operating a ski resort in that state. Plaintiff alleges that
she sustained personal injuries in an accident at the
defendant's resort due to, inter alia, defendant's negligent
maintenance of the facility.
Plaintiff was a member of a group that visited the
defendant's resort in February, 1987. This trip was organized
by Katherine T. Marshall Polite, of Children's Art Carnival.
Neither Ms. Polite nor her organization are parties to this
action. The contract between Vacation Charters and Polite
confirmed the group's reservation at the resort for the period
from February 27, 1987 through March 11, 1987. Group
Reservations Contract Form, attached to Plaintiff's Exhibit B
("Contract"). Laura Wren, defendant's sales representative,
and Polite are the only signatories to this contract.
It is undisputed that Vacation Charters has no license to do
business in New York, has no office or permanent agent in New
York, and owns no bank account or property in New York.
Affidavit of Louis N. DelRossol, Treasurer for Vacation
Charters, attached as Defendant's Exhibit A at 8 ("DelRosso
Aff."). Plaintiff claims that Vacation Charters has availed
itself of jurisdiction in New York through its efforts to
solicit business in this state. Plaintiff bases this argument
on statements in the affidavit of Vacation Charters'
Treasurer, Louis DelRosso, that it engaged in several efforts
to solicit business in New York. Defendant admits to placing
advertisements in the New York Times, the New York Post, the
New York Daily News, and an unspecified number of trade
magazines which are distributed in New York and several other
states. Defendant's Responses to Jurisdictional
Interrogatories, Attached to Notice of Cross Motion as Exhibit
D at 4, 5 ("Interrog.") Plaintiff has attached a copy of an
advertisement placed in one of these trade magazines.
Advertisement Attached to Affidavit of Scott Brody, Attorney
for Plaintiff as Exhibit I. Vacation Charters maintains a toll
free telephone number available to residents of New York and
other states, and sends brochures to New York travel agents
upon request. Interrog. at 6, 7. Defendant admits to paying
commissions to these agents when they solicit bookings.
Interrog. at 7. Finally, Vacation Charters sent an unspecified
number of employees to trade shows in New York in the Spring
of 1987 and the Fall of 1988. DelRosso Aff. ¶ 11.
Defendant argues that its solicitation efforts in New York
are insufficient to warrant jurisdiction in this state.
Vacation Charters contends, and plaintiff does not dispute,
that travel agents in New York have no authority to issue
confirmed or binding reservations. DelRosso at 13. Defendant
further claims that its employees do not travel to New York to
meet with travel agents and that no goods or services were
solicited at the two trade shows attended by its employees.
DelRosso at 9, 11. Defendant also contends that New York
addresses constitute comprises only 1% of the circulation of
the trade magazine containing the advertisement submitted by
the plaintiff. Interrog. at 5.
Defendant further asserts, without rebuttal from the
plaintiff, that the Contract between Vacation Charters and
Polite was not negotiated in New York. DelRosso Aff. ¶ 15.
Defendant contends that Ms. Polite initiated contact with the
defendant about arrangements for the trip by phone and
travelled to Pennsylvania to negotiate the agreement. DelRosso
Aff. ¶ 12, Interrog. at 10(b). Defendants asserts that the
contract was then "processed through the mail." DelRosso Aff. ¶
12. Apart from its advertising and solicitation efforts
described earlier, Defendant specifically denies engaging in
any business dealings in New York. DelRosso Aff. ¶¶ 6, 10, 17.
Defendant also argues for dismissal of the complaint on the
grounds of improper venue, insufficient process and the
tolling of the statute of limitations. The Court first
considers defendant's personal jurisdiction arguments and
finds them meritorious.
The question of personal jurisdiction over a non-domiciliary
defendant in a diversity action must be resolved by the law of
the forum state. United States v. First
National City Bank, 379 U.S. 378, 381-82, 85 S.Ct. 528, 530-31,
13 L.Ed.2d 365 (1965); Arrowsmith v. United Press
International, 320 F.2d 219, 223 (2d Cir. 1963). Under New York
law, the plaintiff bears the initial burden of demonstrating a
prima facie case of jurisdiction. Hoffritz for Cutlery Inc. v.
Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985); Marine Midland
Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981).
Although any disputes or ambiguities in the pleadings will be
resolved in favor of the plaintiff, the plaintiff must
"demonstrate facts which support a finding of jurisdiction in
order to avoid a motion to dismiss." Birmingham Fire Ins. Co.
of Pennsylvania v. KOA Fire and Marine Ins., Co., Ltd.,
572 F. Supp. 962, 964 (S.D.N. Y. 1983); see Hoffritz, supra, 763
F.2d at 57.
Plaintiff argues that Vacation Charters is subject to
jurisdiction in New York under New York CPLR §§ 301 and 302.
This Court finds that defendant's in-state activities are not
sufficient to satisfy the requirements of either state
New York Civil Practice Law § 301 — "Doing Business" Statute
New York permits a court to exercise jurisdiction over a
foreign corporation under CPLR § 301 if the defendant is
engaged in such a "continuous and systematic course of doing
business" in the forum that it is subject to suit for any cause
of action, even if unrelated to its in-state contacts. Laufer
v. Ostrow, 55 N.Y.2d 305, 449 N.Y.S.2d 456, 458, 460,
434 N.E.2d 692, 694, 696 (1982); Tauza v. Susquehanna Coal Co.,
220 N.Y. 259, 267, 115 N.E. 915 (1917). These activities must
amount to a presence with a "fair measure of permanence and
continuity," Tauza, supra, 220 N.Y. 259, 268, 115 N.E. 915, and
they must "make [jurisdiction] reasonable and just according to
traditional notions of fair play and substantial justice."
