The opinion of the court was delivered by: Scheindlin, District Judge.
Defendant American Telecasting, Inc. ("ATI") moves, pursuant to
Federal Rule of Civil Procedure 12(b)(2), to dismiss plaintiff's
Amended Complaint which seeks payment of legal fees. Because this
Court lacks personal jurisdiction over ATI, the motion is
The plaintiff in this action, Ridley M. Whitaker, is an
attorney licensed to practice in the State of New York. The
Amended Complaint alleges that plaintiff was injured as a result
of a conspiracy among the defendants,*fn1 including ATI, to
plaintiff of fees allegedly due under a retainer agreement
between plaintiff and defendant Fresno Telsat, Inc. ("FTI").*fn2
Amended Complaint ¶ 35. Pursuant to that agreement, plaintiff was
to receive fees for legal services performed in connection with
his representation of FTI from 1994 to 1998. Id. Such services
included representation in a trial brought by FTI against ATI and
other defendants venued in the State of California.*fn3 Id. ¶
17. FTI retained Whitaker in New York City, id., and the
retainer agreement between FTI and Whitaker was negotiated and
drafted in New York. See Opp. Mem. at 12.
ATI is a Delaware corporation whose main offices are located in
Colorado. Affidavit of David K. Sentman, ATI's Senior Vice
President and Chief Financial Officer, in Support of Motion to
Dismiss, sworn to July 29, 1999 ("Sentman Aff."). ATI is not
incorporated, licensed or qualified to do business in New York.
Id. ¶ 4. ATI has no office, agents, employees, property, bank
accounts or telephone listings in New York. Id. ATI has not
appointed an agent for service of process in New York. Id. ATI
does not market or sell any of its products in New York. Id.
Nor does it otherwise transact any business in New York. Id.
Finally, ATI has done nothing to avail itself of the laws of the
State of New York with respect to this lawsuit. Id.
In general, "the amenability of a foreign corporation to suit
in a federal court in a diversity action is determined in
accordance with the law of the state where the court sits, with
`federal law' entering the picture only for the purpose of
deciding whether a state's assertion of jurisdiction contravenes
a constitutional guarantee." Arrowsmith v. United Press Int'l,
320 F.2d 219, 223 (2d Cir. 1963) (en banc).
District courts resolving issues of personal
jurisdiction must therefore engage in a two-part
analysis. First, they must determine whether there is
jurisdiction over the defendant under the relevant
forum state's laws — which, in this case, are the
various subsections of New York's C.P.L.R. § 302(a) .
. . Second, they must determine whether an exercise
of jurisdiction under these laws is consistent with
federal due process requirements.
Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez,
171 F.3d 779, 784 (2d Cir. 1999) (citing Metropolitan Life Ins. Co. v.
Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996)).
The plaintiff bears the burden of establishing that the court
has jurisdiction over the defendant when a Rule 12(b)(2) motion
to dismiss is made. See Robinson
v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.
1994). However, "`prior to discovery, a plaintiff challenged by a
jurisdiction testing motion may defeat the motion by pleading in
good faith, . . ., legally sufficient allegations of
jurisdiction.'" Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181,
184 (2d Cir. 1998) (quoting Ball v. Metallurgie
Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). Thus,
a plaintiff "need make only a prima facie showing of jurisdiction
through [his] own affidavits and supporting materials." Marine
Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981).
Furthermore, "where the issue is addressed on affidavits, all
allegations are construed in the light most favorable to the
plaintiff and doubts are resolved in the plaintiff's favor."
A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d
B. New York's C.P.L.R. § 302(a)
New York's long-arm statute is codified in section 302 of its
Civil Practice Law and Rules and provides for jurisdiction over
any non-domiciliary who:
1. transacts any business within the state or
contracts anywhere to supply goods or services in the
2. commits a tortious act within the state, . . .; or
3. commits a tortious act without the state causing
injury to person or property within the ...