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United States District Court, S.D. New York

November 5, 2004.

STEVEN SCHOTTENSTEIN; M/I HOMES, INC.; and DOES I through X, Defendants.

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


Sarah Schottenstein ("Sarah") brings this action against her father, Steven Schottenstein ("Mr. Schottenstein") and his employer, M/I Homes, Inc. ("M/I Homes") (collectively, "defendants"), alleging, inter alia, false imprisonment, invasion of privacy, intentional infliction of mental and emotional distress, and conversion.*fn1 Mr. Schottenstein and M/I Homes have filed separate motions seeking to dismiss the Amended Complaint on grounds that include: lack of subject-matter and personal jurisdiction, improper venue, and failure to state a claim upon which relief can be granted.*fn2 For the reasons that follow, M/I Homes's motion to dismiss is granted and Mr. Schottenstein's motion to dismiss is granted in part and denied in part.


  A. The Parties

  Sarah is a New York citizen who has lived with her mother, Jill Schottenstein (Mr. Schottenstein's ex-wife), since she reached the age of majority on February 8, 2004.*fn3 Mr. Schottenstein is a citizen of Ohio and the Chief Operating Officer and Vice Chairman of M/I Homes, a homebuilding company with its principal place of business in Columbus, Ohio.*fn4 B. Facts

  The origins of this lawsuit can be traced to January 29, 1998, when Jill Schottenstein filed for divorce. Sarah alleges that Mr. Schottenstein "regarded Jill's rejection and divorce as a personal insult. In retaliation, he decided to make Jill Schottenstein pay where it hurt most, by depriving her of her daughters."*fn5 Custody of Sarah and her younger sisters Ashley and Abbey was awarded to Mr. Schottenstein and Mrs. Schottenstein was permitted visitation rights.*fn6

  Mrs. Schottenstein and her children appealed from the Decree of Divorce and various orders of contempt against Mrs. Schottenstein relating to visitation and interference with custody.*fn7 The Ohio Tenth District Court of Appeals affirmed the trial court on "all financial issues, however, the [court] reversed the prior findings of contempt against [Mrs. Schottenstein], and remanded the matter to the trial court to take new evidence on intervening events and to re-interview the children."*fn8 The case was then continued for a year, during which Mr. Schottenstein filed for and obtained an Order of Civil Protection against Mrs. Schottenstein, who was found to have engaged in domestic violence against her daughters. The trial court then awarded sole custody to Mr. Schottenstein, permitting Mrs. Schottenstein supervised visitation with her children.

  Sarah claims that while she was in the custody of Mr. Schottenstein, he used the M/I Homes aircraft to take "[her] against her will and without her consent to Connecticut to be enrolled at Suffield Academy, where [she] suffered several health problems."*fn9 Sarah avers that Mr. Schottenstein later took her to Utah and placed her in Cross Creek Manor, a "highly punitive lock-down facility housing serious drug offenders and badly behaving girls."*fn10 Jill Schottenstein "traced the M/I Homes jet" to Utah, prompting Mr. Schottenstein to move Sarah to a mental hospital in Kansas.*fn11 In February of this year, Sarah turned eighteen and left her father's house to live with her mother, who had moved to New York in 2002. Within five months, Sarah filed the instant lawsuit.

  C. The Amended Complaint

  Sarah sets forth seven causes of action in her complaint.*fn12 First, she asserts a claim for false imprisonment premised on her father's decision to place her in the Suffield Academy, a Utah prison camp, and a psychiatric hospital.*fn13 Second, she claims invasion of privacy, alleging that her father disrespected "boundaries that she had a right, as an individual, to expect and maintain regardless of her minority status" by, among other things, entering her room without her permission, monitoring her telephone calls, and "using her as an object to punish her mother."*fn14 Third, she alleges intentional infliction of emotional distress because her father used his "power to influence Ohio courts and witnesses" to keep Sarah and her mother apart, in an alleged attempt to "deliberate[ly] and outrageous[ly] . . . punish his wife for leaving him and his daughter for her allegiance to [her mother] and not to him."*fn15 Fourth, Sarah claims conversion premised on her belief that Mr. Schottenstein has control over accounts and trusts for which she is the beneficiary and that he has converted some of the funds for his own profit, for which she seeks restitution and an accounting.

