The opinion of the court was delivered by: Cannella, District Judge:
Defendant's motion to dismiss is denied. Fed.R.Civ.P.
12(b)(2). Defendant's motion to transfer is granted. 28 U.S.C. § 1406(a).
On October 9, 1989, Patricia Schenck, a New York resident
visiting Walt Disney World in Orlando, Florida, was killed when
the small rental boat she was piloting collided with a
500-person ferry boat. Brian Schenck, the deceased's husband,
subsequently commenced a wrongful death action in New York
State Supreme Court against Walt Disney World Company ["WDW"]
and its parent, Walt Disney Company ["Disney Co."]. The action
was thereafter removed to the United States District Court for
the Southern District of New York.
Defendant WDW now moves to dismiss the complaint for lack of
personal jurisdiction pursuant to Rule 12(b)(2) of the Federal
Rules of Civil Procedure or, alternatively, for a transfer of
venue to the Middle District of Florida pursuant to 28 U.S.C. § 1404(a).
Plaintiff opposes the motion and claims that WDW is
subject to personal jurisdiction under section 301 of the New
York Civil Practice Law and Rules ["CPLR"] because it is "doing
business" in the State of New York.
The law regarding personal jurisdiction is well established
and need not be discussed in detail. Personal jurisdiction over
a defendant in a diversity action is determined by the law of
the forum in which the court sits. See Marine Midland
Bank, N.A. v. Miller, 664 F.2d 899, 901 (2d Cir. 1981).
Plaintiff must ultimately establish personal jurisdiction over
defendant by a fair preponderance of the credible evidence. See
Cutco Indus. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986).
However, where the court relies on pleadings and affidavits,
instead of holding an evidentiary hearing, plaintiff need only
make a prima facie showing that personal jurisdiction
exists.*fn1 See Hoffritz for Cutlery, Inc. v. Amajac, Ltd.,
763 F.2d 55, 57 (2d Cir. 1985); Marine Midland, 664 F.2d at
904. In the absence of an evidentiary hearing, all pleadings
and affidavits are construed in the light most favorable to
plaintiff. See Cutco, 806 F.2d at 365.
Section 301 of the CPLR provides that "[a] court may exercise
such jurisdiction over persons, property, or status as might
have been exercised heretofore." This section preserves earlier
New York case law which holds that "a corporation is `doing
business' and is therefore `present' in New York and subject to
personal jurisdiction with respect to any cause of action,
related or unrelated to the New York contacts, if it does
business in New York `not occasionally or casually, but with a
fair measure of permanence and continuity.'" Hoffritz, 763 F.2d
at 58 (quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259,
267, 115 N.E. 915, 917 (1917)). The test of whether a foreign
corporation is doing business in New York is a "simple
pragmatic one," Bryant v. Finnish Nat'l Airline, 15 N.Y.2d 426,
432, 208 N.E.2d 439, 441, 260 N.Y.S.2d 625, 629 (1965), in
which the court determines whether the foreign corporation's
activities in New York are "continuous and systematic."
Hoffritz, 763 F.2d at 58. In applying this test, the court must
decide whether "the quality and nature of the corporation's
contacts with the State . . . make it reasonable and just
according to `traditional notions of fair play and substantial
justice' that it be required to defend the action [in New
York]." Laufer v. Ostrow, 55 N.Y.2d 305, 310, 434 N.E.2d 692,
694, 449 N.Y.S.2d 456, 458 (1982) (quoting International Shoe
Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154,
158, 90 L.Ed. 95 (1945)).
In support of its motion to dismiss, WDW argues that it does
not engage in the type of regular and systematic activities
required for a finding of corporate "presence" in New York. WDW
points out that it is a Delaware corporation which is qualified
to do business in Florida and which maintains its principal
place of business in Florida. Affidavit of Sydney L. Jackowitz,
¶ 2, 90 Civ. 1773 (JMC) (S.D.N.Y. Mar. 22, 1990) ["Jackowitz
Affidavit"]. In addition, WDW is not qualified to do business
in New York, has no office or place of business in New York,
has no telephone listing in New York, and has no officers,
agents or employees in New York. Id. at ¶ 4. Furthermore, WDW
has neither incurred nor paid taxes to New York and has no
assets in New York. Id. at ¶¶ 4-5.
Despite these facts, plaintiff contends that WDW is "doing
business" in two ways: (1) through the solicitation of business
by its New York representatives and (2) through the presence in
New York of its parent, Disney Co. The Court will address each
of these contentions in turn.
I. Solicitation of Business in New York
Mere solicitation of business in New York by a foreign
corporation does not constitute "doing business" for
jurisdictional purposes. See Laufer, 55 N.Y.2d at 310, 434
N.E.2d at 694, 449 N.Y.S.2d at 459; Carbone v. Fort Erie Jockey
Ltd., 47 A.D.2d 337, 339, 366 N.Y.S.2d 485, 487 (4th Dep't
1975). However, where a foreign corporation engages in
"activities of substance in addition to solicitation there is
presence and, therefore, jurisdiction." Laufer, 55 N.Y.2d at
310, 434 N.E.2d at 695, 449 N.Y.S.2d at 459; see also
Aquascutum of London, Inc. v. S.S. American Champion,
426 F.2d 205, 211 (2d Cir. 1970) ("[O]nce solicitation is found in any
substantial degree very little more is necessary to a
conclusion of `doing business.'"). This so called "solicitation
plus" rule is satisfied when, in addition to solicitation, the
foreign corporation is involved in some financial or commercial
dealings in New York or holds itself out as operating in New
York. See Aquascutum, 426 F.2d at 212. In assessing the type of
activities that satisfy this rule, courts "tend to focus on a
physical corporate presence," Artemide SpA v. Grandlite Design
& Mfg. Co., 672 F. Supp. 698, 701 (S.D.N.Y. 1987), for example,
the maintenance of an office, officers or a bank account in New
York, or the occurrence of financial transactions or meetings
in New York. See Laufer, 55 N.Y.2d at 310, 434 N.E.2d at 695,
449 N.Y.S.2d at 459 (citing cases).
Plaintiff argues that WDW has satisfied the "solicitation
plus" rule through the activities of its New York
representatives.*fn2 Specifically, plaintiff contends that
WDW: (1) "solicits business in New York through the television,
radio and print advertisements of its licensees, including
Delta Airlines, Inc., [and] Greyhound Bus Lines, Inc. . . .;"
(2) "maintain[s] a contract with a New York advertising firm
. . . to promote Walt Disney World in the New York area;" and
(3) "pays commissions to travel agents on all bookings at the
seven resorts which comprise the Walt Disney World Resort."
Affirmation in Opposition, ¶ 6, B. iii, iv, v, 90 Civ. 1773
(JMC) (S.D.N.Y. Apr. 16, 1990).
The seminal New York case dealing with the principles of
personal jurisdiction and agency is Frummer v. Hilton Hotels
International, Inc., 19 N.Y.2d 533, 227 N.E.2d 851, 281
N YS.2d 41, cert. denied, 389 U.S. 923, 88 S.Ct. 241, 19
L.Ed.2d 266 (1967). In Frummer, the Court of Appeals found that
a British hotel was subject to personal jurisdiction in New
York through the activities of its agent, an affiliated
company, where the New York agent not only solicited business
and performed public relations activities, but also accepted
and confirmed reservations on behalf of the foreign hotel.
After noting the various activities that the agent performed
for the hotel, the Court of Appeals concluded that the
"significant and pivotal factor" is that "the [agent] does ...