MEMORANDUM OPINION

LEWIS A. KAPLAN, District Judge.

On February 10, 2011, the Court of Appeals remanded this case to this Court for a determination whether there was personal jurisdiction over defendant Pactrans Air & Sea, Inc. ("Pactrans") sufficient to support an arbitration award obtained against it by China National Chartering Corp. ("CNCC").1 Following jurisdictional discovery and additional briefing, the Court now concludes that it lacks personal jurisdiction over Pactrans.

Facts

This action has followed a long and circuitous path.

The Original Transaction

In 2006, Devon International Trading ("Devon") retained Pactrans as a freight forwarder to ship a cargo of gypsum wallboard from China to Pensacola, Florida.2 Acting as Devon's agent, Pactrans in turn chartered the M/V SANKO RALLY from CNCC to carry the cargo.3 Under the terms of the charter party, Devon was obliged to make all payments for charter hire and other costs and expenses relating to the shipment, including demurrage, while Pactrans was responsible for loading, stowing, and securing the cargo on board the vessel.4

The cargo was loaded in Qingdao, China, in April 2006.5 Upon arrival in Pensacola in June 2006, "an inspection determined that much of the cargo had been damaged and/or destroyed during transport."6 The unloading of the cargo and the departure of the vessel were delayed several days as the parties sought to identify, sort, and release the sound portion of the cargo.7

Florida Litigation

Much litigation ensued. Shortly after the vessel's arrival in Pensacola, Devon sued the M/V SANKO RALLY, in rem, and Pactrans, in personam, in the Northern District of Florida for damage to the cargo.8 Pactrans counterclaimed for indemnity and contribution in the event it were found liable.9 It filed also a separate action against CNCC and Devon seeking, inter alia, the same relief as that requested by its counterclaim.10

New York Litigation

Finally, in November 2006, CNCC filed this action and sought process of maritime attachment ("PMAG") pursuant to Rule B of the Supplemental Rules for Admiralty or Maritime Claims of the Federal Rules of Civil Procedure.11 The complaint alleged that in April 2006, the parties had entered into a charter for the carriage of certain cargoes, but that "during the course of the charter party contract" disputes had arisen regarding the defendant Pactrans's "failure to pay demurrage due and owing" to CNCC under the charter party.12 CNCC sought recovery in excess of $775,000 — losses due to the alleged breach totaling $543,814.74, interest in the amount of $106,486.14, and estimated attorneys' fees and arbitration costs of $125,000.13 At the time the complaint was filed, the dispute was to be submitted to arbitration pursuant to the parties' contract.14

On November 13, 2006, this Court issued an order pursuant to Rule B of the Admiralty Rules directing that PMAG issue against all tangible and intangible property of Pactrans in an amount up to and including $775,300.88.15 After Pactrans filed an answer16 and a verified third-party complaint17 against Devon, the Court issued another order, on December 21, 2006, directing the issuance of PMAG against Devon in an amount up to and including $775,300.88.18

The case was referred to a magistrate judge, who issued a Report and Recommendation in October 2008 on Devon's motion to vacate the Rule B attachments.19 The Court adopted the magistrate's Report and Recommendation in a December 16, 2008, 589 F.Supp.2d 403 (S.D.N.Y. 2008), order, granting Devon's motion to vacate the PMAG on the basis that Devon had established "that it [is] subject to in personam jurisdiction in another jurisdiction convenient to Pactrans," referring to the Florida lawsuit.20 As a practical matter, Devon's participation in this matter in this Court then came to a close, although it remained — and still remains — a party.

The Arbitration

In the meantime, CNCC pursued arbitration in China, which resulted in March 2009 in an award in its favor and against Pactrans in the amount of $770,237.08 plus attorneys' fees and costs in the amount of $6,832.53.21 In July 2009, CNCC petitioned this Court to confirm the award. The motion was fully submitted on September 15, 2009.22

One month later, the Second Circuit decided Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd.,23 which overruled Winter Storm Shipping, Ltd. v. TPI,24 which in turn had held that electronic fund transfers, or "EFTs," processed at intermediary banks in New York were attachable property under Supplemental Rule B.25 Under Jaldhi, however, such EFTs no longer could be attached under the maritime rules.26

The property attached by CNCC at the outset of this action was EFTs.27 Not surprisingly, just three days after Jaldhi was published, Pactrans moved to vacate the attachment on the basis that the pre-Jaldhi law in this Circuit no longer controlled.28 Days later, the Court issued an order to show cause "why the process of maritime attachment previously issued should not be vacated or modified and the action dismissed in light of" Jaldhi.29

