The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Plaintiff Energy Brands Inc., doing business as Glaceau, commenced an action against defendants Jorgensen Farms, Inc. ("Jorgensen Farms"), Dexter Jorgensen ("Dexter"), Noreen Jorgensen ("Noreen"), Warren Jorgensen ("Warren"), and Ben Baldwin, all sued individually and doing business as Jorgensen Farms and Food Waste Recycling Systems (collectively the "Jorgensen defendants"). Plaintiff also sued Avers Merchandising Group, Inc. and Timothy Avers (the "Avers defendants"), and Hoffmans Trade Group, LLC and Gael Coakley (the "Hoffmans defendants"). Plaintiff, who is in the business of manufacturing and selling beverage products including vitaminwater, asserts claims for breach of contract, fraud, violations of the Lanham Act and violations of New York's General Business Law. Plaintiff's claims arise as a result of a contract it made with Dexter, as principal for Jorgensen Farms, to remove and destroy vitaminwater product that had been designated as "off-spec" and no longer appropriate for sale and consumption (i.e. expired). Plaintiff asserts that instead of destroying the expired product as agreed to in the contract, the Jorgensen defendants conspired with the Avers defendants and the Hoffmans defendants to resell the expired product to various retail stores in New York. Plaintiff commenced this action after discovering that the expired product was being resold in retail stores throughout New York and elsewhere.
The Jorgensen defendants move to dismiss the complaint for lack of personal jurisdiction and, alternatively, to transfer venue. Additionally, defendants Noreen and Warren Jorgensen and Ben Baldwin move to dismiss various causes for failure to state a claim and all of the Jorgensen defendants move to dismiss cross-claims brought by the Avers defendants and Hoffmans defendants.
Plaintiff opposes the motions to dismiss and/or transfer venue. The Avers and Hoffmans defendants also oppose the motions to dismiss the pending cross-claims.
For the reasons stated, Count VII of plaintiff's complaint is dismissed for failure to state a claim, and the Avers and Hoffmans defendants' cross-claims are dismissed without prejudice. However, the remaining motions to dismiss or transfer venue are denied in all respects.
I. Motions to Dismiss for Lack of Personal Jurisdiction under Rule 12(b)(2)
The Jorgensen defendants move to dismiss plaintiff's complaint on the ground that this Court lacks personal jurisdiction over them. Personal jurisdiction over a defendant is determined by the law of the forum state in which the district court sits. See Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir. 1984). 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 making a prima facie showing that jurisdiction exists. Id. In evaluating a motion to dismiss pursuant to 12(b)(2), the Court may properly rely on pleadings and affidavits, or it may conduct a "full blown evidentiary hearing" on the issue. See DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001) (citing Marine Midland Bank, N.A. v. Miller, 664 F.2d 889 (2d Cir. 1981)). If the Court chooses not to conduct a full-blown evidentiary hearing, plaintiff need only make a prima facie showing of jurisdiction through its own affidavits and supporting materials. Id. Eventually, the plaintiff must establish jurisdiction by a preponderance of the evidence, either at a pretrial evidentiary hearing or at trial. But until such a hearing is held, a prima facie showing suffices. Id. In the absence of an evidentiary hearing on the jurisdictional allegations, all pleadings and affidavits are construed in the light most favorable to plaintiff, and where doubts exist, they are resolved in the plaintiff's favor. CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364-65 (2d Cir. 1986).
The jurisdictional analysis is a two-step inquiry. First, this Court must determine whether the plaintiff has shown that the defendants are amenable to service of process under New York law. Second, the Court must assess whether the assertion of jurisdiction comports with the requirements of constitutional due process. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996).
With regard to the first requirement, plaintiff asserts the Jorgensen defendants are subject to jurisdiction under CPLR § 301 because they are "doing business" in New York. Alternatively, plaintiff argues that the Jorgensen defendants are subject to New York's long-arm jurisdiction, CPLR § 302(a). Because plaintiff has made a prima facie showing that all of the Jorgensen defendants are subject to New York's long-arm jurisdiction, the Court finds it unnecessary to address whether they are also "doing business" in New York within the meaning of CPLR § 301.
New York's long-arm statute provides:
(a) [A] court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator, who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
2. commits a tortious act within the state . . . ; or
3. commits a tortious act without the state causing injury to person or property within the state . . . . if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have ...