the nature of the complaint, they do not dispute the fact that plaintiff was intoxicated at the time. Plaintiff was taken to the State Police barracks for processing, and he admits that he was loud and argumentative. As plaintiff was unhandcuffed and about to be fingerprinted, he either lunged at one of the officers or at least was uncooperative. In response, one of the officers sprayed plaintiff with an Oleoresin Capsicum ("OC") or "pepper" spray with the brand name CAP-STUN.
CAP-STUN is a product produced by defendant Zarc and "sold to law enforcement and military organizations around the world as a non-lethal use of force alternative." (Def.'s Mem. Supp. Summ. J. at 2.) According to defendant, CAP-STUN was first developed in the 1970s. After performing "an exhaustive study" and arranging "a broad range of testing" of the product, Zarc acquired all rights to CAP-STUN and began distributing its own "enhanced" version of CAP-STUN. (Id. at 3.) At around the same time, the Federal Bureau of Investigations ("FBI") apparently completed a three-year study of CAP-STUN and approved its use by FBI agents.
In 1992 the New York State Police decided to implement a study ("Pilot Study") of OC spray in order to determine whether it would be appropriate for use by State Police officers. The State Police subsequently obtained quotes from various OC spray distributors, including a quote for CAP-STUN. The CAP-STUN quote apparently did not come from defendant Zarc, however. Instead, it was provided by Integrated Systems International ("ISI"), a South Carolina Corporation that marketed and distributed CAP-STUN under the name "CAP-STUN Weapon Systems." Plaintiff alleges that ISI is merely the marketing division of defendant Zarc and not a separate company.
In November, 1992, the State Police decided to use CAP-STUN in its Pilot Study, and a purchase order was submitted to ISI in South Carolina. On December 4, 1992, either ISI or defendant Zarc dispatched a CAP-STUN trainer to Albany, New York, to instruct and certify a small number of State Police officers in the use of the spray. These officers in turn trained a larger group of officers from around New York, and all of the officers were issued CAP-STUN upon their completion of the training program. Apparently, after December 4, 1992, there was no further direct involvement by any Zarc or ISI personnel in the State Police's Pilot Study.
Plaintiff was sprayed with CAP-STUN on February 20, 1993, by an officer who was issued the product after the training sessions. Plaintiff apparently concedes that defendant Zarc had nothing to do with the decision to spray plaintiff. On May 31, 1993, the Pilot Study was completed, and in October of the same year the State Police issued its report, which recommended that an OC spray be acquired. This report was issued to defendant Zarc. After competitive bidding, the State Police decided to purchase TAC-DOWN, an OC spray product that competes with CAP-STUN. Defendant Zarc wrote a letter objecting to the apparent plan to purchase TAC-DOWN, and subsequently filed a bid protest. Ultimately, however, the State Police decided not to use CAP-STUN.
In his Complaint, plaintiff levels a number of serious charges at Zarc and the other defendants. He generally claims that defendants have conspired to subject innocent and unwitting citizens of New York to an illegal experiment designed to test the effects of CAP-STUN. Plaintiff also suggests that defendants devised a "test protocol" whereby people would be sprayed for no reason other than to test CAP-STUN, the results of those exposures would be recorded, and the information forwarded to Zarc for its use. Finally, plaintiff alleges that he became a victim of this nefarious scheme on February 20, 1993, in violation of his federal statutory and constitutional rights. Plaintiff seeks $ 20 million compensatory and punitive damages, as well as an injunction preventing Zarc from selling CAP-STUN in New York and preventing the State Police from using CAP-STUN until it is approved by the proper federal authorities.
Discovery in this case is now complete and the trial date is fast approaching. On this motion for summary judgment, defendant Zarc argues that (1) it is not subject to personal jurisdiction in New York because it is not "doing business" there; (2) plaintiff's "conspiracy" claims against Zarc "are entirely without basis in law or fact and should be dismissed," (Id. at 10); and (3) plaintiff's requested injunction should be denied because he lacks standing. Defendant has also moved for sanctions against plaintiff, including costs and attorneys' fees, pursuant to 28 U.S.C. § 1927 and Fed. R. Civ. P. 11.
A. PERSONAL JURISDICTION OVER ZARC
As in a diversity case, a district court having federal question jurisdiction over an action must look to the forum state's statutes to test personal jurisdiction. See e.g., Pilates, Inc. v. Pilates Inst., Inc., 891 F. Supp. 175, 179 (S.D.N.Y. 1995). Thus personal jurisdiction over defendant Zarc, a Maryland corporation with operations in Bethesda, Maryland, is governed by N.Y. Civ. Prac. L. & R. ("CPLR") 301 and 302. Bare legal allegations by plaintiff may be sufficient to withstand a dismissal motion for lack of personal jurisdiction,
but "without factual support, [such allegations] fail to make a prima facie showing at the summary judgment stage, once discovery has occurred." Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 199 (2d Cir.), cert. denied, 498 U.S. 854, 112 L. Ed. 2d 116, 111 S. Ct. 150 (1990). In other words, on the summary judgment motion at issue here -- after discovery -- plaintiff bears the burden of establishing whether jurisdiction is present.
1. CPLR 301
The first possible basis for jurisdiction over defendant is New York CPLR 301, which authorizes general jurisdiction over a foreign corporation if the defendant was "doing business" in New York. Section 301 jurisdiction may be present even if the cause of action is unrelated to the party's activities in New York. However, a plaintiff must demonstrate that the defendant is doing business "not occasionally or casually, but with a fair measure of permanence and continuity." Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir. 1985). In a Section 301 analysis, New York courts focus upon several factors, including the existence of a New York Office, the solicitation of business in New York, the presence of bank accounts and other property in the state, and the presence of employees in the state. Id.
In response to defendant's motion, plaintiff argues that ISI/Cap-Stun Weapon Systems is Zarc's marketing division, rather than a separate entity, and has done business in the state. In addition, "Zarc actively advertises, promotes, distributes, and sells Cap-Stun within the State of New York." (Ballan Aff. at P 7.) Because plaintiff believes that ISI is merely Zarc's marketing division, it is unclear whether his claims of action by "Zarc" refer to endeavors undertaken by ISI or by Zarc itself. Regardless, plaintiff has not established that either Zarc or ISI has an office, bank accounts, property, or permanent employees in New York. All he has established is that CAP-STUN has been sold to several police agencies in New York by either Zarc or ISI and that either Zarc or ISI will send advertising materials into New York upon request. Therefore, even assuming ISI is the marketing division of Zarc, the Court finds that plaintiff is unable to offer sufficient evidence of the traditional signs of defendant "doing business" in New York under Section 301.
2. CPLR 302