The ensuing month was a busy one. On November 13, 2009, 2009 WL 3805596, the Court granted CNCC's motion to confirm the Chinese arbitration award.30 Judgment was entered on November 16.31 Days later, on November 19, Pactrans moved this Court for reconsideration, vacatur of the order confirming the arbitration award, and dismissal of the action, arguing that the Court lacked jurisdiction over Pactrans in light of Jaldhi.32 On November 23, the Court — acting on its order to show cause33 — vacated the attachment in light of Jaldhi and the Second Circuit's subsequent holding in Hawknet, Ltd. v. Overseas Shipping Agencies34 that Jaldhi was retroactive.35

At that point, Pactrans' motion for reconsideration and vacatur of the confirmation of the arbitral award remained pending in this Court. Pactrans nevertheless appealed the order confirming the Chinese arbitration award and sought a stay, making the same substantive arguments to the Circuit that it had made to this Court in moving to reconsider.36 A single judge of the Second Circuit stayed the confirmation order pending a motion panel's consideration of Pactrans's request for a stay of that ruling pending appeal.37 With both a motion for reconsideration of the Court's confirmation order pending before this Court and an appeal from the same order pending before the Second Circuit, a judge of the Second Circuit held a telephonic conference on December 3.38 As a result of the conference, Pactrans withdrew its motion for reconsideration on December 7.39

The activity did not stop there, however. On December 10, CNCC requested this Court to rule as to its personal jurisdiction over Pactrans based on the various filings going to that question.40 The Court responded with a two-page order "declin[ing] the invitation to act in this context." It explained that, while the Court had vacated the PMAG in accordance with Jaldhi and Hawknet, it had "declined to pass on the question of personal jurisdiction" more broadly because Pactrans had not yet had the opportunity to brief the question whatever "reasons independent of the Rule B attachment" might afford the Court personal jurisdiction over it.41 The Court thus "decline[d] plaintiff's request that [it] decide the issue in a vacuum."42

Finally, on January 19, 2011, the Second Circuit issued a summary order on Pactrans's appeal.43 It concluded that "[i]n light of ... Jaldhi and Hawknet, ... the district court's maritime attachment could not have provided personal jurisdiction over Pactrans."44 It specifically declined to rule on whether the confirmation order could stand on another jurisdictional basis, including waiver of any objection to personal jurisdiction, although the panel stated in dicta that it considered it "unlikely" that CNCC could establish personal jurisdiction absent the Rule B attachment.45 It said also that "CNCC should have an opportunity, in the changed legal landscape, to assert that the district court has a basis for personal jurisdiction over Pactrans."46 It therefore remanded the case to this Court for "determin[ation of] whether it [had] decided the personal jurisdiction issue before it entered judgment, and if not, [for] ent[ry of] an order to show cause why it should not dismiss the complaint for lack of jurisdiction."47 The Circuit further called this Court's refusal to decide the personal jurisdiction issue during the pendancy of the Second Circuit appeal "appropriate, especially as [this Court] may have lacked jurisdiction over the case at that time, given that there were no pending post judgment motions and a timely notice of appeal had been filed, divesting the district court of jurisdiction."48

Upon remand, the Court permitted CNCC to take jurisdictional discovery in aid of the Court's resolution of the Circuit's instructions, and permitted further briefing.49

Discussion

I. Waiver or Forfeiture

"Personal jurisdiction, unlike subject-matter jurisdiction, can ... be purposely waived or inadvertently forfeited."50 In determining whether such waiver or forfeiture of a defendant's personal jurisdiction objection has occurred, a court must "consider all of the relevant circumstances."51 Most crucially, the Federal Rules dictate that "a party forfeits its defense of lack of personal jurisdiction by failing timely to raise the defense in its initial responsive pleading."52 Moreover, "a variety of legal arrangements"53 "may... estop [a defendant] from raising the issue,"54 as where "the actions of the defendant during the litigation amount to a legal submission to the jurisdiction of the court, whether voluntary or not."

Here, the CNCC's waiver argument involves different aspects of Pactrans's conduct in this litigation that, CNCC contends, individually or collectively waived or forfeited Pactrans's objections to personal jurisdiction.

