United States District Court, S.D. New York
November 17, 2005.
BROOKS BANKER, Plaintiff,
ESPERANZA HEALTH SYSTEMS, LTD., HUNT HEALTH SYSTEMS, LTD., P&G ENTERPRISES, INC., MHTJ INVESTMENTS, INC., FRIENDSHIP, INC., JOSE MARTINEZ LILLIARD, JOSE LUIS PEREZ RIOS, ENRIQUE LOPEZ VERGANA, PATRICIA McDONOUGH, GAIL GAINES, GARY DAVIDSON and LORI DITTMAR, Defendants.
The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge
OPINION & ORDER
Plaintiff Brooks Banker sues his former legal clients Esperanza
Health Systems, Ltd., Hunt Health Systems, Ltd., P&G Enterprises,
Inc., MHTJ Investments, Inc., and Friendship, Inc. (collectively,
the "Business Defendants"), for unpaid attorney's fees under the
Retainer Agreement between Banker and the Business Defendants.
His legal theories are breach of contract, quantum meruit, and
unjust enrichment. Banker also sues Jose Martinez Lilliard, Jose
Luis Perez Rios, Enrique Lopez Vergara, Particia McDonough, Gail
Gaines, Gary Davidson, and Lori Dittmar (collectively, the
"Individual Defendants"), alleging common law fraud and
fraudulent transfer in violation of N.Y. Debt. & Cred. §§ 273,
276 (McKinney 2001). Defendants filed a motion to dismiss
Banker's claims pursuant to Fed.R.Civ.P. 12(b) (2) for lack of
personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b) (3) for
improper venue or, in the alternative, to transfer this case to
the District Court for the Western District of Texas, and
pursuant to Fed.R.Civ.P. 12(b) (6) for failure to state a
claim upon which relief can be granted. For the reasons explained
below, defendants' motion to dismiss for lack of personal
jurisdiction is granted.
The following facts are drawn from the complaint and affidavits
of all parties, because a motion to dismiss pursuant to Fed.R.Civ.P. 12(b) (2) requires the resolution of factual
issues that arise outside of the pleadings. CutCo Indus. Inc.
v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986); Pilates, Inc.
v. Pilates Inst., Inc., 891 F. Supp. 175, 178 n. 2 (S.D.N.Y.
1995). The facts are construed in the light most favorable to the
plaintiff non-movant. CutCo Indus., 806 F.2d at 365.
Banker is an attorney admitted to practice in New York. (Compl.
¶ 1) Esperanza and Hunt are both Texas limited partnerships that
maintain offices at La Hacienda Treatment Center in Hunt, Texas.
(Compl. ¶¶ 2, 3) Esperanza owns the operating assets of La
Hacienda Treatment Center. (Compl. ¶ 14) Defendants P&G, MHTJ,
and Friendship are all Texas corporations. (Compl. ¶¶ 4, 5, 6)
Martinez, Perez, and Lopez maintain offices at La Hacienda
Treatment Center and are on the executive committee of Esperanza.
(Compl. ¶¶ 7, 8, 9, 15, 16) McDonough and Gaines maintain offices
in Boerne, Texas, are on the executive committee of Esperanza,
and are principals of Hunt, P&G, MHTJ, and Friendship. (Compl. ¶¶
10, 11, 15, 16; Holland Aff. ¶¶ 24, 25) Davidson and Dittmar are
certified public accountants with places of business in Texas who
provide professional advice to Esperanza's executive committee.
