The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
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
damages. Defendants now move to dismiss the action for lack of
personal jurisdiction.*fn2 For the reasons set forth below, defendants'
motion is granted.
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. ¶¶
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
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,
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.
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
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).
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 ...