A. Pactrans's Filing of Third-Party Complaint Against Devon

CNCC first argues that Pactrans's filing of its third-party complaint against Devon in this action "establish[ed] New York as the forum for its own separate litigation" and that Pactrans's request for "affirmative relief within this action ... waiv[ed] any personal jurisdiction defense to this action."55 It suggests that Pactrans should have made a special, or "restricted," appearance to contest jurisdiction pursuant to Admiralty Rule E(8) in order to have preserved its objection to personal jurisdiction.56 Pactrans responds that it has "continuously maintained its position" vis-á-vis personal jurisdiction "since the inception of the case" and that a finding of waiver or forfeiture would be improper here.57

The Second Circuit has remarked that federal law on the issue of "whether the assertion of a counterclaim[58] in the answer [to a complaint] subjects [the defendant] to in personam jurisdiction" is in "disarray"59 and, to date, has not decided the question.60 As a court in this District has noted, it is an issue with "a rich and conflicted past."61

Before the adoption of the Federal Rules of Civil Procedure, "a defendant who combined a counterclaim with an objection to service of process waived the jurisdictional objection"62 because it "affirmatively sought the aid of the court."63 Under that view, a defendant had to challenge jurisdiction through a "special appearance" in order to object to personal jurisdiction while preserving the right to file a counterclaim.64 If the jurisdictional objection failed, the defendant could file the counterclaim as part of its "general appearance;" if the objection succeeded, the defendant could then file its claim as a separate action.65

The adoption in 1938 of the Federal Rules of Civil Procedure "abolished the technical distinction between general and special appearances," converting the "principal method for attacking the court's jurisdiction over the person of a defendant [into] a Rule 12(b)(2) motion."66 In other words, as the Third Circuit so colorfully put it more than six decades ago, a defendant "is no longer required at the door of the federal courthouse to intone that ancient abracadabra of the law, de bene esse, in order by its magic power to enable himself to remain outside even while he steps within."67 Since then, courts have diverged about the effect of a counterclaim or other requests for affirmative relief by a defendant who simultaneously objects to the court's personal jurisdiction.68 While courts for some time continued to find waivers of personal jurisdiction objections based on the interposition of counterclaims, "the trend in more recent cases is to hold that no Rule 12(b) defense is waived by the assertion of a counterclaim, whether permissive or compulsory."69

The reasoning expressed in such cases is quite persuasive. In the absence of a controlling ruling in our Circuit, this Court applies that "better reasoned and prevailing view."70 The oft-cited Third Circuit opinion in Neifeld v. Steinberg71 makes clear that the text, structure, and policy of Rule 12(b) compel this conclusion. As the Neifeld court explained, while "nothing in the language of Rule 12(b) ... specifically shields the defenses of lack of personal jurisdiction and improper venue from waiver when these defenses are joined with a counterclaim ..., the Rule implicitly authorizes a defendant to join these defenses with a counterclaim without waiving these defenses" by "provid[ing] a defendant with the option of raising jurisdictional defenses by motion or by answer."72 The conclusion that a defendant, by raising a jurisdictional objection in the same pleading in which it makes a demand for affirmative relief, waives its jurisdictional objections "would in effect ... engraft[] a judicial exception" onto the Rule by requiring jurisdictional objections in such cases to be made by motion only.73 As a result, the purpose behind Rule 12(b) — "to avoid the delay occasioned by successive motions and pleadings and to reverse the prior practice of asserting jurisdictional defenses by special appearance" — would be undermined.74 That "situation was clearly not intended to occur under the Rules."75

Rather, the better view is that claims for affirmative relief filed contemporaneously with objections to personal jurisdiction in a responsive pleading should "be treated as conditional, [their] assertion being hypothecated upon an adverse ruling on the defendant's jurisdictional defenses."76 That view seems particularly appropriate where, as here, the defendant's request for affirmative relief is a third-party complaint for what amounts to indemnity with respect to the plaintiff's claims.77 Pactrans included its jurisdictional objection in its answer — its first responsive pleading in this litigation — and that is what the Rule requires in order to preserve that objection in the litigation — nothing more. The fact that Pactrans, in the same pleading, sought to state its claim for indemnity against a third party in the event it ultimately faced liability should not lead to the conclusion that its jurisdictional objection was waived. CNCC's waiver/forfeiture argument based on Pactrans's filing of a third-party complaint therefore fails.

B. Pactrans's Suit in this Court Against N.Y. M.A.G.I.C.

CNCC's alternative arguments related to Pactrans's alleged waiver of its personal jurisdiction objection also are unavailing.