  Fifth, she asserts a violation of the Fourteenth Amendment, based on the Ohio court's custody order that purportedly deprived her of her "liberty and privacy interests by forcing her to live away from her mother whom she adores and to be locked up [in Utah and Kansas]" in violation of her right to "substantive due process of law."*fn16 Sixth, she claims that her father violated the Eighth and Fourteenth Amendments by "locking [her] up in Utah and Kansas, and [depriving] her of [her mother's] company, comfort and care, without procedural or substantive due process of law."*fn17 Seventh, she petitions for habeas corpus relief on behalf of her sisters.*fn18

  Sarah seeks compensatory and punitive damages, the restitution of funds and securities allegedly converted by Mr. Schottenstein and an accounting of funds and securities held in her name or for her benefit, and "immediate production of Ashley and Abby . . . at their mother's residence in New York City."*fn19

  D. Jurisdictional Allegations

  1. Mr. Schottenstein

  a. Financial Transactions

  Sarah asserts that two days before her eighteenth birthday, Mr. Schottenstein "got the Ohio court to transfer Sarah's `gift to minors money' from her mother's custody to himself so that Sarah would have no money for college in New York and would have to return to him."*fn20 Additionally, the opposition brief contains various unsworn statements indicating that Mr. Schottenstein, through a New York brokerage firm, Salomon Smith Barney, sold $400,000 of securities that belonged to her.*fn21 He then "refused to return the proceeds for the stock sale to [her] in New York, or to tell her where the proceeds are."*fn22 Sarah further contends that Mr. Schottenstein "regularly and recently has sold a considerable number of shares in his own company, M/I Homes, which is listed on the New York Stock Exchange, resulting in substantial revenue."*fn23

  b. Interference with Health Care

  Sarah further alleges that her father interfered with the medical care that she was receiving in New York pursuant to her mother's Aetna health insurance plan. In particular, she avers that after Aetna informed Mr. Schottenstein of Sarah's medical history, "M/I Homes . . . changed its health insurance from Aetna to another carrier with Sarah listed as a beneficiary so that Sarah would be forced to use a carrier accessible to her father, and allowing Aetna to cap its coverage due to another carrier's being involved."*fn24

  c. Correspondence with Sarah Finally, Sarah submits that Mr. Schottenstein "purposefully directed his activities toward [her], a resident of New York State."*fn25 In particular, he has purportedly sent and continues to send e-mail messages, letters, and Airborne deliveries "after commencement of this case without going through her retained counsel."*fn26

  2. M/I Homes

  a. Company Website

  In her opposition papers, Sarah claims that M/I Homes


maintains an interactive website that targets New York state residents for its Orlando, Tampa, and West Palm Beach Florida home and financing products. It engages prospective buyers, including those in New York into sampling its wares; expressing their needs of home types and location, including three locations in Florida. It engages them in interactive participation so that they will know the level of home they can afford through Schottenstein financing.*fn27
Sarah further argues that M/I Homes "makes and solicits millions of dollars of sales, [] serves the New York market, [] targets New York consumers through electronic advertising, [] sells large numbers of homes to New York customers, and [] maintains ongoing contacts with New York customers who register on its web site and have interest in M/I Homes' products in Florida."*fn28

  b. New York Customers

  Sarah further contends that "a minimum of 20% of M/I Homes [sic] revenue comes from the sale of lots, homes, upgrades, and or financing to New York residents, much of it by way of M/I Homes [sic] internet website."*fn29


  A. Legal Standards

  1. Rule 12(b)(1)

  "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it."*fn30 When the defendant challenges the legal sufficiency of the plaintiff's jurisdictional allegations, the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff.*fn31 However, "where evidence relevant to the jurisdictional question is before the court, `the district court . . . may refer to [that] evidence.'"*fn32 Therefore, "[i]n resolving the question of jurisdiction, the [] court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists."*fn33 The consideration of materials extrinsic to the pleadings does not convert the motion into one for summary judgment.*fn34

