United States District Court, E.D. New York
NANOVIBRONIX, INC., Plaintiff,
DAN WEISS, Defendant.
The opinion of the court was delivered by: LEONARD WEXLER, Senior District Judge
This is an action seeking a declaration of patent validity and
non-infringement. Presently before the court is Defendant's
motion, pursuant to Rule 12(b)(2) of the Federal Rules of Civil
Procedure, to dismiss for lack of personal jurisdiction. For the
reasons set forth below, the motion is granted and the case is
I. The Parties and Background of the Litigation
Plaintiff Nanovibronix Inc., ("Nanovibronix" or "Plaintiff") is
a Delaware corporation with its principal place of business in
the State of New York. Defendant Dan Weiss ("Defendant" or "Weiss") is an Israeli resident who is currently
employed as a researcher and lecturer at Tel Aviv University in
Tel Aviv, Israel.
In March of 2003, Weiss was named as a defendant in a lawsuit
commenced in Israel. Nanovibronix, which was never a party to the
Israeli action, seeks a judgment here in connection with the same
patent at issue in that foreign litigation. Additionally,
Plaintiff sets forth antitrust and unfair competition causes of
II. Defendant's Motion
Defendant seeks dismissal of Plaintiff's complaint for lack of
personal jurisdiction. Defendant argues that no provision of New
York's Long Arm Statute supports the exercise of jurisdiction. It
is further argued that the exercise of jurisdiction would offend
the due process requirements of the Constitution.
I. Legal Principles
Personal jurisdiction over an out of state defendant in patent
litigation may be exercised if: (1) the forum state's long arm
statute permits the assertion of jurisdiction and (2) the
assertion of jurisdiction does not violate due process. PDK
Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997);
Purdue Pharma L.P. v. Impax Laboratories, 2003 WL 22070549 *2
(S.D.N.Y. September 4, 2003); see, e.g., Avecmedia, Inc. v.
Gottschalk, 2004 WL 1586411 *4 (S.D.N.Y. July 14, 2004)
(applying New York Long Arm Statute and federal circuit law to
due process analysis in case alleging patent infringement).
Plaintiff bears the burden of proving the existence of personal
jurisdiction. See, e.g., Whitaker v. American Telecasting
Inc., 261 F.3d 196, 208 (2d Cir. 2001); Avecmedia,, 2004 WL
1586411 at *1. Where, as here, there has been no discovery,
plaintiff need only make a prima facie showing of jurisdiction to defeat a motion to dismiss and
all factual matters are to be resolved in the light most
favorable to the plaintiff. Jazini v. Nissan Motor Co., Ltd.,
148 F.3d 181, 184 (2d Cir. 1998); PDK Labs, 103 F.3d at 1108;
Worldwide Futgol Assocs., Inc. v. Event Entertainment, Inc.,
983 F. Supp. 173, 176 (E.D.N.Y. 1997).
The section of the New York Long Arm Statute that is alleged to
support jurisdiction in this matter is Section 302(a)(3) of the
New York Civil Practice Law and Rules ("Section 302(a)(3)"). That
section provides for the exercise of jurisdiction over a foreign
defendant who commits a tortious act outside of the state which
causes injury within the state. Jurisdiction lies under Section
302(a)(3), only if, in addition to causing the alleged injury,
the defendant either: (1) regularly does or solicits business, or
engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services
rendered, in New York or (2) expects to should reasonably expect
the act to have consequences in the state and derives
substantial revenue from interstate and international commerce.
CPLR § 302(a)(3) (emphasis added).
II. Disposition of Motion
Defendant's contacts with the State of New York are virtually
non-existent. In addition to the facts that Weiss lives and works
in Israel, he conducts no business in the State of New York. He
has sold neither products nor services, attended trade shows,
advertised or otherwise solicited business in New York. Weiss has
neither assets, property, bank accounts, employees, offices,
phones, facsimile listings, nor a mailing address in the State of
New York. Additionally, he did not consent to be a party to a
lawsuit in New York and has no agent for service of process
within the state. Indeed, the full extent of Weiss' physical
contact with the State of New York consists only of passing through a New York airport while in
transit between Israel and California.
Plaintiff makes no attempt to dispute these facts. Instead,
Plaintiff attempts to support the exercise of personal
jurisdiction over Weiss solely from the alleged fact that the
patent at issue covers technology incorporated into medical
devices that are and/or will be offered for sale in this country
by Nanovibronix. It is the ownership of the patent, standing
alone, that is alleged to support the exercise of jurisdiction
over Weiss. There are neither allegations that Weiss maintains
any businesses relationship with Nanovibronix in this country nor
is there any allegation that Weiss has participated in any way in
the marketing of the Nanovibronix product.
Given these bare allegations, the court has little difficulty
holding that jurisdiction does not exist under the Section
302(a)(3). As noted above, that section authorizes the exercise
of jurisdiction, under certain circumstances, when an out of
state defendant is alleged to have committed a tortious act
outside of the state that causes injury to a person or property
in the State. Plaintiff argues only that Weiss' alleged unlawful
acts (in violation of antitrust and unfair competition laws)
constitute tortious acts that caused injury to Plaintiff. What
Plaintiff has failed to allege, however, is that Weiss either:
(1) regularly does business within New York or derives
substantial revenue from goods used within the state or, (2)
expects or should reasonably expect his acts to have consequences
within New York and derives substantial revenue from interstate
or international commerce. N.Y.C.P.L.R. § 302(a)(3). The absence
of these allegations are fatal to the claim of long arm
jurisdiction. Therefore, this Court concludes that there is no
authority for the exercise of personal jurisdiction over Weiss.
Since New York's Long Arm Statute is not satisfied, the court
need not address whether the exercise of personal jurisdiction
would offend due process. See, e.g., Bensusan Restaurant Corp. v. King, 126 F.3d 25, 28 (2d Cir. 1997) (where exercise
of jurisdiction is proscribed by New York law, court does not
address due process issue); see also PDK Labs, Inc. v.
Proactive Labs, Inc., 2004 WL 1607703 *1-3 (E.D.N.Y. July 15,
2004) (if exercise of jurisdiction is appropriate under state
long arm statute, court then turns to consider due process
For the foregoing reasons, Defendant's motion to dismiss for
lack of personal jurisdiction is granted. The Clerk of the Court
is directed to terminate the motion and close this case.
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