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TWINE v. LEVY

October 9, 1990

JAMES CHARLES TWINE, PLAINTIFF,
v.
GILBERT W. LEVY AND LEVY & HAMILTON, P.C., DEFENDANTS.



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

MEMORANDUM AND ORDER

Defendants move for dismissal pursuant to Fed.R.Civ.P. 12(b). Defendants base their motion on the following grounds: lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2); improper venue, Fed.R.Civ.P. 12(b)(3); insufficiency of service of process, Fed.R.Civ.P. 12(b)(5); and failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). For reasons to be discussed below, defendants' motion is granted on the basis of a lack of personal jurisdiction.

FACTS

Plaintiff filed a legal malpractice suit in this Court. His claim is based on diversity jurisdiction; i.e., plaintiff is a domiciliary of New York and defendants are domiciliaries of the State of Washington.

Plaintiff alleges that on April 24, 1987, defendant, Gilbert Levy, represented him at a sentencing hearing in the United States District Court for the Western District of Washington. It is alleged that Mr. Levy — plaintiff's court-appointed counsel — negligently failed to object to certain inaccurate and prejudicial information contained in plaintiff's presentence report.

Plaintiff's complaint is devoid of any statements supporting a finding of personal jurisdiction by this Court. In his response to the present motion, plaintiff asserts that the Court has personal jurisdiction over the defendants based on a series of correspondence between defendant, Gilbert Levy, and plaintiff concerning Mr. Levy's representation of plaintiff. As a jurisdictional predicate, plaintiff relies on several phone conversations between himself and Mr. Levy while defendant was in Washington and plaintiff was in New York, as well as several letters sent to him by defendant Levy from Washington. In addition, plaintiff contends that certain actions taken by him at the behest of his attorney, Mr. Levy, provide sufficient contacts with New York for this Court to exercise personal jurisdiction over defendants in this action.*fn1

Gilbert Levy was a partner in the erstwhile law firm of Levy & Hamilton. Both Mr. Levy and his former law firm are defendants in this action. Defendant, Gilbert Levy, is licensed to practice law in Washington; he is not, nor has he ever been, licensed to practice law in New York. Mr. Levy resides in Seattle, Washington and has never been a resident of New York. Mr. Levy never was served with process in New York; he does not maintain any offices for the transaction of business in New York; he does not have any agents in New York upon whom process may be served; nor does he employ anyone to conduct business on his behalf in New York. Defendant's Affidavit at 2. These facts are uncontradicted.

Defendant, Levy & Hamilton, was a partnership formed in accordance with the laws of the State of Washington. Levy & Hamilton was never licensed to do business in New York; it did not have any affiliates, subsidiaries, or employees conducting or soliciting business in New York; nor did it maintain any agents in New York upon whom process could be served. Defendant Partnership's Affidavit at 1-2. These facts, too, are uncontradicted.

DISCUSSION

In a case based on diversity of citizenship, federal courts apply the law of the forum state in determining whether to exercise personal jurisdiction over the defendants. Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985); Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir. 1963) (en banc). Thus, in the present case, the Court looks to New York's law regarding personal jurisdiction.

Application of New York law to the question of personal jurisdiction requires a twofold analysis. A determination must first be made as to whether New York law provides a basis for the exercise of personal jurisdiction over defendants. See New York Civil Practice Law and Rules §§ 301-302 ("CPLR"). If the Court determines that New York law provides for the exercise of jurisdiction over defendants, the analysis then ascends to a constitutional level. This second tier of inquiry requires the Court to determine whether the exercise of personal jurisdiction over defendants would offend due process. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In light of the Court's decision below that these defendants are not subject to personal jurisdiction under New York law, any due process inquiry becomes superfluous.

NEW YORK LONG-ARM JURISDICTION

Plaintiff claims that the Court may exercise personal jurisdiction based on several provisions of the CPLR, including: the "doing business" standard, CPLR § 301; transacting business in New York, CPLR § 302(a)(1); tortious activity within New York, CPLR § 302(a)(2); and tortious activity without the state which causes ...


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