The opinion of the court was delivered by: SAND
This case presents the question of whether an out-of-state defendant subjects himself to jurisdiction under the New York long-arm statute by virtue of the activities of his co-conspirators in New York, when he did not join the conspiracy until after its activities in New York had been completed.
Plaintiff Mitchell Dixon has sued a number of defendants, including William Rick, under 42 U.S.C. §§ 1983 and 1985, alleging a conspiracy to deprive Dixon of his civil rights and seeking damages and injunctive relief. The matter comes before this Court at present on a motion by defendant Rick to quash service as to him on the ground that the Court lacks personal jurisdiction over him.
For the reasons stated below, we deny Rick's motion, subject to renewal at trial should the facts as they then appear so warrant.
The facts in this case, as alleged in the complaint, are as follows. Plaintiff at some point in the past became an adherent of the Unification Church. Subsequently, an order was procured ex parte in Arkansas, naming plaintiff's mother as his conservator. Plaintiff asserts that the order was invalid, claiming the issuing court lacked jurisdiction and that the order was procured "through fraud and deceit." Plaintiff's "Verified Complaint" at 8. The events of which plaintiff complains in the present action are alleged to have begun when defendants Cappellini, Alexander, "Doe", "Toe", and "Moe" met with plaintiff's mother on a day in May of 1978 and allegedly formed a conspiracy to deprive plaintiff of his civil rights. Plaintiff alleges that on or about that day defendants "Doe", "Toe", and Cappellini, together with plaintiff's mother, forcibly abducted him in New York City and drove him to New Jersey. There they were joined by defendants Alexander, "Moe", and Scharff. Plaintiff alleges that the defendants "attempted to "deprogram' " him. Plaintiff's "Verified Complaint" at 7. After three days they were joined by defendant Mack and plaintiff's aunt, and plaintiff was removed to Pennsylvania. After what was apparently four more days, defendant Rick, who is a psychiatrist, was called in. Plaintiff's "Verified Complaint" at p. 5, recites that, "Defendant ... Rick ... is a psychiatrist licensed in the State of Pennsylvania. Defendant Rick participated in and agreed to commit the wrongful acts hereinafter described." Plaintiff's assertions regarding Rick continue:
Defendant Cappellini thereafter (once plaintiff had been removed to Pennsylvania) brought in Defendant Rick to speak with plaintiff. Rick asked plaintiff a few questions concerning Plaintiff's relationship with his mother. Upon information and belief, Defendant Rick thereafter, and with no further examination of Plaintiff, wrote a report in which he asserted that, in Rick's professional opinion as a psychiatrist, Plaintiff was "unbalanced."
Plaintiff's "Verified Complaint" at 10.
One week after plaintiff was moved from New Jersey to Pennsylvania, he escaped and returned to New York.
Plaintiff's allegations are that Rick joined the conspiracy when he was called in to see plaintiff Dixon in Pennsylvania. "Affidavit" of Eugene N. Harley at 2-3. The same affidavit recites further specifics of Rick's involvement. See Appendix infra. Plaintiff states that, "(t)he exact extent of (Rick's) participation and his liability ... are questions of fact to be determined at trial." Id. at 6.
Plaintiff thus maintains that Rick joined a conspiracy in progress and that although he himself performed no acts in furtherance of the conspiracy in New York, and did not join the conspiracy until after the conspirators' acts in New York were completed, he is responsible for the acts of his co-conspirators in New York and therefore is subject to this Court's jurisdiction under N.Y.Civ.Prac.Law § 302(a)1. or 2. (McKinney 1972 & Supp.1979). Plaintiff states that, "Defendant Rick joined the conspiracy in progress knowing that overt acts in furtherance of the conspiracy had already occurred in the State of New York." "Plaintiff's Memorandum of Law in Opposition to Motion of Defendant William Rick to Dismiss the Complaint at 1 (hereinafter "Plaintiff's "Memorandum in Opposition' "). Plaintiff also states that, "Defendants and the conspirators have threatened and continue to threaten to assault and imprison Plaintiff unless he renounces his religious beliefs and associational preferences." Plaintiff's "Verified Complaint" at 4.
