United States District Court, Eastern District of New York
October 9, 1990
JAMES CHARLES TWINE, PLAINTIFF,
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.
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 injury in New York,
CPLR § 302(a)(3). These assertions will be addressed seriatim.
A. "Doing Business"
Section 301 of the CPLR provides courts with the power to
exercise personal jurisdiction over a non-domiciliary
defendant based on the traditional notion of the defendant's
presence within the state. See Bryant v. Finnish Nat. Airline,
15 N.Y.2d 426, 208 N.E.2d 439, 260 N.Y.S.2d 625 (1965).
Subsumed within this notion of presence is the concept that a
non-domiciliary defendant will be deemed "present" in New York
if the defendant engages in a continuous and systematic course
of business in New York; i.e., the defendant is doing business
in New York. Frummer v. Hilton Hotels Inc., 19 N.Y.2d 533, 536,
227 N.E.2d 851, 853, 281 N.Y.S.2d 41, 43, cert. denied,
389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266 (1967); Amajac, 763 F.2d
The "doing business" standard requires more than just
occasional or casual business activities within the state;
rather, the defendant's conduct must be "with a fair measure
of permanence and continuity." Tauza v. Susquehanna Coal Co.,
220 N.Y. 259, 267, 115 N.E. 915, 917 (1917); see Laufer v.
Ostrow, 55 N.Y.2d 305, 310, 434 N.E.2d 692, 694, 449 N.Y.S.2d
456, 458 (1982). The business conducted by the non-domiciliary
must be sufficiently consistent and persistent to support the
legal fiction that the non-domiciliary defendant is present
within the state. Frummer, 19 N.Y.2d at 536, 227 N.E.2d at 853,
281 N.Y.S.2d at 43; Delagi v. Volkswagenwerk AG of Wolfsburg,
29 N.Y.2d 426, 430-31, 278 N.E.2d 895, 896, 328 N.Y.S.2d 653,
656 (1972). If so, courts may exercise personal jurisdiction
over non-domiciliaries because they have voluntarily availed
themselves of the benefits and protections that accompany the
privilege of conducting business in New York. In short, because
the non-domiciliary defendants are considered to be present
within the state, they may properly be haled into a New York
court. See, e.g., Frummer, 19 N.Y.2d at 536, 227 N.E.2d at 853,
281 N.Y.S.2d at 43.
While "doing business" as a basis of in personam
jurisdiction is historically associated with corporate
defendants, the concept has been readily extended to
partnerships as well. See Pine & Co. v. McConnell, 298 N.Y. 27,
80 N.E.2d 137 (1948). There remains, however, some concern as
to whether the "doing business" standard may be applied to
non-domiciliary defendants who are natural persons. Flexner v.
Farson, 248 U.S. 289, 39 S.Ct. 97, 63 L.Ed. 250 (1919).
Although most courts and scholars agree that the doing business
standard as applied to individuals would
pass constitutional muster (see Lamar v. American Basketball
Association, 468 F. Supp. 1198, 1199 n. 1 (S.D.N.Y. 1979) (list
of authorities in agreement), the New York courts are presently
split on this question. Compare ABKCO Industries, Inc. v.
Lennon, 85 Misc.2d 465, 377 N.Y.S.2d 362 (1975), aff'd in part
and mod in part, 52 A.D.2d 435, 440, 384 N.Y.S.2d 781, 783-84
(1st Dep't 1976) (doing business standard applicable to
individuals); with Nilsa B.B. v. Blackwell H., 84 A.D.2d 295,
306, 445 N.Y.S.2d 579, 587 (2d Dep't 1981) (questioning First
Department's broad holding in ABKCO). Several courts have
followed the holding in ABKCO, see, e.g., Lamar, 468 F. Supp. at
1202, but the issue has yet to be resolved by the New York
Court of Appeals.
Assuming, arguendo, that New York would extend the doing
business standard to individual non-domiciliary defendants,
plaintiff's complaint and response to the present motion are
devoid of any allegations establishing that either defendant
was doing business in New York. Defendants are not licensed to
do business in New York and they have no agents conducting
business on their behalf in New York. Defendants did not even
solicit plaintiff's business; rather, they were appointed by
the Washington court to represent plaintiff. Several phone
calls by defendant Levy from Washington to New York, as well as
several letters from Mr. Levy to plaintiff in no way establish
a pattern of continuous business activity by defendants within
New York. Assuming plaintiff's allegations are true, as the
Court must on a motion to dismiss, Cooper v. Pate,
378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964), they do not
establish a course of doing business in New York on the part of
defendants that would even approach the threshold of doing
business for purposes of CPLR 301.
B. Transacting Business
Plaintiff asserts that the Court has personal jurisdiction
over defendants based on defendants' transaction of business
in New York. CPLR § 302(a)(1). It is true that the New York
Court of Appeals has on occasion sanctioned the exercise of
jurisdiction based primarily on phone contacts with New York by
a non-domiciliary defendant. Ehrlich-Bober & Co. v. Univ. of
Houston, 49 N.Y.2d 574, 578-79, 404 N.E.2d 726, 728-29, 427
N YS.2d 604, 606-07 (1980); Parke-Bernet Galleries, Inc. v.
