rules § 301 ("CPLR § 301"), and New York's specific jurisdiction statute, New York Civil Practice Law and Rules § 302(a)(3)("CPLR § 302(a)(3)").
CPLR § 301 confers general personal jurisdiction "over persons, property, or status as might have been exercised heretofore." N.Y. CPLR § 301. "[A] foreign corporation is subject to general personal jurisdiction in New York [under CPLR § 301] if it is `doing business' in the state." Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir. 2000)(citing CPLR § 301); see Robert Diaz Assocs. Enters. v. Elete, Inc., 2004 WL 1087468, *6, 2004 U.S. Dist. LEXIS 8620, *16 (S.D.N.Y. May 13, 2004)(In determining whether a foreign corporation is subject to general personal jurisdiction pursuant to CPLR § 301, courts engage in an analysis to determine whether the corporation "was regularly doing business" in New York.). A court that has "general jurisdiction over a corporation may adjudicate all claims against that corporation-even those entirely unrelated to the defendant's contacts with the state." Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 225 (2d Cir. 2014).
CPLR § 302(a)(3) states that a New York court may exercise jurisdiction over a non-domiciliary corporation that:
CPLR § 302(a)(3).
To obtain jurisdiction under either CPLR § 302(a)(3)(i) or § 302(a)(3)(ii), a plaintiff must first show: (1) the defendant committed a tortious act outside the State; (2) the cause of action arises from that act; and (3) the act caused injury to a person or property within the State. LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 713 N.Y.S.2d 304, 735 N.E.2d 883, 886 (N.Y. 2000).
A federal court will "follow state law in determining the bounds of their jurisdiction over persons," Daimler AG v. Bauman, ___ U.S. ___, 134 S.Ct. 746, 753, 187 L.Ed.2d 624 (2014), "unless a state's assertion of jurisdiction contravenes a constitutional guarantee" such as due process. Cont'l Indus. Group v. Equate Petrochemical Co., 586 Fed.Appx. 768, 769 (2d Cir. 2014)(citing Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999) (internal quotations omitted)). "The canonical opinion in [the area of due process] remains International Shoe Co. v. Washington, 326 U.S. 310, [66 S.Ct. 154, 90 S.Ct. 95 (1945)], in which [the Supreme Court] held that a State may authorize its courts to exercise personal jurisdiction over an out-of-state defendant if the defendant has `certain minimum contacts with [the State] such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."'" Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923, 131 S.Ct. 2846, 2853, 180 L.Ed.2d 796 (2011) (quoting Int'l Shoe, 326 U.S. at 316, 66 S.Ct. 154).
Daimler, 134 S.Ct. at 754-55.
Under Goodyear, "`[f]or an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home.'" In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d at 674 (quoting Goodyear, 131 S.Ct. at 2853-54). More recently in Daimler,
Gucci America, Inc. v. Weixing Li, 768 F.3d 122, 134-35 (2d Cir. 2014).
As the Second Circuit explained in Brown v. Lockheed Martin Corp., 814 F.3d 619 (2d Cir. 2016), "Goodyear seemed to have left open the possibility that contacts of substance, deliberately undertaken and of some duration, could place a corporation `at home' in many locations." Id. at 629. However, "Daimler all but eliminated that possibility, `considerably alter[ing] the analytic landscape for general jurisdiction' by more narrowly holding that, aside from the truly exceptional case, a corporation is at home and subject to general jurisdiction only in its place of incorporation or principal place of business." Strauss v. Crédit Lyonnais, S.A., 175 F.Supp.3d 3, 14-15 (E.D.N.Y. 2016)(quoting Brown, 814 F.3d at 629 and citing Daimler, 134 S.Ct. at 760). "[T]he Daimler Court instructed that in assessing the extent of a corporation's contacts in a state for general jurisdiction purposes, [a court] must assess the company's local activity not in isolation, but in the context of the company's overall activity: the general jurisdiction inquiry `does not focus solely on the magnitude of the defendant's in-state contacts,' but `calls for an appraisal of a corporation's activities in their entirety, nationwide and worldwide.'" Brown, 814 F.3d at 629 (quoting Daimler, 134 S.Ct. at 762 n. 20 (alterations and internal quotation marks omitted)).
Brown, 814 F.3d at 629.
