The opinion of the court was delivered by: Wexler, District Judge.
In this action plaintiff, John Hinsch ("Hinsch" or
"Plaintiff") a resident of the State of New York, alleges that
he was injured while vacationing in Hawaii at a hotel operated
by defendant, Outrigger Hotels Hawaii ("Defendant" or "the
Resort").*fn1 Presently before the court is Defendant's
motion to dismiss for lack of personal jurisdiction pursuant to
FRCP 12(b)(2). In the alternative, Defendant seeks transfer of
this matter to a forum where personal jurisdiction is proper —
the United States District Court for the District of Hawaii. For
the reasons set forth below, motion to dismiss for lack of
personal jurisdiction is granted.
The facts set forth below are those alleged by Plaintiff in
his complaint. Those facts are deemed true for purposes of this
motion directed to the pleadings.
In January 1999, Plaintiff made reservations at the Resort.
Plaintiff became aware of the Resort when he read an
advertisement in a magazine published by the American Automobile
Association ("AAA"). The advertisement directed those interested
to "CALL YOUR TRAVEL AGENT" to arrange to stay at the Resort.
The Plaintiff arranged his stay at the Resort with a travel
agent located in New York.
Plaintiff alleges that while he was vacationing at the Resort
he slipped and fell. He attributes the fall to Defendant's
negligence and seeks damages in the amount of $150,000.
II. Defendant's Motion and Plaintiff's Opposition
Defendant seeks dismissal of Plaintiff's complaint for lack of
personal jurisdiction or, in the alternative, transfer of this
matter to the District of Hawaii. With respect to the
jurisdictional argument, the Resort argues that it was neither:
(1) "doing business" in New York within the meaning of Section
301 of the CPLR nor (2) "transacting business" within the
meaning of Section 302 of the CPLR, New York's Long Arm Statute.
Plaintiff makes no particular legal argument in favor of
jurisdiction. Instead, he states only that Plaintiff was treated
in New York and that in "today's way of doing business" the
Resort should be amenable to suit in this State. After outlining
the applicable law, the court will turn to the merits of the
Where, as here, the basis of federal jurisdiction is diversity
of citizenship, this court applies the law of the State of New
York to determine whether jurisdiction over the defendant may be
exercised. See CutCo Industries, Inc. v. Naughton,
806 F.2d 361, 365 (2d Cir. 1986); Arrowsmith v. United Press,
Internat'l, 320 F.2d 219, 222-25 (2d Cir. 1963) (en banc);
Domond v. Great American Recreation, Inc., 116 F. Supp.2d 368,
371 (E.D.N.Y. 2000); Andrei v. DHC Hotels and Resorts, Inc.,
2000 WL 343773 *2 (S.D.N.Y. March 31, 2000); Weinberg v. Club
ABC Tours, Inc., 1997 WL 37041 *1 (E.D.N.Y. January 21, 1997).
New York law provides for jurisdiction over a foreign
defendant under two circumstances that could possibly be argued
to apply here. First, personal jurisdiction may be exercised if
a defendant is "doing business" in New York within the meaning
of Section 301 of the CPLR ("Section 301"). Second, long arm
jurisdiction may be exercised over a defendant if the