Following the commencement of this action, Pactrans brought a separate lawsuit in this Court against its liability underwriter, New York Marine and General Insurance Co. ("N.Y.M.A.G.I.C."), in which it sought a declaratory judgment.78 CNCC asserts that Pactrans's "voluntar[y] commenc[ement]" of that lawsuit subsequent to the initiation of this suit waived its personal jurisdiction objection in this action.79 But while there is some authority for the proposition that "personal jurisdiction exists where a defendant independently seeks affirmative relief in a separate action before the same court concerning the same transaction or occurrence,"80 that authority is not persuasive in this context.

As the First Circuit explained in Dow Chemical Co. v. Calderon, the two cases that support the notion of such an affirmative relief rule do not support CNCC's argument here. "Interpole and Embotelladora rest primarily on the conclusion that there is nothing unfair, or violative of due process, about requiring a party that has affirmatively sought the aid of our courts with regard to a particular transaction to submit to jurisdiction in the same forum as a defendant with regard to the same transaction with the same party."81 Importantly, both cases "invoke[] the language pertinent to" the "minimum contacts" analysis required by constitutional due process.82 In other words, those cases are not essentially waiver cases at all. They are "minimum contacts" cases speaking to a party's amenability to personal jurisdiction under the Due Process Clause.83

The Court will address CNCC's minimum contacts argument, including the effect of Pactrans's suit against N.Y. M.A.G.I.C., below. For present purposes, however, it suffices to say that there is no persuasive authority for the distinct proposition put forward by CNCC — namely, that the filing of a lawsuit in the same forum in which a party is defending another suit in and of itself waives any objection to personal jurisdiction in the first suit.84

C. Delay

Moreover, this is not a case in which litigant's "substantial delay"85 in challenging personal jurisdiction through a motion to dismiss merits a finding of forfeiture.86 It is true that Pactrans did not move to dismiss the claims against it based on a lack of personal jurisdiction until its November 19, 2009 request for an order to show cause,87 nearly three years after filing its answer.88 But that was because "an argument that the court lacked jurisdiction over [Pactrans] would have been directly contrary to controlling precedent in this Circuit" until the Second Circuit's decision in Jaldhi in June 2009.89 It was not until after Jaldhi necessitated the vacatur of the plaintiff's original attachment90 that Pactrans for the first time gained an entirely different objection to personal jurisdiction. Within days, it moved to dismiss for lack of personal jurisdiction based on the new argument. As the Second Circuit has stated, "the doctrine of waiver demands conscientiousness, not clairvoyance, from the parties."91 That standard was met here.

D. Supplemental Rule E(8)

Finally, CNCC suggests in passing that Pactrans waived its jurisdictional objection because it "made a general appearance — not a restricted one pursuant to Rule E(8) as expressly provided for under the Supplemental Rules."92 It argues that "where a defendant has made a general appearance in an action, its waiver/consent to jurisdiction survives Jaldhi, although the attachment of funds does not."93 But the argument is incorrect.

To be sure, Rule E(8) of the Supplemental Rules "states a very important principle."94 It provides that "[a]n appearance to defend against an admiralty and maritime claim with respect to which there has issued process in rem, or process of attachment and garnishment, may be expressly restricted to the defense of such claim," in which case the appearance "is not an appearance for the purposes of any other claim with respect to which such process is not available or has not been served."95 Yet the purpose of Supplemental Rule E(8) — to avoid the "result that, in order to defend against an admiralty and maritime claim with respect to which process has issued in rem ... the claimant ... must subject himself personally to the jurisdiction of the court"96 — mirrors the policy behind the joint pleading rule described above and encompassed in Rule 12(b). Though Pactrans did not invoke the restricted appearance provision of Rule E(8) in filing its notice of appearance on December 20, 2006,97 Pactrans effectively preserved the rights conferred by the Supplemental Rule by filing, on the same day, an answer to the complaint asserting objections to the court's personal jurisdiction.

CNCC relies on India Steamship Co. v. Kobil Petroleum Ltd.98 for the proposition that a party's general appearance confers personal jurisdiction over that party upon the court.99 But Kobil does not speak to an appearance made in tandem with a jurisdictional objection — the situation here, which this Court has held does not forfeit such an objection.100 CNCC has cited no case, and the Court is aware of none, that holds that the restricted appearance provision in the Supplemental Rules vitiates a litigant's ability to plead a jurisdictional objection in an answer pursuant to Rule 12(b), even in cases subject to the Admiralty Rules. Indeed, the Advisory Committee's Note to Rule E(8) appears to reject the type of procedural exclusivity argued for here by CNCC.101 The Court therefore rejects CNCC's Rule E(8) argument.

