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
I. Legal Principles
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
circumstances described in Section 302 of the CPLR ("Section
302") are present. See CPLR §§ 301-302.
A. Section 301
A foreign corporation will be amenable to jurisdiction in New
York under CPLR § 301 if it is "doing business" within the
state. To satisfy the doing business test, the defendant must be
"engaged in such a continuous and systematic course" of business
as to be "present" within the jurisdiction. Frummer v. Hilton
Hotels International Inc., 19 N.Y.2d 533, 536, 281 N.Y.S.2d 41,
43, 227 N.E.2d 851 (1967), quoting, Simonson v. International
Bank, 14 N.Y.2d 281, 285, 251 N.Y.S.2d 433, 436, 200 N.E.2d 427
(1964); Domond, 116 F. Supp.2d at 372. Such conduct will be
found only if the business conducted by
the defendant is "not occasionally or casually, but with a fair
measure of permanence and continuity." Hoffritz for Cutlery,
Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir. 1985), quoting,
Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915
(1917); Laufer v. Ostrow, 55 N.Y.2d 305, 310, 449 N.Y.S.2d 456,
458, 434 N.E.2d 692 (1982); Andrei v. DHC Hotels and
Resorts, Inc., 2000 WL 343773 *3 (S.D.N.Y. March 31, 2000);
Weinberg v. Club ABC Tours, Inc., 1997 WL 37041 *2 (E.D.N.Y.
January 27, 1997).
When determining whether a foreign corporation is doing
business in New York, either individually or through an agent,
courts consider factors including: (1) whether the defendant
maintains an office within the state; (2) whether the defendant
has solicited business within the state; (3) whether the
defendant maintains bank accounts or property within New York
and (4) whether the defendant employs individuals in New York.
See Hoffritz, 763 F.2d at 58. To be considered as doing
business within New York, the defendant must be engaged in
activities that go beyond the mere solicitation of business
here. Andrei v. DHC Hotels and Resorts, Inc., 2000 WL 343773
*3 (S.D.N.Y. March 31, 2000); Maresca v. Holiday Inns, Inc.,
1993 WL 8166 *2 (S.D.N.Y. January 5, 1993); see Miller v. Surf
Properties, Inc., 4 N.Y.2d 475, 480, 176 N.Y.S.2d 318, 321,
151 N.E.2d 874 (1958); Savoleo v. Couples Hotel, 136 A.D.2d 692,
692-93, 524 N.Y.S.2d 52, 52-53 (2nd Dep't 1988).
B. Section 302
Section 302 of the CPLR, New York's long arm statute, sets
forth acts that can form a basis to exercise jurisdiction over
non-domiciliaries. That section provides that jurisdiction may
be exercised over a foreign defendant that, personally, or
through an agent, transacts business within the state. CPLR
302(a)(1). In such cases, however, personal jurisdiction may be
exercised only as to causes of action that arise from the
transaction of business relied upon. Credit Lyonnais Securities
(USA), Inc. v. Alcantara, 183 F.3d 151, 153 (2d Cir. 1999);
Agency Rent A Car System, Inc. v. Grand Rent A Car Corp.,
98 F.3d 25, 31 (2d Cir. 1996); Aerotel, Ltd. v. Sprint Corp.,
100 F. Supp.2d 189, 192 (S.D.N.Y. 2000). A cause of action will be
said to arise from the transaction of business within the state
only if there exists "a substantial nexus between the business
transacted and the cause of action sued upon." Agency Rent A
Car, 98 F.3d at 31; Hoffritz, 763 F.2d at 57; Photoactive
Prods., Inc. v. AL-OR Internat'l. Ltd., 99 F. Supp.2d 281, 289
II. Disposition of the Motion
Application of the above-referenced principles, as well as a
wealth of federal and state case law applying New York law under
circumstances strikingly similar to those present here, makes it
clear that jurisdiction lies neither under Section 301 nor
Section 302 of the CPLR. See e.g., Weinberg v. Club ABC Tours,
Inc., 1997 WL 37041 *1 (E.D.N.Y. January 21, 1997); Maresca v.
Holiday Inns, Inc., 1993 WL 8166 *6 (S.D.N.Y. January 5, 1993);
Savoleo, 136 A.D.2d at 693, 524 N.Y.S.2d at 5253; Kramer v.
Hotel Los Monteros, 57 A.D.2d 756, 756-57, 394 N.Y.S.2d 415,
416 (1st Dep't 1977).
