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TRI-STATE JUDICIAL SERVS. v. MARKOWITZ

December 20, 1985

TRI-STATE JUDICIAL SERVICES, INC., Plaintiff, against RICHARD MARKOWITZ and MARKOWITZ-IRWIN PROCESS SERVER, INC., Defendants


The opinion of the court was delivered by: WEXLER

AMENDED MEMORANDUM AND ORDER

WEXLER, District Judge

 The order of this Court, dated December 2, 1985, is hereby vacated. This order supersedes and modifies that order in all respects.

 In this diversity case plaintiff Tri-State Judicial Services, Inc. ("Tri-State") seeks monetary and injunctive relief from defendants Richard Markowitz and Markowitz-Irwin Process Server, Inc. ("M-I") for a breach of contract arising out of an agreement between the parties made on October 20, 1983. Tri-States now seeks to amend the complaint pursuant to Fed.R.Civ.P. 15(a) to (1) add defendant's wife, Penny Sue Markowitz and Southeast Lawyers Services, Inc. ("Southeast") as defendants and (2) assert claims for fraud and conversion against both Richard Markowitz and the proposed defendants. Plaintiff's motion is denied in all respects.

 Rule 15(a) allows a party to amend the complaint with leave of the court and states that "leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The Supreme Court ruled in Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962) that this rule shall be construed liberally, but the Court also held that the grant or denial of a request to amend is within the discretion of the District Court and enumerated a number of bases upon which a court may deny a motion to amend. 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962). Specifically, the Court stated that a trial court, in its discretion, may deny leave to amend a pleading because of undue delay, prejudice to the non-moving party, bad faith, or futility of amendment. Foman, 371 U.S. at 182, 83 S. Ct. at 230. See C. Wright & A. Miller, Federal Practice and Procedure : Civil § 1487 (1971). In this Circuit, an amendment is considered futile if the amended pleading fails to state a claim, S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir. 1979); Freeman v. Marine Midland Bank-New York, 494 F.2d 1334, 1338 (2d Cir. 1974); Johnson v. Partrederiet Brovigtank, 202 F. Supp. 859 (S.D.N.Y. 1962), or would be subject to a motion to dismiss on some other basis. See, e.g., DeLuca v. Atlantic Refining Co., 176 F.2d 421, 424 (2d Cir. 1949)(statute of limitations); Jancyn Manufacturing Corp. v. County of Suffolk, 583 F. Supp. 1364, 1377 n.14 (E.D.N.Y. 1984)(res judicata).

 Defendants argue that the court should not grant the motion to amend the complaint because the amended complaint would not survive a motion to dismiss pursuant to Rules 12(b)(2) and 12(b)(6), Fed.R.Civ.P. Specifically, defendants contend that: (1) Mrs. Markowitz is not subject to the personal jurisdiction of a New York court; (2) Richard Markowitz is not subject to personal jurisdiction for claims in tort; (3) the amended complaint does not state a claim in tort against any of the present or proposed defendants; and (4) there is no basis for joining Southeast as a defendant.

 1. JURISDICTION OVER MRS. MARKOWITZ

 Mrs. Markowitz, a Floridian since birth who has never been in New York, is neither a party nor signator to the October 20, 1983 agreement between Tri-State and M-I/Richard Markowitz. She has no agent for service in New York, no bank account, telephone listing, post office box, or property in New York, and has never done business in New York. Mrs. Markowitz has no connection to her husband's business and has neither solicited business in New York nor derived substantial revenue from goods used or services rendered in New York. Finally, Mrs. Markowitz has no connection with Southeast, the proposed co-defendant. Affidavit of Penny Sue Markowitz, PP2-4.

 As a federal court sitting in diversity, this Court must look to local law to determine the existence of in personam jurisdiction. Gelfand v. Tanner Motor Tours, Ltd., 385 F.2d 116 (2d Cir. 1967). Mrs. Markowitz must be subject to the jurisdiction of a New York Court under either CPLR § 301 or § 302(a) in order for this Court to exercise personal jurisdiction over her. N.Y. Civ. Prac. Law §§ 301, 302(a)(McKinney 1972). Quite clearly, Mrs. Markowitz is not amenable to jurisdiction under § 301. *fn1" She is not a New York resident; she does no business here; she has not consented to New York's jurisdiction; she had no agent for process in New York; and so long as she does not travel to New York, she cannot be served here.

 Turning then to § 302(a), the long-arm statute, it is equally apparent there is no basis for the exercise of long-arm jurisdiction by a New York court over Mrs. Markowitz. In relevant part, § 302(a) provides that:

 (a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or executor or administrator, who in person or through an agent:

 1. transacts any business within the state or contracts anywhere to supply the goods or services in 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 ...


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