The opinion of the court was delivered by: Matsumoto, United States District Judge
Plaintiff Nissanka J. Fernando ("plaintiff") brings this action alleging breach of contract, fraud, and violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. ("RICO") against Tyrone B. Fernando ("defendant") based upon defendant's alleged failure to supply plaintiff with United States Permanent Resident Cards and certain other immigration benefits for plaintiff's two sons, despite allegedly receiving $19,350 as part of an agreement to supply such documents. (See Doc. No. 20, Amended Complaint ("Am. Compl.") ¶ 22-37.)*fn1 Presently before the court is defendant's motion to dismiss for lack of personal jurisdiction, improper venue, and lack of subject matter jurisdiction. For the reasons set forth below, the court grants defendant's motion to dismiss for lack of personal jurisdiction.
The following facts are taken from plaintiff's amended complaint. The court has also considered defendant's declaration in support of his motion to dismiss and plaintiff's counsel's declaration in opposition to the extent that they are relevant to defendant's motion to dismiss for lack of personal jurisdiction.*fn2 (See generally, Doc. No. 17, Defendant's Declaration in Support of Motion to Dismiss ("Def. Decl.").)
Plaintiff is a resident and citizen of New York. (Am. Compl. ¶ 3.) Defendant is a resident and citizen of California. (Id. ¶ 4.) Plaintiff was present in New York and defendant was in California when all acts or omissions giving rise to this action took place. (Am. Compl. ¶¶ 18-19.)
Delicatessen Inc., 496 F.3d 229, 242 (2d Cir. 2007). Thus, the court considers the allegations contained within the amended complaint.
The parties dispute the facts giving rise to this lawsuit. Plaintiff alleges that he and defendant entered into an oral agreement over the telephone while plaintiff was in New York and defendant was in California. (Id. ¶ 22.) Pursuant to this alleged agreement, defendant was to obtain United States Permanent Resident Cards and other immigration benefits for plaintiff's two sons in Sri Lanka. (Id. ¶ 23.) In return, plaintiff was to pay defendant a total of $19,350. (Id. ¶ 25.) Plaintiff alleges that, pursuant this agreement, he mailed defendant money orders worth $13,850 and electronically transferred $5,500 to defendant's bank in California between December 19, 2005 and December 4, 2006. (Id. ¶ 26-33.) Defendant allegedly mailed plaintiff immigration applications which plaintiff completed and returned to defendant in California. (Id. ¶ 35.) Defendant then allegedly breached the oral agreement by failing to properly prepare or file the immigration applications and obtain immigration documents for plaintiff's sons. (See id. ¶¶ 23, 36.) Plaintiff alleges that on June 12, 2007, defendant mailed him a refund of $4,000. (Id. ¶ 38.) Plaintiff further alleges that on November 29, 2007, defendant's wife, non-party Rona N. Fernando, who lives in California with defendant, electronically transferred another partial refund of $2,000. (Id. ¶ 39.)
By contrast, defendant asserts that he never entered into any agreement with plaintiff to provide immigration documents, and that he never sent money to, or received money from, plaintiff. (Def. Decl. ¶¶ 13-14, 31-34.) Defendant claims that plaintiff contacted him by telephone in 2005 and requested that defendant obtain sponsorship letters for his children in Sri Lanka. (See Def. Decl. ¶¶ 16-17, 20.) When defendant refused, plaintiff allegedly began to make threatening phone calls to defendant's home. (Id. ¶ 22, 26-27.)
Defendant further asserts that he has never set foot or conducted business in New York or derived any revenue from "any type of activities" in New York. (Id. ¶ 10.) Additionally, defendant asserts that he has never filed taxes in New York and has "absolutely no contacts or ties" to New York. (Id. ¶¶ 11-12.) Indeed, he states that he has never met plaintiff and does not know him. (Id. ¶ 13.)
In 2008, plaintiff filed a lawsuit against defendant in New York State Civil Court for allegations stemming from the events at issue in the instant action. (Def. Decl., Ex. B., Complaint dated April 15, 2008.) Upon defendant's motion, on October 20, 2008, Judge Arthur F. Engoron dismissed the case for lack of personal jurisdiction over defendant.*fn3 (Def. Decl. Ex. D.) The Civil Court determined that defendant's contacts with New York did not satisfy the requirements of New York's long-arm statute, CPLR § 302. (Id.)
