The opinion of the court was delivered by: SEYBERT
In this action that comes to the Court through its diversity jurisdiction, plaintiffs McCulley, New York citizens, bring suit against defendant Anglers Cove Condominium Association, Inc. ("Association"), in connection with a slip and fall personal injury action that occurred on February 25, 1994 on the defendant's property, located on Marco Island, Florida. According to the plaintiffs' complaint, as a direct result of the defendant's negligence, Mrs. Louise B. McCulley fell while walking on the defendant's boardwalk and was seriously injured. The plaintiffs' pleadings include the factual requisite for diversity jurisdiction but fail to recite the presence of in personam jurisdiction. The defendant's answer includes, inter alia, the affirmative defense of lack of personal jurisdiction over the defendant.
Discovery was commenced before United States Magistrate Judge Boyle, during which time the defendant was granted leave to submit a motion to dismiss pursuant to the common law doctrine of forum non conveniens. This appears to be the point at which the stream of procedural incongruities commenced. Instead, the defendant moved for an order, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, to dismiss this action on the ground that the Court lacks personal jurisdiction over the defendant, the singular matter currently before the Court. The parties have fully briefed the issue and have submitted the required Local Civil Rule 56.1 statements (formerly Rule 3(g)).
LACK OF PERSONAL JURISDICTION
In diversity jurisdiction, the law of the state in which the district court sits governs personal jurisdiction over a nonresident defendant. PC Com, Inc. v. Proteon, Inc., 906 F. Supp. 894, 904 (S.D.N.Y. 1995). The traditional two-step test for determining personal jurisdiction arises most commonly, as in this instance, in the context of diversity cases. First, the activities of the non-domiciliary defendant within the forum state must be encompassed by the applicable state long-arm statute. Second, personal jurisdiction must comport with the Due Process Clause of the Fifth and Fourteenth Amendments. See Cutco Indus. Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986).
The New York State long arm statute, as codified in Civil Practice Law and Rules § 302, is the authorization for a court to exercise personal jurisdiction over non-domiciliaries that engage in the statutorily enumerated acts.
In the instant action, if we consider the alleged negligence of the defendant to be the tortious act committed without the state, it still, however, must cause injury within the state. The courts have consistently held that an injury does not occur in New York simply because the plaintiff is domiciled there, or suffers pain in New York as a result. See, e.g., Rounds v. Rea, 947 F. Supp. 78, 86 (W.D.N.Y. 1996) (jurisdiction was not present under §§ 301, 302 because the NY resident was injured in a collision in Pennsylvania and therefore any injury suffered by plaintiff was suffered in Pennsylvania); Diskin v. Starck, 538 F. Supp. 877, 879 (D.C.N.Y. 1982) (infant was sexually assaulted and abused at a camp in Vermont; no long arm jurisdiction was present because the tort and injury occurred in Vermont and the "essential predicate is that the injury giving rise to the plaintiffs' claim occur within the [forum] state."); Lancaster v. Colonial Motor Freight Line, Inc., 177 A.D.2d 152, 158, 581 N.Y.S.2d 283, 287 (1st Dept. 1992) (plaintiff was injured in a car accident in South Carolina and brought an action in a New York State court. The court dismissed for lack of personal jurisdiction, finding that the tortious act didn't cause injury in New York). It has been often stated that 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." Ingraham v. Carroll, 235 A.D.2d 778, 652 N.Y.S.2d 361, 362 (3rd Dept. 1997) (quoting Hermann v. Sharon Hosp., 135 A.D.2d 682, 683, 522 N.Y.S.2d 581 (2d Dept. 1987)). Although plaintiffs assert in their Civil Rule 56.1 Opposing Statement "that the injuries which they sustained, as alleged in the Complaint, occured (sic) not only in Florida, but also in all other locations to which they have traveled, including their home in New York, to date," the law is eminently clear that the injury occurred exclusively in Florida. No other jurisdictional category is applicable, as the incident does not involve the transacting of business or the commission of a tortious act within the state, and the defendant, therefore, is not subject to personal jurisdiction in New York under § 302.
As will become immediately apparent, a discussion of jurisdiction under Civ. Prac. L. & R. § 301, the solicitation plus doctrine, is unnecessary. In a somewhat analogous setting, a personal injury action was initiated in the Southern District of New York after the plaintiff was injured in Disney World while vacationing in Florida. After an in-depth analysis of § 301, the court decided that it did not have personal jurisdiction over the defendant, Disney. Grill v. Walt Disney Co., 683 F. Supp. 66 (S.D.N.Y. 1988). Clearly, Disney has a substantially greater nexus with New York than the present defendant. The defendant, Angler Cove Condominium Association, is a not for profit condominium association, incorporated for the purpose of operating the 320 unit condominium. Operating activities include maintenance and repairs, improvements, assessing dues, purchasing insurance, enforcing by-laws, and other duties commensurate with condominium management. By affidavit of the president of the Association, Richard V. Nicholson, the Association: (1) is not licensed or authorized to do business in the State of New York, and does no business in New York; (2) does not sell or rent condominium units outside of Florida; (3) does not advertise; (4) does not maintain an office or agents in New York; (5) does not transact or solicit business outside of Florida; (6) does not maintain bank accounts in New York; (7) does not own or use any property in New York; and (8) does not supply any goods or services in New York. These assertions are uncontroverted by the plaintiffs. As the plaintiffs have failed to satisfy the long arm statutory requirements, an analysis of the constitutional requirements of due process is unwarranted.
Motions seeking dismissal solely on the grounds of lack of personal jurisdiction are not customarily denominated as summary judgment motions, notwithstanding the fact that discovery has commenced and the courts consider matters beyond the pleadings. Defendant should have moved for dismissal under Fed. R. Civ. P. 12(b)(2), 11 Moore's Federal Practice § 56.30 (Matthew Bender 3d ed.), and the Court will treat it accordingly. A 12(b)(2) motion is nondispositive and is decided without prejudice to the losing party, whereas, the granting of a summary judgment motion operates as a judgment on the merits with preclusive effect. Dismissal under the common law doctrine of forum non conveniens as originally contemplated by the defendant, is also inapplicable, as the doctrine only applies in cases where the alternative forum is abroad. American Dredging Co. v. Miller, 510 U.S. 443, 449, 114 S. Ct. 981, 986, 127 L. Ed. 2d 285 (1994).
Defendant, as outlined above, has submitted affidavits and corporate records indicating that its activities are confined to Florida and that it has insufficient contacts with New York to justify this Court's exercise of personal jurisdiction. The plaintiff does not challenge this assertion, but rather perplexingly declares that "minimum contacts by the defendant with the State of New York are not required for this Court to have jurisdiction of the subject matter." Plaintiff's Local Rule 56.1 Opposing Statement. Plaintiff's memorandum of law in opposition to summary judgment states "if the defendant is suggesting that the Court lacks in personam jurisdiction, we submit that the plaintiffs being citizens of New York and the defendant being deemed, and perhaps conceded, to be a citizen of Florida, and the amount in controversy being in excess of the statutory minimum, that claim is erroneous." Plaintiff's counsel, by confusing subject ...