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Kirk Muente v. M1 Support Services

August 30, 2012

KIRK MUENTE, PLAINTIFF,
v.
M1 SUPPORT SERVICES, L.P., ET AL., DEFENDANTS.



OPINION

Plaintiff Kirk Muente brings this action against defendant M1 Support Services, L.P. ("M1 Support Services") and three additional defendants, Rio Vista-Cadence Joint Venture, Rio Vista Management, LLC, and Cadence Contract Services, LLC (collectively, "Rio Vista and Cadence"), for negligence and violation of New York law as a result of injuries suffered by plaintiff when he fell down an elevator shaft. Following the filing of an amended complaint, Rio Vista and Cadence served an answer asserting cross-claims against M1 Support Services for common law indemnification and contribution.

M1 Support Services now moves to dismiss the amended complaint and the cross-claims under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction. Plaintiff requests that the court deny the motion or, in the alternative, grant jurisdictional discovery.

Defendant's motion is granted. Plaintiff's request for jurisdictional discovery is denied.

The complaint makes the following allegations about the accident: Plaintiff is a New York City firefighter and a member of the New York National Guard. On March 16, 2012, plaintiff was participating in a firefighting training exercise at Louis F. Garland Fire Academy located on Goodfellow Air Force base in Denton, Texas. Plaintiff alleges that during the exercise he was injured when he fell down an elevator shaft. He alleges that he fell because of the defendants' failure to properly secure a door that would have prevented access to the elevator shaft, failure to inspect the area, and failure to supervise plaintiff during the training exercise. Plaintiff alleges that Ml Support Services was responsible for operating, maintaining, and otherwise controlling all aspects of the training exercise.

Jurisdictional Submissions

Plaintiff's complaint alleges that M1 Support Services "has transacted business and contracted with New York business organizations to perform services and provide products both within the State of New York and outside the State of New York on a national basis in all fifty (50) states and internationally in foreign countries and territories." Plaintiff further alleges that in order to "develop this relationship with New York business associations, numerous trips into New York have been made on a regular basis" and that defendant "routinely solicits business in New York, by in person visit, mail, telephone, e-mail and other methods." More specifically, plaintiff alleges that defendant has entered into a multi-state contract with the U.S. military that requires defendant to perform services "at government locations worldwide," including in New York. Plaintiff alleges that the contract requires defendant to perform services wherever they are needed, including in New York. Based on this fact, plaintiff alleges that defendant has availed itself of the benefits and protections of New York law. Plaintiff alleges that defendant's involvement in the training exercise in which plaintiff was injured arose out of this multi-state contract.

Plaintiff asserts that the court has personal jurisdiction over M1 Support Services under New York C.P.L.R. § 302(a)(1), which states that a court may exercise personal jurisdiction over any nondomiciliary . . . 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;

Under this section, "a defendant is subject to personal jurisdiction if he or she has transacted business within New York, and the plaintiff's cause of action arises from that transaction." Scottevest, Inc. v. AyeGear Glasgow Ltd., 2012 WL 1372166, at *2 (S.D.N.Y. 2012) (citing CutCo Indus. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986)).

Defendant responds with an affidavit of William J. Shelt, an executive with M1 Support Services. Shelt avers, regarding M1 Support Services, that:  it does not do business in New York;  it is not licensed to do business in New York;  it has made no sales in New York since the company began operations in 2003;  it does not have an office in New York;

 it has no employees who work in or who conduct business in New York;  it has no agent in New York for any purpose;  it does not advertise or market in New York;  it does not own or lease property in New York;  it does not target customers in New York;  it does not derive revenue from business activities in New York;  it does not designate an agent for service of process in New York;  it does not maintain any bank account in New York;  it does not supply goods or services in New York;  it has made no contract in New York to supply goods or services since the company began operations in 2003;  it does not have any parent, subsidiary, or affiliated company or business entity with offices or agents in New York.

In response, plaintiff submitted an affidavit of Thomas A. Boyle, Jr., an associate in the offices of plaintiff's attorney. Essentially, Boyle does not contradict the assertions in the Shelt affidavit. Boyle, however, relies on the assertion that M1 Support Services has a contract with the U.S. Government to provide services at locations arranged with the Government. There is no specific allegation that any work under this contract has actually been done within New York. This matter is discussed further in a subsequent affidavit of Shelt, which will be discussed later in this opinion.

Plaintiff also alleges that defendant entered into a contract with a New York business association, L-3 Communications. Plaintiff alleges that this contract demonstrates that defendant's statement that it "has not entered into any contract with any New York business association to provide goods in New York or elsewhere" is patently false. Plaintiff also states that the falsity of that statement should be considered adversely when judging the accuracy of defendant's remaining assertions.

Plaintiff alleges that under the L-3 Communications contract, defendant agrees to support L-3 Communications in a $440 million contract with the U.S. Army. However, plaintiff provided a press release detailing information on this agreement, and the press release indicates that the party to the contract was the Systems Field Support division of L-3 Communications ...


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