A. There is No Jurisdiction Under Section 301
As to "doing business" under Section 301, there can be no
question that the activities alleged to have been engaged in by
Defendant do not rise to the requisite level. At most, the
Resort placed an advertisement in a publication likely to be
disseminated in New York and allowed a
local travel agent to book rooms. The placement of the
advertisement is nothing more than mere solicitation, which
cannot be relied upon to form the basis of jurisdiction under
Section 301. See Kramer, 57 A.D.2d at 756-57, 394 N.Y.S.2d at
415; Rodriguez v. Circus Circus Casinos, Inc., 2001 WL 21244 1
(S.D.N.Y. January 9, 2001).
The Defendants have no office in New York, no property or bank
accounts in New York, or any employees in New York. Under these
circumstances, the court cannot find corporate presence within
the meaning of Section 301. Accord Savoleo, 136 A.D.2d at 693,
524 N.Y.S.2d at 52-53 (actions of independent travel agent
cannot be relied upon to argue that out of state hotel is doing
business within New York State); Kramer, 57 A.D.2d at 756, 394
N.Y.S.2d at 416 (hotel located in Spain held not doing business
in New York where New York activities were limited to
advertising in a trade publication circulated among New York
travel agents); see also Weinberg v. Club ABC Tours, Inc.,
1997 WL 37041 *1 (E.D.N.Y. January 21, 1997); Maresca v.
Holiday Inns, Inc., 1993 WL 8166 *6 (S.D.N.Y. January 5, 1993).
B. There is No Jurisdiction Under Section 302
Nor does section 302 provide a basis for the exercise of
jurisdiction. As noted, jurisdiction under this section requires
that the "action arise from any of the acts" of defendant within
the state. Even if the court were to accept the notion that the
placement of an advertisement in a New York publication is
sufficient to constitute the transaction of business within the
meaning of Section 302, Plaintiffs argument would nonetheless
fail. This is because he cannot show the requisite nexus between
the transaction relied upon and his cause of action. Courts have
consistently held that the in-state activity of booking a hotel
room is too remote from negligence alleged to have taken place
at a foreign hotel to satisfy Section 302. See, e.g., Weinberg
v. Club ABC Tours, Inc., 1997 WL 37041 *1 (E.D.N.Y. January 21,
1997) (sale of tickets in New York is too remotely related to
negligence action to afford basis of jurisdiction under Section
302); Maresca v. Holiday Inns, Inc., 1993 WL 8166 *6 (S.D.N.Y.
January 5, 1993); King v. Best Western Country Inn,
138 F.R.D. 39, 42 (S.D.N.Y. 1991).
Although not advanced as a theory by the plaintiff, the court
is confident that jurisdiction also does not lie under Section
302(a)(3) of the CPLR. That section subjects foreign defendants
to jurisdiction if they have committed a tortious act outside of
the State of New York with consequences within the state. First,
there is absolutely no legal basis to claim that the injury
occurred in New York. This is true even if the damage first
became clear and/or the injury worsened once the plaintiff
returned to New York. New York law provides that an injury is
considered to occur where the accident took place, not where the
symptoms become manifest. See Kramer, 57 A.D.2d at 757, 394
N.Y.S.2d at 416 (CPLR 302(a)(3) "looks to the imparting of the
original injury within the state of New York and not the
resultant damage. . . ."); Domond, 116 F. Supp.2d at 373
Finally, the court addresses and dismisses Plaintiffs argument
that all cases from
1958 to 1990 are irrelevant in light of changing times. In the
absence of a change in the law, the cases cited by the court
remain the law to apply here. This is true even if changes in
technology, such as the use of the internet instead of a
telephone, have altered the way in which business is conducted.
See Rodriguez v. Circus Circus Casinos, Inc., 2001 WL 21244
*2-3 (S.D.N.Y. January 9, 2001) (fact that reservations are
placed by use of the internet does not alter court's conclusion
as to lack of personal jurisdiction over defendant that is
neither doing nor transacting business in New York); see also
Cornell v. Assicurazioni Generali S.p.A., Consolidated, 2000 WL
284222 *2 (S.D.N.Y. March 16, 2000) ("firm does not `do
business' in New York simply because citizens can contact the
firm via the worldwide web").
For the foregoing reasons, Defendant Outrigger's motion to
dismiss is granted. The Clerk of the Court is directed to
terminate the motion to close the file in this matter.