Franklyn, 26 N.Y.2d 13, 16-18, 256 N.E.2d 506, 508-09, 308
N YS.2d 337, 339-40 (1970). In each of these cases, however,
"the defendant had projected itself by means of letters and
calls into market activity that was ongoing in New York, and
hence had purposely availed itself of the privilege of
conducting such activities within the state." Mayes v.
Leipziger, 674 F.2d 178, 184 (2d Cir. 1982).
In the instant case, defendants did not, in any meaningful
sense, project themselves into New York's pool of competing
legal services. In fact, defendants were court-appointed
counsel. They did not solicit plaintiff's business in New
York. The letters and phone calls from defendant Levy to
plaintiff were simply necessary communications between
defendants and their client.
In Weiss v. Greenberg, Traurig, Askew, Hoffman, Lipoff,
Quentel & Wolff, P.A., 85 A.D.2d 861, 446 N.Y.S.2d 447 (3d
Dep't 1981), a New York resident sued a Florida law firm for
legal malpractice. The defendants in Weiss had represented the
plaintiff in ongoing litigation in Florida. The Appellate
Division held that it lacked personal jurisdiction under CPLR §
302(a)(1) over the Florida firm, notwithstanding that the firm
had sent attorneys to New York on two occasions to take
depositions. Id. at 861, 446 N.Y.S.2d at 449; see Presidential
Realty Corp. v. Michael Square West Ltd., 44 N.Y.2d 672,
376 N.E.2d 198, 405 N.Y.S.2d 37 (1978).
Similarly, in Mayes, a New York resident sued two California
attorneys for legal malpractice for services they rendered in
California. The Second Circuit, construing CPLR § 302(a)(1),
We do not believe that in these circumstances the
New York courts would exercise jurisdiction
solely on the basis that
the defendants, from California, reported to
their New York clients . . . by means of letters
and calls to New York to perform non-New York
Id. at 185.
Unlike the attorneys in Weiss, (see 85 A.D.2d at 861, 446
N YS.2d at 449) defendants in this action never entered New
York. In addition, the present defendants acted as
court-appointed counsel; the defendants in Mayes had contracted
with the plaintiff to provide him with legal services. Mayes,
674 F.2d at 179. Defendants in the instant action had even less
contact with New York than was held insufficient in Weiss and
Mayes. There is absolutely no showing that defendants
transacted any business in New York. The Court therefore is
powerless to exercise in personam jurisdiction pursuant to CPLR
C. Tortious Act Committed in New York
Plaintiff claims that defendants' alleged negligence
amounted to a tortious act committed within New York which
would allow this Court to assert personal jurisdiction over
the defendants. CPLR § 302(a)(2). The Court disagrees.
In determining where the tort occurs, New York has taken a
narrow approach. See Feathers v. McLucas, 15 N.Y.2d 443,
209 N.E.2d 68, 261 N.Y.S.2d 8 (1965). For a court to assert
personal jurisdiction under this subsection of the long-arm
statute, the tortious act must have been committed within New
York. Id. In essence, the tortious act — in this case
defendants' alleged negligent failure to object to the
pre-sentence report — must occur within the state. This is
tantamount to requiring the physical presence of the defendant
or his agent within the state when the tort occurs.
The acts at issue cannot be considered to have been tortious
acts committed within New York. The correspondence between
plaintiff and defendants was ancillary to defendants'
representation. The alleged tortious act occurred in
Washington where defendant Levy failed to object to the
pre-sentence report. Therefore, the Court holds that CPLR
§ 302(a)(2) provides no basis for jurisdiction over these
D. Tortious Act Committed Outside the State
Plaintiff also asserts that CPLR § 302(a)(3) provides a basis
for personal jurisdiction.*fn2 In attempting to localize the
injury, courts must distinguish between the situs of the injury
and the place where the plaintiff suffers damages. New York has
strictly construed CPLR § 302(a)(3), refusing to exercise
personal jurisdiction based solely on a plaintiff's residence
or domicile within New York. McGowan v. Smith, 52 N.Y.2d 268,
274, 419 N.E.2d 321, 324, 437 N.Y.S.2d 643, 646 (1981). That
the plaintiff is domiciled in New York does not mean that New
York is the situs of the injury. American Eutectic Welding
Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428 (2d Cir.
1971). "The situs of the injury is the location of the original
event which caused the injury, not the location where the
resultant damages are subsequently felt by the plaintiff."
Hermann v. Sharon Hospital, Inc., 135 A.D.2d 682, 683, 522
N YS.2d 581, 583 (2d Dep't 1987).
In the present case, the events that caused plaintiff's
injuries occurred in Washington. Assuming that defendants'
nonfeasance amounted to legal malpractice, plaintiff suffered
injury at that time, at the
hands of the court in Washington. Thus, while plaintiff may
have suffered damages in New York, his injury did not occur in
New York. Therefore, CPLR § 302(a)(3) does not provide a basis
for this Court to exercise jurisdiction over defendants.
Because New York law does not provide for personal
jurisdiction in this case, the Court need not examine the
constitutional aspects of the two-fold jurisdictional
analysis. In addition, because plaintiff has been unable to
surmount the threshold issue of in personam jurisdiction, the
Court need not examine the other aspects of defendant's
Accordingly, defendant's motion to dismiss for lack of
personal jurisdiction is granted.