  2. Rule 12(b)(2)

  Upon motion, a court is obligated to dismiss an action against a defendant over which it lacks personal jurisdiction.*fn35 A plaintiff bears the ultimate burden of establishing, by a preponderance of the evidence, that the court has jurisdiction over the defendant.*fn36 However, "[p]rior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith . . . legally sufficient allegations of jurisdiction, i.e., by making a prima facie showing of jurisdiction."*fn37 A plaintiff "can make this showing through his own affidavits and supporting materials[,] containing an averment of facts that, if credited . . ., would suffice to establish jurisdiction over the defendant."*fn38 Thus, a court may consider materials outside the pleadings,*fn39 but must credit the plaintiff's averments of jurisdictional facts as true.*fn40 "[W]here the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiff's favor, notwithstanding a controverting presentation by the moving party."*fn41 Nonetheless, where a defendant "rebuts [a plaintiff's] unsupported allegations with direct, highly specific, testimonial evidence regarding a fact essential to jurisdiction — and [the] plaintiff[] do[es] not counter that evidence — the allegation may be deemed refuted."*fn42

  3. Rule 12(b)(6)

  "Given the Federal Rules' simplified standard for pleading, `[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'"*fn43 Thus, a plaintiff need only plead "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."*fn44 Simply put, "Rule 8 pleading is extremely permissive."*fn45

  At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'"*fn46

  The task of the court in ruling on a Rule 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'"*fn47 When deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor.*fn48

  B. Subject-Matter Jurisdiction

  1. Domestic Relations Exception

  The Supreme Court has explained that the domestic relations exception "`divests the federal courts of power to issue divorce, alimony, and child custody decrees.'"*fn49 Such a rule serves various policy considerations, such as (1) judicial economy, i.e., "state courts are more eminently suited to work of this type than are federal courts, which lack the close association with state and local government organizations dedicated to handling issues that arise out of conflicts over divorce, alimony, and child custody decrees," and (2) judicial expertise, i.e., "it makes far more sense to retain the rule that federal courts lack power to issue these types of decrees because of the special proficiency developed by state tribunals . . . in handling issues that arise in the granting of such decrees."*fn50

  This exception is "very narrow" and is not intended to "strip the federal courts of authority to hear cases arising from the domestic relations of persons unless they seek the granting or modification of a divorce or alimony decree, or a child custody decree."*fn51 Accordingly, claims arising in the domestic relations context, but sounding in tort or contract, or alleging civil rights violations ordinarily fall outside the ambit of the domestic relations exception.*fn52

  Nonetheless, it might be "appropriate for the federal courts to decline to hear a case involving elements of the domestic relationship, even where divorce, alimony, or child custody is not strictly at issue."*fn53


This would be so when a case presents "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar." Such might well be the case if a federal suit were filed prior to effectuation of a divorce, alimony, or child custody decree, and the suit depended on a determination of the status of the parties.*fn54
2. Rooker-Feldman Doctrine
  The "Rooker-Feldman doctrine" acknowledges that "Congress's grant to federal district courts of jurisdiction to entertain suits raising federal questions . . . is a grant of original jurisdiction, and does not authorize district courts to exercise appellate jurisdiction over state-court judgments, which Congress has reserved to the United States Supreme Court."*fn55 Thus, "federal district courts do not have jurisdiction over claims that have already been decided, or that are `inextricably intertwined' with issues that have already been decided, by a state court."*fn56

  The Second Circuit has counseled that "`inextricably intertwined' means, at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state proceeding . . ., subsequent litigation will be barred under the Rooker-Feldman doctrine if it would be barred under principles of preclusion."*fn57 Accordingly, where a lawsuit or claim would be barred in state court by either res judicata or collateral estoppel, Rooker-Feldman prevents the federal court from asserting subject-matter jurisdiction.*fn58 Under the doctrine of res judicata, or claim preclusion, a party is barred from litigating a claim more than once.*fn59


