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WHITAKER v. FRESNO TELSAT

December 14, 1999

RIDLEY M. WHITAKER, PLAINTIFF,
v.
FRESNO TELSAT, INC.; JAMES A. SIMON; AMERICAN TELECASTING, INC.; JAS PARTNERS, LTD.; ROSENTHAL, JUDELL & UCHIMA, AND JOHN DOE NOS. 1-10 (WHICH ARE INDIVIDUAL AND ENTITIES WHOSE IDENTITIES AT THIS TIME ARE UNKNOWN), DEFENDANTS.



The opinion of the court was delivered by: Scheindlin, District Judge.

OPINION & ORDER

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 granted.

I. FACTS

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 deprive 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.

II. DISCUSSION

A. Legal Standard

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 Cir. 1993).

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
  state; or

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 ...

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