E. Pactrans's Withdrawal of its Motion to Reconsider

CNCC further argues that Pactrans's withdrawal, on December 7, 2009,102 of its motion to reconsider or vacate the Court's November 16, 2009 memorandum opinion confirming CNCC's foreign arbitration award waived any post-Jaldhi personal jurisdiction defense that Pactrans might have had.103 Though not without basis, this argument is not persuasive here.

While its motion to reconsider on, inter alia, jurisdictional grounds remained pending in this Court, Pactrans on November 30, 2009, filed a notice of appeal to the Second Circuit of this Court's November 16 memorandum opinion.104

Generally, "the docketing of a notice of appeal `ousts the district court of jurisdiction except insofar as it is reserved to it explicitly by statute or rule.'"105 In other words, "[t]he filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal."106 But in practice that rule is neither so categorical nor unqualified. In United States v. Rodgers,107 the Second Circuit made clear that "[t]he divestiture of jurisdiction rule is ... not a per se rule" but "a judicially crafted rule rooted in the interest of judicial economy, designed to avoid confusion or waste of time resulting from having the same issues before two courts at the same time."108 Insofar as the rule's "application is guided by concerns of efficiency and is not automatic,"109 for example, it "does not apply where an appeal is frivolous[,][n]or does it apply to untimely or otherwise defective appeals."110

The November 30 notice of appeal filed by Pactrans might indeed have been frivolous, as the case against third-party defendant Devon remained unresolved, thus rendering the confirmation order interlocutory, and no Rule 54(b) certification was sought or acquired.111 Additionally, the Federal Rules of Appellate Procedure likely rendered the notice of appeal ineffective ab initio, as a notice of appeal filed while a Rule 59 motion for reconsideration is pending in the district court "becomes effective" only "when the order disposing of the ... remaining motion is entered."112 The Court therefore concludes that the notice of appeal probably did not divest it of jurisdiction over the matter during the period in question. As a result, there is a material question whether Pactrans waived its jurisdictional objection by withdrawing its motion for reconsideration. Despite Pactrans's assertion that the withdrawal came "at the behest of the Second Circuit,"113 in fact the Circuit's applications judge had simply expressed uncertainty about "what [wa]s pending before" each court and explained Pactrans's two options — continue with its appeal in the Circuit or withdraw its appeal and await this Court's resolution of Pactrans's motion for reconsideration.114 Pactrans made its choice, and that choice carried with it certain consequences, one of which may have been the waiver of its jurisdictional argument to this Court.

But the Court is mindful that waiver — "the intentional relinquishment or abandonment of a known right"115 — "requires a finding that such waiver is knowing and intelligent."116 In the circumstances of this case, the Court concludes that Pactrans's withdrawal of its motion for reconsideration was not a "knowing and intelligent" abandonment of its personal jurisdiction objection. In electing to pursue its appeal despite the probable lack of appellate jurisdiction, Pactrans may not have acted entirely wisely, but it almost certainly did believe that its jurisdictional argument remained in play. After all, making that very argument was Pactrans's purpose in pursuing the appeal in the first place. The Court therefore rejects CNCC's waiver argument based on Pactrans's withdrawal of its motion for reconsideration before this Court.

II. New York Registration of Pac Logistics Service Co.

CNCC next argues that (1) Pactrans is an alter ego of Pac Logistics Service Co. Ltd. ("PLSC"), (2) PLSC, as of August 15, 2007, was registered to do business in the State of New York, and (3) Pactrans therefore is subject to the Court's personal jurisdiction.117 PLSC responds that it registered in New York after this action was commenced and that the registration would be immaterial even if PLSC were an alter ego of Pactrans.118 Moreover, Pactrans denies the alter ego allegation in addition to advancing other arguments that need not be considered.119

As an initial matter, where "personal jurisdiction exists over [a defendant], jurisdiction over his alter ego is proper as well."120 And "[i]t is well-settled under New York law that registration under [New York Business Corporation Law Section] 1304 subjects foreign companies to personal jurisdiction in New York."121 CNCC therefore is correct in asserting that Pactrans would be subject to personal jurisdiction in this action if PLSC were its alter ego and had registered in New York. The problem, however, is that "personal jurisdiction depends on the defendant's contacts with the forum state at the time the lawsuit was filed."122 As PLSC first registered in New York after this action was commenced,123 Pactrans would not be subject to personal jurisdiction based on PLSC's registration to do business in New York State even if they were alter egos.