Under general principles of collateral estoppel, or issue preclusion, a judgment in a prior proceeding bars a party and its privies from relitigating an issue if, but only if: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits.*fn60
C. 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.*fn61 Second, the court must assess whether its assertion of jurisdiction pursuant to the forum state's laws comports with the requirements of due process.*fn62

  1. New York Law

  In New York, sections 301 and 302(a) of the New York Civil Practice Law and Rules ("C.P.L.R.") set forth the relevant law. a. General Jurisdiction

  Under section 301 of the C.P.L.R., New York subjects a foreign corporation to general jurisdiction if it is "doing business" in the state.*fn63 Under this test, "a foreign corporation is amenable to suit in New York if it is `engaged in such a continuous and systematic course' of `doing business' here as to warrant a finding of its `presence' in this jurisdiction."*fn64 That is, a "corporation is `doing business' and is therefore `present' in New York and subject to personal jurisdiction with respect to any cause of action . . . if it does business in New York `not occasionally or casually, but with a fair measure of permanence and continuity.'"*fn65 "The doing business standard is a stringent one because a corporation which is amenable to the Court's general jurisdiction may be sued in New York on causes of action wholly unrelated to acts done in New York."*fn66

  To determine whether a foreign corporation is doing business in New York, courts focus on a traditional set of indicia: (1) whether the company has an office in the state; (2) whether it has any bank accounts or other property in the state; (3) whether it has a phone listing in the state; (4) whether it does public relations work in the state; and (5) whether it has individuals permanently located in the state to promote its interests.*fn67 However, these factors are only intended to provide guidance — they do not amount to a "formula" for testing jurisdiction. As the Second Circuit has noted, "[t]here is no talismanic significance to any one contact or set of contacts that a defendant may have with a forum state; courts should assess the defendant's contacts as a whole."*fn68

  b. Specific Jurisdiction

  i. Section 302(a)(1)

  Under section 302(a)(1),*fn69 a court may exercise personal jurisdiction over a nondomiciliary if "the nondomiciliary [] transact[s] business within the state, [and] the claim against the nondomiciliary [] arise[s] out of that business activity."*fn70 "A nondomiciliary `transacts business' under C.P.L.R. 302(a)(1) when he `purposefully avails himself of the privilege of conducting activities within New York, thus invoking the benefits and protections of its laws.'"*fn71 A court's determination of whether a defendant "transacts business" in New York is based on an assessment of the sum of the defendant's activities.*fn72

  ii. Section 302(a)(2)

  Under section 302(a)(2), personal jurisdiction over a non-domiciliary may be asserted over a defendant that "commits a tortious act within the state."*fn73 The Second Circuit has interpreted section 302(a)(2) to "require[] that the tortious act itself physically be performed within New York State."*fn74

  iii. Section 302(a)(3)

  Under section 302(a)(3), personal jurisdiction may be asserted over a non-domiciliary if the non-domiciliary "commits a tortious act without the state" injuring a person within New York, and either (i) "regularly does or solicits business, or engages in any other persistent course of conduct," or (ii) derives substantial revenue from interstate commerce and expects or reasonably should expect the tortious act to have consequences in the state.*fn75 In deciding whether there is injury in New York sufficient to merit section 302(a)(3) jurisdiction, courts ordinarily "apply a situs-of-injury test to determine where the original event that caused the injury occurred. The situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are felt by the plaintiff."*fn76

  c. Jurisdiction Based on Website Activity

  "It is well settled that a court must examine the nature and quality of a defendant's activity on its website to determine whether jurisdiction is appropriate in New York."*fn77 Courts assessing whether Internet activity permits the exercise of personal jurisdiction "have identified an array of fact patterns."*fn78 At one end of the spectrum are "passive" websites which display, but do not permit an exchange of, information. "At the other end of the spectrum are cases in which the defendant clearly does business over the Internet. . . . Occupying the middle ground are `interactive' websites, which permit the exchange of information between the defendant and website viewers."*fn79

  "Most courts considering the significance of internet activity for the exercise of personal jurisdiction have done so in the context of a specific, rather than general, jurisdictional analysis."*fn80 Thus, while a defendant's use of an interactive website, standing alone, may support a finding of specific jurisdiction,*fn81 it generally will not confer general jurisdiction over a defendant.*fn82