(Compl. ¶¶ 23, 25, 26, 27)
Beginning in 1993, Banker, as an attorney at the law firm
Abberly Kooiman, LLP, served as counsel for Esperanza, Hunt, P&G, MHTJ, and Friendship in Wechsler v. Hunt Health, a civil
action in this court in which they are defendants. (Compl. ¶ 33)
Abberly Kooiman dissolved in 2003 and, on June 1, 2003, McDonough
and Gaines, on behalf of Esperanza, Hunt, P&G, MHTJ, and
Friendship, entered into a written retainer agreement with Banker
as a solo practitioner. (Compl. ¶¶ 28, 29, 37) Under the Retainer
Agreement, Banker continued to represent Esperanza, Hunt, P&G,
MHTJ, and Friendship in Wechsler. (Compl. ¶ 32, 37)
Banker met with Martinez, Lopez, Perez, McDonough and Gaines in
Texas on September 28, 2003, and September 30, 2003, to discuss
Weschler, and they did not suggest to Banker that they were
dissatisfied with his work. (Compl. ¶¶ 86, 87) In October 2003,
Martinez, Lopez, Perez, McDonough, and Gaines retained the law
firm of Graves, Dougherty, Hearon & Moody ("Graves") in
connection with Wechsler, and Graves requested from Banker
documents and information concerning the case. (Compl. ¶¶ 88, 89)
Graves attempted to negotiate a settlement with the Wechsler
plaintiff without Banker's participation. (Compl. ¶¶ 92, 93) When
Graves did not reach a settlement, McDonough and Gaines
instructed Banker to represent Esperanza, Hunt, P&G, MHTJ, and
Friendship in the bench trial. (Compl. ¶¶ 94, 102) Banker did so
over a three-week period in October and November 2003, as well as
throughout three months of post-trial submissions. (Compl. ¶ 48)
During the bench trial, Davidson traveled to New York at Banker's request to consult with the Business Defendants and
Banker. (Davidson Decl. at 3) Davidson also spoke by telephone
with Banker while Banker was in New York, and sent mail and email
to Banker in New York; while the litigation was active, the
correspondence was daily, when it was inactive there was no
communication. (Davidson Decl. at 3-4) Dittmar has never been to
New York, and her only contact with Banker was providing him with
documents. (Dittmar Aff. at 1) The only time McDonough, Gaines,
and Lopez were physically present in New York was to attend the
Wechsler trial. (Banker Aff. ¶¶ 19, 20) None of the other
Individual Defendants ever have been physically present in New
In September 2004, McDonough and Gaines retained Texas attorney
Kristine Arlitt ("Arlitt") to represent them as individuals.
(Compl. ¶ 198) In November 2004, McDonough and Gaines retained
Arlitt to represent Esperanza, Hunt, P&G, MHTJ, and Friendship.
(Compl. ¶ 200) Banker believes that, beginning in November 2004,
Arlitt met with Martinez, Lopez, Perez, McDonough, Gaines,
Davidson, and Dittmar to discuss Weschler and formulate a plan
to avoid paying Banker after inducing him to provide information
about the case to Arlitt. (Compl. ¶¶ 212, 213, 217, 218) Banker
alleges Davidson and Dittmar created the plan to defraud him,
because a December 4, 2004 email from McDonough and Gaines to
Banker stated "Davidson and [Arlitt] have arrived at a plan." (Compl. ¶¶ 214, 215) Banker believes that as part of this
plan, Martinez, Lopez, Perez, McDonough, Gaines, Davison, and
Dittmar agreed to mislead Banker by making him believe he would
be paid for his work. (Compl. ¶¶ 219, 220) Banker alleges also
that, as a part of the plan, Martinez, Lopez, Perez, McDonough,
Gaines, Davidson, and Dittmar agreed that Arlitt would settle
Weschler without Banker's knowledge or participation. (Compl. ¶
224) Banker also believes that Davidson and Dittmar advised
Esperanza not to pay Banker, with the intention of keeping for
themselves a share of the money owed to him for legal services.
(Compl. ¶¶ 240-43) Banker does not allege that any of the events
involved in this plan to defraud him took place in New York.
On January 14, 2005, Martinez, Lopez, Perez, McDonough, and
Gaines attended a mediation of Weschler in San Francisco before
a mediator who Banker believes Arlitt located. (Compl. ¶¶ 244,
246) The mediation was planned, scheduled, and held without
Banker's knowledge or participation. (Compl. ¶¶ 247, 244) During
the mediation, an attorney in Arlitt's office contacted Banker to
request information and advice. (Compl. ¶¶ 250, 252) On January
14, 2005, Banker believes that McDonough and Gaines, while in
California, executed a settlement agreement with Wechsler in the
presence of Martinez, Lopez, and Perez, which provides that
Banker will not be paid for his legal services. (Compl. ¶¶ 255,
257) The day the Weschler settlement was executed, Eseperanza, Hunt Health, P&G, MHTJ, and Friendship
wrote a letter to Banker firing him as their counsel; it was
mailed on January 18, 2005. (Compl. ¶ 190, 193)
Neither Arlitt nor any of the defendants have communicated with
Banker since January 21, 2005, and Banker was never told the
terms and conditions of the January 14, 2005, settlement. (Compl.
