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DAVIS v. MASUNAGA GROUP
May 22, 2002
TIMOTHY DAVIS, PLAINTIFF,
MASUNAGA GROUP, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge.
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).
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
"In Feathers v. McLucas, 15 N.Y.2d 443, 458,
261 N.Y.S.2d 8, 209 N.E.2d 68 (1965), the Court held
that the language 'commits a tortious act within the
state,' as contained in sub-paragraph (a)(2), is
'plain and precise' and confers personal jurisdiction
over non-residents 'when they commit acts within the
at 460, 261 N.Y.S.2d 8, 209 N.E.2d 68
(internal quotation marks omitted). Feathers adopted
the view that CPLR § 302(a)(2) reaches only
tortious acts performed by a defendant who was
physically present in New York when he performed the
wrongful act. The official Practice Commentary to CPLR
§ 302 explains that 'if a New Jersey domiciliary
were to lob a bazooka shell across the Hudson River at
Grant's tomb, Feathers would appear to bar the New
York courts from asserting personal jurisdiction over
the New Jersey domiciliary in an action by an injured
New York plaintiff.' C302:17. The comment goes on to
"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
"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
"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.
"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
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 § 302(a)(2) the defendant must commit the
tort while he or she is ...
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