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WALSH v. MARYLAND BANK

November 10, 1992

FRANCIS C. WALSH, Plaintiff,
v.
MARYLAND BANK, N.A., MARYLAND NATIONAL CORPORATION and MASTERCARD, Defendants.


HAIGHT, JR.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

HAIGHT, District Judge:

 This case is before the Court on defendants' motion to dismiss the complaint pursuant to Rule 12(c), Fed. R. Civ. P.

 For the reasons stated below, the motion is granted in part and denied in part.

 BACKGROUND

 On June 14, 1985, Trans World Airlines Flight 847B departing Athens for Boston was hijacked in Athens. Plaintiff Francis C. Walsh, then a resident of Massachusetts and now a resident of Florida, was a passenger on that flight.

 The hijackers allegedly forced Walsh to assume "the crash position," with his head between his legs, for approximately 48 hours. Walsh claims that this caused him to lose sight in his left eye on or about November 28, 1985. Complaint, P 8.

 The plaintiff had purchased his airline ticket from a travel agency in Massachusetts on March 29, 1985. Affidavit of Francis C. Walsh ("Walsh Aff."), P 2; Defendants' Notice of Motion, Affidavit of Todd W. Weaver ("Weaver Aff."), P 27. He used his MasterCard, which had been issued to him by defendant Maryland Bank, N.A. ("Maryland Bank").

 Maryland Bank was a national banking association with its offices in Delaware, Weaver Aff., P 1; its credit card liabilities were later assumed by MBNA America, N.A. ("America Bank") in January 1991. *fn1" Id., P 12. America Bank is also a national banking association located in Delaware. Id., P 13. Defendant MasterCard International Inc. ("MasterCard International"), sued hereunder as "MasterCard," is a Delaware corporation with its principal place of business in New York. Defendants' Notice of Motion, Affidavit of Robert E. Norton, Jr., P 1.

 By using his credit card, Walsh automatically obtained travel insurance. The insurance policy is contained in the credit card agreement and states in pertinent part: "$ 100,000.00 is payable for accidental loss of one limb or sight of one eye." Plaintiff's Exh. E. The policy also provides that the loss must occur within 365 days of the date of the accident. Id.

 Walsh asserted a claim under this policy for the loss of sight in his left eye. Upon rejection of that claim, he filed a complaint against Maryland Bank, MasterCard International, and Maryland National Corporation ("MNC")--a Maryland corporation and the corporate parent of Maryland Bank, Weaver Aff., PP 2-3--on November 6, 1991. He seeks $ 900,000.00 in damages for breach of contract, gross negligence, and fraudulent inducement of contract.

 Defendants moved to dismiss the complaint on three grounds: 1) that this Court lacks personal jurisdiction over the defendants; 2) that plaintiff's claims are barred by the applicable statutes of limitations; and 3) that plaintiff has failed to state his negligence and fraud claims adequately.

 DISCUSSION

 Defendants have brought this motion under Rule 12(c), Fed. R. Civ. P., which provides:

 Motion for Judgment on the Pleadings.

 After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

 Both parties have submitted affidavits in this case and I decline to exclude them. Accordingly, defendants' motion is treated as one for summary judgment. See, e.g., National Assn. of Pharmaceutical Mfrs. v. Ayerst Laboratories, 850 F.2d 904, 911 (2d Cir. 1988).

 Under Fed. R. Civ. P. 56(c), the moving party is entitled to summary judgment if the papers "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." On such a motion, "the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Insurance, 804 F.2d 9, 11 (2d Cir. 1986) (citation omitted), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). The responding party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). while the party resisting summary judgment must show a dispute of fact, it must also be a material fact in light of the substantive law. As the Supreme Court has held, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 1. Jurisdiction

 When a defendant claims that a court lacks personal jurisdiction over it, the plaintiff's obligation varies depending on the procedural posture of the litigation. Prior to discovery, the plaintiff may defeat a jurisdiction-testing motion by asserting legally sufficient allegations of jurisdiction. Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 112 L. Ed. 2d 116, U.S. , 111 S. Ct. 150 (1990). At this preliminary stage, "the plaintiff's prima facie showing may be established solely by allegations." Id. After discovery, "the plaintiff's prima facie showing . . . must include an averment of facts that, if credited by the trier, would suffice to establish jurisdiction over the defendant." Id. At this later stage, "bare allegations of jurisdiction will not suffice. . . ." Bicicletas Windsor v. Bicycle Corp. of America, 783 F. Supp. 781, 783 (S.D.N.Y. 1992) (citations omitted).