  2. Due Process

  The Second Circuit has summarized the due process requirements for exercising personal jurisdiction over a foreign defendant as follows:

The due process clause of the Fourteenth Amendment permits a state to exercise personal jurisdiction over a non-resident defendant with whom it has certain minimum contacts . . . such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. In determining whether minimum contacts exist, the court considers the relationship among the defendant, the forum, and the litigation.
To establish the minimum contacts necessary to justify specific jurisdiction, the plaintiff first must show that his claim arises out of or relates to defendant's contacts with the forum state. The plaintiff must also show that the defendant purposefully availed himself of the privilege of doing business in the forum state and that the defendant could foresee being haled into court there. If the plaintiff satisfies these requirements, the court also considers whether the assertion of jurisdiction comports with traditional notions of fair play and substantial justice — that is, whether it is reasonable under the circumstances of a particular case.*fn83
There are two components to the inquiry: first the court must determine whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction, and second, the court must determine whether the assertion of personal jurisdiction is reasonable under the circumstances of the particular case.*fn84 The two prongs are interrelated, such that a weak showing of minimum contacts requires a stronger demonstration of reasonableness.*fn85 "On the other hand, where a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable."*fn86

  Once the plaintiff has demonstrated the requisite minimum contacts between the defendant and the forum state, the court must employ a five-factor test to determine whether the assertion of personal jurisdiction is reasonable.*fn87 These factors are: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the most efficient resolution of the controversy; and (5) the interests of the state in furthering substantive social policies.*fn88


  A. Subject-Matter Jurisdiction*fn89 M/I Homes contends that this Court lacks jurisdiction over the subject matter of this action because: Sarah's claims are "inextricably related to matters of domestic relations — an area in which federal courts have long refrained from asserting jurisdiction," and "habeas corpus relief is unavailable to challenge child custody decisions."*fn90 M/I Homes's first argument could be construed in two ways: the domestic relations exception deprives this Court of diversity jurisdiction of this action or, under the Rooker-Feldman doctrine, this Court lacks authority to review the final custody determination rendered by the Ohio courts.*fn91

  1. Domestic Relations Exception

  For the reasons that follow, the domestic relations exception does not preclude the exercise of subject-matter jurisdiction over the claims asserted in the Amended Complaint. None of these claims (with the exception of Count 7, seeking habeas relief) seek the issuance or modification of an existing custody order. Instead, they are presented, albeit in a rather slapdash manner, as tort claims. Accordingly, this Court is not deprived of subject-matter jurisdiction by the domestic relations exception.

  2. Rooker-Feldman Doctrine

  The claims asserted in this action were not, nor could they have been, raised in the prior custody proceedings and hence, they are not barred under principles of res judicata. As for collateral estoppel, most of the issues raised in this action were not actually and necessarily litigated in the earlier action. Indeed most of these averments are based on conduct alleged to have occurred after Mr. Schottenstein had already been awarded custody by the Ohio courts.

  However, insofar as Sarah's so-called "Fourteenth Amendment" claim ("Count Three" of the Amended Complaint) is premised on the "State of Ohio, at Defendant's behest, [having] deprived Sarah . . . of her liberty and privacy interests by forcing her to live away from her mother whom she adores,"*fn92 it is barred under the Rooker-Feldman doctrine. Sarah's interest in living with her mother is an issue that was actually and necessarily decided by the Ohio courts. Indeed, whether the Schottenstein daughters' placement with their father was in their best interests was the central consideration in the prior custody proceedings.*fn93

  B. Personal Jurisdiction

  1. Mr. Schottenstein's Motion

  Mr. Schottenstein seeks dismissal of this action for lack of personal jurisdiction. Sarah argues that this Court has jurisdiction over her father under both sections 301 and 302.

  a. New York Law

  i. Section 301

  Sarah contends this Court has "general jurisdiction" over Mr. Schottenstein because he "regularly trades his own stock on the New York Stock Exchange. He is believed to bank in New York. He travels to and through New York on business."*fn94 As a threshold matter, I note that "New York courts do not agree on whether a natural person may be subject to `doing business' jurisdiction under Section 301."*fn95 I need not resolve this issue because Sarah has not made a prima facie showing that Mr. Schottenstein was "doing business" in New York for the reasons that follow.

