UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 5, 2013
JOHN DOE, ET AL., PLAINTIFFS,
DELAWARE STATE POLICE, AND SEAFORD POLICE DEPARTMENT, DEFENDANTS.
The opinion of the court was delivered by: Kenneth M. Karas, District Judge:
OPINION AND ORDER
Plaintiffs John Doe, Jane Doe, and Jack Doe ("Plaintiffs"), residents of New York, bring this action against Defendants Delaware State Police ("DSP") and Seaford Police Department ("Seaford PD") (collectively "Defendants") asserting common law claims of "negligence per se," "gross and wanton negligence," and "loss of reputation, companionship and services."
(Verified Complaint ("Compl.") ¶¶ 60, 63, 67, 71.) The Complaint in this case and all other submissions were sealed pursuant to an order of Judge Cathy Seibel dated April 7, 2010, granting Doe leave to file the Complaint and all subsequent pleadings and documents under seal. Later, by Order dated March 13, 2013, the Court ordered the case be unsealed; however, Plaintiffs' names and a few other details that may lead to their identification have been redacted from the version of this Opinion originally filed under seal.
Defendants have moved to dismiss. The motions are granted in large part, though, as explained below, Plaintiffs have the option of accepting a transfer to the District of Delaware in lieu of the dismissal of the Seaford PD.
The Complaint alleges the following facts, accepted as true for the purpose of deciding these motions. In August 2000, John Doe, then age sixteen, pled guilty in Delaware to a charge of unlawful sexual contact in the third degree after being accused of inappropriately touching a seventeen-year-old girl. (Compl. ¶¶ 13-14.) Doe was thereafter required to register as a sex offender in his then--home state of Delaware. (Id. ¶¶ 15-16.) In his registration, Doe listed various addresses and a phone number at which he could be found, including two addresses in the City of Seaford, Delaware ("Seaford"). (Id. ¶ 17.) Doe's Delaware conviction was expunged by order of the Family Court of Delaware on December 10, 2009. (Id. ¶ 46; Ex. 3.)
In September 2008, before expungement of the conviction, an officer of the DSP made a random check for Doe's whereabouts. The officer, for an unknown reason, went to an apartment in Seaford that was not listed on Doe's sex offender registration and at which Doe alleges he had never lived. (Id. ¶¶ 19-20, 26.) Finding the apartment vacant, the officer informed the Seaford PD, which obtained an Adult Complaint and Warrant (the "Delaware warrant") against Doe from the Delaware Justice of the Peace Court on October 1, 2008. (Id. ¶¶ 21, 24-25; Ex. 1.) The Delaware warrant authorized Doe's arrest for failing to re-register as a sex offender after a change of address. (Id. Ex. 1, at 3.) Doe alleges that neither the DSP nor Seaford PD attempted to contact him at the phone number or any of the Delaware addresses he had listed on his sex offender registration, even though this information was available to Defendants. (Id. ¶¶ 27-32.)
Doe later moved from Delaware to New York and married Plaintiff Jane Doe. (Id. ¶¶ 35-36.) On September 15, 2009, John Doe was pulled over for a traffic violation in New Castle, New York; the Delaware warrant was discovered during the ensuing background check, and Doe was arrested and detained in Westchester County. (Id. ¶¶ 37-38.) Delaware did not seek Doe's extradition and he was released on September 21, 2009. (Id. ¶ 41.) News of Doe's arrest reached a local news outlet. (Id. ¶¶ 43-44; Ex. 2.) Doe alleges that viewers of the outlet's website posted "vicious" comments about the story, and that the publicity surrounding his arrest led him and his family to suffer harassment by their neighbors, forcing the family to move. (Id. ¶¶ 44-45.)
Plaintiffs filed the Complaint in this case, asserting two negligence claims against Defendants, both based on the allegations that Defendants searched for Doe at the wrong address, failed to confirm his whereabouts at the correct addresses, and caused the Delaware warrant to be issued based on false information. (Id. ¶¶ 56, 63.) Plaintiffs allege that these acts constituted "wanton and gross negligence, carelessness and recklessness," (id. ¶ 63), and were also negligent per se because they were allegedly done "in violation of" unspecified "local and State laws, police procedures, rules and ordinances," (id. ¶ 57.) The Complaint also contains two claims for "loss of reputation, companionship and services," asserted by Plaintiffs Jane and Jack Doe, the couple's minor son, respectively. (Id. ¶¶ 67-72.) Plaintiffs seek $35,000,000 in compensatory, "exemplary," and punitive damages on the negligence claims, and $150,000 each on the "loss of reputation" claims. (Id. ¶ 72.)
