The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This case arises from a contract entered into by Ireneusz Skrodzki ("Szrodzki or "the Plaintiff") for the purchase of a crane for delivery to Poland from Mitchell Crane Service, Inc., Mitchell Companies, LLC, and Walt Marcello (collectively, "Mitchell Crane" or "the Defendants"). Based on the Defendants failure to deliver the crane to Poland, Szrodzki commenced the instant action asserting the following causes of action: (1) breach of contract; (2) unjust enrichment; (3) seller's breach; (4) deceit; and (5) promissory estoppel. Presently before the Court is a motion by the Defendants seeking to: (1) dismiss the complaint in its entirety for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(2); (2) dismiss certain causes of action for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6); or, in the alternative (3) stay the instant proceedings pending the outcome of a related action commenced by the Defendants in the Mississippi state court.
For the reasons set forth below, the Court grants the Defendants motion to dismiss the complaint for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) and therefore declines to address the remaining motions.
The plaintiff in this action, Ireneusz Skrodzki, resides in Lindenhurst, New York, and is associated with a construction company incorporated and operating in Poland. The defendants in this action, Mitchell Crane Service Inc., Mitchell Companies, LLC, and the president of Mitchell Crane Services Inc., Walt Marcello ("Marcello") are merchants who sell and lease cranes and other construction equipment. Marcello is a resident of Mississippi and both Mitchell Crane Service, Inc. and Mitchell Companies, LLC are Mississippi corporations with their offices and principal places of business in Mississippi.
In or about 2008, Skrodzki decided to purchase a crane to be used in a construction venture in Poland. Szrodzki learned through searching the internet that Mitchell Crane had for sale the type of crane he wished to purchase, a 1986 P&H S35 (the "Crane"). Szrodzki notes that at the time he was attempting to locate a crane, Mitchell Crane had a website, located at www.mitchellcrane.com (the "Mitchell Crane Website"). This website provided information about the types of cranes available, contact information for Mitchell Crane, and a link allowing a user to directly email defendant Marcello with inquiries. Szrodzki does not affirmatively state that he viewed this website or that the website in any way influenced his decision to purchase the Crane. Because it ultimately does not impact this analysis, for the purposes of this motion, the Court will assume that Szrodzki at least viewed the website during the course of his research.
After deciding that he wished to purchase the Crane, Skrodski then asked Monika Bolkun ("Bolkun"), a friend of his daughter, to assist him by acting as his translator and agent. In July 2008, Bolkun contacted Marcello through information obtained from the website www.cranenetwork.com (the "Cranenetwork Website"). A printout of the Cranenetwork Website and the initial correspondence between Bolkun and Marcello was attached as an exhibit to Szrodzki's opposition to the motion to dismiss. Based on the correspondence submitted by Szrodzki, it appears that Bolkun first called Marcello at the number listed on the Cranenetwork Website to discuss the Crane, and then followed up by sending an email to Marcello through Cranenetwork.com requesting additional information. By submitting an email through the Cranenetwork Website, the website transmitted the message and provided Marcello with Bolkun's email address and message. After the initial contact through the Cranenetwork Website, Bolkun and Marcello communicated directly through email and telephone.
During the course of their negotiations, the parties agreed that the Crane would require additional parts in order to be operational. Furthermore, after Szrodzki indicated that the Crane needed to be shipped to Poland, Marcello located a shipping company that could arrange for the shipment of the Crane to Poland for an additional $7,120. Thus, after negotiations, which were conducted through the exchange of emails and telephone calls, the parties agreed that Szrodzki would pay $96,500.00 in exchange for the Crane, additional crane parts, and delivery of those items to Poland. In the complaint, Szrodzki asserts that he transmitted these payments to Mitchell Crane via two separate wire transfers--$58,000 in March 2008 and $38,500 in August 2008. The Court notes that the March 2008 date appears to be a typographical error in that contact between the parties was not initiated until July 2008. (See Bolkun Decl., ¶4.)
Subsequent to the wire transfers, Mitchell Crane allegedly began the process of shipping the Crane to Poland. However, Mitchell Crane ran into problems in its attempt to ship the Crane. The complaint lacks specifics, other than to say that Szrodzki's agent attempted in good faith to assist Mitchell Crane in shipping the Crane but that ultimately, for unspecified reasons, the paperwork that Mitchell Crane provided the shipping company was insufficient to permit delivery of the Crane to Poland. As a result, Szrodzki requested a full refund of the $96,500 that he paid for the purchase and shipment of the Crane. However, Mitchell Crane only agreed to return, and did return, the shipping cost. To date, Mitchell Crane retains possession of the Crane and the purchase price.
On July 2, 2010, Mitchell Crane filed a lawsuit in Mississippi state court (the "Mississippi Action") against Uslugi Sprzetowe Skrodzki Ireneusz ("USSI") and Knightbridge Surety Brokerage LLC ("Knightbridge" and together with "USSI" the "Mississippi Defendants"). According to Mitchell Crane, USSI is the Polish corporation that Skrodzki owned and on behalf of whom he effectuated the purchase of the Crane. In addition, in the complaint in the Mississippi Action, Mitchell Crane alleges that Knightbridge was a conduit for the payments from USSI to Mitchell Crane. In the Mississippi Action, Mitchell Crane seeks: (1) a declaratory judgment and adjudication as to the proper owner of the Crane; (2) a declaratory judgment that the Mississippi Defendants are not entitled to any additional reimbursement; and (3) a declaratory judgment that the Mississippi Defendants are required to reimburse Mitchell Crane for the cost of the storing the Crane since September 2008; and (4) all reasonable attorneys fees and costs.