  Sarah does not allege and Mr. Schottenstein appears to lack, most of the traditional indicia associated with "doing business" in New York.*fn96 Specifically, Sarah does not aver that Mr. Schottenstein maintains a New York office or has any property or a phone listing in the state. Although failure to allege these facts, by itself, does not mean that jurisdiction under section 301 is lacking, Sarah fails to provide any basis upon which to infer that Mr. Schottenstein is "doing business" in New York. Even if true, Sarah's jurisdictional allegations regarding Mr. Schottenstein — that he regularly trades his stock on the New York Stock Exchange, and travels "to and through" New York on business*fn97 — do not suggest that Mr. Schottenstein conducts business in New York with any regularity, and certainly not on a systematic and continuous basis. Accordingly, Sarah offers no basis upon which this Court can exercise jurisdiction over Mr. Schottenstein under section 301.

  ii. Section 302(a)(1)

  Sarah contends that Mr. Schottenstein transacts business in New York because he "regularly and recently has sold a considerable number of shares in his own company, M/I Homes, which is listed on the New York Stock Exchange, resulting in substantial revenue."*fn98 Sarah further alleges that Mr. Schottenstein has "commit[ted] tortious acts within New York by selling $400,000 of securities through Salomon Smith Barney, New York brokerage firm that belonged to Sarah."*fn99 Mr. Schottenstein offers an affidavit in which he claims that he does not transact business in New York. He does not, however, specifically refute these jurisdictional allegations.*fn100

  There is no nexus between these "contacts" and Sarah's claims for false imprisonment, invasion of privacy, various constitutional violations, intentional infliction of emotional distress, or habeas corpus. The circumstances from which each of those claims arose lack any connection to this forum. However, crediting as true Sarah's allegations that Mr. Schottenstein regularly sells a considerable number of shares on the New York Stock Exchange using an active New York account*fn101 and that her cause of action for conversion, restitution, and accounting arose from one such stock sale, she has made an adequate prima facie showing that this Court has jurisdiction over Mr. Schottenstein solely as to this claim.*fn102 iii. Sections 302(a)(2)-(3)*fn103

  Sarah has failed adequately to demonstrate that jurisdiction over Mr. Schottenstein is proper under either section 302(a)(2) or 302(a)(3). She claims that he has committed a tortious act without the state causing injury to her, a person within the state, by interfering with her health care and sending her "emails, letters by mail, and also Airborne deliveries after commencement of this case without going through her retained counsel."*fn104 None of this conduct amounts to a "tortious act" for purposes of the long-arm statute. Moreover, it bears no relevance to Sarah's claims.

  b. Due Process

  For the foregoing reasons, Mr. Schottenstein has the requisite minimum contacts with New York. Crediting Sarah's averments as true, he purposefully availed himself of the benefits of the forum by maintaining an account and selling stock in New York. Under the five-factor Asahi test,*fn105 it is reasonable for this Court to assert jurisdiction over Mr. Schottenstein.

  First, although there may be some difficulties associated with requiring him to defend this suit in New York because he is an Ohio resident, the "conveniences of modern communication and transportation ease what would have been a serious burden only a few decades ago."*fn106 Thus, this factor favors Sarah. Second, New York has some interest in this litigation. Based on the current record, the details underlying the alleged conversion are murky, but it is reasonable to assume that if he orchestrated the sale of Sarah's securities through a New York brokerage account, his behavior has some connection to this forum. This factor tips in favor of Sarah. Third, Sarah undoubtedly has a strong interest in litigating this action in New York. Fourth, in determining whether adjudication in the forum state would promote the efficient administration of justice, courts consider where witnesses and evidence are likely to be located.*fn107 The potential witnesses are located in Ohio and possibly New York. Moreover, documentary evidence is likely located in both jurisdictions. As such, this factor is neutral. Fifth, the parties have not argued, and I cannot discern any substantive social policies that would be furthered by permitting this case to be heard in New York.*fn108 In sum, the "reasonableness" inquiry favors the assertion of jurisdiction in New York.

