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SELDON v. DIRECT RESPONSE TECHNOLOGIES

March 30, 2004.

PHILIP SELDON d/b/a BEST DEAL MAGAZINES and BIRDDOG ASSOCIATES, Plaintiffs, -against- DIRECT RESPONSE TECHNOLOGIES, INC. f/k/a DIRECT STUFF INC. d/b/a MYCOUPONS.COM, JASON WOLFE, BARB "DOE", and "JOHN DOE" 1-100, Defendants


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

Philip Seldon, proceeding pro se, brings this diversity action against Direct Response Technologies ("DRT") and Jason Wolfe (collectively "defendants") alleging libel, violations of New York General Business Law section 349, negligence, tortious interference with business relations, and tortious interference with economic advantage.*fn1 He seeks compensatory and punitive Page 2 damages. Defendants now move to dismiss the action for lack of personal jurisdiction.*fn2 For the reasons set forth below, defendants' motion is granted.

 I. FACTS

  Philip Seldon is a citizen of the State of New York. See Second Amended Complaint ("Compl.") ¶ 1. Seldon does business as Birddog Associates, and Birddog Associates maintains the website www.bestdealmagazines.com. Compl. ¶¶ 2, 4. DRT is a Delaware corporation with its principal place of business in Pennsylvania. See 56.1 Statement ¶ 3. Wolfe is the Chief Executive Officer ("CEO") of DRT, and a citizen of Pennsylvania. See Compl. ¶¶ 7, 8.

  Though the facts contained in the complaint are sparse and difficult to follow, Seldon appears to allege that DRT maintains the website www.mycoupons.com. The site includes message boards that allow users to interact with each other, and post messages about online and offline bargains ("the Page 3 message boards"). See id. ¶¶ 11, 15. There are four rules governing the message boards: (1) no defamation; (2) no vulgarity; (3) no "destructive behavior"; and (4) no advertising. See id. ¶ 20. The Court's review of www.mycoupons.com reveals that the website provides users with internet coupons that the site has discovered via internet searches. Viewers can print the coupons, or access the coupon codes, at no cost, though additional benefits are available to paying members. Viewers can also subscribe to a "newsletter." Thus, mycoupons.com has both passive and interactive content.

  According to Seldon, on July 22-23, 2002, Tracy Lunt, a user, posted (and DRT published) a message on the message boards, criticizing Seldon and Best Deal Magazines. The posting warned others against giving money to Best Deal Magazines, and claimed that Seldon threatened Lunt with litigation if she refused to contribute $10,000 to his charity.*fn3 Seldon contends that the statement contained in Lunt's message is false and defamatory. See id. ¶¶ 47-50. It is defendants' conduct in publishing this allegedly defamatory material that gives rise to his causes of action.

  Seldon further alleges that Wolfe, acting in his capacity as CEO, has solicited business in New York, and that Craig Campbell, a DRT executive, Page 4 solicited business in New York on January 22, 2002. See id. ¶¶ 39, 40; see also Reply Affirmation of Philip Seldon ("Reply Aff.") ¶¶ 5, 7. Finally, in his Reply Affirmation, Seldon alleges that in March, 2002, he negotiated a contract with DRT, the contract was sent to him at his New York office, and he submitted payment to DRT in connection with the contract from his New York office.*fn4 See id. ¶ 4. Seldon never describes the nature of the alleged contract, but his submissions to the Court indicate that this purported contract is the subject of an action against these very defendants in Pennsylvania.*fn5 See id. ¶ 3. In any event, the contract is not attached to the complaint, does not give rise to the causes of action alleged, and apparently is unrelated to Seldon's claims. Page 5

 II. APPLICABLE LAW

  A. Legal Standard

  Upon motion, a court is obligated to dismiss an action against a defendant over which it lacks personal jurisdiction. See Fed.R.Civ.P. 12(b)(2); see also In re Ski Train Fire in Kaprun, Austria on November 11, 2000, 230 F. Supp.2d 403, 406 (S.D.N.Y. 2002).

 
Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith legally sufficient allegations of jurisdiction. At that preliminary stage, the plaintiff's prima facie showing may be established solely by allegations. After discovery, the plaintiff's prima facie showing, necessary to defeat a jurisdiction testing motion, must include an averment of facts that, if credited by the trier, would suffice to establish jurisdiction over the defendant.*fn6
Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990) (citation omitted); see also Metropolitan Life Insur. Co. v. Robertson-Ceco. Corp., 84 F.3d 560, 566-67 (2d Cir. 1995). Thus, although the court may consider materials outside of the pleadings in considering a motion to dismiss pursuant to Rule 12(b)(2), see Whitaker, 261 F.3d at 208; Hsin Ten, 138 F. Supp.2d at 452, it must credit the plaintiff's averments of jurisdictional facts as true, see Met Life, 84 F.3d at 567. The plaintiff bears the ultimate burden of establishing, by a Page 6 preponderance of the evidence, that the court has jurisdiction over the defendant. See Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 240 (2d Cir. 1999); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994).

  B. Personal Jurisdiction

  The determination of whether a federal court has personal jurisdiction over a defendant is a two-step process. First, the court must determine whether the plaintiff has shown that the defendant is subject to personal jurisdiction under the forum state's laws. See Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997); Met Life, 84 F.3d at 567. Second, the court must assess whether its assertion of jurisdiction pursuant to the forum ...


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