"[T]he Daimler Court cited only its decision in Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 S.Ct. 485 (1952), as an example of an `exceptional case.'" Brown, 814 F.3d at 629 (citing Daimler, 134 S.Ct. at 761 n. 19). In Perkins, the defendant company's principal place of business was, because of wartime circumstances, temporarily located in the state where it was sued, see Perkins, 342 U.S. at 447-50, 72 S.Ct. 413, which the Daimler Court deemed "a surrogate for the place of incorporation or head office." Daimler, 134 S.Ct. at 756 n. 8 (citation and interior quotation marks omitted). The Court noted that its decision in Perkins "remains the textbook case of general jurisdiction appropriately exercised over a foreign corporation that has not consented to suit in the forum.'" Daimler, 134 S.Ct. at 755-56 (quoting Goodyear, 131 S.Ct. at 2856 (internal quotation marks and brackets omitted)).
From Daimler, the proposition emerged that it "would be inconsistent with due process" to exercise general jurisdiction where a plaintiff "has not alleged that [the defendant] is headquartered or incorporated in New York, nor has it alleged facts sufficient to show that [the defendant] is otherwise `at home' in New York." Cont'l Indus. Group v. Equate Petrochemical Co., 586 Fed.Appx. 768, 769-770 (2d Cir. 2014). Thus, "[t]he Supreme Court's decision in Daimler ... changed the law of general jurisdiction, making it substantially more difficult to establish that type of personal jurisdiction." Bertolini-Mier v. Upper Valley Neurology Neurosurgery, P.C., 2016 WL 7174646, at *4 (D. Vt. Dec. 7, 2016)(citing Brown v. Lockheed Martin, 814 F.3d at 627 (reading Daimler as implementing a "restrictive" test); Gucci Am., Inc., 768 F.3d at 135-36 (articulating change in the law effected by Daimler); Weiss v. Nat'l Westminster Bank PLC, 176 F.Supp.3d 264, 274 (E.D.N.Y. 2016) (noting that Daimler "narrowed the law on general jurisdiction"); 7 W 57th St. Realty Co. v. Citigroup, Inc., 2015 WL 1514539, at *7 (S.D.N.Y. Mar. 31, 2015) ("Daimler effected a change in the law ...."); see also In re Roman Catholic Diocese of Albany, N.Y., Inc., 745 F.3d 30, 39-41 (2d Cir. 2014) (recognizing restrictions voiced by Supreme Court in Daimler); Hood v. Ascent Med. Corp., 2016 WL 1366920, at *8 (S.D.N.Y. Mar. 3, 2016) ("[i]n the recent cases of Daimler and Goodyear, the Supreme Court made clear that the constitutional standard for finding a corporation to be `essentially at home' in a foreign jurisdiction is a stringent one")(quoting Daimler, 134 S.Ct. at 760). "[A]lthough Daimler and Goodyear `d[o] not hold that a corporation may be subject to general jurisdiction only in a forum where it is incorporated or has its principal place of business,' those cases make clear that even a company's `engage[ment] in a substantial, continuous, and systematic course of business' is... insufficient to render it at home in a forum." Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 226 (2d Cir.), cert. denied, ___ U.S. ___, 134 S.Ct. 2888, 189 L.Ed.2d 837 (2014) (quoting Daimler, 134 S.Ct. at 760)).
For specific jurisdiction, "[a] corporation's continuous activity of some sorts within a state ... is not enough to
The Court employs the same standard of review on a Rule 12(b)(3) dismissal motion alleging improper venue as it does on a Rule 12(b)(2) motion, Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005). On a Rule 12(b)(3) motion, a plaintiff bears the burden of making a prima facie showing that venue is proper, id., and, in analyzing whether the plaintiff has made the requisite prima facie showing, the Court views all the facts in a light most favorable to the plaintiff. Phillips v. Audio Active Ltd., 494 F.3d 378, 384 (2d Cir. 2007). "[F]or venue to be proper, significant events or omissions material to the plaintiff's claim must have occurred in the district in question, even if other material events occurred elsewhere." Glasbrenner, 417 F.3d at 357 (emphases in original); see also id., at 356-57.
Lockheed Martin is a foreign business corporation organized and existing under the laws of the State of Maryland with its principal place of business in Bethesda, Maryland. Compl. ¶¶ 10-11. Plaintiff alleges that it "owned and/or controlled numerous subsidiary corporations and business entities doing business in New York State," and "was authorized to conduct and transact business within the State of New York through" these subsidiary corporations and business entities. Id. ¶¶ 12-13. Plaintiff further alleges that Lockheed Martin voluntarily injected its products and services into the stream of interstate commerce with a reasonable expectation that the products and services could and would be consumed or used in the State of New York. Id. ¶¶ 17-18. Plaintiff asserts that Lockheed Martin engaged in a persistent course of conduct in the State of New York, that it derives substantial revenues from the goods used or consumed services rendered in the State of New York, and that it "expected or should have expected the tortious acts described [in the complaint] to have consequences in the State of New York." Id. ¶¶ 19-21. There is no dispute that "[t]wenty-one years ago, Defendant Lockheed Martin registered to do business in New York State and it has
Lockheed Martin argues that Plaintiff fails to make out a prima facie showing of personal jurisdiction because:
Lockheed Martin Mem. L., p. 1.
