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