DSP seeks dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (3). In its motion, DSP contends that (1) the Court lacks subject matter jurisdiction over the claims against it because DSP is protected by Delaware's state sovereign immunity; (2) venue is improper in this District; and (3) DSP is not subject to this Court's personal jurisdiction. (Def. Del. State Police's Mem. of Law in Supp. of its Mot. to Dismiss ("DSP's Mem.") 2, 5-7, 9-11; Def. Del. State Police's Reply Mem. of Law in Supp. of its Mot. to Dismiss ("DSP's Reply") 4-6.) Seaford PD joins DSP's arguments regarding venue and personal jurisdiction, and in addition contends that the case should be transferred to Delaware pursuant to 28 U.S.C. § 1404(a), and that it has immunity from Plaintiffs' claims under Delaware law. (Def. Seaford Police Dep't's Mem. of L. in Supp. of its Mot. to Dismiss ("Seaford Mem.") unnumbered 8-11.) Plaintiffs oppose the motions and seek an order from the Court "[g]rant[ing] Summary Judgment 'Sua Sponte' in the Plaintiffs' favor." (Mem. of Law in Supp. of Pls.' Ans. to Defs.' Mot. to Dismiss & Request to Change Venue ("Pls.' Mem.") 23.)
A. Standard of Review "[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction)." Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007) (citing Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 93-102 (1998)). Although a court is free to "choose among threshold grounds" for dismissing an action so long as none involve "a judgment on the merits," id. at 431 (internal quotation marks omitted), "the proper course" is to dismiss an action for lack of jurisdiction if the "court can readily determine that it lacks jurisdiction over the cause or the defendant," id. at 436; see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588 (1999) (holding that "[w]here . . . a district court has before it a straightforward personal jurisdiction issue . . . and [an] alleged defect in subject-matter jurisdiction rais[ing] a difficult and novel question," the court has discretion to "turn directly to personal jurisdiction"). Under the circumstances of this case, the Court will address DSP's objections to subject matter jurisdiction and then address personal jurisdiction. Consideration of these two issues alone is sufficient to decide Defendants' motions.
If a court lacks subject matter jurisdiction over a claim, the claim must be dismissed as the court "lacks the statutory or constitutional power to adjudicate it." Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009) (per curiam) (internal quotation marks omitted); see also Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008) ("If a court perceives at any stage of the proceedings that it lacks subject matter jurisdiction, then it must take proper notice of the defect by dismissing the action."). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). In deciding a motion to dismiss pursuant to Rule 12(b)(1), the Court "take[s] all facts alleged in the complaint as true and draw[s] all reasonable inferences in favor of [the] plaintiff." NRDC v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (internal quotation marks omitted). However, "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted), aff'd, 130 S. Ct. 2869 (2010). "In resolving a motion . . . under Rule 12(b)(1) a district court may consider evidence outside the pleadings," id., but it "may not rely on conclusory or hearsay statements contained in" such evidence, J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).
The plaintiff bears the burden of establishing the court's personal jurisdiction over a particular defendant. See Penguin Group (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010). On a Rule 12(b)(2) motion, the plaintiff carries this burden by making a prima facie showing that jurisdiction exists. Id. at 34-35; see also S. New England Tel. Co. v. Global Naps Inc., 624 F.3d 123, 138 (2d Cir. 2010) ("SNET"). "This showing may be made through the plaintiff's own affidavits and supporting materials, containing an averment of facts that, if credited, would suffice to establish jurisdiction over the defendant." SNET, 624 F.3d at 138 (internal quotation marks omitted). The court "construe[s] the pleadings and affidavits in the light most favorable to plaintiffs, resolving all doubts in their favor," Porina v. Marward Shipping Co., 521 F.3d 122, 126 (2d Cir. 2008), but the court is "not bound to accept as true a legal conclusion couched as a factual allegation," and a plaintiff may not rely on "conclusory non-fact-specific jurisdictional allegations" to overcome a motion to dismiss, Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998) (internal quotation marks omitted).
