United States District Court, S.D. New York
March 24, 2004.
JULIANNE BRESCIANI, Plaintiff; -against- THE LEELA MUMBAI A KEMPINSKI HOTEL AND KEMPINSKI, S.A., Defendants
The opinion of the court was delivered by: JOHN KOELTL, District Judge
OPINION AND ORDER
The plaintiff, Julianne Bresciani, sued the defendants the Leela
Mumbai-A Kempinski Hotel ("Leela") and Kempinski, S.A. ("Kempinski") for
injuries suffered by Ms. Bresciani while staying at the Leela Hotel,
located near the Mumbai Airport in India. This action, which was
originally brought in the New York State Supreme Court, New York County,
was removed to this Court based on the diversity of citizenship of the
parties. See 28 U.S.C. § 1332(a), 1441(a). The plaintiff
and the defendant Kempinski agreed to the voluntary dismissal of the
plaintiff's claim against Kempinski only. Following jurisdictional
discovery, the defendant Leela has now moved for summary judgment
pursuant to Fed.R.Civ.P. 56 for lack of personal
jurisdiction, arguing that it has insufficient contacts with New
The standard for granting summary judgment is well established. Summary
judgment may not be granted unless "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship,
22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary
judgment motion stage of the litigation is carefully limited to
discerning whether there are genuine issues of material fact to be tried,
not to deciding them. Its duty, in short, is confined at this point to
issue finding; it does not extend to issue resolution."
Gallo, 22 F.3d at 1224. The moving party bears the initial
burden of "informing the district court of the basis for its motion" and
identifying the matter that "it believes demonstrate[s] the absence of a
genuine issue of material fact." Celotex, 477 U.S. at 323. The
substantive law governing the case will identify those facts that are
material, and "only disputes over facts that might affect the outcome of
the suit under the governing law will properly
preclude the entry of summary judgment." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986).
In determining whether summary judgment is appropriate, a court must
resolve all ambiguities and draw all reasonable inferences against the
moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citing United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo,
22 F.3d at 1223. Summary judgment is improper if there is any evidence in
the record from any source from which a reasonable inference could be
drawn in favor of the nonmoving party. See Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party
meets its burden, the burden shifts to the nonmoving party to come
forward with "specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in
the record and "may not rely simply on conclusory statements or on
contentions that the affidavits supporting the motion are not credible."
Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.
1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d
Cir. 1998) (collecting cases).
The relevant facts, as alleged in the affidavits and declarations
submitted by the parties in connection with the current motion, are as
The plaintiff, Julianne Bresciani is a resident of the State of New
York. (Compl. ¶ 1.) The defendant Leela owns and operates a hotel
known as The Leela, Mumbai, located in Mumbai, India. (Def.'s
Rule 56.1 St. I 2; Pl.'s Resp. Rule 56.1 St. ¶ 2; Decl. of Venu Krishnan dated
July 17, 2003 ("Krishnan Decl.") ¶ 5.) Leela is a corporation
registered under the Indian Companies Act of 1956 and has its registered
office in Mumbai, India. (Def.'s Rule 56.1 St. I 1; Pl.'s Resp.
Rule 56.1 St. ¶ 1; Krishnan Decl. ¶ 4.) Leela has no offices in the United
States. (Id.) Leela is not licensed to do business in New York,
has no employees in New York, and has no registered agent for service of
process in New York. (Def.'s Rule 56.1 St. ¶ 3-5; Pl.'s Resp.
Rule 56.1 St. ¶¶ 3-5; Krishnan Decl. ¶¶ 6-7.) Leela does not have an
office or other facility of any kind in New York, nor does it maintain a
telephone, telex, or telefax number in New York. (Def.'s Rule 56.1 So.
¶ 6; Pl.'s Resp. Rule 56.1 St. ¶ 6; Krishnan Decl. ¶ 8.) The
defendant does not own any real or personal property in New York and does
not pay taxes to New York or the United States. (Def.'s Rule 56.1 So.