¶¶ 263, 264) On January 21, 2005, Michael Kennedy appeared in
Wechsler as counsel for Esperanza, Hunt, P&G, MHTJ, and
Friendship and Banker was granted leave to withdraw as counsel of
record for Esperanza, Hunt, P&G, MHTJ, and Friendship. (Compl. ¶¶
Banker and Esperanza, Hunt, P&G, MHTJ, and Friendship entered
into an installment payment plan for Banker's attorney's fees in
connection to Wechsler in 2003, because the defendants did not
have sufficient assets to pay Banker immediately. (Compl. ¶¶ 105,
106, 151) However, Banker alleges that during the time he was
receiving partial payments, Martinez, Lopez, Perez, McDonough,
and Gaines each received direct or indirect income from Esperanza
of at least $400,000 a year. (Compl. ¶ 114) Esperanza, Hunt, P&G,
MHTJ, and Friendship regularly made payments to Banker for his
legal services between July 28, 2003, and January 4, 2005.
(Compl. ¶¶ 151-179) Esperanza, Hunt, P&G, MHTJ, and Friendship
never paid Banker's attorney's fee statements of January 4, 2005,
and January 18, 2005, which are for the legal services rendered from December 1, 2004, until January 14, 2005.
(Compl. ¶¶ 178, 183, 188). The last payment Banker received from
defendants was on December 10, 2004. (Banker Aff. ¶ 13) Banker
claims Martinez, Lopez, Perez, McDonough, and Gaines each
received financial distributions from Esperanza from November
2004 through March 2005. (Compl. ¶¶ 272-276)
Banker filed the summons and verified complaint in this action
in March 24, 2005, in the Supreme Court of the State of New York,
County of New York. (Holland Aff. ¶ 3) Gaines and McDonough were
served in their individual capacities by mail on March 25, 2005,
and in person on April 11, 2005. (Holland Aff. ¶¶ 7, 8) Gaines
was served by mail at the offices of P&G, MHTJ, and Friendship.
(Holland Aff. ¶¶ 7, 18, 19, 20) Davidson was served individually
by mail on March 25, 2005, and served personally on April 8,
2005. (Holland Aff. ¶ 9) Dittmar was personally served on April
11, 2005 (Holland Aff. ¶ 10).
On April 25, 2005, all defendants filed a Notice of Removal
Pursuant to 28 U.S.C. § 1446(a). (Holland Aff. ¶ 11) As of May 2,
2005, McDonough and Gaines were not aware that Banker had served
papers upon any of the Business Defendants. (McDonough Aff.,
Gaines Aff.) Martinez, Perez, and Lopez are all residents of
Mexico who maintain offices at La Hacienda Treatment Center in
Hunt, Texas; although named as defendants in this suit none of
them have been served. (Holland Aff. ¶ 43, 44) II.
Diversity jurisdiction exists pursuant to 28 U.S.C. § 1332
(2000). Banker is a New York resident with his primary place of
business in New York. (Compl. ¶ 1) Esperanza, Hunt, P&G, MHTJ,
and Friendship all have their principal place of business in
Texas and are not alleged to be incorporated or registered in New
York. (Compl. ¶¶ 2-6) McDonough, Gaines, Dittmar, Davidson,
Martinez, Lopez, and Perez all maintain offices in Texas and are
residents of Texas or Mexico. (Compl. ¶¶ 7-13, McDonough Aff. at
1, Gaines Affid. at 1, Davidson Decl. ¶ 2, Dittmar Aff. at 1,
Holland Aff. ¶¶ 21-23) Banker seeks damages well in excess of
$75,000. (Compl. ¶¶ 298-300) Under 28 U.S.C. § 1446 (d), this
court took jurisdiction over this case on the date the notice of
removal was filed with the clerk of the state court by the
defendants and plaintiffs were given written notice of the
removal, which was done on April 25, 2005, and will retain
jurisdiction unless and until the case is remanded.
On a motion to dismiss for lack of personal jurisdiction under
Fed.R.Civ.P. 12(b) (2), "the plaintiff bears the burden of
showing that the court has jurisdiction over the defendants" by a
preponderance of the evidence. Metro. Life Ins. Co. v.
Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). Where, as here, the issue of personal jurisdiction is addressed
without the benefit of an evidentiary hearing, "the plaintiff
need only make a prima facie showing of personal jurisdiction
i.e., `an averment of facts, that if credited . . . would suffice
to establish jurisdiction over the defendant.'" Levisohn,
Lerner, Berger & Langsam v. Med. Taping Sys., Inc.,
10 F. Supp. 2d 334, 339 (S.D.N.Y. 1998) (quoting Metro. Life Ins.
Co., 84 F.3d at 567). At the motion to dismiss stage, "all
allegations are construed in the light most favorable to the
plaintiff and doubts are resolved in the plaintiff's
favor. . . ." A.I. Trade Fin. Inc. v. Petra Bank, 989 F.2d 76,
79-80 (2d Cir. 1993).
Personal jurisdiction over non-resident defendants is
determined by the law of the jurisdiction in which the federal
district court sits. PDK Labs, Inc. v. Friedlander,
103 F.3d 1105, 1108 (2d Cir. 1997). For this court to have personal
jurisdiction over the Business and Individual Defendants, New
York law must provide a basis for exercising personal
jurisdiction and such jurisdiction cannot offend federal
standards of due process. See Bank Brussels Lambert v.
Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999).
A. N.Y.C.P.L.R. 313
Defendants argued initially that this court lacks personal
jurisdiction over Martinez, Perez, Lopez, Esperanza, Hunt, P&G, MHTJ, and Friendship under N.Y.C.P.L.R. 313 (McKinney
2001), because Banker did not properly serve any of them with a
summons. On October 17, 2005, the parties participated in a
conference with the court and a traverse hearing was scheduled to
determine whether the aforementioned defendants were properly
served with process. However, in a letter to the court dated
October 21, 2005, Defendants' counsel "waive[d]" the traverse
issue. Thus, the court need not address those claims and they are
waived by defendants.
B. N.Y.C.P.L.R. 302 (a) (1)
Plaintiff argues that there is personal jurisdiction over the
Business Defendants under New York's long arm statute,
N.Y.C.P.L.R. 302 (a) (1). To establish personal jurisdiction
pursuant to N.Y.C.P.L.R. 302 (a) (1), Banker must show (1) that
defendants transacted business within New York and (2) that the
claim arises from that transaction. See Agency Rent A Car Sys.
Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir. 1996).
A non-domiciliary transacts business within a state when he
"purposefully avails [himself] of the privilege of conducting
activities within [the state], thus invoking the benefits and
protections of its laws." CutCo Indus., 806 F.2d at 365
(citation omitted). A single transaction in the state "may be
sufficient to invoke jurisdiction, even if defendant never
entered New York, provided that the contact was purposeful and the totality of the
circumstances indicate that the exercise of jurisdiction would be
proper." Levisohn, 10 F. Supp. 2d at 339.
Banker argues personal jurisdiction pursuant to N.Y.C.P.L.R.
302 (a) (1) over the Business Defendants, because they transacted
business in New York when they hired a New York attorney to
represent them in a New York court and all of their claims arise
out of the hiring of that attorney. However, the "New York cases
make clear that the `mere fact of being a New York lawyer engaged
to perform legal services in New York is [not] enough' to satisfy
C.P.L.R. 302 (a) (1)." Pennie & Edmonds v. Austad Co.,
681 F. Supp. 1074, 1077 (S.D.N.Y. 1988) (quoting Perlman v. Martin,
70 Misc. 2d 169, 170, 332 N.Y.S.2d 360 (1972) (finding personal
jurisdiction did not exist where client retained New York
attorney by telephone from another state)).
Banker relies heavily on Levisohn, which held that a
defendant transacts business in New York when he visits a law
firm's New York office to negotiate a retainer agreement,
prepares for a court hearing while in New York, makes telephone
calls to New York, and sends correspondence to New York.
Levisohn, 10 F. Supp. 2d at 340. However, the key fact that
lead to a finding of personal jurisdiction in Levisohn was that
the defendant client was present in New York during contract
negotiations. See Id. When "`a defendant has entered the
state, even for one day, to negotiate and execute the contract on which
suit is eventually brought, § 302 (a) (1) gives jurisdiction.'"
Id. (quoting Mayes v. Leipziger, 674 F.2d 178, 183 (2d Cir.