1. Claims Against Defendant Delaware State Police The Eleventh Amendment to the U.S. Constitution provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. Amend. XI. "Although the Amendment, by its terms, bars only federal suits against state governments by citizens of another state or foreign county, it has been interpreted also to bar federal suits against state governments by a state's own citizens." Woods v. Rondout Valley Cent. Sch. Dist., 466 F.3d 232, 236 (2d Cir. 2006) (citing Hans v. Louisiana, 134 U.S. 1, 15 (1890)). The Eleventh Amendment applies unless a state affirmatively waives its immunity, see Lapides v. Bd. of Regents of Univ. of Ga., 535 U.S. 613, 618 (2002); Coll. Sav. Bank v. Fla. Prepaid Secondary Educ. Expense Bd., 527 U.S. 666, 675-76 (1999), or if Congress, through a statute passed as a valid exercise of its power under Section Five of the Fourteenth Amendment, makes "unmistakably clear" in the statute's text its intent to abrogate the states' immunity, Nev. Dep't of Human Resources v. Hibbs, 538 U.S. 721, 726 (2003). A claim that is barred by a state's sovereign immunity must be dismissed pursuant to the Eleventh Amendment for lack of subject matter jurisdiction. See Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1637 (2011) (noting that "the Eleventh Amendment . . . confirm[s] the structural understanding that States entered the Union with their sovereign immunity intact, unlimited by Article III's jurisdictional grant"); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) ("For over a century [the Supreme Court has] reaffirmed that federal jurisdiction over suits against unconsenting State 'was not contemplated by the Constitution when establishing the judicial power of the United States.'" (quoting Hans, 134 U.S. at 15)).
Eleventh Amendment immunity extends not only to a State when sued as a defendant in its own name, but also to "state agents and state instrumentalities" when "the state is the real, substantial party in interest." Regents of the Univ. Of Cal. v. Doe, 519 U.S. 425, 429 (1997) (internal quotation marks omitted). The DSP is clearly an agency of the state of Delaware, and Plaintiffs do not argue otherwise. (Pls.' Mem. 8.) See Del. Code Ann. tit. 11, § 8301 (2009) (providing that the Delaware "Department of Safety and Homeland Security . . . may appoint police officers whose primary duty shall be to compel the enforcement of all laws relating to . . . vehicles on the public highways of the State [to be known as the] State Police"); Buchanan v. Gay, 491 F. Supp. 2d 483, 493 (D. Del. 2007) (describing DSP as among "Delaware's branches of government and its State agencies"); Neeley v. Samis, 183 F. Supp. 2d 672, 673 (D. Del. 2002) (describing DSP as "a governmental agency of the State of Delaware"); Pauley v. Reinoehl, 848 A.2d 569, 573 (Del. 2004) (en banc) (holding that the DSP may invoke the State's sovereign immunity); see also Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (listing factors to consider in determining whether entity is "arm of the state" for Eleventh Amendment purposes). For this reason, Delaware courts have uniformly held that the DSP is generally immune from suit under the Eleventh Amendment. See Buchanan, 491 F. Supp. 2d at 493 (dismissing § 1983 and other federal statutory claims against DSP on Eleventh Amendment grounds); see also Yarnall v. Mendez, 509 F. Supp. 2d 421, 429 (D. Del. 2007) (dismissing excessive force claim against DSP on Eleventh Amendment grounds); Neeley, 183 F. Supp. 2d at 678 (same); McDowell v. Del. State Police, No. 95-CV-129, 1999 WL 151873, at *5 (D. Del. Mar. 15, 1999) (dismissing negligence claim against DSP and officers in official capacity on Eleventh Amendment grounds).