That settles the issue. As an aside, however, the Court notes that CNCC's argument in this respect has more than a tinge of irony. If PLSC, as CNCC argues now, had been Pactrans's alter ego and PLSC's registration in New York thereby rendered Pactrans subject to personal jurisdiction here, Pactrans would have been "present" in this District at the time CNCC filed its attachment motion. That would have required the vacatur (or denial) of the original attachment under Rule B. One court in this District pointedly discussed the "heads you win, tails I lose" conundrum that alter ego arguments play in the maritime attachment context:

Indeed. And, notably, courts in this District have followed this line of argument to its logical conclusion.125

III. Pactrans's Actions in New York State

CNCC argues also that Pactrans is subject to personal jurisdiction by virtue of its own actions in New York.126 Pactrans replies that "after it became apparent that Plaintiff's attachment would no longer be permitted after [Jaldhi], Plaintiff has apparently amended the factual allegations of its claim."127 Pactrans claims that CNCC has done so without moving for leave to amend its complaint but, in any case, "has failed to demonstrate that Pactrans had sufficient contacts with the District prior to the commencement of the action" to subject it to personal jurisdiction.128

"The amenability of a foreign corporation to suit in a federal court in a diversity action is determined in accordance with the law of the state where the court sits, with federal law entering the picture only for the purpose of deciding whether a state's assertion of jurisdiction contravenes a constitutional guarantee."129 A district court therefore must conduct a two-part inquiry to resolve questions of personal jurisdiction. "First, it must determine whether the plaintiff has shown that the defendant is amendable to service of process under the forum state's laws; and second, it must assess whether the court's assertion of jurisdiction under these laws comports with the requirements of due process."130

CNCC does not rely on New York's long-arm statute, N.Y. CPLR Section 302, as a basis for personal jurisdiction. Rather, it relies exclusively on the state's general jurisdiction statute, CPLR Section 301.131 In Licci ex rel. Licci v. Lebanese Canadian Bank, SAL,132 the Second Circuit explained — as to Section 302 — "[t]he New York long-arm statute does not extend in all respects to the constitutional limits established by International Shoe Co. v. Washington,[133] and its progeny."134 The same is true of Section 301.135

Proceeding in this manner, N.Y. CPLR Section 301 provides that "[a] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore."137 As the Second Circuit has explained,

"In order to establish that this standard is met, a plaintiff must show that a defendant engaged in `continuous, permanent, and substantial activity in New York.'"139

"New York courts have focused on several factors to support a finding that a defendant was `doing business,' including the existence of an office in New York; the solicitation of business in New York; the presence of bank accounts or other property in New York; and the presence of employees or agents in New York.140 Solicitation alone ordinarily will not suffice. But where such solicitation is combined with evidence that the defendant "engages in other activities of substance in the state, then personal jurisdiction may properly be found to exist."141

CNCC contends that "the evidence and information obtained with regard to Pactrans'[s] business activities in and relating to New York show quite plainly that Pactrans regularly ships, receives[,] and handles good in New York directly and/or through a variety of agents."142 It first points to "150 shipments made since late 2007" involving Pactrans that either originated or arrived in New York.143 Then, over several pages in its opening and reply briefs to this Court, CNCC lists various supposed contacts between Pactrans and New York, catalogued in part here: a "list of shipments" as "proof that Pactrans regularly ships goods to New York, in New York, and from New York;"144 "written service contract[s]" dated July 1, 2007, pursuant to which "Pactrans engaged in the commercial shipment of cargo to and from New York from 2007 to 2009;"145 allegations that Pactrans "has operations in all major U.S. ports including New York and has picked up and delivered cargo in the state of New York as part of its shipping business;"146 assertions that "Pactrans engages in business with New York companies" and "has a network of agents in New York, including trucking agents, air handling agents, and U.S. Customs[] agents that transport, store, and/or re-ship Pactrans'[s] cargo in New York at Pactrans'[s] direction;"147 evidence that Pactrans "has a New York client base" and "a history of importing goods from China into New York and coordinating the distribution of those goods to 16 Lord and Taylor stores throughout New York;"148 allegations that "Pactrans has participated in, and still participates in, trade shows in New York;"149 a Pactrans officer's deposition testimony stating that "Pactrans may have merchandise in New York from time to time;"150 allegations that "Pactrans enters into 90-130 contracts a year to ship goods from abroad to New York;"151 evidence that Pactrans made payments to New York companies in May 2010;152 evidence that Pactrans conducted $80,000 of business in New York in November 2010;153 allegations that Pactrans has customers in New York;154 evidence that "Pactrans regularly and systematically imports goods from abroad to New York ... for Urban Attitudes, LLC, a New York corporation near the Southern District of New York courthouse;"155 and "Pactrans['s] open[] admi[ssion] that it performs air freight business in New York."156