1982). "[I]f negotiations take place in New York that
`substantially advance' or are `essential' to one's formation of
a business agreement, such activity will constitute a legally
sufficient basis for jurisdiction under § 302 (a) (1)." Current
Textiles Corp. v. AVA Indus., Inc., 624 F. Supp. 819, 820
(S.D.N.Y. 1985) (citing Lehigh Valley Indus., Inc. v.
Birenbaum, 527 F.2d 87, 91 (2d Cir. 1975).
Generally, courts will find jurisdiction over a non-domiciliary
defendant being sued for fees by his former attorney only when
the retainer agreement between the lawyer and the client was at
the very least negotiated in New York. See, e.g., Lehigh
Valley Indus., 527 F. 2d at 91 (finding personal jurisdiction
over client defendants who met with attorneys in New York to
negotiate the terms of the representation); Milgrim Thomajan &
Lee P.C. v. NYCAL Corp., 775 F. Supp. 117, 120 (S.D.N.Y. 1991)
(finding personal jurisdiction over client defendants who met
with attorneys in New York to negotiate the terms of
representation); Current Textiles Corp. v. AVA Indus., Inc.,
624 F. Supp. 819, 820 (S.D.N.Y. 1985); Fly, Shuebruk, Gaguine,
Boros & Braun v. Marcus, No. 94 Civ. 543, 1996 WL 109269, at
*3 (S.D.N.Y. Mar. 13, 1996) (finding jurisdiction over non-domiciliary client when that client entered into a contract
with the attorney in New York, the contract was largely performed
in New York, and the defendant repeatedly met with plaintiff in
New York); Kaczorowski v. Black and Adams, 293 A.D.2d 358,
741 N.Y.S.2d 28 (1st Dep't 2002) (finding personal jurisdiction
when non-domiciliary client solicited attorney in New York to
bring an action in New York and consulted repeatedly in New York
with attorney before retaining him); Shaw, Licitra, Bohner,
Esernio, Schwartz & Pfluger, P.C. v. Lefkowitz, No. 10767/01,
2002 WL 1969237 (N.Y. Dist. Ct. Aug. 15, 2002) (finding long-arm
jurisdiction over a client because she chose to retain the
attorney to prosecute, as opposed to defend, claims, met with him
in New York for their initial consultation, and all of the legal
services rendered involved matters pending in the Courts of the
State of New York).
A contract negotiated and executed via telephone while
defendants were not in New York is insufficient to establish
jurisdiction in New York. Agrashell, Inc. v. Bernard Sirotta
Co., 344 F.2d 583, 587 (2d Cir. 1965) (holding that negotiation
and execution of contracts by mail and telephone with persons
residing in New York was insufficient basis for personal
jurisdiction over non-domiciliaries); Hennigan v. Taser Int'l,
Inc., No. 00 Civ. 2981 (MBM), 2001 WL 185122, at * 3 (S.D.N.Y.
Fed. 26, 2001). The present case is distinguishable from the cases where
personal jurisdiction was found, because Banker makes no claim
that the Retainer Agreement between himself and the Business
Defendants was negotiated or signed in New York. Additionally,
the present case differs from those cases where jurisdiction was
found, because here the Business Defendants hired Banker to
represent them as defense counsel in an action brought in this
court, as opposed to hiring him to prosecute claims as was done
in Shaw and Kaczorowski. See also Pennie & Edwards,
681 F. Supp. at 1078. (finding personal jurisdiction over
non-domiciliary client because, among other reasons, he
purposefully chose to hire New York counsel to prosecute
litigation in Maryland). The Business Defendants did not hire
Banker to prosecute claims they initiated in New York; they had
to hire New York counsel to defend a suit that was brought in New
York through no choice of theirs.
Furthermore, telephone or written communications, such as
email, sent into New York, standing alone, do not provide a
sufficient basis for personal jurisdiction under N.Y.C.P.L.R. 302
(a) (1) unless "they are used by the defendant to actively
participate in business transactions in New York." Carlson v.
Cuevas, 932 F. Supp. 76, 78 (S.D.N.Y. 1996); see also
Otterbourg, Steindler, Houston & Rosen, P.C. v. Shreve City
Apartments, Ltd., 147 A.D.2d 327 (N.Y.App.Div. 1989) (finding
personal jurisdiction where non-domiciliary client retained New York
counsel to provide services in connection with legal proceedings
in New York, client communicated 93 times by telephone with
attorney in New York, sent letters into New York, participated in
settlement negotiations by telephone conference calls, and had an
open telephone line into a meeting in New York).