Defendant Rick does not contest that he was called in by Cappellini to see Dixon and did so. However, Rick denies that he was party to the conspiracy. "Reply Affidavit" of Alan G. Apfel at 2. Rick maintains that he did not know and had not communicated with any of his co-defendants before Cappellini's phone call. "Affidavit" of William Rick at 3. He also denies that before he was approached in Pennsylvania he "had any knowledge ... of any actions that had taken place prior to" the day he got the call. "Memorandum of Law in Support of Motion by Defendant, William Rick, to Quash Service of the Summons and Complaint" at 9 (hereinafter "Defendant's "Memorandum in Support' "). Moreover, "(t)he defendant, RICK, ... denies committing any tortious act through this agency in New York." Id. at 10. Defendant Rick further states in his "Affidavit" at p. 2:
I am a resident of the State of Pennsylvania ... and am a duly licensed psychiatrist in that state. I do not own, use or possess any real estate within the State of New York. My practice is limited to Pennsylvania and I obtain no revenue from outside the State of Pennsylvania, and I do not solicit business from or in New York and I further do not derive revenue from goods or services sold in New York.
Whether this Court has jurisdiction over Rick is determined first by New York law, since Fed.R.Civ.P. 4(e) makes state law determinative in cases in which the relevant federal statute does not prescribe the circumstances of proper service.
Only if this Court has jurisdiction under New York law do we proceed to consider whether such jurisdiction is constitutional.
The controlling statute is N.Y.Civ.Prac.Law § 302.
Plaintiff argues that this Court has jurisdiction over Rick primarily under § 302(a)2., but also argues under § 302(a)1. "Plaintiff's Memorandum of Law in Opposition" at 7-10.
The only act of which plaintiff complains which took place in New York is plaintiff's alleged abduction in May of 1978. Therefore, if we are to hold that this Court has jurisdiction over Rick, such jurisdiction must derive from that event. In order to find that we have jurisdiction, we must conclude as a matter of state law that Rick "in person or through an agent: 1. transacts any business within the state...; or 2. commits a tortious act within the state...." § 302(a). As we find that we have jurisdiction under § 302(a)2., we do not reach § 302(a)1.
We recognize at the outset that plaintiff has the burden of establishing the Court's jurisdiction over Rick. See Lehigh Valley Industries, Inc. v. Birenbaum, 527 F.2d 87, 92 (2d Cir. 1975). At the same time, on a motion to dismiss the Court will construe the pleadings and affidavits in the light most favorable to the nonmoving party. See Equipment Spare Parts, Ltd. v. World Wide Machinery Corp., No. 79 Civ. 5811 (S.D.N.Y. Aug. 1, 1980) (Motley, J.).
It has been recognized that "under certain circumstances a person may be subjected to jurisdiction under CPLR § 302(a)(2) on the theory that his co-conspirator is carrying out activities in New York pursuant to the conspiracy." Socialist Workers Party v. Attorney General of the United States, 375 F. Supp. 318, 321 (S.D.N.Y.1974). To establish jurisdiction on this basis, plaintiff must make a prima facie factual showing of conspiracy. Merkel Associates, Inc. v. Bellofram Corp., 437 F. Supp. 612, 617 (W.D.N.Y.1977). See also United States v. Montreal Trust Co., 358 F.2d 239, 242 & n.4 (2d Cir. 1966), cert. denied, 384 U.S. 919, 86 S. Ct. 1366, 16 L. Ed. 2d 440 (1966). He must also allege specific facts warranting the inference that the defendant was a member of the conspiracy. Louis Marx & Co. v. Fuji Seiko Co., 453 F. Supp. 385, 391-92 (S.D.N.Y.1978). "The plaintiff must come forward with some definite evidentiary facts to connect the defendant with transactions occurring in New York." Socialist Workers Party, 375 F. Supp. at 322.