There is no question of congressional abrogation here, as Plaintiff's claims are based on Delaware common law. Plaintiffs contend, however, that the Delaware State Tort Claims Act, Del. Code Ann. tit. 10, § 4001 et seq. ("State Tort Claims Act" or "§ 4001"), constitutes a waiver of the state's sovereign immunity for tort claims involving gross negligence. (Pls.' Mem. 9-12.) The relevant portion of this statute provides:
Except as otherwise provided by the Constitutions or laws of the United States or of the State, as the same may expressly require or be interpreted as requiring by a court of competent jurisdiction, no claim or cause of action shall arise, and no judgment, damages, penalties, costs or other money entitlement shall be awarded or assessed against the State or any public officer or employee, including the members of any board, commission, conservation district or agency of the State, whether elected or appointed, and whether now or previously serving as such, in any civil suit or proceeding at law or in equity, or before any administrative tribunal, where the following elements are present:
(1) The act or omission complained of arose out of and in connection with the performance of an official duty requiring a determination of policy, the interpretation or enforcement of statutes, rules or regulations, the granting or withholding of publicly created or regulated entitlement or privilege or any other official duty involving the exercise of discretion on the part of the public officer, employee or member, or anyone over whom the public officer, employee or member shall have supervisory authority;
(2) The act or omission complained of was done in good faith and in the belief that the public interest would best be served thereby; and
(3) The act or omission complained of was done without gross or wanton negligence . . . .
Del. Code Ann. tit. 10, §4001.
A state may waive its sovereign immunity only voluntarily, and the "test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one." Fla. Prepaid, 527 U.S. at 675 (internal quotation marks omitted). A court may only conclude that a State has waived its immunity by way of a state statute when the statute contains "the most express language or . . . such overwhelming implications from the text as will leave no room for any other reasonable construction." Edelman v. Jordan, 415 U.S. 651, 673 (1974) (alteration and internal quotation marks omitted); see also Doe v. Pataki, 481 F.3d 69, 78 (2d Cir. 2007) ("[T]he Supreme Court has frequently instructed that a state will not be deemed to have waived its sovereign immunity unless the waiver is express and unequivocal." (internal quotation marks omitted)).*fn2
Delaware's courts (including in the case relied upon by Plaintiffs themselves) have consistently rejected Plaintiffs' reading of the State Tort Claims Act as constituting an express waiver of the state's sovereign immunity in situations in which the three criteria listed in § 4001 are not present. For example, the Delaware Supreme Court has held, "the [Delaware] legislature did not intend by enacting [§ 4001] to waive sovereign immunity in all cases where a ministerial act was performed with gross or wanton negligence or in bad faith." Doe, 499 A.2d at 1180. Instead, "§ 4001 must be applied to limit the State's liability where it has, by some means independent of [§ 4001], waived immunity." Id. at 1181 (emphasis added); see also Space Age Prods., Inc. v. Gilliam, 488 F. Supp. 775, 780 (D. Del. 1980) (holding that § 4001's purpose was merely to codify existing law of official immunity and that the statute is not a "clear declaration" waiving Delaware's sovereign immunity); Pauley, 848 A.2d at 573 (noting that "[a]ctions against the State" are limited both by Delaware's sovereign immunity and the State Tort Claims Act independently); id. at 575-76 (reaffirming Doe's holding that the State Tort Claims Act did not waive the State's sovereign immunity in all cases involving gross negligence, and holding that remand to allow gross negligence claims to be brought would be futile because such claims would be barred by the State's sovereign immunity); Murphy v. Corr. Med. Servs., Inc., No. Civ.A. 03-C-04-271-PL, 2005 WL 2155226, at *3 (Del. Super. Ct. Aug. 19, 2005) ("[B]oth the Delaware Supreme Court and the federal courts have held that the State Tort Claims [A]ct does not by itself waive sovereign immunity for state agencies whenever its three-part test is not met. Instead, there must be statutory evidence that the State intended to waive its sovereign immunity for a particular agency." (footnote omitted)).
Here, Plaintiffs have not identified any other statute by which Delaware has expressly waived sovereign immunity in circumstances that apply to this case. Therefore, Delaware's sovereign immunity bars Plaintiffs' claims against DSP, and those claims must be dismissed pursuant to Rule 12(b)(1).
2. Claims Against Defendant Seaford Police Department There are three requirements for a district court exercise personal jurisdiction over a defendant. "First, the plaintiff's service of process upon the defendant must have been procedurally proper." Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012). "Second there must be a statutory basis for personal jurisdiction that renders such service of process effective." Id. "Third the exercise of personal jurisdiction must comport with constitutional due process principles." Id. at 60. The statutory grounds for personal jurisdiction are "enumerated in Federal Rule of Civil Procedure 4(k)." Id. at 59. Here, the only basis for jurisdiction under this provision is Rule (4)(k)(1)(A), which provides for jurisdiction over a defendant "who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located." Fed. R. Civ. P. 4(k)(1)(A).