Even taking all of these allegations as true, even taking CNCC to have requested (and been granted) leave to amend its complaint — which, it bears noting, alleges that Pactrans "cannot be found within this District"157 — to include such facts, and even assuming that such actions would satisfy the requirements of CPLR Section 301, CNCC would fail to establish jurisdiction for one crucial reason. As stated above, "[i]n assessing whether a defendants' contacts with New York are sufficient to establish general jurisdiction, the relevant question is whether the defendant was present in New York at the time the complaint was filed."158 As Pactrans argues, "[w]hile Plaintiff provides evidence that Pactrans had contacts with firms and businesses in New York since 2007, such evidence is irrelevant in this instant matter, which was commenced [on] November 9, 2006."159

CNCC makes only very limited attempts, even in reply, to argue that the evidence upon which it relies satisfies the timing requirement. In fact, this Court's review reveals only three pieces of "evidence" marshaled by CNCC that arguably go to Pactrans's "doing business" in New York at or before the filing of the complaint in this action in November 2006.160 First, CNCC makes a lone statement asserting that "Pactrans appears to have conducted ... business on a consistent basis prior to the filing of this action," citing to a document "which appears to [be] an ocean bill of lading dated February 2, 2006, wherein Pactrans was named as the consignee and notify party of the cargo being delivered in New York."161 Second, CNCC represents — without supporting documentation — that "Pactrans obtained an insurance policy with a New York insurer in 2006 in relation to its shipping business and others, which provided that all disputes were to be resolved under New York law."162 And third, CNCC states that "Pactrans'[s] principals have traveled to New York to solicit business, to meet with customers, and to participate in trade associations," and that, specifically, one principal "flew to New York to attend... the Association of Ship Brokers and Agents (USA) Inc.... in New York" in June 2006.163

Whatever the significance of those alleged contacts,164 they do not rise to the level required by N.Y. CPLR Section 301.165 They are not the type of "quality"166 contacts sufficient individually to establish personal jurisdiction. Nor are they indicative of a "fair measure of permanence and continuity"167 in Pactrans's contacts with New York prior to the filing of the complaint. Indeed, it is useful to remember that, as of the filing of CNCC's complaint, CNCC asserted the very contrary argument that Pactrans was not "found" within this District in order to attach EFTs destined for Pactrans.168

For all of these reasons, the Court rejects CNCC's personal jurisdiction argument under N.Y. CPLR Section 302(a).169

IV. Pactrans's Attachable Property In New York State

Pulling yet another arrow from its quiver, CNCC contends that, "[u]pon information and belief, Pactrans had, and continues to have, property other than EFTs subject to attachment in the Southern District of New York including, but not limited to, claims and/or other amounts owed from third-party defendant Devon to Pactrans, among them amounts owed to Pactrans under a judgment rendered against Devon in the Northern District of Florida."170 CNCC therefore appears to argue that it may attach other property belonging to Pactrans pursuant to Rule B. It contends that it thereby could establish personal jurisdiction sufficient to support the Court's confirmation of the foreign arbitral award.

Again, CNCC's arguments are easily dispatched, as they are "without any merit or legal basis."171 CNCC identifies just two sources of "property" belonging (again, "[u]pon information and belief") to Pactrans that, it claims, would be subject to attachment under Rule B and thereby subject Pactrans to personal jurisdiction here: (1) a judgment against Devon in the Northern District of Florida; and (2) "a contractual obligation" by PLSC, under a lease agreement, "to pay monies ... to Pactrans."172

CNCC's attachable property argument is not constricted by the personal jurisdiction requirement that the Court's inquiry focus only on facts existing at the time the complaint was filed. In other words, if Pactrans currently has attachable property in New York, the Court — for the sake of argument, ignoring procedural failures such as the absence of a renewed Rule B application, or a motion for leave to amend the operative complaint here — could authorize the attachment of such property and, if property were attached, the attachment would subject Pactrans to the Court's personal jurisdiction. That arguably would suffice to support the entry of a confirmation of the foreign arbitration award, just as the Court earlier concluded — before Jaldhi — that Pactrans's EFTs had done.

