United States District Court, S.D. New York
September 19, 2005.
JANET SABATINO, Plaintiff,
ST. BARNABAS MEDICAL CENTER, ANTHONY P. MASTRO, M.D., DHARAM MANN, M.D., HANG RAE PARK, M.D., KEITH FLEISCHMAN, M.D. and ROBERT S. DORIAN, M.D. Defendants.
The opinion of the court was delivered by: CHARLES HAIGHT, District Judge
MEMORANDUM OPINION AND ORDER
This diversity*fn1 case is before the Court on the motion
of defendants Anthony P. Nostro, M.D., H. Rae Pak, D.O., Keith
Fleischman, D.O., and Robert S. Dorian, M.D. (collectively,
"defendants"),*fn2 to dismiss plaintiff Janet Sabatino's
case for lack of in personam jurisdiction pursuant to Rule
12(b)(2) of the Federal Rules of Civil Procedure.*fn3 For
the reasons that follow, I conclude that this Court does not have
jurisdiction over the person of defendants and I transfer the
case to the United States District Court for the District of New
Jersey pursuant to 28 U.S.C. § 1631. I. Background
On September 23, 2003, plaintiff filed her initial complaint in
this Court in which she averred that she suffered injuries as a
result of the negligence of defendants during the performance of
a surgical procedure. Amended Compl., ¶¶ 27-35, 47, 59, 71, 84,
95. The surgical procedure in question was performed on May 6,
2002, Plaintiff's Memorandum in Opposition, p. 2, and plaintiff
allegedly received continuous care from defendants until June 6,
2002. Compl., ¶¶ 43, 55, 67, 79, 91.
On December 15, 2004, defendants St. Barnabas and Mann filed
their motion to dismiss plaintiff's claim for lack in personam
jurisdiction, followed by Pak's motion on December 20, and
Dorian, Fleischman and Nostro's motions on December 21. Plaintiff
filed his opposition papers on July 29, 2005. Defendant Pak filed
his reply papers on August 5, and defendants Dorian, Fleischman,
and Nostro on August 8. The dispute is now fully ripe for
A. This Court Lacks In Personam Jurisdiction Over the
A district court sitting in a diversity action, such as the
case at bar, may exercise personal jurisdiction to the same
extent as the courts of general jurisdiction of the state in
which it sits. Fed.R.Civ.P. 4(k)(1)(A); Bank Brussels Lambert
v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 124 (2d Cir.
2002). Therefore, "[p]ersonal jurisdiction over a defendant in a
diversity action in the United States District Court for the
Southern District of New York is determined by reference to the
relevant jurisdictional statutes of the State of New York."
Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir.
Furthermore, on defendants' Rule 12(b)(2) motion to dismiss for
want of personal jurisdiction "the plaintiff bears the burden of establishing that
the court has jurisdiction over the defendant." Bank Brussels
Lambert, 171 F.3d at 784; Distefano v. Carozzi North America,
Inc., 286 F.3d 81, 84 (2d Cir. 2001). However, "until an
evidentiary hearing is held, [plaintiff] need only make a prima
facie showing by its pleadings and affidavits that jurisdiction
exists." Cut Co Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d
Cir. 1986). Here, not only has plaintiff failed to make such a
showing, she has expressly acknowledged that "[a]dmittedly,
Plaintiff can find no basis for the Court to exercise personal
jurisdiction over the remaining individual defendants."
Plaintiff's Letter to the Court of July 14, 2005.*fn4 Nor
New York law provides two means of gaining personal
jurisdiction over non-consenting,*fn5
non-domiciliary*fn6 defendants who were not served with
process while physically present in the forum state,*fn7
such as the defendants in the case at bar. Neither means is
available to plaintiff here.
Under N.Y.C.P.L.R. § 301*fn8 a non-domiciliary may be
subject to general*fn9 personal jurisdiction if he or she is "doing business" in the state. Wiwa
v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir. 2000). In
order to fall under the ambit of § 301, the defendant must "do?
business in New York `not occasionally or casually, but with a
fair measure of permanence and continuity.'" Id. (quoting
Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267 (1917)); see
also Landoil Resources Corp. v. Alexander & Alexander Servs.,
Inc., 918 F.2d 1039, 1043 (2d Cir. 1990) (requiring "continuous,
permanent, and substantial activity in New York").
The evidence on the record makes plain that the non-domiciliary
defendants are not subject to the general jurisdiction of New
York courts. The four defendant doctors are all licensed to
practice only in the State of New Jersey and none has ever had
an office or been licensed to practice in the State of New York.
Fleishman Aff., ¶¶ 4-6 in Schecter Aff., Ex. C; Dorain Aff., ¶¶
4-6 in Schecter Aff., Ex. D; Nostro Aff., ¶ 3 in Scherr Aff.,
Ex. C; Pak Aff. ¶ 4 in Pak's Memorandum of Law, Ex. A. Nor is
there any evidence that they otherwise engaged in any other
activity sufficient to subject them to the general jurisdiction
of New York courts.
