Pageant — including, inter alia, a promise to provide financial
and promotional assistance to the Pageant, and to tie the Pageant
in with other "pay-per-view" events promoted by King. The First
Pennsylvania Action was ultimately dismissed with prejudice,
though it is unclear from the parties' submissions whether this
was due to a formal settlement among the parties.
While the Expo hosted the Pageant as promised in 1992, in 1993
it refused to host the Pageant, explaining that the Pageant had
failed to comply with the agreement's television market share
provision. The Expo notified Anderson of this refusal in June of
1993, shortly before taping was scheduled to begin in
Indianapolis. As a result of this refusal to host the 1993
Pageant, Anderson was required to radically alter the production
of the Pageant.
In 1994, Anderson filed suit once again in the United States
District Court for the Eastern District of Pennsylvania, this
time seeking recovery from Tyson, King, DKE, and Williams for
breach of contract, misrepresentation, and assault. Discovery
commenced in that action, as did motion practice.
In an opinion issued June 1, 1994, the Honorable Clarence C.
Newcomer found that personal jurisdiction could not be exercised
over either Williams or the Expo, explaining that "plaintiff is
unable to prove that the defendants' ties to the state are
sufficiently direct," and that their "indirect contacts with the
state were not that which would make them anticipate being
subject to a suit in Pennsylvania." Anderson v. Tyson, No. CIV.
A. 94-0528, 1994 WL 237365, at *2 (E.D.Pa. Jun. 1, 1994).
In an another opinion, issued November 4, 1994, Judge Newcomer
dismissed Anderson's claims against King and DKE, ruling in part
that any oral contract between King or DKE and Anderson would be
barred by New York's Statute of Frauds, and that Anderson could
not recover for misrepresentation merely by characterizing an
otherwise infirm breach of contract claim as a claim for fraud.
See Anderson v. Tyson, Civ. A. No. 94-0528, 1994 WL 630207, at
*3 (E.D.N.Y. Nov. 4, 1994). Judge Newcomer also held that
Anderson's claim for assault would be dismissed for lack of
standing, and because Anderson had failed to allege either King's
or DKE's participation in the assault. See id. at *4. It was
further observed that Tyson, who had never been served, was not a
proper party to the action. See id. at *1. Judge Newcomer's
rulings were subsequently affirmed by the Court of Appeals for
the Third Circuit.
Anderson's complaint in this action, which essentially seeks
recovery against the Expo and Williams for the Expo's failure to
satisfy its obligations to the Pageant under the terms of their
1991 agreement, was filed on May 28, 1999. The complaint alleges
fifteen causes of action, the first and fourteenth sounding in
contract and dependant upon the exercise of diversity
jurisdiction, and the remaining causes of action alleging
violations of the Racketeer Influenced and Corrupt Organizations
Act ("RICO"), 18 U.S.C. § 1961 et seq.
The Expo and Williams filed their respective motions on
September 1, 1999, and after receiving briefing from both parties
the matter was marked fully submitted on September 29, 1999.
If challenged, a plaintiff ultimately bears the burden of
establishing jurisdiction over a defendant by a preponderance of
the evidence, see Ball v. Metallurgie Hoboken-Overpelt, S.A.,
902 F.2d 194, 197 (2d Cir. 1990); Levisohn, Lerner, Berger &
Langsam v. Medical Taping Sys., Inc., 10 F. Supp.2d 334, 338-39
(S.D.N.Y. 1998). To overcome a jurisdiction-testing motion where
a court does not hold a formal evidentiary hearing, however, a
plaintiff need only make a prima facie showing of jurisdiction.
See Ball, 902 F.2d at 197. Where a defendant challenges
jurisdiction after discovery by way of motion pursuant to Rule
56, Fed.R.Civ. P., "the court proceeds, as with any summary
judgment motion, to determine if undisputed facts exist that
warrant the relief sought." Id.; see Gulf Union Ins. Co. Saudi
Arabia v. Bella Shipping Co., No. 91 CIV. 2814(PKL), 1994 WL
455117, at *2 (S.D.N.Y. Aug. 22, 1994). While bare legal
allegations may be sufficient to survive a pre-discovery
dismissal motion for lack of personal jurisdiction, "without
factual support, [such allegations] . . . fail to make a prima
facie showing at the summary judgment stage." Ball, 902 F.2d
at 199. While discovery has not closed in the instant action, it
is apparent from the parties' submissions that ample discovery
was obtained during the pendency of Anderson's previous action
before Judge Newcomer to justify application of this more
Personal jurisdiction over a nonresident defendant is typically
to be determined by the law of the jurisdiction in which a
federal court sits. See Bensusan Restaurant Corp. v. King,
126 F.3d 25, 27 (2d Cir. 1997). Accordingly, an assessment of whether
New York's Civil Practice Law and Rules ("CPLR") provides for
jurisdiction over the Expo and Williams must be made. See CPLR
§§ 301, 302 (McKinney 1990). A two-fold inquiry is required.
First, a determination must be made as to whether New York law
provides a basis for exercising personal jurisdiction over the
defendant. If jurisdiction is proper as a result of this
analysis, a court must then determine whether the exercise of
such jurisdiction would offend federal standards of due process.
See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez,
171 F.3d 779, 784 (2d Cir. 1999).
Insofar as jurisdiction is concerned, both the Expo and
Williams have challenged whether they are amenable to suit in New
York. Both claim to have no significant presence in the state,
and to have had negligible contact with the state in connection
with their dealings with Anderson.