But CNCC has not demonstrated that either of Pactrans's allegedly identified attachable property is located within New York, which would be a prerequisite to attachment. "Rule B permits attachment only when `defendant is not found within the district,' FED. R.CIV. P. SUPP. R. B(1)(a), thus allowing the assertion of personal jurisdiction by a district court only in the narrow class of cases where the defendant has property within the district, but not a sufficient presence within the district so that it is `found within the district.'"173

The law of New York also is clear. "In Hotel 71 Mezz Lender LLC v. Falor,174 the New York Court of Appeals made quite lucid the distinction between the use of attachment itself in order to establish personal jurisdiction — so-called quasi in rem jurisdiction — and the use of attachment where there exists an independent basis for personal jurisdiction."175 The Court of Appeals explained that "when attachment is used to serve as a jurisdictional predicate" — the very purpose of Rule B attachments — "a New York court cannot attach property not within its jurisdiction."176

"[T]he situs of" the alleged property here, under the law of New York, "is `the location of the party of whom performance is required by the terms of the contract.'"177 As to the Florida judgment, CNCC has alleged nothing regarding the location of Devon-whose "performance" as judgment debtor would be at issue here-let alone sufficiently demonstrated that Devon is located in New York. The Illinois lease complicates matters a bit. If PSLC does have a contractual obligation to pay rent to Pactrans, and if PSLC ("the party of whom performance is required") were located in New York, CNCC would have a colorable argument that the lease is attachable within this district. But the argument — an argument that CNCC nowhere spells out with any clarity whatsoever — faces various hurdles.

First, CNCC points to an "Exhibit 12" that is the "alleged lease agreement between [PLSC] and Pactrans."178 But the Court's search of the declarations in the record pertinent to this motion has revealed no such lease marked as "Exhibit 12."

Beyond the issue of whether the lease itself is properly before the Court, CNCC's only argument regarding PLSC's presence in New York — despite its catalogue of evidence dating after 2007 that Pactrans itself has ongoing contacts with New York — is that it is registered to do business here.179 Yet PLSC informed the Court on September 7, 2011, that "its authority to do business in the State of New York ... was deemed to have been surrendered" by New York State as of August 26, 2011.180 Questions certainly abound regarding the effect of that surrender-for example, if such surrender was intentional on the part of PLSC in order to avoid the very kind of attachment under discussion here, the Court conceivably might effectively ignore it, or entertain argument as to PLSC's contacts with New York beyond mere registration. But far more questions surround the most important issue for this line of inquiry: whether PLSC is located in New York for the purposes of the proposed attachment of the payments under the lease.

Unfortunately, CNCC devotes less than half a page (in its more-than sixty pages of briefing to the Court) to making its argument as to a hypothetical new attachment. It has not amended its complaint to seek to attach new property. It has not — beyond one irrelevant case citation181 and one bare assertion182 — provided the Court with any justification for a new attachment. And other than relying on PLSC's (now apparently surrendered) registration to do business in New York, it has not demonstrated that PLSC itself is subject to the Court's personal jurisdiction, which is an essential element of the foregoing argument. In these circumstances, the Court will not litigate the issue on CNCC's behalf. CNCC had months to conduct appropriate jurisdictional discovery and to put forward a coherent position. It has not done so.

V. Attorneys' Fees and Costs; Discovery Sanctions

Two final matters may be disposed of briefly.

First, CNCC argues that Pactrans has "failed to proffer a good reason not to pay [the] arbitration award" and that "attorneys' fees and costs should be awarded to CNCC" because it has felt it appropriate to "resort to enforcement procedures."183

To be sure, "[a] court may, pursuant to its inherent equitable powers, assess attorneys' fees and costs when a party has `acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'"184 And "[i]n actions for the confirmation and enforcement of arbitral awards, a court may award attorneys' fees if the party challenging the award has `refuse[d] to abide by an arbitrator's decision without justification.'"185

This, obviously, is not such a case. As the outcome of the Court's analysis demonstrates, Pactrans's litigating position is hardly meritless or without justification. In fact, it has prevailed.186 And the Court's fee-shifting authority pertains only to a "successful litigant['s]" demonstration by "clear evidence that the challenged actions are entirely without color and are taken for reasons of harassment or delay or for other improper purposes."187 CNCC's bid for fees and costs therefore fails.

Second, for the first time in its reply brief,188 CNCC argues that even if the Court rejects all of its personal jurisdiction arguments as a matter of substance, the Court nevertheless should hold that Pactrans is subject to the Court's jurisdiction because Pactrans violated its obligations under various discovery orders of this Court and of Magistrate Judge Ellis.189 This Court declines to entertain an argument first raised in a reply brief.190

Conclusion

For the foregoing reasons, the Court concludes that it lacks personal jurisdiction over the defendant.

SO ORDERED.