Seaford PD challenges this Court's personal jurisdiction, contending that it is not covered by any of the provisions of New York's long-arm statute and that the exercise of jurisdiction over it would violate due process. (Seaford Mem. at unnumbered 3-7.)*fn3 Analysis of personal jurisdiction over a non-domiciliary in New York proceeds in two steps. First, in a diversity case, the court determines whether jurisdiction is proper under the New York long-arm statute. Second, if the long-arm statute permits jurisdiction, the court evaluates whether its exercise would comport with the Due Process Clause of the Fifth Amendment. See Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163-64 (2d Cir. 2010); Am. Buddha, 609 F.3d at 35; Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997).
Under New York law, a court "may exercise personal jurisdiction over a non-resident defendant based either on general jurisdiction under [New York's Civil Practice Law and Rules ("CPLR")] § 301, or specific jurisdiction, under CPLR § 302." Overseas Ventures, LLC v. ROW Mgmt., Ltd., No. 12-CV-1033, 2012 WL 5363782, at *8 (S.D.N.Y. Oct. 26, 2012). "Under CPLR § 301 general jurisdiction, which arises out of a defendant's contacts with the forum even if the contacts are unrelated to the action before the Court, is established over a foreign [defendant] engaging in a 'continuous and systematic course of doing business in New York.'" TAGC Mgmt., LLC v. Lehman, 842 F. Supp. 2d 575, 581 (S.D.N.Y. 2012). Here, however, Plaintiffs have not asserted general jurisdiction over Defendants on this basis. Instead, Plaintiffs claim that this Court may assert specific personal jurisdiction under CPLR § 302.
Section 302(a) provides in relevant part:
[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 within the state. N.Y. C.P.L.R. § 302(a).
Plaintiffs specifically rely on §§ 302(a)(3)(i) and (ii).*fn4
(Pls.' Mem. 14-16.) For either subsection to apply, (1) a
defendant must have committed a tortious act outside New York, (2) the
cause of action must arise from that tortious act, and (3) the act
must have caused injury to a person or property within New York. See
LaMarca v. Pak-Mor Mfg. Co., 735 N.E.2d 883, 886 (N.Y. 2000). Under
subsection 302(a)(3)(i), the plaintiff must further demonstrate one of
"four alternative forms of ongoing New York activity by [the]
defendant," Croskey v. Med. & Tech. Servs., Inc., No. 05-CV-6641, 2006
WL 2347816, at *4 (S.D.N.Y. Aug. 10, 2006) - regularly doing business
in New York, regularly soliciting business in New York, engaging in a
"persistent course of conduct" in New York, or deriving "substantial
revenue from goods used or consumed or services rendered" in New York.
N.Y. C.P.L.R. § 302(a)(3)(i); see also Magwitch, LLC v. Pusser's Inc.,
923 N.Y.S.2d 455, 457 (App. Div. 2011) (outlining requirements for
long-arm jurisdiction under Section 302(a)(3)). Under subsection
302(a)(3)(ii), the plaintiff must demonstrate that the defendant
"expected or should reasonably have expected the [tortious] act to
have consequences in [New York]," and that defendant "derived
substantial revenue from interstate or international commerce."
Pak-Mor, 735 N.E.2d at 886; see also Am. Buddha, 609
F.3d at 35 (same); Magwitch, 923 N.Y.S.2d at 457 (same).