¶¶ 7, 12; Pl.'s Resp. Rule 56.1 St. ¶¶ 7, 12; Krishnan Decl. ¶¶
The plaintiff asserts that Leela is subject to the personal
jurisdiction of this Court based upon its contract with Hotel
Representative, Inc. ("HRI"), which is the owner and sole
shareholder of Leading Hotels of the World, Ltd. ("Leading
Hotels"), which was also a party to the contract. (Compl. ¶¶ 3, 4;
Decl. of Vijay Sethi dated Oct. 18, 2003 ("Sethi Decl.") ¶ 7; Decl.
of Mary Burns dated Sept. 30, 2003 ("Burns Decl.") Ex. F.) Leading Hotels
and HRI maintain a principal place of business in New York City. (Pl.'s
Rule 56.1 St. ¶ 8.) Leela contracted with Leading Hotels and HRI
(collectively "HRI") for them to solicit business, to distribute
brochures and promotional materials, and to receive and process
reservations. (Ex. F to Burns Decl.; Sethi Decl. ¶ 6.) HRI's ability
to process reservations is limited. (Sethi Decl. ¶ 10.) HRI does not
have any special right to make reservations at the Leela Mumbai. HRI does
not have the authority or right to enter into contracts on behalf of
Leela or to confirm reservations on behalf of Leela without conferring
with Leela and receiving specific prior confirmation from Leela.
(Id. ¶¶ 9, 10.) While the plaintiff suggested that Leela' s
contract with HRI gave it the right to confirm reservations, there is
nothing in that contract that gives HRI that right, and the contract
provides that Leela "shall at no time refer to our offices or to any of
our companies in any manner whatsoever indicating that we or any of our
offices serve as your office or that we represent [Leela] for any purpose
other than receiving and processing reservations for it." (Ex. F to Burns
Decl. ¶ 8.)
HRI has a limited ability to market confirmed reservations in the same
way that any travel agent can. Leela uses computerized reservation
services, accessible by HRI. (Sethi Decl. ¶ 12.) A limited number of
pre confirmed rooms are placed in "free sale" on the
computer systems. (Id. ¶ 13.) These reservations do not
need additional confirmation from Leela. (Id.) However, any
travel agent with access to the computerized reservation systems can book
these "free sale" rooms. (Id.)
The actual amount of business, in terms of room nights, that was
generated by HRI for Leela has been negligible. Such volume of business
on average between April 1999, and March 2003, accounted for barely. 1%
of Leela's total business, or about 100 room nights per year. (Sethi
Decl. ¶ 14.)
The plaintiff had also speculated that Leela maintained a bank account
in New York, but the summary judgment record established there was no
such account, and at the argument on the motion, the plaintiff disclaimed
reliance on that argument as a basis for jurisdiction.
The defendant moves for summary judgment dismissing the complaint on
the grounds of lack of personal jurisdiction. A district court has "broad
discretion" in deciding how to proceed with a motion to dismiss for lack
of personal jurisdiction, including conducting an evidentiary hearing.
See CutCo. Indus.
A district court sitting in diversity applies the forum state's law in
determining whether it has personal jurisdiction over a defendant.
See CutCo. Indus, 806 F.2d at 365; Clarendon,
152 F. Supp.2d at 515. The Court must determine whether the forum state's law
allows the exercise of personal jurisdiction and, if so, whether doing so
comports with constitutional due process guarantees. See Int'l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945); Clarendon,
152 F. Supp.2d at 515.
New York State provides for both general and specific personal
jurisdiction. Specific jurisdiction allows "long arm"
jurisdiction over a defendant located outside the state as to causes of
action arising out of certain acts within the state or having certain
effects in the state. See N.Y. C.P.L.R. § 302. The
plaintiff does not contend that the defendant is subject to specific
personal jurisdiction.*fn1 The general provision, found in C.P.L.R.
§ 301, empowers a court to "exercise such jurisdiction over persons,
property, or status as might have been exercised heretofore." N.Y.
