The opinion of the court was delivered by: Go, United States Magistrate Judge
Defendants The International Tennis Federation (the "ITF") and Michael Morrissey ("Morrissey") (collectively "the moving defendants") move to stay written discovery against them and for a protective order preventing the taking of depositions pending resolution of their motions to dismiss the complaints.
Plaintiffs Cecil Hollins and Sande French bring this action against the United States Tennis Association (the "USTA"), Richard Kaufman, the ITF and Morrissey for race discrimination, and with respect to French, sex discrimination, in employment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1981, the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. (the "Hollins action"). Plaintiff Dudley Gayle brings age and race discrimination claims under the above statutes and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., against the same defendants, except Morrissey (the "Gayle action").
Plaintiffs are tennis umpires alleging that they were denied opportunities to officiate significant tennis matches on the basis of race, gender or age and were retaliated against for their complaints of discrimination. Much of the discriminatory conduct alleged in the complaints occurred at the National Tennis Center in New York, the site of the annual US Open. The ITF is the worldwide governing body for tennis and Morrissey is ITF's Administrator of Officiating. The USTA is the governing body for tennis in the United States and Kaufman is its Director of Officials.
At an initial conference held on February 21, 2006, the undersigned consolidated the Gayle and Hollins actions for discovery purposes and ordered expedited discovery regarding personal jurisdiction and any other defenses ITF raised in its pre-motion letter. See minute entry dated February 21, 2006. The order specifically provided that the actions were not stayed pending resolution of the moving defendants' anticipated motion to dismiss and directed the parties to "attempt to complete all document discovery before conducting depositions." Id.
Plaintiffs served defendants with a document request dated March 15, 2006, containing 134 separate requests, many of which concerned the merits of the cases. See Affidavit of Holly Weiss dated April 28, 2006 ("Weiss Aff.") (ct. doc. 15),*fn1 Exh. 10. On April 4, 2006, plaintiffs served a deposition notice for two witnesses, ITF's Executive Director and a person associated with the USTA, purportedly for jurisdictional discovery. See id., Exh. 11. On April 12, 2006, plaintiffs served another deposition notice seeking ten additional depositions, which plaintiffs' counsel concedes is for merits discovery. See id., Exh. 12. The moving defendants seek a protective order staying any further written discovery as to them, relieving them of their obligation to respond to outstanding discovery requests and preventing any depositions until their motions to dismiss are decided. Plaintiffs do not object to a stay of merits discovery regarding the moving defendants but do object to staying depositions regarding defendants USTA and Kaufman. In addition, plaintiffs still seek discovery regarding personal jurisdiction over the moving defendants.
The instant discovery motion arises from the moving defendants' motions to dismiss for, inter alia, lack of personal jurisdiction. On a motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), "the plaintiff bears the burden of showing that the court has jurisdiction over the defendant." Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 240 (2d Cir. 1999); Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). Prior to engaging in discovery, plaintiff need only assert "facts constituting a prima facie showing of personal jurisdiction" to defeat a motion to dismiss. PDK Labs Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997). "Plaintiffs may rely entirely on allegations of fact, and they will prevail even if the moving party makes contrary allegations which controvert their prima facie case." Sodepac, S.A. v. Choyang Park In Rem, No. 02 Civ. 3927, 2002 WL 31296341, at *2 (S.D.N.Y. Oct. 10, 2002); see Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 153 (2d Cir. 1999).
"District courts are afforded considerable procedural leeway in deciding" a motion to dismiss for lack of personal jurisdiction. See Credit Lyonnais, 183 F.3d at 153. In determining whether jurisdiction over the defendant has been established, the Court may consider matters outside the pleadings without converting the motion to dismiss into a motion for summary judgment.*fn2 See Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001); Bensusan Restaurant Corp. v. King, 937 F. Supp. 295, 298 (S.D.N.Y. 1996), aff'd, 126 F.3d 25 (2d Cir. 1997). Because this Court has not held a hearing or trial on the merits, "all pleadings and affidavits must be construed in the light most favorable to [plaintiff] and all doubts must be resolved in . . . plaintiff's favor." Landoil Res. Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1990).
In a federal question case, where a defendant resides outside the forum state, a federal court applies the forum state's personal jurisdiction rules unless the applicable federal statute specifically provides for national service of process. PDK Labs, 103 F.3d at 1108. Since plaintiffs allege federal question subject matter jurisdiction over defendants, see Hollins Compl. (attached to Weiss Aff. as Exh. 1) at ¶ 11; Gayle Compl. (attached to Weiss Aff. as Exh. 2) at ¶ 11, New York's jurisdiction rules apply.
The moving defendants contend that plaintiffs must make a prima facie showing of jurisdiction to obtain jurisdictional discovery, relying on Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998). Defs.' Reply Br. at 2 & n.2. However, Second Circuit authority is more limited than defendants suggest. See Ayyash, 2006 WL 587342, at *5 n.7 (discussing Jazini). Accordingly, district courts in this Circuit have ordered jurisdictional discovery where plaintiff made less than a prima facie showing but "made a sufficient start toward establishing personal jurisdiction." Uebler v. Boss Media, 363 F. Supp. 2d 499, 506-07 (E.D.N.Y. 2005); see Ayyash, 2006 WL 587342, at *5 (ordering discovery upon a "threshold showing that there is some basis for the assertion of jurisdiction[,] facts that would support a colorable claim of jurisdiction"); Allojet PLC v. Vantgage Assocs., No. 04 Civ. 5223, 2005 WL 612848, at *7 (S.D.N.Y. March 15, 2005); Newbro v. Freed, No. 03 Civ. 10308, 2004 WL 691392, at *3 (S.D.N.Y. March 31, 2004); PST Servs., Inc. v. Larson, 221 F.R.D. 33, 37 (N.D.N.Y. 2004); Winston & Strawn v. Dong Won Secs. Co. Ltd., 02 Civ. 0183, 2002 WL 31444625, at *5 (S.D.N.Y. Nov. 1, 2002) (denying motion to dismiss and permitting discovery "where the facts necessary to establish personal jurisdiction . . . lie exclusively within the defendant's knowledge"); Aerotel, Ltd. v. Sprint Corp., 100 F. Supp. 2d 189, 194 (S.D.N.Y. 2000) (denying motion to dismiss to permit plaintiff to take jurisdictional discovery despite plaintiff's "conclusory" allegations).
Jazini involved a request for "extensive discovery" based only on "conclusory non-fact-specific jurisdictional allegations." 148 F.3d at 185. There, the Court held merely that plaintiff's "sparse" allegations of the foreign parent's domination of its New York subsidiary did not warrant "rather extensive" jurisdictional discovery. Id. Jazini did not categorically deny jurisdictional discovery in the absence of a prima facie showing. See Texas Int'l Magnetics, Inc. v. BASF Aktiengesellschaft, 31 F.App'x 738, 739 (2d Cir. 2002) (distinguishing Jazini); Ayyash, 2006 WL 587342, at *5 n.7.
In fact, the Second Circuit has ordered jurisdictional discovery where plaintiffs allege more than conclusory statements but without supporting facts. In Texas Int'l, plaintiff asserted jurisdiction over a German corporation based on the activities of its American subsidiaries. The Court held that plaintiffs were "entitled to jurisdictional discovery in order to develop the factual record requisite for such a showing." 31 F.App'x at 739. The Court distinguished Jazini in that "plaintiffs' jurisdictional allegations are neither sparse nor ...