who informed plaintiff that he would be arrested if he returned to Arlington. (Id.)
As Judge Sifton explained in his order of September 26, 1994, personal jurisdiction over a defendant to a defamation action may be maintained under § 302 (a) (1) of the CPLR where the defendant engaged in "purposeful activities" in New York, and where a "substantial relationship" existed between those activities and the transaction which gave rise to the cause of action. Talbot v. Johnson Newspaper Corp., 71 N.Y.2d 827, 829, 527 N.Y.S.2d 729, 522 N.E.2d 1027 (1988). The New York Court of Appeals has defined "purposeful activity" as "'some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.'" McKee Electric Co. v. Rauland-Borg Corp., 20 N.Y.2d 377, 382, 283 N.Y.S.2d 34, 229 N.E.2d 604 (1967) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958)).
A review of the case law reveals that a defendant's attempts to avail herself of the benefits of a forum must be considerably more substantial than defendant Nathan's alleged contacts with the State of New York in order to merit a finding of purposeful activity sufficient to ground jurisdiction. The Second Circuit has observed that "New York courts have consistently refused to sustain § 302 (a) (1) jurisdiction solely on the basis of defendant's communication from another locale with a party in New York." Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 766 (2d Cir. 1983); see also Fiedler v. First City National Bank of Houston, 807 F.2d 315, 318 (2d Cir. 1986). On the few occasions when New York courts have exercised jurisdiction under such circumstances,
they have done so because the defendant "had established a pattern of commercial dealings" with the plaintiff in New York and used the telephone "as a means of projecting [himself] into local commerce." Fiedler, 807 F.2d at 317.
In other cases that address out-of-state defendants who maintain communications in New York, however, the defendants' activities in New York were held not substantial enough to serve as a basis for the exercise of jurisdiction under § 302 (a) (1). In Galgay v. Bulletin Co., 504 F.2d 1062, 1064-66 (2d Cir. 1974), the Court refused to exercise jurisdiction over a a contract dispute even though the contract had been executed in New York, the defendant had hired an agent in New York to perform its obligations under the contract, and the contract provided that it would be governed by New York law. See also Paine Webber, Inc. v. Westgate Group, Inc., 748 F. Supp. 115, 119-21 (S.D.N.Y. 1990) (no jurisdiction despite defendant's frequent communications to New York by telephone and facsimile, its agreement to a minor modification of the agreement that gave rise to the lawsuit, and its use of a New York investment firm to assist it with a business venture); McKee Electric Co., 20 N.Y.2d at 382 (jurisdiction absent even where agreement had been negotiated in New York and a senior employee of defendant had travelled to New York to investigate the plaintiff's complaints in connection with the contract).
Defendant Nathan's contacts in New York fall well below the threshold that these cases indicate is necessary to confer jurisdiction. The papers submitted to the Court show conclusively that plaintiff initiated contacts with defendant, in Virginia, concerning the purchase of the South Lynn Street property, and that all later communications were made for the purpose of negotiating that agreement or enforcing defendant's rights thereunder.
Further, plaintiff has not alleged that defendant or her agents did anything other than communicate with him by telephone concerning the purchase and subsequent foreclosures. As stated above, such activity has been repeatedly held insufficient to ground jurisdiction under § 302 (a) (1).
In addition, the subsequent activities of plaintiff's lawyers and of Detective Tyler, as alleged in plaintiff's affidavit, do not require a different conclusion. The fact that letters were sent into the forum does not alone establish purposeful activity. Plaintiff has failed to describe the contents of the letters he allegedly received from Vernon Evans, but it is clear that they were in furtherance of defendant's attempt to recover money plaintiff owed her under their prior agreement. Similarly, defendant's act of hiring a New York lawyer to free the South Lynn and South 19th Street properties from operation of the automatic stay does not constitute such purposeful availment; defendant was simply doing the minimum that was necessary to exercise her rights in property that lay outside of New York.
Finally, the Virginia police called plaintiff only to warn him that he would be arrested if he attempted to enter the South 19th Street property. This can hardly be held to constitute purposeful availment by anyone, let alone defendant, of the benefits of the New York forum.
The most significant aspect of defendant's negligible contact with New York in the course of her relations with plaintiff is the fact that all her activities here were focused on and related to undertakings in Virginia. Courts have consistently held in such circumstances that the exercise of personal jurisdiction is improper. In China Resource Products, 1994 U.S. Dist. LEXIS 11407, 1994 WL 440719 at *7, the defendant's numerous telephone calls, facsimile transmissions, and mailings to New York in connection with the negotiation of a contract for the sale of goods was held not to ground jurisdiction, because these communications "did not project [the defendant] into any ongoing events that were taking place in New York." Rather, the negotiations focused on goods that were to be shipped from Beijing to Nebraska. Id.7
For all these reasons, I conclude that plaintiff has not made the requisite showing that defendant has engaged in purposeful activity within New York State, and accordingly, defendant is not required to submit to this Court's jurisdiction.
