The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
On April 8, 2004, plaintiff, Erik Trell ("Trell"), filed the Amended Complaint herein (Dkt. #3), based on diversity jurisdiction (28 U.S.C.§1332(a)), alleging, inter alia, breach of implied contract against defendants American Association of the Advancement of Science ("AAAS"), ScienceNOW and Dana Mackenzie, PhD ("Mackenzie"). Pursuant to Stipulation and Order (Dkt. #7), the matter was stayed on June 9, 2004, pending the outcome of a state court action filed by plaintiff containing the same allegations and causes of action.
On January 30, 2006, defendants made a Motion to Dismiss the Amended Complaint (Dkt. #8), based in part on the arguments put forth by it in the state court action which resulted in the dismissal of the action in that court which was affirmed by the New York State Supreme Court, Appellate Division, Fourth Department. As plaintiff had made a request for review to the New York Court of Appeals, the motion was adjourned sine die until the Court was notified that the Court of Appeals had denied plaintiff's request, which occurred on May 2, 2006. Thereafter, plaintiff filed his response to the motion before this Court on June 23, 2006 (Dkt. ##10, 12), defendants filed their reply thereto on June 28, 2006 (Dkt. #14), oral argument was held thereon on June 30, 2006 and the matter was submitted to the Court for decision. Based on the above referenced submissions by the parties, and for the reasons stated below, defendants' motion will be granted and the case dismissed.
Trell is a professor and medical doctor residing in Linkoping, Sweden. His only connection to New York is as a trustee of a business trust that was established in Buffalo but has no association with the instant lawsuit. Defendant AAAS is a not-for-profit corporation, incorporated under the laws of Massachusetts, with its headquarters located in Washington, D.C.. Defendant, ScienceNOW is AAAS's website, serving as a daily internet news service*fn2 . Defendant Mackenzie is a mathematician and freelance science and mathematics journalist residing in California and a frequent contributor to AAAS's published scholarly journal/magazine, Science.
Plaintiff alleges that in 1998 he submitted a manuscript to defendants regarding a famous mathematical problem*fn3 , asking for its review and publication in Science. He further claims that he did this in response to an internet advertisement located on the ScienceNOW website that sought "news tips" and stated that the tip would be investigated for its suitability as a news item in ScienceNOW or perhaps even an article in Science. AAAS declined to publish the manuscript purportedly because it determined that it was not "news" and did not appear to solve the mathematical problem. Mackenzie allegedly initially screened the manuscript for AAAS. It is undisputed that none of these acts occurred in New York.
The gravamen of all of Trell's claims in the Amended Complaint revolves around the contract claim. Claims of fraud, misappropriation of property, breach of fiduciary duty, unfair competition, conversion, unfair competition, conspiracy with intent to defraud necessarily stem from the breach of contract claim.
In response to the instant motion, Trell asserts that the advertisement on the website created a unilateral contract and his submission of the manuscript was his performance under that contract which defendants then breached in a number of ways (which need not be discussed in detail herein). Trell's papers also interchangeably describe the formation of the contract with the advertisement as the offer and the submission of the manuscript as the acceptance.
With respect to jurisdiction and venue, Trell alleges that the basis for jurisdiction in New York over AAAS and ScienceNOW is the fact that AAAS issues memberships to New York residents, distributes its journal, Science, throughout the state, is affiliated with New York organizations*fn4 and the fact that the ScienceNOW website is accessible within the state. This is also the asserted basis for venue here (as well as Trell's association with the aforementioned business trust, wholly unconnected to the instant lawsuit). The basis for personal jurisdiction over Mackenzie in New York is simply that he has written articles that have been published or reproduced by AAAS and/or ScienceNOW. Mackenzie seeks dismissal for lack of personal jurisdiction. AAAS and ScienceNOW seek dismissal for failure to state a claim and, if not dismissed on those grounds, seeks a forum non conveniens transfer to the District of Columbia.
The Motion to Dismiss for Lack of Personal Jurisdiction
The motion to dismiss the Amended Complaint as to defendant Mackenzie for lack of personal jurisdiction is made pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure (F.R.Cv.P.). "Personal jurisdiction of a federal court over a non-resident defendant is governed by the law of the state in which the court sits--subject, of course, to certain constitutional limitations of due process." Kronisch v. United States, 150 F.3d 112, 130 (2d Cir. 1998) (citation and internal quotation marks omitted); see also Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 94 (2d Cir. 2000). Plaintiff bears the burden of proving personal jurisdiction over an out-of-state defendant. Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 240 (2d Cir. 1999). Prior to discovery, a plaintiff challenged by a jurisdiction-testing motion may defeat the motion by making a prima facie showing of jurisdiction that is, by pleading legally sufficient allegations of jurisdiction. See Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 185 (2d Cir.1998). However, the Amended Complaint herein pleads no jurisdictional allegations against Mackenzie and may therefore be dismissed as against him on that basis alone. See Brought to Life Music, Inc. v. MCA Records, Inc., 2003 WL 296561 (S.D.N.Y. 2003); Clerc v. Cantoni, Inc., 2002 WL 1482769 (S.D.N.Y. 2002). It is evident that the allegations in the Amended Complaint, which the Court deems to be true for purposes of this motion, do not establish personal jurisdiction over Mackenzie.
Even if sufficiently plead, there is no jurisdiction over Mackenzie. In response to the motion herein, Trell argues that Mackenzie is subject to general personal jurisdiction under New York Civil Practice Law and Rules Section 301 (CPLR §301) through his association with AAAS, which it is alleged is doing business in the state. Plaintiff asserts no other basis for personal jurisdiction over Mackenzie, stating definitively only ...