Plaintiff responds with a number of reasons why Lockheed Martin's arguments should be rejected. The Court will address these seriatim.
Lockheed Martin argues that the exercise of general personal jurisdiction over it would contravene due process. Plaintiff counters that the exercise of general personal jurisdiction over Lockheed Martin would not offend principles of due process because the corporation is essentially at home in New York. In this regard, Plaintiff argues that Lockheed Martin is a global, multi-billion dollar company that primarily provides goods and services to the U.S. military and other militaries around the world, and has registered twenty-eight (28) separate business entities with New York's Department of State — thirteen (13) of which are actively engaged in business in New York. Pl. Mem. L., p. 3. (citing Iseman Aff. at ¶¶ 10-12 and Exhibit "B" annexed thereto). Moreover, Plaintiff points out that Lockheed Martin has what it describes as "major business areas" in Mitchell Field, Syracuse, and Owego, New York (Iseman Aff. at ¶ 16). Plaintiff also points out that "[s]ince at least 2013, Defendant Lockheed Martin has also annually described its business in Syracuse and Owego as having `significant operations'" (Iseman Aff. at ¶ 15), and Lockheed Martin employs nearly 5,000 people throughout New York State — 2,201 employees in Owego; 2,400 employees in Syracuse; and 158 employees in Mitchell Field. (Iseman Aff. at ¶ 17). Still further, Plaintiff points out that Lockheed Martin has undertaken a handful of "environmental reclamation projects" in New York, and is publicly traded on the New York Stock Exchange. These facts, Plaintiff contends, establish a basis for general jurisdiction over Lockheed Martin on a theory that it is "at home" in New York.
Lockheed Martin replies by providing evidence indicating that Lockheed Martin had 518 locations in 2013, 540 in 2014, and 591 in 2015. Lockheed Martin Reply Mem. L., p. 5 (citing Reply Declaration of Michael L. Chartan, Exs. 5, 6, & 7). Lockheed Martin also presents evidence indicating that it had approximately 115,000 employees in 2013, 112,000 in 2014, and 126,000 in 2015. Id. Lockheed Martin argues that "[w]hen comparing the number of locations Lockheed Martin has in New York (3) to its locations worldwide, New York represents approximately .50% of the locations. Moreover, ... [the Lockheed Martin] [e]mployees in New York constituted about 3.77% of all employees." Id.
Based on the parties' representations, Lockheed Martin's presence in New York
Thus, the facts neither establish that Lockheed Martin is "essentially at home" in New York, nor provide a basis to conclude that New York is Lockheed Martin's surrogate for its place of incorporation or head office. These facts fail to make a prima facie showing that the exercise general personal jurisdiction over Lockheed Martin would be in accordance with constitutional due process principles.
Because the Court finds that Plaintiff has failed to established a threshold basis for exercising general jurisdiction over Lockheed Martin, the Court need not determine whether the exercise of such jurisdiction would be reasonable under the circumstances. The Court will, however, address one issue raised by Plaintiff. That is the fact that Antarctica does not have a judicial system which would allow Plaintiff to bring her action where she was injured. See Smith v. United States, 507 U.S. 197, 201-202, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993) (Antarctica has no recognized government or law). The Court finds that this not an exceptional circumstance such to alter the analysis under Daimler. Although she cannot bring suit in Antarctica, Plaintiff can sue in a location that could exercise general personal jurisdiction over Lockheed Martin — presumably the State of Maryland. While this might present a burden on Plaintiff in comparison to litigating the action in New York (her State of residence), the burden is no greater than if the injury had occurred in a forum that could exercise personal jurisdiction over Lockheed Martin, thus requiring her to litigate in that forum. Further, a plaintiff's convenience is not a factor driving the due process analysis under Daimler.
Plaintiff also argues, however, that Lockheed Martin consented to personal jurisdiction for all purposes when it registered to do business in New York, and that given this consent, the exercise of general jurisdiction does not offend traditional notions of due process. Lockheed Martin opposes the argument, asserting, inter alia, that the Second Circuit's decision in Brown v. Lockheed Martin is dispositive on the issue and defeats Plaintiff's argument.