On November 9, 2010, Szrodzki filed this action against Mitchell Crane asserting causes of action, as stated above, for: (1) breach of contract; (2) unjust enrichment; (3) seller's breach; (4) deceit; and (5) promissory estoppel. Szrodzki claims that he is not required to accept ownership of the Crane and is entitled to a full refund of the purchase price because Mitchell Crane's failure to deliver the Crane to Poland rendered the entire transaction void.
On February 15, 2011, the Defendants filed the instant motion to dismiss. The primary basis for the Defendants' motion is that this Court lacks personal jurisdiction over the Defendants and therefore the complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(2). In the alternative, the Defendants seek partial dismissal of the complaint pursuant to Fed. R. Civ. P. 12(b)(6), asserting that the Plaintiff's fraud claim is not plead with the particularity required by Fed. R. Civ. P. 9(b), and that the Plaintiff's unjust enrichment, seller's breach, and promissory estoppels claims should be dismissed as duplicative of the breach of contract claim. To the extent the Court denies its motion to dismiss either all or part of the complaint, the Defendants also request that the Court stay the instant action pending the outcome of the Mississippi Action.
For the reasons set forth below, the Court finds it lacks personal jurisdiction over the Defendants. Therefore, the Court grants the Defendants' motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(2) and declines to address the Defendants' remaining arguments pertaining to the sufficiency of the Plaintiff's claims or the necessity of a stay.
A. Legal Standard for Determining Personal Jurisdiction in General Federal Rule of Civil Procedure 12(b)(2) permits a defendant to challenge a court's personal jurisdiction over it prior to the filing of an answer or the commencement of discovery. As this is a diversity case, "personal jurisdiction is determined by the law of the state in which the district court sits, which in this case is New York." DiStefano v. Carozzi North Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001). Accordingly, in analyzing a Fed. R. Civ. P. 12(b)(2) motion, courts in New York follow a two-step process. First, a court will determine whether personal jurisdiction lies pursuant to New York's long-arm statute, CPLR §§ 301 and 302(a). Nat'l Union Fire Ins. Co. of Pittsburgh, PA. v. BP Amoco P.L.C., 319 F. Supp. 2d 352, 357 (S.D.N.Y. 2004) (citing Omni Capital Int'l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 105, 108 S. Ct. 404, 98 L. Ed. 2d 415 (1987)). Second, a court must analyze whether personal jurisdiction comports with the basic requirements of due process. Id. Pursuant to the New York long-arm statute, there are two ways that a New York court can exercise personal jurisdiction over a non-resident defendant: general jurisdiction pursuant to N.Y. CPLR § 301 ("section 301") or specific jurisdiction pursuant to N.Y. CPLR § 302 ("section 302").
A plaintiff bears the burden of demonstrating personal jurisdiction over the persons or entities against whom he seeks to bring suit. Penguin Grp. (USA), Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010); Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001). In deciding a motion to dismiss for lack of personal jurisdiction, the Court may rely upon materials that are outside the pleadings, including any affidavits submitted by the parties. DiStefano, 286 F.3d at 84. However, where, as here, the Court "relies on the pleadings and affidavits, and chooses not to conduct a 'full-blown evidentiary hearing,' plaintiffs need only make a prima facie showing of personal jurisdiction over the defendant." Penguin, 609 F.3d at 34--35; Porina v. Marward Shipping Co., Ltd., 521 F.3d 122, 126 (2d Cir. 2008). "Such a showing entails making legally sufficient allegations of jurisdiction, including an averment of facts that, if credited, would suffice to establish jurisdiction over the defendant." Penguin, 609 F.3d at 35 (internal quotations marks and alterations omitted).
B. Whether the Court has General Jurisdiction over the Defendants Pursuant to CPLR § 301 CPLR § 301 provides for jurisdiction over a defendant that is "engaged in such a continuous and systematic course of 'doing business' in New York as to warrant a finding of its 'presence' in the state." Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir. 1998) (internal quotation marks and citation omitted). "[A] corporation is 'doing business' and is therefore 'present' in New York and subject to personal jurisdiction with respect to any cause of action, related or unrelated to the New York contacts, if it does business in New York not occasionally or casually, but with a fair measure of permanence and continuity." Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir. 2000) (internal citation and quotation marks omitted). In determining whether a defendant is subject to general jurisdiction, New York courts look to a number of factors including: (1) "the existence of an office in New York"; (2) "the solicitation of business in the state"; (3) "the presence of bank accounts and other property in the state"; and (4) "the presence of employees of the foreign defendant in the state." Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir. 1985).
The Defendants assert that they do not maintain an office in New York, do not conduct solicitations of business targeting New York consumers, do not maintain any bank accounts or other property in New York, and do not have any employees or agents in New York, or have an on-going contractual relationship with a New York corporation. (Marcello Aff. ¶¶ 6, 9.) The Plaintiff does not allege facts to the contrary in the complaint, nor does the Plaintiff contend that jurisdictional discovery or an evidentiary hearing would establish that the Defendants are subject to general jurisdiction in New York. Accordingly, the Court finds that the Defendants are not subject to general jurisdiction in New York.
C. Whether the Court Has Specific Jurisdiction Pursuant to CPLR § 302 Section 302 of New York's long-arm statute provides that:
(a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, 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, except as to a cause of action for defamation of character arising from the act; or
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, 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 consequences in the state and derives substantial revenue from interstate or international commerce; or
4. owns, uses or possesses any real property situated ...