United States District Court, Southern District of New York
May 30, 2002
TIMOTHY DAVIS, PLAINTIFF,
MASUNAGA GROUP, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lewis A. Kaplan, United States District Court Judge.
This matter now is before the Court on the motion of defendant Stephan
Ellingson to dismiss the action for lack of personal jurisdiction or,
alternatively, to transfer it pursuant to 28 U.S.C. § 1404(a) to the
Central District of California. The Court previously has ruled on the
similar motion of Ellingson's former employer, defendant Masunaga Group,
Inc. ("MGI"). Davis v. Masunaga Group, Inc., ___ F. Supp.2d ___, No. 02
Civ. 0909 (LAK), 2002 WL 1041285 (S.D.N Y May 22, 2002). Familiarity with
the prior opinion is assumed. It should be noted also that plaintiff has
not responded to this motion.
As there is no colorable basis for supposing that Ellingson is "doing
business" in New York, the existence of personal jurisdiction over him
depends upon whether the requirements of the relevant provisions of the
New York long arm statute, N.Y. CPLR § 302(a), subd. 2-3, have been
The complaint does not allege that any of the allegedly offending
telephone calls, which are the gravamen of the action, were placed by
Ellingson while he was present physically in the State of New York. In
consequence, CPLR § 302(a), subd. 2, is not satisfied. Davis, 2002 WL
The allegations of the complaint, which Ellingson does not dispute for
purposes of this motion, establish that Ellingson committed tortious acts
without the state causing injury to a person within the state, thus
satisfying the threshold requirement of Section 302(a), subd. 3. Id.
*3-4. Further, in view of the fact that the complaint alleges — and
Ellingson does not deny — that Ellingson made about twenty
telephone calls to plaintiff in New York State as part of a course of
harassment, "there is no serious question that it asserts a `persistent
course of conduct' within the meaning of Section 302(a), subd. 3(i)."
Id. *4. The difficulty, however, is that there is no suggestion that
Ellingson engaged in that "persistent course of conduct" within the
state, as subdivision 3(i) requires. See Ingraham v. Carroll,
90 N.Y.2d 592, 597, 665 N.Y.S.2d 10, 12 (1997) ("CPLR § 302[a][i]
necessitates some ongoing activity within New York State") (emphasis in
original). As plaintiff does not allege that Ellingson otherwise
satisfied subdivision 3 of CPLR Section 302(a), the exercise of personal
over Ellingson in this case is not authorized by New York law.
The foregoing analysis calls into question the Court's conclusion with
respect to the motion by MGI, which raised the question whether the
requirements of Section 302(a), subd. 3(i) and (ii) were satisfied,
albeit in this respect not so clearly as Ellingson. Inasmuch as the
Court's conclusion that there was personal jurisdiction over MGI depended
upon its conclusion that the requirement of a persistent course of conduct
within the state was satisfied by Ellingson's actions, the Court's prior
conclusion was incorrect.
For the foregoing reasons,
1. Ellingson's motion to dismiss or transfer is granted to the extent
that the action is dismissed as against him for lack of personal
2. The Court sua sponte reconsiders its ruling denying the motion of
MGI. On reconsideration, it vacates its order of May 22, 2002 and grants
MGI's motion to dismiss the action as against it for lack of personal
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