In Brown, the Second Circuit considered whether a Connecticut registration statute allows for general jurisdiction over a foreign corporation and found that it did not. The Connecticut registration statute "generally requires that `foreign corporation[s]' desiring to `transact business' in the state obtain a certificate of authority from the Secretary of State to do so." Brown, 814 F.3d at 633 (quoting Conn. Gen. Stat. § 33-920). Based on related statutory provisions, the Circuit concluded "that Connecticut law requires that a foreign corporation authorized to transact
The Circuit also noted that "although the Connecticut registration statute does not expressly limit the matters as to which an authorized agent may accept service of process, neither does it contain express language alerting the potential registrant that by complying with the statute and appointing an agent it would be agreeing to submit to the general jurisdiction of the state courts." Id. Further, the Circuit found that the Connecticut statute "gives no notice to a corporation registering to do business in the state that the registration might have the sweeping effect" of consent to general jurisdiction. Id. at 637.
In declining to exercise of general personal jurisdiction based on Lockheed Martin's registration to do business in the state, the Circuit wrote:
Id.
As Lockheed Martin argues here, New York Business Corporations Law § 1301, like Conn. Gen. Stat. § 33-920, is silent on the matter of consent to general jurisdiction.
For these reasons, the Court finds that the exercise of general personal jurisdiction over Lockheed Martin is improper.
Plaintiff also contends that specific jurisdiction can be asserted over Lockheed Martin pursuant to CPLR § 302(a)(3). Lockheed Martin argues, inter alia, that CPLR § 302 is inapplicable because the situs of Plaintiff's personal injury is in Antarctica, and thus Plaintiff is unable to establish that the tort caused injury in New York.
CPLR § 302(a)(3) may be use to obtain specific jurisdiction over a defendant that commits a tortious act without the state causing injury to person or property within the state. LaMarca, 95 N.Y.2d 210, 713 N.Y.S.2d 304, 735 N.E.2d 883, 886. "Under [CPLR § 302(a)(3)], the predicative determination ... is whether the Plaintiff's injury occurred, or was felt, within the State of New York." Verragio, Ltd. v. Malakan Diamond Co., 2016 WL 6561384, at *3 (S.D.N.Y. Oct. 20, 2016) (citing Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 35 (2d Cir. 2010); Troma Entm't, 729 F.3d at 219). "The mere fact that the injured party resides or is domiciled in New York is not a sufficient predicate for jurisdiction under CPLR § 302(a)(3)." Id. (citing Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326, 425 N.Y.S.2d 783, 402 N.E.2d 122 (1980)).
Rather, "[t]o determine where an injury took place for purposes of the long arm statute, New York courts apply a situs-of-injury test." Weaver v. Derichebourg ICS Multiservices, 2010 WL 517595, at *2, 2010 U.S. Dist. LEXIS 11018, at *6-7 (S.D.N.Y. Feb. 3, 2010). Under the situs-of-injury test, the injury is deemed to have occurred at the site of the "original event which caused the injury." DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001). For purposes of this analysis, "[t]he original event occurs where the first effect of the tort that ultimately produced the final economic injury is located." Weaver, 2010 WL 517595, at *2, 2010 U.S. Dist. LEXIS 11018, at *6-7 (citing DiStefano, 286 F.3d at 85). The New York Court of Appeals recently held that, "the situs of the injury ... is the location of the original event which caused the injury, and not where a party experiences the consequences of such injury." Paterno v. Laser Spine Inst., 24 N.Y.3d 370, 381, 998 N.Y.S.2d 720, 23 N.E.3d 988 (N.Y. 2014).
There is no dispute that Plaintiff's alleged injury occurred in Antarctica. In an effort to find jurisdiction in New York, Plaintiff offers a "nuanced analysis" to determine the "situs of the injury." Pl. Mem. L. pp. 12-15. Plaintiff argues that the traditional "situs of the injury test" is not applicable in this case because (1) Antarctica, the true "situs of the injury", does not provide her with recourse; (2) "economic harm" occurred in New York; and (3) her status in the military "strongly favors" a finding that her injury occurred in New York. (Id. at 12-14). Lockheed Martin argues that Plaintiff's positions should be rejected because they are contrary to settled law.