C.P.L.R. § 301. Interpreting this provision, the New York Court of
Appeals has concluded that a non domiciliary defendant "is
amenable to suit in New York courts under CPLR 301 if it has engaged in
such a continuous and
systematic course of `doing business' here that a finding of its
`presence' in this jurisdiction is warranted." Landoil Res. Corp.
v. Alexander & Alexander Servs., Inc., 565 N.E.2d 488, 490 (N.Y.
1990) (citations omitted); see also Frummer v. Hilton Hotels Int'l,
Inc., 227 N.E.2d 851, 853 (N.Y. 1967); Simonson v. Int'l
Bank, 200 N.E.2d 427, 429 (N.Y. 1964)). The test for "doing
business" is fact sensitive, see Landoil, 565
N.E.2d at 490, but even fairly substantial contacts can fail to satisfy
the statute. See, e.g., id. at 491 (finding foreign
corporation's underwriting of insurance policies sold in New York
insufficient to constitute "doing business"). Factors to consider in a
"doing business" inquiry include whether the defendant maintains offices
and bank accounts, employs agents, and regularly solicits business in New
York. See, e.g., Bryant v. Finnish Nat'l Airline,
208 N.E.2d 439, 441-42 (N.Y. 1965). As for "presence," the non domiciliary
must be present in New York "not occasionally or casually, but with a
fair measure of permanence and continuity." Tauza v. Susquehanna
Coal Co., 115 N.E. 915, 917 (N.Y. 1917) (Cardozo, J.); see
also Landoil, 565 N.E.2d at 490; Realuyo v.
Villa Brille, 01 Civ. 10158, 2003 WL 21537754, at *3 (S.D.N.Y. July
There is no personal jurisdiction over the defendant under C.P.L.R.
§ 301 because the defendant is not doing business in New York as it
has been interpreted by the New York courts.
The law governing whether foreign hotels are subject to personal
jurisdiction in New York is well developed. The mere solicitation
of business from prospective customers in New York is not sufficient to
establish jurisdiction. See Miller v. Surf Props.,
151 N.E.2d 874, 876-77 (N.Y. 1958). The plaintiff points to case law where
personal jurisdiction has been found when a reservation company conducts all
business that a hotel could do if its representatives were present in the
state. Frummer, 277 N.E.2d at 854. However, in
Frummer, the reservation service had the authority to accept
and confirm reservations for the foreign hotel. Id. The
authority to confirm reservations has been interpreted as a pivotal
factor in establishing jurisdiction in these cases. See, e.g.,
Brown, 2003 WL 21496756, at *5 ("Absent an outright grant of
authority to confirm reservations, an agent is not `doing business' on "
behalf of a hotel."); Kopolowitz v. Deepdene Hotel &
Tennis Club, 464 F. Supp. 677, 679 (S.D.N.Y. 1977) ("If the foreign
corporation holds back from its representative the power to confirm
reservations it seems that the travel service is not doing all the
business which the corporation could itself do."); Bryant, 208
N.E.3d at 441 ("We tried to make it clear in the Miller opinion that
solicitation of prospective customers and the reception and transmission
of hotel reservations did not constitute doing business.");
Miller, 151 N.E.2d at 876-77
(holding that an agent authorized to solicit business and process
reservations was not doing business for a hotel when it could not confirm
In this case, HRI was not authorized to confirm reservations without
the consent of Leela. HRI's access to "free sale" reservations
through computerized reservation systems was no different from the access
of travel agents and was insufficient to rise to the level that HRI was
doing business for the plaintiff in New York. HRI had no ability
generally to confirm reservations for the plaintiff in New York. See
Kopolowitz, 464 F. Supp. at 679. HRI's involvement in soliciting
patronage, distributing brochures and promotional materials, and
accepting and processing reservations without the power to confirm such
reservations independently constituted "mere solicitation." Thus, the
actions of HRI were not sufficient to conclude that Leela is doing
business in New York.
For the reasons explained above, Leela's motion for summary judgment
dismissing the complaint for lack of personal jurisdiction is granted.
The Clerk is directed to enter Judgment dismissing the complaint and
closing this case.