However, lesser contacts with New York state may also be
sufficient to bestow specific*fn10 personal jurisdiction
over a non-domiciliary. Pursuant to N.Y.C.P.L.R. § 302, if
plaintiff's "cause of action aris[es] from any of the acts
enumerated in this section," New York courts shall have
jurisdiction over a non-domiciliary defendant who:
1. transacts any business within the state or
contracts anywhere to supply goods or services in the
2. commits a tortious act within the state, except as
to a cause of action for defamation of character
arising from the act; or
3. commits a tortious act without the state causing
injury to person or property within the state, except
as to a cause of action for defamation of character
arising from the act, if he (i) 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
the state, or (ii) expects or should reasonably
expect the act to have consequences in the state and
derives substantial revenue from interstate or
international commerce; or
4. owns, uses or possesses any real property situated
within the state.
N.Y.C.P.L.R. § 302 (McKinney's 2001).
According to the plaintiff, she was injured during the course
of a surgical procedure conducted on May 20, 2002 at defendant
Saint Barnabus Medical Center, a facility located in Livingston,
New Jersey and, like the individual defendant-doctors, which is
not licensed or authorized to conduct business in New York.
Amended Compl., ¶¶ 2, 5-6.16-18, 26-35. Plaintiff's entire course
of treatment, from pre-surgery examinations through the
post-surgery care, was conducted in New Jersey, by doctors
licensed to practice only in New Jersey, and at a facility
authorized to conduct business only in New Jersey. Id. at ¶¶
45, 58, 71, 84, 97. In fact, the sole connection between the
conduct allegedly causing plaintiff's injury and the State of New
York is the fact of plaintiff's status as a domiciliary of New
York. The incidence of plaintiff's New York citizenship is
insufficient to create specific personal jurisdiction on the
Because the defendants have not "transacted business" within
New York, did not commit a tortious act in New York, and do not
own property in New York, C.P.L.R. §§ 302(a)(1), (2), and (4) do
not authorize jurisdiction. Section 302(a)(3) in also unavailing
because defendants did not "caus[e] injury to person or property
within the state." C.P.L.R. § 302(1)(3). "The situs of the injury
is the location of the original event which caused the injury,
not the location where the resultant damages are subsequently
felt by the plaintiff." Hermann v. Sharon Hosp., Inc.,
135 A.D.2d 682, 683 (2d Dep't. 1987) (citing McGowan v. Smith,
52 N.Y.2d 268, 273-74 (1981)). Here, plaintiff acknowledges that the
events which she alleges caused her injury occurred entirely in
the State of New Jersey.
Based upon the foregoing, I hold that neither of New York's
long arm statutes, N.Y.C.P.L.R. §§ 301 or 302, provide for
jurisdiction over the defendants in the case at bar, and
consequentially this Court is without jurisdiction to adjudicate
B. Transfer of this Action Pursuant to 28 U.S.C. § 1631
Acknowledging that this Court likely lacks jurisdiction over
this action, plaintiff requests that the action be transferred to
the District of New Jersey pursuant to 28 U.S.C. § 1631. That
statute provides, in relevant part:
Whenever a civil action is filed in a court . . . and
that court finds that there is a want of
jurisdiction, the court shall, if it is in the
interest of justice, transfer such action . . . to
any other such court in which the action . . . could
have been brought at the time it was filed or
noticed. . . .
28 U.S.C. § 1631 (emphasis added).*fn12
The Second Circuit
has read § 1631 as requiring transfer "unless it [i]s not in the
interest of justice to do so." Paul v. I.N.S., 348 F.3d 43
(2d Cir. 2003).
Here, there is no evidence that plaintiff filed her case in
this Court in bad faith: no benefit accrued to plaintiff by so
filing, nor did any detriment befall the defendants. Moreover,
while plaintiff's case was filed within the relevant statute of
limitations of both New York and New Jersey, dismissal at this
juncture would prevent plaintiff from re-filing in New Jersey
because the action would be time-barred by that State's statute
of limitations. See N.J. Stat. Ann. § 2A:14-2 (West 2004)
("Every action at law for an injury to the person caused by the
wrongful act, neglect or default of any person within this State shall be commenced within 2 years
next after the cause of any such action shall have
accrued. . . .") In these circumstances, the Second Circuit has
observed that "[w]hether a new action filed by the litigant would
be barred as untimely is one of the factors . . . militating in
favor of transfer. Id. at 47 (citing Liriano v. United
States, 95 F.2d 119 (2d Cir. 1996). For these reasons, I find
that it is in the interest of justice to transfer this action to
a "court in which the action . . . could have been brought at the
time it was filed or noticed," namely the United States District
Court for the District of New Jersey. 28 U.S.C. § 1631.
In these circumstances, and based upon the foregoing:
1. Defendants' motion to dismiss for lack of personal
jurisdiction in the Southern District of New York is granted.
2. Plaintiff's request to transfer this action to the District
of New Jersey is granted.
3. The Clerk is directed to send the case file in the case at
bar to the Clerk of the United States District Court for the
District of New Jersey, Newark Division, together with a copy of
this Opinion and Order.
It is SO ORDERED.
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