As indicated above, if the claims against Lockheed Martin are dismissed for lack of personal jurisdiction, Plaintiff can sue Lockheed Martin in a forum that has personal jurisdiction over it. Thus, the fact that the accident occurred in a place that does not have a judicial system does not
There is no merit to Plaintiff's argument that New York may be considered the situs of the injury because she felt "economic injury" in New York. New York courts have distinguished between personal injury torts and economic torts with respect to the situs of the injury analysis. Courts have explained that "[w]hereas a commercial tort involving fraud or misrepresentation may not cause injury immediately or in the state in which it was committed, the first effect of a tort involving physical injury is immediately visited upon the body of the injured person." Gould v. Moran Towing Corp., 2014 WL 1343130, at *3, 2014 U.S. Dist. LEXIS 47153, at *9-10 (E.D.N.Y. Apr. 3, 2014). Therefore, even accepting that Plaintiff suffering economic damage in New York after the accident, jurisdiction does not exist in New York
Plaintiff also argues that a "unique factor" that "strongly favors" a conclusion that Defendant's tortious conduct had "an impact within New York for § 302(a)(3) purposes is that Plaintiff, at the time of her injury, was executing orders issued by the State of New York" and thus "was an official extension of New York State and subject to New York's jurisdiction." Pl. Mem. L. p. 14 (citing NY Mil. Law §§ 130.2, 130.3; 9 NYCRR 515.1). The argument is without merit.
The injury sustained here was personal to Plaintiff; it did not affect the State of New York even though Plaintiff was serving in New York's Air National Guard when she was injured. Further, the statutory and code provisions cited by Plaintiff neither define where a member of New York's military may bring a civil action, nor supplant the requirements of New York's statutory jurisdictional provisions or the principles of constitutional due process. See N.Y. Mil. Law § 130.2; § 130.3; 9 NYCRR 515.1. Accordingly, Plaintiff's military status at the time of her injury neither alters the situs-of-injury test, nor grants specific personal jurisdiction in New York over a defendant who may be responsible for a injury sustained by a member of the military in a location other than New York.
For the reasons discussed here, Plaintiff has failed to make a prima facie showing that New York may properly exercise long-arm jurisdiction over Lockheed Martin for her injuries sustained in Antarctica.
Because Plaintiff has not advanced a colorable basis for general or specific personal jurisdiction over Lockheed Martin that could reasonably be established with further development of the factual record, jurisdictional discovery is denied.
For the reasons discussed above, Lockheed Martin's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2) is granted
The Court next turns to WeatherPort's Rule 12(b)(2) motion.
Plaintiff alleges that "[a]t all times herein relevant, the Defendant, WeatherPort Shelter Systems LLC was and is a foreign business corporation or other entity duly organized and existing under the laws of Colorado" that "maintained its principal place of business in Delta, Colorado." Comp., ¶¶ 45, 47. Further, Plaintiff alleges that WeatherPort "is owned and/or controlled
Plaintiff also alleges that WeatherPort:
Id. ¶¶ 51-55.
In support of its motions, WeatherPort provides an affidavit from its Office Manager, Rachel Bissell. Dkt. # 36-3. Ms. Bissell avers that WeatherPort is headquartered in Delta, Colorado; has a training office located in Kirkland, Washington; and maintains no physical presence in the State of New York in that it owns no property or offices in New York, is not a registered corporation in New York, has no bank accounts in New York, does not actively solicit business or advertise in New York, and has never sought authorization to do business in New York. Id. ¶¶ 4-8, 10. Ms. Bissell further avers that WeatherPort employees have never traveled to the State of New York for training, to attend trade shows, or to participate in industry events. Id. ¶ 6.
While Ms. Bissell acknowledges that WeatherPort operates a website (http://www.weatherport.com) which is held out to the public at large, "the website merely provides passive information and all orders must be placed with a representative at WeatherPort." Id. ¶ 11. Ms. Bissell indicates that since July 2014, WeatherPort has received orders from only ten (10) customers who provided a New York billing address, has shipped only nine (9) orders from WeatherPort to a New York destination address, and all but two (2) of those orders were shipped Free-On-Board at the WeatherPort factory in Colorado meaning that the customers became the owners of the goods at the factory and were responsible for the shipping. Id. ¶¶ 12-15 (citing History of NY Orders, Exs. A & B). Ms. Bissell maintains that "[t]he total amount of revenue generated by any billing and/or shipments to customers located within New York State represent less than 1% of WeatherPort's total sales since January 1, 2014." Id. ¶ 16.
Ms. Bissell also asserts:
Id. ¶ 13.
Finally, Ms. Bissell maintains:
Id. ¶¶ 19-21.
