The opinion of the court was delivered by: WEXLER
Plaintiff Joseph Richard Guardino brings this action against American Savings and Loan Association of Florida ("the bank") for violation of fourteenth amendment due process, damage to his credit and business reputation, and infliction of severe emotional distress, apparently stemming from the bank's July 1983 foreclosure on plaintiff's property in Florida. Mr. Guardino is a domiciliary of New York and a member of its Bar, and proceeds pro se in this action. The bank is a Florida banking corporation with its only place of business in Florida.
Defendant now moves to dismiss the action pursuant to Rule 12(c) and (h), Fed.R.Civ.P., for failure to state a claim on which relief can be granted, lack of subject matter jurisdiction, insufficiency of service, and lack of personal jurisdiction over the defendant.As the Court finds that it lacks in personam jurisdiction over the defendant, the other grounds for dismissal will not be discussed.
A federal district court must look to the long arm statute of its forum state to obtain personal jurisdiction over a party who is not an inhabitant of the state. Arrowsmith v. United Press International, 320 F.2d 219 (2d Cir.1963). In other words, this Court must look to the New York long arm statute to determine whether it has personal jurisdiction over the defendant Florida bank.
New York Civil Practice Law Section 301 (McKinney 1972) provides for jurisdiction over persons outside New York "as might have been exercised heretofore." In effect this section provides for jurisdiction over foreign corporations "doing business" in New York. The meaning and application of "doing business" is interpreted in a large body of decisional law.Briefly, "doing business" in New York State means "not occasionally or casually, but with a fair measure of permanence and continuity." Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (1917). Although a number of factors are examined in determining when a foreign corporation is doing business, those frequently considered are whether the corporation has an office, mailing address, or telephone line within the state, whether it solicits or advertises within the state, and whether it has an agent located in New York. Faherty v. Fender, 572 F. Supp. 142 (S.D.N.Y.1983); Bernard v. Richter's Jewelry Co., 53 F.R.D. 606 (S.D.N.Y.1971).
Alternatively, a court sitting in New York may have jurisdiction over a person or corporation not within the state pursuant to N.Y.Civ.Prac.L. Section 302 (McKinney 1972), which provides in pertinent part:
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator who in person or through an agent:
1. transacts any business within the state; or
2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act; if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from ...