Laufer, supra, 449 N.Y.S.2d at 458, 434 N.E.2d at 694 (quoting
International Shoe Co. v. Washington, 326 U.S. 310, 316, 66
S.Ct. 154, 158, 90 L.Ed. 95 (1945)); Beacon Enterprises, Inc.
v. Menzies, 715 F.2d 757, 763 (2d Cir. 1983).
In making the determination of whether Vacation Charters is
"doing business" in this state, the Court is guided by
well-established rules. First, in order to base jurisdiction
over a foreign corporation on its solicitation of business in
the state, there must be a showing that the solicitation is
"substantial" and "that it is carried on with a 'considerable
measure of continuity and from a permanent locale.'"
Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 763 (2d Cir.
1983) (quoting Stark Carpet Corp. v. M-Geough Robinson, Inc.,
481 F. Supp. 499, 505 (S.D.N.Y. 1980)); Bryant v. Finnish
National Airline, 15 N.Y.2d 426, 260 N.Y.S.2d 625, 629,
208 N.E.2d 439, 441 (1965). This is referred to as the
"solicitation plus" test. Aquascuturn of London, Inc. v. S.S.
American Champion, 426 F.2d 205, 211 (2d Cir. 1970).
One measure used by New York courts to determine whether a
foreign corporation's in-state solicitation is substantial is
the amount spent on in-state advertising and the degree of
business generated by this advertising. See Dunn v. Southern
Charters, Inc., 506 F. Supp. 564 (E.D.N.Y. 1981); Katz Agency,
Inc. v. Evening News, 514 F. Supp. 423, 427-28 (S.D.N.Y. 1981),
aff'd, 705 F.2d 20 (2d Cir. 1983). In the present case, Lane
argues that defendant meets this test by "plac[ing] continuous
and substantial advertising in three (3) [New York] newspapers
. . . and intentionally deriv[ing] substantial revenues from
soliciting New York residents. . . ." Plaintiff's Reply
Memorandum at 3. Lane does not substantiate these allegations,
but rather argues that the Court should presume the extent of
defendant's advertising by its failure to qualify plaintiff's
assertions. Plaintiff's Reply Memorandum at 3. Plaintiff is
mistaken as to the placement of the burden of proof, as that
burden lies with the plaintiff. In the absence of more detailed
evidence on the importance of the New York market for the
defendant's resort, plaintiff's bare allegations cannot support
a finding of the "substantial solicitation" required. See
Pellegrino v. Stratton,
679 F. Supp. 1164, 1171-72 (N.D.N.Y. 1988) (plaintiff's failure
to provide "detailed evidence" of source, nature and degree of
investment in in-state advertising fatal to a finding of
"substantial" solicitation based on extent of advertising);
see also Ring Sales Co. v. Wakefield Engineering, 90 A.D.2d 496,
454 N.Y.S.2d 745 (2d Dept. 1982) ("vague and generalized
allegations" of defendant's in-state contacts insufficient to
withstand motion to dismiss or warrant hearing). While
defendant responded to plaintiff's interrogatories with
admissions of certain contacts, plaintiff did not question
defendant on its expenditures on New York advertising or its
revenue from the New York market.*fn1
Even assuming that substantial revenues were generated by
defendant's New York advertising, the case law is clear that
mere advertising and the solicitation of orders in the state
are insufficient to warrant jurisdiction, "no matter what the
volume of [in-state] sales concluded." Laufer, supra, 449
N YS.2d at 459, 434 N.E.2d at 695; Delagi v. Volkswagenwerk
A.G. of Wolfsburg, 29 N.Y.2d 426, 328 N.Y. So.2d 653, 657,
278 N.E.2d 895, 897-98 (1972); Miller v. Surf Properties, Inc., 4
N Y2d 475, 480, 176 N.Y.S.2d 318, 321, 151 N.E.2d 874, 876
(1958); Aquascutum of London, Inc. v. S.S. American Champion,
426 F.2d 205, 211 (2d Cir. 1970); Baird v. Day and Zimmerman,
390 F. Supp. 883 (S.D.N.Y. 1974). In Aquascutum, Judge Friendly
explained the "plus" component of the doctrine as follows:
All the cases . . . which find personal
jurisdiction under the 'solicitation plus' rubric
have involved either some financial or commercial
dealings in New York . . . or defendant holding
himself out as operating in New York, either
personally or through an agent. . . . In addition,
where the activities in addition to solicitation
have been particularly skimpy, the courts upholding
personal jurisdiction have considered it worthy of
comment that the defendant was represented in New
York by its own employees rather than by an
426 F.2d at 212 (emphasis added). Thus, essential to a finding
of jurisdiction under the "solicitation plus doctrine" is
evidence of some business activity conducted within the state
by an agent or representative of the defendant. See Pellegrino,
supra, 679 F. Supp. at 1171; Rolls Royce Motors, Inc. v. Charles
Schmitt & Co., 657 F. Supp. 1040, 1045 (S.D.N.Y. 1987); Diskin
v. Starck, 538 F. Supp. 877, 880 (E.D.N.Y. 1982); Surf
Properties, supra, 176 N.Y. So.2d 318, 321, 151 N.E.2d 874, 876