Plaintiff counters that WeatherPort's website "is readily accessible to any individual or business in New York with internet access and offers interactive features such as a blog, a subscription newsletter service, the ability to email, leave messages and place inquires with Defendant Weatherport." Pl. Mem. L., p. 3. Plaintiff also contends that the website "links to its various social media profiles through which it advertises its products and services. Defendant Weatherport has separate social media profiles on Facebook, Twitter, Google Plus, Instagram, and Pinterest and provides links to those sites through its website. Each of these social media profiles are also accessible by anyone in New York State." Id. Further, Plaintiff contends that WeatherPort's social media websites
Id. p 4 (citation omitted).
Plaintiff also contends that "[a]ccording to its website, Defendant Weatherport also holds itself out as having a division named Blu-Med Response. Blu-Med has conducted business in New York, having contracted with the Suffolk County government to provide medical shelter systems for use in emergency situations. Additionally, these shelter systems were used in the aftermath of Super Storm Sandy by the Suffolk County Fire and Rescue and Emergency Services." Id. (citing Ex. "F" to Iseman Aff.).
WeatherPort replies that "Plaintiff's reliance on a perceived relationship between WeatherPort and Blu-Med is contrary to the evidence. A review of the Blu-Med website materials relied upon by Plaintiff state that Blu-Med is a `division of Alaska Structures, Inc.'" WeatherPort Reply Mem. L. p. 7 (citing Ex. "F" to Iseman Aff., pp. 2, 5). "Moreover, both WeatherPort and Alaska Structures, Inc. are separate privately held companies with no parent company." Id., p. 8 (citing Dkt. # 35; Dkt. # 51).
Plaintiff's allegations against WeatherPort, together with the uncontroverted facts, fail to satisfy the "essentially at home" due process requirement of Daimler or establish that New York is a surrogate for WeatherPort's place of incorporation or its head office. These facts indicate that WeatherPort's headquarters is located in Colorado; it is not a New York corporation; it maintains no physical presence in the State of New York; it owns no property and has no offices located within New York; and its employees have never traveled to the State of New York for training, to attend trade shows or to participate in industry events. See Bissell, Aff. ¶¶ 5,6 & 8. The fact that WeatherPort maintains a passive Internet website available to New York residents is an insufficient predicate upon which to base a personal jurisdiction determination. See Stephan v. Babysport, LLC, 499 F.Supp.2d 279, 287-88 (E.D.N.Y. 2007)("passive website" that simply makes information available to others in a foreign jurisdiction will not justify the exercise of personal jurisdiction)(citing Best Van Lines v. Walker, 490 F.3d 239, 251-52 (2d Cir. 2007)); see also Bensusan Restaurant Corp. v. King,
As to Blu-Med, the evidence presented by Plaintiff indicates that Blu-Med is a division of Alaska Structures, and there appears to be no dispute that WeatherPort and Alaska Structures are separate privately held companies. Even assuming, arguendo, that Blu-Med is a corporate affiliate of WeatherPort, the Daimler and Goodyear cases teach that corporate affiliation is an insufficient basis to satisfy due process on general jurisdiction grounds. Further, Plaintiff has failed to present facts indicating that Blu-Med is "essentially at home" in New York such to satisfy the due process requirement articulated in Daimler.
Thus, Plaintiff fails to establish a prima facie basis for New York to assert general personal jurisdiction over WeatherPort without contravening the principles of due process. WeatherPort's motion in this regard is granted.
Plaintiff also claims that WeatherPort is subject to specific personal jurisdiction under CPLR 302(a)(3) because WeatherPort committed a tortious act outside of New York that caused injury in New York. The argument is without merit.
Like with her opposition to Lockheed Martin's motion, Plaintiff suggests that the Court abandon the "situs-of-injury" test and instead apply an analysis of "where the first effect of the tort was located that ultimately produced the final economic injury." Pl. Mem. L., p. 9 (quoting Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 792 (2d Cir. 1999)). For the reasons discussed with regard to Lockheed Martin's challenge to the exercise of long-arm jurisdiction, and because Bank Brussels addressed commercial torts such as fraud or breach of fiduciary duty, see Bank Brussels, 171 F.3d at 792-93, Plaintiff's argument is without merit. Further, as indicated above, specific jurisdiction is limited to those cases involving "issues deriving from, or connected with, the very controversy that establishes jurisdiction." Shovah, 745 F.3d at 37. The claims against WeatherPort do
Because Plaintiff has not advanced a colorable basis for general or specific personal jurisdiction over WeatherPort that could reasonably be established with further development of the factual record, jurisdictional discovery is denied.