We find that plaintiff has made the necessary prima facie factual showing that Rick was a member of a conspiracy in this case. Plaintiff's "Affidavit" of Eugene N. Harley, see Appendix infra, gives rise to a reasonable inference that Rick knew that he was participating in an effort to "deprogram" Dixon. Moreover, Harley's "Affidavit", at p. 4, presents Rick as having said in his deposition, referring to the night Rick saw Dixon, that "I indicated that perhaps he (i. e., defendant Alexander) and I could work together and we would combine medical and lay deprogramming together, and that was agreed to as a reasonable idea." See also Grove Press, Inc. v. Central Intelligence Agency, 483 F. Supp. 132, 137 (S.D.N.Y.1980).
Furthermore, "plaintiff ... (has) come forward with some definite evidentiary facts to connect the defendant with transactions occurring in New York." See Socialist Workers Party, 375 F. Supp. at 322. Unlike the Socialist Workers Party case, in which the plaintiff failed to come forward with any indication that the moving defendants' activities had any connection with the plaintiff, such a connection is alleged here. Plaintiff here, by making a prima facie showing that Rick joined a conspiracy whose members' activities in furtherance of the conspiracy included a critical overt act in New York, has connected the moving defendant with acts occurring in New York. Moreover, as noted earlier, plaintiff alleges that "Defendant Rick joined the conspiracy in progress knowing that overt acts in furtherance of the conspiracy had already occurred in the State of New York." "Plaintiff's Memorandum of Law in Opposition" at 1. Nowhere in Rick's papers does he controvert this allegation, limiting his denials to knowledge of such acts prior to the time he was first approached by the alleged co-conspirators. See pp. 347-348 supra. For the purposes of this motion, we will accept plaintiff's allegation as true. This strengthens the connection between Rick and the activities of the conspiracy in New York. In addition, since the "mere presence of one co-conspirator within the jurisdiction does not create jurisdiction over all alleged co-conspirators," see Lehigh, 527 F.2d at 94 n.6, we note that the plaintiff has made the necessary showing of more than "mere presence" in New York. Plaintiff's allegations, if true, establish that an overt act not only in furtherance of the conspiracy, but critical to it, occurred in New York, namely Dixon's alleged abduction.
In his papers, Rick argues that in order for this Court to have jurisdiction over him, more is required than activities of co-conspirators in New York in furtherance of the conspiracy. He quotes that portion of the district court's first opinion in Leasco Data Processing Equipment Corp. v. Maxwell, 319 F. Supp. 1256, 1262 (S.D.N.Y.1970) (Lasker, J.), vacated, 468 F.2d 1326 (2d Cir. 1972), on remand 68 F.R.D. 178 (S.D.N.Y.1974) (Carter J.), which states that "to establish an agency relationship under the New York long-arm statute ... there must be specific facts that show that the principal had requested the agent to perform purposeful acts in New York for the principal's benefit" (citation omitted). "Reply Affidavit" of Alan G. Apfel at 3. He also quotes from the court's opinion in Faim Information Services, Inc. v. Borchert, 395 F. Supp. 878, 880 (S.D.N.Y.1975): "the rule in New York is that an out-of-state principal must exercise "domination and control' over the in-state agent in order for the principal to be subject to the jurisdiction of New York courts" (citations omitted). Rick asserts, "(it) follows from the fact pattern of this case that no out-of-state principal, i. e., RICK, exercised any control over any agent in New York since RICK was not a member of the conspiracy during the time when the acts took place within New York." Defendant's "Supplemental Memorandum in Support" at 6. Elsewhere, he states that,
While it is true that co-conspirators are held to have an agency relationship under the New York law and that the relationship need not be the traditional agency relationship, there must be a showing for jurisdictional purposes that the agent acted in New York ...