In opposition, Anderson contends, among other things, that: (1)
because his fourteen RICO-related claims involve a "federal
question," this Court is the proper forum for adjudication of
those claims; (2) that the Expo and Williams maintained a
presence in New York through their agents King and DKE, and that
King provided instructions to Watley from his offices in New York
City; (3) that defendants' business dealings with Anderson were
paid for by their New York Agents, King and DKE, and that such
payments were made out of New York; (4) that the contract
presently being sued upon was signed in New York by defendant
Williams; (5) that "the contract was performed in the State of
New York" because Anderson caused the Pageant to be aired on both
New York City and Syracuse, New York television stations, and
because a thirty-second commercial advertising the Expo was
carried during those broadcasts; (6) that a good deal of the
pre-production work for the 1992 and 1993 Pageants was performed
in New York; (7) that personal jurisdiction exists over the
defendants because both the Expo and Williams, through King,
committed a "tort[i]ous act of intimidation" in New York; and (8)
that jurisdiction may properly be exercised over the Expo and
Williams because the Pageant had been previously aired in New
York, and because the Expo's breach rendered Anderson unable to
have the Pageant aired in New York.
Because, as set forth below, it is determined that personal
jurisdiction does not exist over the defendants in this action,
the Expo's contentions concerning venue shall not be addressed.
I. New York Law Does Not Provide A Basis For Exercising In
Personam Jurisdiction Over Either The Expo Or Williams
A. "Doing Business" Under CPLR § 301
CPLR § 301 states that a New York court "may exercise
jurisdiction over persons, property, or status as might have been
exercised heretofore." The statute
incorporates all bases for jurisdiction previously recognized at
common law. See Penny v. United Fruit Co., 869 F. Supp. 122, 125
(E.D.N.Y. 1994). Activities rise to the level of "doing business"
only when the defendant is engaged in "`such a continuous and
systematic course' of activity that it can be deemed to be
`present' in the state of New York." Klinghoffer v. S.N.C.
Achille Lauro, 937 F.2d 44, 50-51 (2d Cir. 1991) (quoting
Laufer v. Ostrow, 55 N.Y.2d 305, 310-311, 449 N.Y.S.2d 456, 458,
434 N.E.2d 692, 694 (1982)); see Mareno v. Rowe, 910 F.2d 1043,
1046 (2d Cir. 1990).
Without any physical presence in New York, a foreign defendant
may be subject to suit in New York if it conducts, or
purposefully directs, business "`not occasionally or casually,
but with a fair measure of permanence and continuity.'" Landoil
Resources Corp. v. Alexander & Alexander Servs., Inc., 77 N.Y.2d 28,
33-34, 563 N.Y.S.2d 739, 741, 565 N.E.2d 488, 490 (1990)
(quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267,
115 N.E. 915, 917 (1917)). The test, a "simple pragmatic one,"
Bryant v. Finnish Nat'l Airline, 15 N.Y.2d 426, 432,
260 N.Y.S.2d 625, 629, 208 N.E.2d 439, 441 (1965), is necessarily
fact-sensitive. See Landoil Resources Corp. v. Alexander &
Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1990).
However, a defendant's "[s]olicitation of business alone" cannot
justify a finding of presence in New York pursuant to section
301, Laufer, 55 N.Y.2d at 310, 449 N.Y.S.2d at 459, 434 N.E.2d
at 694, unless the solicitation "is substantial and continuous,
and [the] defendant engages in other activities of substance in
the state." Landoil, 918 F.2d at 1043-44; see Beacon Enters.,
Inc. v. Menzies, 715 F.2d 757, 763 (2d Cir. 1983).
According to undisputed portions of the record, neither the
Expo nor Williams maintain a presence in New York such that this
Court could properly exercise jurisdiction over them under
Section 301. The Expo is an Indiana corporation, and is neither
registered within New York as a foreign corporation nor
authorized to do business within this state. Moreover, in
uncontested submissions, the Expo has stated, inter alia, that:
(1) it has neither supplied any goods or services to any New York
resident or corporation, nor purchased any goods from any New
York vendor or supplier; (2) it does not derive identifiable
income or revenue from any entity in New York; (3) it has never
maintained a bank account in New York; (4) it does not own,
lease, possess or otherwise hold any interest in any real estate
situated in New York; (5) it does not solicit any business in New
York; (6) it does not advertise its business in New York; (7) it
has never had a telephone listing in New York; and (8) it does
not have any employees in New York. Williams, who is an Indiana
resident, has similarly represented that he has not maintained
any significant presence in New York.
Anderson has not submitted any evidence from which it could be
inferred that these representations are incorrect, or from which
it could be concluded at trial that either Williams or the Expo
are subject to jurisdiction in New York under Section 301.
Accordingly, section 301 does not provide a basis under which
jurisdiction may be exercised over the defendants in this action.
B. Chick Is Not Subject To New York's Long-Arm Jurisdiction
1. Section 302(a)(1)
New York's long-arm statute provides in pertinent part:
(a) . . . As to a cause of action arising from any of
the acts enumerated in this section, a court may
exercise personal jurisdiction over any
non-domiciliary . . . who in person or through an
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 . . .;
3. commits a tortious act without the state causing
injury to person or property within the state, . .
. if he . . .
(i) regularly does or solicits business, or
engages in any other persistent course of
conduct, or derives substantial revenue from
goods used or consumed or services rendered, in
the state, or
(ii) expects or should reasonably expect the act
to have consequences in the state and derives
substantial revenue from interstate or
international commerce. . . .
CPLR § 302(a). While its language is expansive, "[s]ection 302(a)
does not extend New York's long-arm jurisdiction to the full
extent permitted by the Constitution." Levisohn, Lerner, Berger
& Langsam, 10 F. Supp.2d at 339.