For the reasons discussed above, WeatherPort's Rule 12(b)(3) motion to dismiss is granted.
Because the Court has granted WeatherPort's Rule 12(b)(2) motion, there is no reason to reach WeatherPort's Rule 12(b)(3) motion. That motion, therefore, is denied as moot.
As to Alaska Structures, Plaintiff alleges that it is a foreign business corporation or other entity duly organized and existing under the laws of the State of Alaska that maintains its principal place of business in Anchorage, Alaska. Compl. ¶¶ 32-33. Plaintiff further alleges that Alaska Structures:
Id. ¶¶ 32-44.
In support of its motions, Alaska Structures provides an affidavit from its Vice President, Wanda Gudim. Dkt. # 52-3. Ms. Gudim avers that Alaska Structures is a company that manufactures and sells commercial fabric buildings for use as warehouses, storage facilities, shelters, hangars, workshops, remote camps, mobile offices, etc. Gudim Aff., ¶ 3. Alaska Structures was incorporated in the State of Alaska in 1979 and is a registered Alaska business corporation. Id. ¶ 4. Its principal place of business is in Anchorage, Alaska. Id. ¶ 5. Its registered agent for service of process is DWT Alaska Corp., which has its mailing and physical address at 188 W.
Ms. Gudim further avers that Alaska Structures neither owns nor leases any property in New York State. Id. ¶ 7. It has no physical presence in New York State; it has no offices in New York State; it does not employ anyone who works or resides in New York State; it does not have any bank accounts in New York State; it does not have a telephone number in New York State; it is not a registered New York State business entity of any type, nor has it sought to become registered in New York State; and it has not actively solicited business or advertised its products within the State of New York. Id. ¶¶ 7-11. According to Ms. Gudim, "Alaska Structures does an exceedingly small percentage of its business in the State of New York. In the past five years, significantly less than 1% of Alaska Structures sales have involved a customer with a ship to address located in New York, .35%
Ms. Gudim indicates that Alaska Structures maintains an Internet website that is held out to the public at large, but indicates that the website is passive in that it only provides information about Alaska Structures' products, and customers cannot order any products from the website. Id. ¶¶ 13-14. Ms. Gudim further indicates that there is no pricing information regarding the products on the website. Id. ¶ 15.
In response, Plaintiff argues that "Alaska Structures admittedly does business in New York. While Defendant states this is an `exceedingly small percentage of its business', the Defendant has not disclosed the dollar figures, volume nor nature of the business it conducts in New York." Pl. Mem. L. p. 4. Plaintiff also notes that Ms. Gudim's affidavit does not refute that Alaska Structures owns and/or controls Weatherport and an entity called Blu-Med. From this, Plaintiff contends:
Id. (citations omitted)
Plaintiff also notes that she has "made numerous, specific allegations in her Complaint regarding jurisdictional facts and Defendant's conduct vis-a-vis Plaintiff, the New York Air National Guard and the State of New York. To paraphrase from the Complaint, ... Defendant was responsible for the Engine Tents (and the component parts thereof) that caused the injury; that Defendant sold, supplied and/or provided the Engine Tent to New York State Air National Guard; that it knew members of the New York State Air National Guard were using said tents; and that its knew or should have known that its conduct would have consequences in New York. Each of these facts goes unrefuted by Defendant." Id. at pp. 4-5.
Ms. Gudim also avers that "Blu-Med Response Systems is, in fact, a division of Alaska Structures. However, it is not a separate business entity, and all of the information in my initial affidavit regarding Alaska Structures' lack of contacts with New York applies to Blu-Med as well." Id. ¶¶ 10-11; see id. ¶¶ 12-13.
Ms. Gudim also avers that "Alaska Structures and co-defendant WeatherPort Shelter Systems LLC are separate business entities." Id. ¶ 19. She acknowledges that while "the owner of 100 percent of Alaska Structures' stock, Richard Hotes, also is a 99 percent member of co-defendant WeatherPort Shelter Systems LLC," the two businesses "have separate places of business, production facilities, financial books/ledgers, and tax filings," id. ¶¶ 20-21; see id. ¶¶ 22-26, "do not provide each other with capital or low or no-interest loans, or pay each other's operating expenses like payroll," id. ¶ 27, "[t]he day-to-day operations of each company are independently managed," id. ¶ 28, and "neither Alaska Structures nor WeatherPort determines what contracts or business transactions the other will enter into or the terms or pricing of such contracts." Id. ¶ 29.