  2. M/I Homes's Motion

  a. Section 301

  The parties do not dispute that M/I Homes lacks all of the indicia ordinarily associated with "doing business" in New York. That is, M/I Homes has no office, telephone number, mailing address, bank account, or other property in New York. Moreover, it does not have any employees residing or stationed in the state.*fn109 However, Sarah alleges that M/I Homes maintains an interactive website through which it solicits business in New York and earns 20% of its revenues from sales to New York residents.*fn110 M/I Homes does not refute these allegations, noting only that it "does not conduct, operate, engage in, or carry on any continuous or substantial business in the State of New York"*fn111 and that its website is not "oriented toward New York consumers in any way."*fn112

  The M/I Homes website is neither a passive, nor highly interactive website. That is, M/I Homes does more than simply advertise on its Internet site; it also permits users to exchange information with the company; view sample homes in neighborhoods in Ohio, Florida, Indiana, North Carolina, Washington D.C., Maryland, and Virginia; and use an interactive financial calculator, enabling them to determine how much they can afford to spend on the purchase of a home.*fn113 The website also provides a means for the user to contact a customer representative. Crediting Sarah's jurisdictional averments as true, this website has enabled M/I Homes to generate 20% of its revenues from New York residents. At this early stage in the proceedings, Sarah has adequately pled that there is general jurisdiction over M/I Homes due to its interactive website advertising plus substantial sales to New York residents.*fn114 b. Due Process

  The exercise of personal jurisdiction over M/I Homes does not offend due process. For the foregoing reasons, M/I Homes has the requisite minimum contacts with New York. Construing the allegations in Sarah's favor, M/I Homes purposefully availed itself of the benefits of doing business in this forum such that it could reasonably foresee being haled into a New York court. Under the Asahi test, the exercise of personal jurisdiction over M/I Homes is reasonable.*fn115

  C. Failure to State a Claim 1. Mr. Schottenstein's Motion

  The only claim over which this Court may assert both subject-matter (diversity jurisdiction) and personal jurisdiction (under the long-arm statute) is the conversion claim.*fn116 "The essence of the tort of conversion is not the acquisition of the property but rather the wrongful deprivation of another's property."*fn117 A plaintiff seeking to recover on a claim for conversion must aver that: (1) she "had a legal ownership interest or an immediate superior right of possession to the property" and (2) "the defendant exercised unauthorized interference with the plaintiff's ownership or possession of the property."*fn118 Specifically, a "plaintiff[] must allege that a demand for the return of property was made and that a refusal to comply with this demand followed."*fn119 Although the Amended Complaint fails to mention a demand for the return of property, Sarah alleges that she is in "need of these funds" and that her father sold the stock for his own use and benefit, "instead of to hers."*fn120 This strongly suggests that she has made a demand for the return of the money, but to no avail, which is sufficient under the liberal pleading requirements of Rule 8.

  2. M/I Homes's Motion

  The claims asserted against M/I Homes must be dismissed for failure to state a claim. There is simply no connection between M/I Homes and the claims asserted in the Amended Complaint. Sarah contends that M/I Homes had a duty to control her father and prevent his purportedly tortious conduct toward her; however, she provides no legal basis for this puzzling conclusion. Indeed, a corporation has no obligation to exercise control over its officers with respect to their activities outside of the scope of employment. For this reason, Sarah has failed to state a cognizable claim as to M/I Homes, and this action is dismissed as to this defendant.*fn121 IV. CONCLUSION

   For the reasons set forth above, M/I Homes's motion to dismiss the Complaint is granted. Mr. Schottenstein's motion to dismiss is granted in part and denied in part. The motion is granted with respect to all claims except the conversion claim. The Clerk of the Court is directed to close these motions [# 11 and 14 on the docket sheet]. A conference is scheduled for November 18, 2004, at 3:30 P.M.


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