B. Imputed Long-Arm Jurisdiction
New York cases also establish that even when a corporate officer's contacts with the forum are insufficient -- for example, if the officer has never entered the state -- long-arm jurisdiction over the corporation can be imputed to the officer so long as the corporation can be deemed to have acted in the forum as the corporate officer's agent such that the actions are attributable to the officer. See, e.g., Retail Software Servs. v. Lashlee, 854 F.2d 18, 22 (2d Cir. 1988); Kreutter, 71 N.Y.2d at 463, 473, 527 N.Y.S.2d at 196, 202-03, 522 N.E.2d at 41, 47. A plaintiff need not show a formal agency relationship, but rather must establish "that [the purported agent] engaged in purposeful activities in this State in relation to [the transaction complained of] for the benefit of and with the knowledge and consent of the [nonforum] defendants and that they exercised some control over [the purported agent] in the matter." Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d at 199, 522 N.E.2d at 41, 44.
The Kreutter case establishes that jurisdiction over one entity under CPLR 302(a)(1) can be imputed to other entities, including an individual corporate officer. Other cases have extended the Kreutter court's reasoning to hold that such imputed jurisdiction can also apply when the underlying jurisdiction as to the purported agent exists under other subdivisions of CPLR 302. It remains necessary, however, to demonstrate that some form of long-arm jurisdiction can be properly exercised over the corporation before imputing anything to the corporation's officer. In this case, the only ground of long-arm jurisdiction over TDI that is contended to exist is that under CPLR 302(a)(1). In this case, TDI's forum contacts do not meet the required standard.
TDI's contacts with the forum are only slightly more substantial than DesOrmeaux's individual contacts. Arguably, by voluntarily entering the forum to attend the closing, the corporation in a literal manner availed itself of the privilege of conducting business in the state and invoked the benefits and protections of the forum's laws by executing documents containing New York forum selection and choice of law clauses. TDI's other alleged contact with New York consists of its alleged participation, via its representative DesOrmeaux, in a single negotiation, of unspecified duration, with STS and its potential customer, contractor, and/or Lender, on or around April 20, 1993. As noted above with regard to DesOrmeaux's own contacts, however, these contacts have only an attenuated relationship to the allegations in the complaint. In light of the totality of the circumstances, it does not appear that it would be fair to deem the action to have arisen out of TDI's purposeful activities in the forum. Accordingly, no basis for long-arm jurisdiction exists that can be imputed to DesOrmeaux.
III. Imputed Consensual Jurisdiction
Finally, plaintiffs appear to argue that jurisdiction over TDI can be imputed to DesOrmeaux under a theory that the corporation was DesOrmeaux's alter ego. Plaintiffs' brief makes no distinction between imputing long-arm jurisdiction under an agency theory under Kreutter, on one hand, and imputing consensual jurisdiction under an alter ego theory, on the other. Instead, plaintiffs appear to elide the two independent grounds of jurisdiction by arguing that, because they allege facts sufficient to show that TDI was DesOrmeaux's alter ego, jurisdiction can be imputed based on an agency theory under Kreutter. As discussed above, Kreutter allows jurisdiction over a corporation to be imputed under an agency theory only when long-arm jurisdiction over the corporation is demonstrated. The case does not address the question of imputing jurisdiction under an alter ego theory when jurisdiction over the corporation exists by virtue of a forum selection clause. This question involves a separate analysis.
See Kinetic Instruments, Inc. v. Lares, 802 F. Supp. 976, 985 (S.D.N.Y. 1992) (Sand, J.) (citing Minnesota Mining & Mfg. v. Eco Chem, Inc., 757 F.2d 1256, 1265 (Fed. Cir. 1985); Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 903 (2d Cir. 1981); Lakota Girl Scout Council v. Havey Fund-Raising Management, 519 F.2d 634, 638 (8th Cir. 1975)).
A corporation's consent to jurisdiction under a forum selection clause can be applied to obtain jurisdiction over an individual officer by disregarding the corporate entity under the doctrine of piercing the corporate veil. See id. In determining whether the corporate entity should be disregarded, "New York law allows the corporate veil to be pierced either when there is fraud or when the corporation has been used as an alter ego." Itel Containers Int'l Corp. v. Atlanttrafik Express Serv. Ltd., 909 F.2d 698, 703 (2d Cir. 1990); see also General Textile Printing & Processing Corp. v. Expromtorg Int'l Corp., 891 F. Supp. 946, 950 (S.D.N.Y 1995) (Leisure, J.) (holding that jurisdiction could be obtained over the individual defendant by piercing the corporate veil under the "fraud" prong).
In this case, plaintiffs make the following allegation:
58. At all relevant times, DesOrmeaux dominated and controlled TDI, disregarded TDI's corporate existence and treated TDI as his alter ego. Such domination and control worked an injustice on Packer as more specifically set forth above and is reflected by, inter alia :