The opinion of the court was delivered by: Garaufis, United States District Judge
On June 15, 2007, Defendant St. George's University ("Defendant" or "SGU") moved to dismiss Plaintiff Erika Phillips's ("Plaintiff" or "Phillips") Complaint, which alleges discrimination on the basis of her sex, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"). SGU argues that dismissal is warranted based on (1) lack of subject-matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficiency of service of process, and (5) forum non conveniens. For the reasons set forth below, namely that this court lacks subject-matter jurisdiction over this dispute, Defendant's motion to dismiss is GRANTED.*fn1
Phillips alleges the following in her April 16, 2007 Complaint, which for purposes of this motion, the court accepts as true. See Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (a court reviewing a motion to dismiss "must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff") (citation omitted). Since December 7, 2005, Phillips has been enrolled in the SGU School of Veterinary Medicine, located in Grenada, West Indies. (Complaint (Docket Entry #1) at 2.) On September 30, 2006, Phillips was sexually harassed on SGU's Grenada campus by Ronald Antoine ("Antoine"), who was employed by SGU in the campus mailroom. Antoine made inappropriate comments to Phillips, touched and groped her, and forcefully pulled her towards him and kissed her, all while Phillips objected and tried to pull away. While retreating, Phillips instructed Antoine never to contact her again. (Id. at 2-3.) Phillips notified authorities of the harassment on October 2, 2006, and scheduled a meeting for October 4, 2006, with Dr. Zuri Amuleru-Marshall ("Dr. Marshall"), SGU Senior Associate Dean of Students. (Id. at 3.) On October 3, prior to Phillips's meeting with Dr. Marshall, Antoine telephoned Phillips and laughed about the sexual harassment that had occurred on September 30. Phillips told Antoine that she did not think the situation was funny and again instructed him not to contact her again. (Id.)
After being informed of the incident at the October 4 meeting, Dr. Marshall told Phillips she would immediately rectify the situation. Marshall never attempted to address the problem, however, and, on October 6 and 7, 2006, Phillips received a total of five more harassing telephone calls from Antoine. (Id. at 4.) Phillips then e-mailed Dr. Marshall about the continuing harassment and also informed Samasha, a campus security guard, of Antoine's actions and of her resulting fear for her well-being and safety. Samasha informed Phillips that she would notify her Captain, who would instruct Antoine to stop harassing Phillips. Nevertheless, Phillips received another harassing phone call from Antoine later that day. (Id. at 5.)
On October 8, 2006, Dr. Marshall contacted Phillips to inform her that she had not yet spoken to Antoine but would do so the next day. When Phillips asked why Dr. Marshall had not yet spoken to Antoine, Dr. Marshall told her to "suck it up." (Id. at 5.) On October 9, Phillips sought counseling at the SGU counseling center, where a counselor informed her that men in Grenada do and say things like that and that she should "get used to it." The head counselor then refused Phillips's request for a letter excusing her from her midterm examinations because he did not think she was under enough stress; Phillips failed one of her midterms. (Id. at 6.)
On October 20, 2006 Phillips attended a meeting with Dr. Marshall, Antoine, and others. During the meeting, Antoine laughed at Phillips and called her insane. Phillips believes that no one in the meeting took her sexual harassment complaints seriously and that Antoine has not been disciplined or instructed to stop harassing her. As a result of the stress of the harassment, Phillips failed two classes and was placed on academic probation. (Id. at 7.)
Phillips claims that Antoine's actions created an intimidating, hostile, abusive, and offensive educational environment that altered the conditions of her education, and that SGU failed to take corrective action to remedy the discrimination. (Id. at 8.) Her sole claim is that SGU's failure to take corrective action violated Title IX.
In the Complaint, Phillips states that SGU is a "domestic not-for-profit organization with offices located at One East Main Street, Bay Shore, New York, 11706-8399, within the Eastern District of New York." (Id. at 2.) In an affidavit attached to SGU's motion to dismiss, however, Allen Pensick, Provost of SGU, attests that: (1) SGU is a Grenadian corporation located in Grenada, West Indies, which is an independent nation and a member of the British Commonwealth of Nations; (2) SGU has no office, place of business, or postal address in the State of New York; (3) SGU is not qualified, licensed, or registered to do business in the State of New York; (4) SGU does not maintain any bank accounts in the State of New York; and (5) SGU does not receive any funding from the government of the United States. (Defendant's Motion to Dismiss (Docket Entry #4), Attached Affidavit of Allen Pensick.) The court assumes for purposes of this motion that SGU maintains an office located in New York.
As noted above, Defendant has moved to dismiss on five separate grounds under Fed. R. Civ. P. 12(b). The question of subject-matter jurisdiction, discussed in detail below, is dispositive in this case.
"On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject matter jurisdiction over the action." Czetwertynski v. United States, ---F. Supp. 2d---, No. 06 Civ. 4331, 2007 WL 2846358, at *1 (S.D.N.Y. Sept. 26, 2007). "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed. R. Civ. P. 12 (h)(3). A case that comes before a United States court involving conduct committed outside the United States raises the question of the court's subject-matter jurisdiction. See United States v. Yousef, 327 F.3d 56, 85 n.16 (2d Cir. 2003) ("By 'extraterritorial jurisdiction' we mean subject matter jurisdiction of a United States court to adjudicate conduct committed outside of the United States.").
In evaluating whether Title IX applies to Phillips's claims, "we begin with the 'legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application.'" Ofori-Tenkorang v. American Intern. Group, Inc., 460 F.3d 296, 301 (2d Cir. 2006) (quoting Small v. United States, 544 U.S. 385, 388-89 (2005)). Because of this presumption, "absent clear evidence of congressional intent to apply a statute beyond our borders, the statute will apply only to the territorial United States." Id. (citation omitted). To determine congressional intent, the court first looks to "whether language in [Title IX] gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control." Id. (quoting E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) ("Aramco"). If necessary, the court may also consider "all available evidence about the meaning of the statute, including its . . . structure[ ] and legislative history." Id. (citation omitted). The fact that a party is incorporated in the United States, maintains offices in the United States, and conducts business in the United States is not sufficient to establish a statute's extraterritorial application to conduct occurring beyond the territorial limits of the United States, absent clear evidence of a congressional intent that the statute so apply. See Aramco, at 246-47. Finally, "courts must resolve restrictively any doubts concerning the extraterritorial application of a statute." ARC Ecology v. U.S. Dept. of Air Force, 411 F.3d 1092, 1097 (9th Cir. 2005) (citing Smith v. United States, 507 U.S. 197, 204 (1993)).
SGU argues that Title IX does not apply extraterritorially to the alleged conduct in this case, which occurred exclusively in Grenada at a Grenadian university. (Memorandum of Law in Support of Defendant's Motion to Dismiss ("Def.'s Br.") at 4.) In response, Phillips contends that subject-matter jurisdiction is founded upon the fact that Phillips was recruited by SGU in New York and paid SGU in New York. According to Phillips, "defendant availed itself of United States territory when it solicited Plaintiff, from New York, to apply to its University and did so by forwarding and receiving U.S. Mail and by accepting U.S. currency in the Eastern District of New York, and by receiving Federal funds in New York, via Ms. Phillips Federal loans, which were payable to defendant." (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss (Docket Entry #6) at 9-10.) Phillips further argues that she is not requesting application of Title IX extraterritorially, but instead seeks its application to SGU as it conducts business in the United States. (Id. at 10-11.) In reply, SGU contends that Phillips "has failed to ...