Motion to Transfer
The determination that personal jurisdiction is lacking does not dispose of the case, however. There remains the question whether it should be transferred to the Eastern District of Virginia pursuant to 28 U.S.C. § 1406(a). That section reads:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
Transfer is not guaranteed under § 1406. The Second Circuit has held that where there exists a procedural bar to suit in the transferor district, but not in the transferee district, the district judge nevertheless "should consider whether a transfer would be in the interest of justice." Spar, Inc. v. Information Resources, 956 F.2d 392, 394 (2d Cir. 1992). A court may decline to order a transfer if it determines that the case was filed in bad faith or as a form of harassment. See, e.g., In re Hall, Bayoutree Assoc., Ltd., 939 F.2d 802, 806 (9th Cir. 1991); cf. Kellogg Co. v. First National Bank of Louisville, 512 F. Supp. 56, 60 (W.D. Mich. 1981) (transfer was appropriate where plaintiff's erroneous filing in an improper venue was done in good faith and was not intended to harass); De La Fuente v. Interstate Commerce Commission, 451 F. Supp. 867, 872 (N.D. Ill. 1978) ("Where, as here, there is no indication that suit was commenced in an improper venue for purposes of harassment, transfer is preferable to dismissal.")
In accordance with Judge Sifton's order of September 26, 1994, plaintiff set forth facts in his affidavit that would allow a conclusion that this case could have been brought originally in the Eastern District of Virginia. Although this is correct,
I am nevertheless convinced that transfer to that district would frustrate the interest of justice, for several reasons. First, plaintiff's behavior has caused me to doubt the veracity of his representations to the Court. During a telephone status conference in February 1995 regarding this motion, plaintiff resisted providing his New York address, even after the Court had requested it. Next, in his supplemental affidavit, submitted in accordance with Judge Sifton's order, plaintiff created the false impression that his purchase of the South Lynn Street property came about as a result of solicitations in this district by defendant and her agents. (Pl.'s Aff. at 2.) However, he later admitted that he had initiated the contact with Arlington Realty, in Virginia, after personally viewing the property in March 1991. (Pl.'s Aff. dated July 30, 1995 P 6.)
Second, plaintiff's history in the Virginia federal court and the United States Bankruptcy Court in this district provides a further reason to conclude that the interest of justice would not be served by transferring this case to Virginia. Three out of four legal proceedings he has filed (all of which affect defendant, either by naming her as a party or by attempting to deprive her of her rights in particular property) have been dismissed, and one has been voluntarily withdrawn. This dubious history suggests that plaintiff is intentionally using the courts to harass the 81-year-old defendant.
A closer look at Chief Judge Cacheris' memorandum opinion in plaintiff's blunderbuss action in the Eastern District of Virginia confirms that suspicion. Among the numerous allegations in that case (which asserted allegations of usury that the Court termed "patently frivolous," as well as a variety of federal and state claims against defendant Nathan), plaintiff alleged that defendant (and Loretta Connor) defamed him personally in the foreclosure notices they caused to be published. That defamation claim was dismissed. Williams v. Nathan, 1993 WL 219516 at *6.
Because there is no reason the particular alleged defamation at issue in this case could not also have been included in that prior case before Chief Judge Cacheris, the claim here may well be barred by the doctrine of res judicata. Whether or not that is so, this Court will not require defendant Nathan to be hauled back into federal court in Virginia to answer it.
In sum, I conclude that plaintiff's decision to bring the instant action in this district was motivated by a desire to harass and by his realization that he could no longer achieve that result in the Virginia courts. I therefore decline to transfer the case to another federal district. I should add that, wholly apart from this harassment, it would be particularly inappropriate, and contrary to the interests of justice, to allow plaintiff to transfer this single claim back to a court in which more than 100 prior claims arising out of the same facts were previously dismissed, in part because of plaintiff's own refusal to comply with the court's rules regarding discovery. See In re Hall, Bayoutree Assoc., Ltd., 939 F.2d at 806.
For the reasons stated herein, this Court shall not exercise jurisdiction over defendant Cynthia R. Nathan, and all of plaintiff's claims against her are accordingly dismissed. In addition, transferring the case to another federal district would not serve the interests of justice, and I therefore decline to order such a transfer. In light of the strong evidence that plaintiff sued defendant in bad faith and for the sole purpose of harassing her, and of his penchant for such litigation against defendant, it is further ordered that plaintiff is prohibited from filing any claims against defendant in this district without the prior review and approval of a magistrate judge.
The Clerk of the Court is advised that this Order closes the case.
JOHN GLEESON, U.S.D.J.
Dated: Brooklyn, New York
September 13, 1995