Plaintiffs argue that jurisdiction is proper under § 302(a)(3) because Seaford PD committed a tortious act in Delaware (negligence in searching for Doe at the wrong address and failing to confirm his whereabouts using information it had in its possession, resulting in the Delaware warrant's being wrongly issued (Compl. ¶¶ 56, 63)), which caused injury in New York (Doe's eventual arrest and the ensuing publicity). Plaintiffs contend the requirements of subsection (i) are met because Seaford PD "regularly engage[s] in [a] persistent course of conduct in New York" consisting of the "issuance of warrants, execution of warrants, extradition, appearances in court and the purchase of goods and services from New York manufacturers." (Pls.' Mem. 15.) Plaintiffs further argue that jurisdiction is proper under subsection (ii) because Seaford PD should have expected the issuance of the Delaware warrant to have consequences in New York, as it was allegedly entered into national computer databases. Seaford PD also allegedly "derive[s] substantial income from interstate commerce in the form of traffic tickets, fines, bail, licenses, donations and permits." (Id.). a. C.P.L.R. § 302(a)(3): "[I]njury . . . within the state"
The first difficulty Plaintiffs encounter is that § 302(a)(3) requires the alleged tortious act to have caused "injury to person or property within the state." It is well established that this requirement is not satisfied simply because the injured plaintiff is a New York resident or domiciliary. See, e.g., Foot Locker Retail, Inc. v. SBH, Inc., No. 03-CV-5050, 2005 WL 91306, at *4 (S.D.N.Y. Jan. 18, 2005); Fantis Foods, Inc. v. Std. Importing Co., 402 N.E.2d 122, 126 (N.Y. 1980). Rather, jurisdiction "must be based upon a more direct injury within the State . . . than the indirect financial loss resulting from the fact that the injured person resides or is domiciled there." Fantis Foods, 402 N.E.2d at 126.
The Second Circuit has interpreted the injury requirement in § 302(a)(3) to mean that the "original event which caused the injury" must have taken place in New York. Am. Buddha, 609 F.3d at 39 (quoting DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001) (per curiam)); see also Magwitch, 923 N.Y.S.2d at 458 ("The determination of whether a tortious act committed outside New York causes injury inside the state is governed by the 'situs-of-injury' test, requiring determination of the location of the original event that caused the injury.") "This original event is . . . generally distinguished not only from the initial tort but from the final economic injury and the felt consequences of the tort." Id. at 39-40 (internal quotation marks omitted). "The original event occurs where the first effect of the tort that ultimately produced the final economic injury is located." Id. (alteration and internal quotation marks omitted). "The fact that the consequences of . . . alleged [tortious] acts may have continued in New York does not make New York the site of the [acts]," if their first effect takes place elsewhere. Wilson v. Danka Corp., No. 01-CV-10592, 2002 WL 31929120, at *3 (S.D.N.Y. Jan. 28, 2003).
The key question in this analysis is the timing and location of the initial injury, as distinct both from the tortious act itself and from damages suffered later due to derivative effects of the initial injury. See Am. Buddha, 609 F.3d at 39-40. Thus, in negligence cases involving personal injuries or property damage where the alleged negligent acts took place out of state, if the injury takes place entirely within New York, the in-state injury requirement under § 302(a)(3) is satisfied. See Vincent C. Alexander, N.Y. C.P.L.R. Practice Commentaries, C302:11 (2010) (positing example of tool defectively manufactured in another state and shipped to New York, where it caused injuries). On the other hand, where the out-of-state negligent acts and resulting initial injury take place near simultaneously, the "first effect" of the tort will be the location of the alleged accident. See, e.g., Maldonado v. Rogers, 99 F. Supp. 2d 235, 238-39 (N.D.N.Y. 2000) (collecting cases holding that automobile accidents out of state involving New York plaintiffs do not involve injuries "within" New York for purposes of § 302(a)(3)). Significantly, this is so even if the plaintiff continues to suffer damage from his or her injuries, or suffers subsequent additional injuries caused by the same acts, in New York afterwards. See, e.g., Harris v. Ware, No. 04-CV-1120, 2005 WL 503935, at *2-3 (E.D.N.Y. Mar. 4, 2005) (injury arising from auto accident in Delaware took place in Delaware, not New York, even though plaintiffs were New York residents and sought medical treatment after the accident in New York); Hartford Fire Ins. Co. v. M/V "MSC INSA," No. 03-CV-2196, 2003 WL 22990090, at *2-3 (S.D.N.Y. Dec. 18, 2003) (injury arising from alleged negligent storage of cargo aboard ship, resulting in seawater damage while at sea, did not take place in New York, as first effect of negligence was damage to cargo rather than subsequent economic injury to owner); Hermann v. Sharon Hosp., Inc., 522 N.Y.S.2d 581, 582-83 (App. Div. 1987) (injury occurred in Connecticut hospital where malpractice took place); Kramer v. Hotel Los Monteros S. A., 394 N.Y.S.2d 415, 416 (App. Div. 1977) (dog bite occurring in Spain but the most severe medical effect of which developed only after plaintiff returned to New York was not an injury within New York for § 302(a)(3) purposes).
