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NANOVIBRONIX, INC. v. WEISS

NANOVIBRONIX, INC., Plaintiff,
v.
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 dismissed.

BACKGROUND

  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 action.

  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.

  DISCUSSION

  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 ...


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