Appeal from the United States District Court for the Southern District of New York (Barbara S. Jones, Judge.)
Vodopia v. Koninklijke Philips Electronics N.V., et al.
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 25th day of October, two thousand ten.
PRESENT: GUIDO CALABRESI DEBRA ANN LIVINGSTON, Circuit Judges, PAUL A. CROTTY District Judge.*fn1
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the district court's August 17, 2009 Order dismissing plaintiff's complaint for failure to state a claim is AFFIRMED.
Plaintiff John F. Vodopia appeals from the district court's dismissal of his complaint, which alleges unlawful retaliation in violation of 18 U.S.C. § 1514A. Specifically, Vodopia's complaint alleges that he was unlawfully terminated after his various attempts to report that several patents acquired by defendants from an outside company had been obtained through fraud on the Patent Office and were thus likely to be declared invalid. Defendants moved before the district court to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(2) and (b)(6). The district court concluded that even if credited, Vodopia's allegations failed to state a claim pursuant to section 1514A because they failed to allege that he was terminated in retaliation for engaging in "protected activity" within the meaning of the statute. Accordingly, the court determined that dismissal pursuant to Rule 12(b)(6) was appropriate. We presume the parties' familiarity with the underlying facts, the procedural history, and the issues on appeal.
As noted, defendants below challenged the jurisdiction of the court over them and renew that challenge on appeal. While the district court did not directly address the issue, because "the first question for an appellate court ordinarily is that of its jurisdiction and the jurisdiction in the lower court," Monegasque de Reassurances S.A.M. v. Nak Naftogaz, 311 F.3d 488, 497 (2d Cir. 2002), we begin there.
Both here and below, defendants, without further explanation, assert that "Vodopia does not set forth a basis for this Court's personal jurisdiction over [any defendant]." Defs.' Br. at 27. However, the complaint specifically alleges that defendant Royal Philips Electronics ("RPE") "conducts business in the state of New York and . . . in the Southern District" and that defendant Philips Electronics of North America ("PENAC") is a "corporation duly licensed to conduct business in the state of New York." Moreover, the complaint can be read to allege that plaintiff's employment - which, of course, is the basis for this litigation - occurred in New York.
Under New York law, which governs our jurisdictional inquiry, see PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997), these allegations are sufficient to establish personal jurisdiction over both defendants. With respect to PENAC, the allegations in the complaint - which are neither questioned nor challenged by defendants - establish specific jurisdiction because they make clear that this suit "arise[s] from" PENAC's "transact[ion] of business within the state" - specifically, its employment of plaintiff. N.Y. C.P.L.R. § 302; Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007) ("A suit will be deemed to have arisen out of a party's activities in New York if there is an articulable nexus, or a substantial relationship, between the claim asserted and the actions that occurred in New York." (internal quotations, alternations omitted)).
With respect to RPE, the complaint's allegations - that RPE "conducts business in the state of New York and . . . in the Southern District" - coupled with the activities of its wholly owned subsidiary, PENAC, in the state, and its choice to be listed and traded on the New York Stock Exchange*fn2 are sufficient to establish general jurisdiction over it within the state because they make clear its "presence" within the state "not occasionally or casually, but with a fair measure of permanence and continuity." Landoil Resources Corp. v Alexander & Alexander Svcs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1992) (internal citations omitted) (collecting cases). While we acknowledge that the allegations are neither voluminous nor specific, we emphasize again that their accuracy is neither questioned nor challenged by defendants.*fn3
Accordingly, we conclude that the district court properly exercised jurisdiction over defendants and proceed to evaluate the sufficiency of ...