Ms. Gudim asserts that while Plaintiff "claims there is some `larger entity' that includes Alaska Structures, WeatherPort, and/or Blu-Med as `different divisions,' ... there is no `larger entity' that owns or controls all three entities or any combination thereof. Furthermore, neither Alaska Structures' nor WeatherPort's business documents, such as contracts, letterheads, or marketing brochures, identify one company as a `division' of the other." Id. ¶¶ 30-32.
Ms. Gudim also addresses Plaintiff's "claims [that] Alaska Structures has done business in New York State `through' the transactions WeatherPort's Office Manager Rachel Bissell's describes in her affidavit," asserting:
Id. ¶¶ 33-37.
Although Plaintiff asserts that she has alleged facts "demonstrating that Defendant Alaska Structures has engaged in a systematic and continuous business presence within and with the State of New York for this Court to exercise general jurisdiction," Pl. Mem. L., p. 6, it is undisputed that Alaska Structures does not maintain an office or own or lease real estate in New York, Gudim Aff. ¶¶ 5-9; does not have a bank account in New York, id. ¶ 9; is not registered to do business in New York, nor has it attempted to become registered, id. ¶¶ 4, 10; does not actively solicit business or conduct marketing in New York, id. ¶ 11; and does not have employees or agents located in New York, id. ¶ 8. Moreover, it is undisputed that Alaska Structures' Internet websites and social media outlets are passive and do not allow customers to order any products or enter into contracts with Alaska Structures through them. Finally, Alaska Structures has provided evidence indicating that less than 1% of its overall sales involved New York residents. These facts, when judged against Alaska Structures overall activities, fail to support a conclusion that Alaska Structures is "essentially at home"
Furthermore, Plaintiffs reliance on the activities of Blu-Med Response System in New York State to subject Alaska Structures to general personal jurisdiction is insufficient. While Blu-Med is a division of Alaska Structures, it is not a separate business entity, and the information regarding Alaska Structures' lack of contacts with New York applies equally to Blu-Med. Gudim Reply Aff., ¶ 11; see id. ¶¶ 12;
Plaintiff's attempt to reach Alaska Structures based on a claim that Alaska Structures does business in New York "through" WeatherPort is without merit. Her bald and conclusory generalizations that Alaska Structures "owns or controls" WeatherPort is factually unsupported. Moreover, even assuming that Alaska Structures is a "parent" company such that WeatherPort's ties to New York could subject it to personal jurisdiction in New York under an agency or department relationship, see Koehler v. The Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996)(A parent corporation can be subjected to personal jurisdiction only when "the relationship between the foreign parent and the local subsidiary validly suggests the existence of an agency relationship or the parent controls the subsidiary so completely that the subsidiary may be said to be simply a department of the parent."), WeatherPort's ties to New York are, as addressed above, insufficient to serve as the basis of general personal jurisdiction.
Thus, Plaintiff has failed to establish a prima facie case to justify the exercise of general personal jurisdiction over Alaska Structures under CPLR § 301. See Daimler, 134 S.Ct. at 761-762; see also Albany Intern. Corp., 978 F.Supp.2d at 144.
Plaintiff claims that Alaska Structures is subject to personal jurisdiction under New York's specific jurisdiction statute, CPLR 302(a)(3), because Alaska Structures committed a tortious act outside of New York that caused injury in New York. Like with her opposition to Lockheed Martin's and WeatherPort's motions, Plaintiff argues that `[t]he traditional situs-of-injury test does not apply to this case as a practical and logical matter because the test relies on the presumption that the situs of the injury has a competent forum capable of handling the underlying claim. Antarctica has no such forum, court or resolution process. Simply put, [Plaintiff] cannot bring this action in Antarctica.
Because Plaintiff has not advanced a colorable basis for general or specific personal jurisdiction over Alaska Structures that could reasonably be established with further development of the factual record, jurisdictional discovery is denied.
For the reasons discussed above, Alaska Structures' Rule 12(b)(3) motion to dismiss is granted.
Because the Court has granted Alaska Structures' Rule 12(b)(2) motion, there is no reason to reach WeatherPort's Rule 12(b)(3) motion. That motion, therefore, is denied as moot.
For the reasons discussed above,
— WeatherPort Shelter Systems LLC's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2) [dkt. # 36] is
— Lockheed Martin Corporation's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2) [dkt. # 44] is
— Alaska Structures, Inc.'s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2) [dkt. # 52] is
Gudin Reply Aff. ¶¶ 12-13.