Plaintiff alleges that on January 12, 2009, a default judgment was entered in New York against defendant for defrauding New York resident Nama B. Heelbathdeniya in connection with contracts under which defendant was to supply him with United States Permanent Resident Cards. (Am. Compl. ¶ 41.) An action is also pending against defendant in the Civil Court of the City of New York brought by Daya S. Thennakoon under similar circumstances. (Id.)
On April 3, 2009, plaintiff commenced the instant action against defendant, alleging breach of contract, fraud, and unjust enrichment for the $13,350 that plaintiff allegedly paid defendant for immigration documents and was not refunded. (See generally, Doc No. 1, Complaint ("Compl.").) On June 23, 2009, defendant filed the instant motion to dismiss. (Doc. No. 7, First Motion to Dismiss.) Plaintiff filed an amended complaint on September 29, 2009. The amended complaint added a civil RICO claim. (Am. Compl. ¶ 56-63.) On September 8, 2009, the court terminated defendant's motion to dismiss without prejudice to renew because it was filed prematurely without a pre-motion conference with the court, as required by the undersigned's motion practices, and because it contained typographical errors. (See Minute Entry dated Sept. 8, 2009.) Defendant filed the instant amended and corrected motion to dismiss on September 9, 2009.
Defendant moves to dismiss the instant action for lack of personal jurisdiction and lack of venue in the Eastern District of New York. Defendant also moves to dismiss under the doctrine of res judicata and for lack of subject matter jurisdiction based on plaintiff's alleged failure to satisfy the monetary threshold for diversity actions in this court, notwithstanding that plaintiff has alleged a federal RICO claim in his amended complaint. Further, defendant moves to dismiss plaintiff's fraud claim for failure to plead the claim with sufficient specificity as required by Fed. R. Civ. P. 9(b).
As a threshold matter, the court must decide whether to consider the allegations contained in plaintiff's amended complaint. Defendant argues that the court should not consider the amended complaint because it was filed after defendant filed a "responsive pleading," namely, his motion to dismiss. (See Doc. No. 22, Reply Affirmation of Carmen Giordano in Support of Defendant's Motion to Dismiss ("Giordano Reply Aff.") ¶¶ 18-21.)
At the time plaintiff filed his complaint, Rule 15 provided, in relevant part, that "a party may amend its pleading once as a matter of course . . . before being served with a responsive pleading." Fed. R. Civ. P. 15(a)(1)(A)(2009). Effective December 1, 2009, Rule 15 permits amendment of a pleading once as a matter of course "if the pleading is one to which a responsive pleading is required, [within] 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1)(B). By order of the United States Supreme Court dated March 26, 2009, the December 1, 2009 amendments "govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending."
Here, plaintiff filed his complaint on April 3, 2009. Defendant filed his motion to dismiss on June 23, 2009 and amended the motion to dismiss on September 9, 2009. Plaintiff filed his amended complaint on September 29, 2009. Under the circumstances, the court concludes that the version of Rule 15 in effect prior to December 1, 2009 applies to plaintiff's amended pleading. The action was commenced prior to the December 1, 2009 effective date of the amendments to Rule 15.
Similarly, the motion to dismiss and the amended complaint were filed prior to December 1, 2009.
Under the version of Rule 15 in effect prior to December 1, 2009, plaintiff properly filed his amended complaint because a motion to dismiss is not a "responsive pleading" within the meaning of Rule 15 then in effect. See Kassner, 496 F.3d at 242; see also 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1483, at 584-85 (3d ed. 2008). Thus, the filing of a motion to dismiss by defendant did not prevent plaintiff from subsequently amending without first obtaining defendant's consent or leave of court. To avoid an unjust result, the court applies Rule 15 as it existed prior to its December 1, 2009 amendment. See Martinelli v. Morrow, 09-cv-256, 2010 WL 2278152, at *1 (N.D. Fla. June 3, 2010) (applying Rule 15 as it existed prior to December 1, 2009 where a motion to dismiss was filed prior to the effective date of the 2009 amendments); Great Lakes Gas ...