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October 5, 1990


The opinion of the court was delivered by: Kram, District Judge.


This is a personal injury action brought under diversity jurisdiction, 28 U.S.C. § 1332. Presently before the Court are plaintiff's motion to strike several of defendant's affirmative defenses and defendant's cross-motion for an order dismissing the complaint under Fed.R.Civ.P. 12(b) for lack of personal jurisdiction and venue, improper or non-service and non-compliance with the statute of limitations, or in the alternative, to transfer under 28 U.S.C. § 1404(a).


Plaintiff Gertrude Lane, a New York resident, seeks to recover one million dollars in damages from defendant Vacation Charters, Ltd., which is a Pennsylvania corporation 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. Id.

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 jurisdictional statute.

New York Civil Practice Law § 301 — "Doing Business" Statute

New York permits a court to exercise jurisdiction over a foreign corporation under CPLR ยง 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, ...

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