The sporadic email and telephone conversations between Banker
and the Business Defendants do not rise to a level such that any
of the Business Defendants can be said to be "actively
participating" in business transactions in New York. The only
business they transacted in New York was assisting their attorney
in preparing to defend them at a trial in New York. Banker does
not allege that the Business Defendants participated in New York
meetings via conference calls or that email or telephone
communication was extensive or initiated by the Business
Defendants. In fact, the communications between Banker and the
Business Defendants would cease completely at the times when
trial or some other legal proceeding was not immediately pending.
(Davidson Decl. at 3-4)
Thus, this court does not have personal jurisdiction over the
Business Defendants under N.Y.C.P.L.R. 302 (a) (1), because the
Business Defendants did not negotiate or enter into the Retainer
Agreement in New York, did not attend meetings with Banker in New
York, and did not actively participate in business transactions in New York through email, telephone, or other means
C. N.Y.C.P.L.R. 302(a) (3)
Plaintiff argues there is personal jurisdiction over the
Individual Defendants under N.Y.C.P.L.R. 302(a) (3), which
provides in pertinent part:
. . . a court may exercise personal jurisdiction over
any non-domiciliary . . . who in person or through an
agent . . . commits a tortious act without the state
causing injury to person or property within the
state, . . . 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 . . .
Thus, to establish personal jurisdiction under 302(a) (3),
Banker, among other things, must sufficiently allege that the
Individual Defendants' conduct caused injury within New York.
This he is unable to do.
An injury does not occur within New York merely because that is
where the plaintiff resides or where he suffered economic loss.
Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez,
171 F.3d 779, 791 (2d Cir. 1999) ("[C]ourts determining whether there
is injury in New York sufficient to warrant 302(a) (3)
jurisdiction must generally apply a situs-of-injury test, which asks them to locate the original event which caused the injury.")
(citation and quotation marks omitted). "[T]he situs of an 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." Mareno v. Rowe, 910 F.2d 1043, 1046
(2d Cir. 1990) (quoting Carte v. Parkoff, 152 A.D.2d 615,
616, 543 N.Y.S.2d 718 (2d Dep't 1989)).
Thus, the Second Circuit declined to extend jurisdiction under
N.Y.C.P.L.R. 302(a) (3) over non-domiciliary clients sued by
their New York attorney based on their alleged tortious conduct
outside New York, because "the alleged injury does not arise out
of the legal services provided, but out of [the client's] alleged
failure to pay for such services." Whitaker v. Am.
Telecasting, Inc., 261 F.3d 196, 209 (2d Cir. 2001). The
relevant event which caused the injury in Whitaker was "either
the structuring of the partnership sale to avoid payment [to
Whitaker] or the actual withholding of payment to Whitaker, both
of which occurred outside New York," thus the situs of the injury
was not in New York. Id. (quotation marks and citation
The present case is nearly identical to Whitaker. Banker
alleges that the Individual Defendants committed tortious acts
outside New York by conspiring to deprive him of fees for
services he rendered in New York. Banker then, again similar to Whitaker, alleges that the event giving rise to his fraud
claims was his tendering of legal services in New York. However,
as in Whitaker, the situs of his injury is not where he
tendered the legal services; the situs of Banker's injury is
where the Individual Defendants devised and carried out their
alleged plan to deprive him of payment for his services, which
according to Banker's complaint was in Texas and California.
Thus, as in Whitaker, the plaintiff here suffered no injury
within New York and the Individual Defendants are not subject to
personal jurisdiction under N.Y.C.P.L.R. 302(a) (3).
Defendants also have moved to dismiss the complaint for failure
to state a claim upon which relief can be granted, for improper
venue, and, in the alternative, to transfer this case to the
District Court for the Western District of Texas. Because
Banker's complaint must be dismissed for lack of personal
jurisdiction as to both the Business and Individual Defendants,
it is unnecessary to consider the issue of venue or failure to
state a claim. In particular, I deny the transfer motion because,
as noted, this case initially was filed in state court and
removed. Accordingly, Banker may prefer another state forum to a
federal court in Texas. For the reasons set forth above, defendants' motion to dismiss
for lack of personal jurisdiction is granted. Defendants' motion
to transfer is denied on the merits and their other motions are
denied as moot.
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