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DAVIS v. MASUNAGA GROUP

May 22, 2002

TIMOTHY DAVIS, PLAINTIFF,
V.
MASUNAGA GROUP, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge.

MEMORANDUM OPINION

The amended complaint in this case alleges that plaintiff, formerly a sales representative for defendant Masunaga Group, Inc. ("MGI") entered into an agreement settling an employment discrimination claim he had against it in 2001, but that MGI's chief executive officer, Stephan Ellingson, thereupon began "a pattern of relentless telephone harassment of [plaintiff], presumably in retaliation for [plaintiff] having negotiated a settlement with MGI . . . ."*fn1 Plaintiff charges that there were at least two dozen such calls and that they were made from Ellingson's home, his MGI offices, his company cell phones, and hotels he visited while on MGI business.*fn2 MGI now moves to dismiss the complaint for lack of personal jurisdiction or, alternatively, to transfer the action to the Central District of California pursuant to 28 U.S.C. § 1404 (a).

I. Personal Jurisdiction

According to MGI's affidavit, to which plaintiff has not responded, MGI is a California corporation with its principal place of business in Thousand Oaks, California.*fn3 It has no connections whatsoever with the State of New York.*fn4 Similarly, Ellingson, until he left MGI's employment, resided in Ventura County, California.*fn5 There is no suggestion, either in the amended complaint or elsewhere, that any of the alleged harassing telephone calls originated in New York, and it is undisputed that all of the locations from which plaintiff claims they were made were in California, save that the record is silent as to the locations of the hotels from which calls were made. Thus, there is no allegation and no evidence that any of the alleged conduct of which plaintiff complains took place in the State of New York.

In the circumstances, personal jurisdiction over MGI depends upon whether the provisions of Section 302 of the CPLR, the New York long arm statute, have been satisfied. The relevant portions of the statute are Section 302(a), subdivisions 2 and 3.

Section 302(a), subd. 2, permits the exercise of personal jurisdiction over an out-of-state defendant who "commits a tortious act within the state" as to a cause of action arising therefrom. As the Second Circuit has written:

"As construed by the Feathers decision, jurisdiction cannot be asserted over a nonresident under this provision unless the nonresident commits an act in this state. This is tantamount to a requirement that the defendant or his agent be physically present in New York. . . . In short, the failure to perform a duty in New York is not a tortious act in this state, under the cases, unless the defendant or his agent enters the state.
"The Court of Appeals adhered to the Feathers holding in Kramer v. Vogl, 17 N.Y.2d 27, 31, 267 N.Y.S.2d 900, 215 N.E.2d 159 (1966), and again in Platt Corp. v. Platt, 17 N.Y.2d 234, 237, 270 N.Y.S.2d 408, 217 N.E.2d 134 (1966), where it said:
"The failure of a man to do anything at all when he is physically in one State is not an 'act' done or 'committed' in another State. His decision not to act and his not acting are both personal events occurring in the physical situs. That they may have consequences elsewhere does not alter their personal localization as acts.
See also Ferrante Equip. Co. v. Lasker-Goldman Corp., 26 N.Y.2d 280, 285, 309 N.Y.S.2d 913, 258 N.E.2d 202 (1970).
"In Harvey v. Chemie Grunenthal, G.m.b.H, 354 F.2d 428, 431 (2d Cir. 1965), cert. denied, 384 U.S. 1001, 86 S.Ct. 1923, 16 L.Ed.2d 1015 (1966), we held that this construction of sub-paragraph (a)(2) should be followed. Numerous lower courts, both state and federal, have arrived at the same conclusion. See Beckett v. Prudential Ins. Co., 893 F. Supp. 234, 239 (S.D.N.Y. 1995); Kinetic Instruments, Inc. v. Lares, 802 F. Supp. 976, 982-83 (S.D.N.Y. 1992); Department of Economic Dev. v. Arthur Andersen & Co., 747 F. Supp. 922, 929 (S.D.N.Y. 1990); Van Essche v. Leroy, 692 F. Supp. 320, 324 (S.D.N.Y. 1988); Rolls-Royce Motors, Inc. v. Charles Schmitt & Co., 657 F. Supp. 1040, 1052-53 (S.D.N.Y. 1987); Bulk Oil (USA) Inc. v. Sun Oil Trading Co., 584 F. Supp. 36, 40-41 (S.D.N.Y. 1983); Paul v. Premier Elec. Constr. Co., 576 F. Supp. 384, 389 (S.D.N.Y. 1983); Bialek v. Racal-Milgo, Inc., 545 F. Supp. 25, 35 (S.D.N.Y. 1982); Selman v. Harvard Medical Sch., 494 F. Supp. 603, 612-13 (S.D.N.Y.), aff'd mem., 636 F.2d 1204 (2d Cir. 1980); Marine Midland Bank v. Keplinger & Assocs., Inc., 488 F. Supp. 699 (S.D.N.Y. 1980); Lynn v. Cohen, 359 F. Supp. 565, 568 (S.D.N.Y. 1973); Bauer Indus. Inc. v. Shannon Luminous Materials Co., 52 A.D.2d 897, 897-98 (2d Dep't 1976) (mem.); Glucoft v. Northside Sav. Bank, 86 Misc.2d 1007, 1008-09, 382 N.Y.S.2d 690 (N.Y.Civ.Ct. 1976); Gluck v. Fasig Tipton Co., 63 Misc.2d 82, 84, 310 N.Y.S.2d 809 (N.Y.Sup.Ct. 1970); Balogh v. Rayner-Smith, 51 Misc.2d 1089, 1092, 274 N.Y.S.2d 920 (N.Y.Sup.Ct. 1966).
"In 1990, Judge McLaughlin, who wrote the above-quoted commentary on section 302(a)(2), further evidenced his belief that the commentary correctly interpreted the statute when he quoted its substance in Twine v. Levy, 746 F. Supp. 1202, 1206 (E.D.N.Y. 1990). As recently as 1996, another of our district judges flatly stated:
"To subject non-residents to New York jurisdiction under ยง 302(a)(2) the defendant must commit the tort while he or she is ...

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