 Although the parties in the case at bar have submitted affidavits, they have not conducted discovery. Plaintiff therefore defeats defendant's motion upon a prima facie showing of jurisdiction through his pleadings and affidavits. All pleadings and affidavits are construed in the light most favorable to plaintiff and where doubts exist, they are resolved in his favor. E.g., Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985) (citations omitted).

 In a diversity action such as this, personal jurisdiction over a defendant is determined by the law of the forum in which the court sits. CutCo Industries, Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986) (citation omitted). New York law therefore applies. Although Walsh fails to cite a specific provision of New York law that confers jurisdiction over the defendants, he appears to rely on N.Y.C.P.L.R. §§ 301 and 302 (McKinney 1990).

 A. Section 301--Doing Business

 The plaintiff suggests that the defendants are "doing business" under N.Y.C.P.L.R. § 301 (McKinney 1990) and are therefore subject to jurisdiction in New York. While the statute itself provides only that "[a] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore," courts have construed it to include foreign corporations who are doing business in the "traditional sense." Frummer v. Hilton Hotels International, Inc., 19 N.Y.2d 533, 281 N.Y.S.2d 41, 43, 227 N.E.2d 851 (emphasis in original), cert. denied, 389 U.S. 923, 19 L. Ed. 2d 266, 88 S. Ct. 241 (1967), quoted in Ball, 902 F.2d at 198 and Bicicletas Windsor, 783 F. Supp. at 784.

 Notwithstanding the position taken in the original motion, it is now undisputed that MasterCard International does business in New York and is subject to jurisdiction here. Whether the other two defendants can be sued in New York is another matter.

 But these allegations fail, as a matter of law, to meet the "doing business" standard. Maryland Bank and MNC must be "engaged in such a continuous and systematic course of 'doing business' [in New York] as to warrant a finding of its 'presence' in the jurisdiction." Ball, 902 F.2d at 198 (citation omitted). They must be present "not occasionally or casually, but with a fair measure of permanence and continuity." Landoil Resources Corp. v. Alexander & Alexander Services, Inc., 918 F.2d 1039, 1043 (2d Cir. 1990) (citation omitted). Plaintiff has failed to allege facts supporting such a presence. *fn2"

 Even if plaintiff's allegations are construed as a claim that Maryland Bank solicits credit card business in the New York area via MasterCard International, that is not enough: "Solicitation of business alone will not justify a finding of corporate presence in New York with respect to a foreign manufacturer or purveyor of services." Id. While "solicitation plus additional business activities related to the defendant's operative or financial structures usually satisfies the [doing business] test," Bicicletas Windsor, 783 F. Supp. at 785 (citation omitted), plaintiff has not alleged any additional business activities. He therefore has failed to show that Maryland Bank and MNC are "doing business" under § 301.

 To the extent that plaintiff's cryptic claims may be viewed as an argument that Maryland Bank is "doing business through an affiliate," see Commentary to N.Y.C.P.L.R., § 301 at 11 (McKinney 1990), I reject it. An argument on this ground may be made in one of two ways: 1) by piercing the corporate veil; or 2) by finding an agency relationship.

 Now Circuit Judge McLaughlin explained veil-piercing in the Commentary to the C.P.L.R.:

 So long as the corporate amenities are observed, and the corporate operations and responsibilities are distinctly maintained, courts will not ignore the corporate personalities which separate them. Unless a complete unity between the two corporations results because of the parent's disregard of the corporate distinction, the activities of the one ought not to be attributed to the other.

 N.Y.C.P.L.R. § 301 at 13-14 (McKinney 1990) (citations omitted). Plaintiff's claims fall far short of allowing him ...


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