Faherty v. Fender, 572 F. Supp. 142 (S.D.N.Y. 1983), provides a useful example. There, the plaintiffs, New York residents, brought suit against a Texas defendant who had previously obtained a default judgment against plaintiffs in Texas in an earlier lawsuit, allegedly by fraud. 572 F. Supp. at 143-44. The plaintiffs alleged that they suffered injuries in New York in that the threat of the default's enforcement existed in New York, where plaintiffs lived, the judgment harmed plaintiffs' credit, and the plaintiffs suffered emotional distress in New York. Id. at 148-49. The court held that these were not "injure[ies] to person or property within New York" under § 302(a)(3), because the direct injury resulting from the defendant's fraud, the entry of the default judgment, took place in Texas. Id. at 150. The other alleged injuries "are clearly consequences of that default judgment," but they "would be sustained by plaintiffs irrespective of where they reside or do business." Id. They were suffered in New York solely because plaintiffs happened to reside there, and were thus too indirect under § 302(a)(3). Id.
Also instructive is De Ganay v. De Ganay, No. 11-CV-6490, 2012 WL 6097693 (S.D.N.Y. Dec. 6, 2012), in which the court addressed whether it had personal jurisdiction where the plaintiff alleged that one defendant (the plaintiff's former spouse) made certain misrepresentations to a French court regarding whether a Paris apartment was a "marital residence." According to the plaintiff, based on the defendant's misrepresentations, the French court liquidated plaintiff's marital estate. Id. at *2. Plaintiff sued her former husband and others to recover the value of the Paris property (or her share of it) and, when Defendants did not answer, sought a default judgment. Id. at *4. The court denied the plaintiff's default judgment, concluding that it lacked personal jurisidction over the ex-husband (and other defendants). In reasoning similar to that in Faherty, the court concluded that the "the situs of plaintiff's injury" was France, because the "original event" that caused plaintiff's injury "understood as the 'first effect' of defendants' alleged tort," was "the French Court's reliance on defendants' alleged misrepresentation." Id. at *6.
Applying the principles drawn from these cases, the Court finds that
the "initial tort[s]" alleged here are the DSP's negligence in
searching for Doe at the wrong address and failing to check Doe's
whereabouts with information available to Defendants. (Compl. ¶ 56.)
The Seaford PD, in turn, is alleged to have relied on DSP's negligent
actions to seek the warrant for Doe's arrest. (Id. ¶¶ 24-25.) The
issuance of the warrant was therefore the "original event" that caused
any injuries that followed, and it took place in Delaware. Even
reconceptualizing the tort
to include the issuance of the warrant as a separate act of
negligence, (id. ¶ 63), its "first effect" was felt in Delaware, where
Doe still lived at the time and where he would have been subject to
arrest pursuant to the warrant, and not in New York, to which Doe
moved only after all of the events constituting Defendants' negligence
allegedly took place. (Id. ¶ 35 (alleging that Doe moved to New York
"[s]ubsequent to the issuance of the [Delaware warrant]").) Thus,
while there may have been a time lapse between the initial injury -
the issuance of the arrest warrant - and a further consequence
resulting from the same acts - Doe's later arrest in New York - that
does not change the fact that the initial injury took place in
Delaware. Cf. Hotel Los Monteros, 394 N.Y.S.2d at 416.*fn5
As with the default judgment in Faherty and the liquidation
judgment in De Ganay, once the warrant was issued, the threat of its
enforcement would be felt wherever Doe went, and that he was
eventually arrested in New York was merely the result of the fortuity
that he happened to be there when the warrant was
Therefore, even if the allegations in the Complaint are accepted as true, Plaintiffs have not pled that Seaford PD "commit[ted] a tortious act without the state causing injury to person or property within the state," as is required for personal jurisdiction under either subsection of § 302(a)(3).
b. C.P.L.R. § 302(a)(3)(i)
Even if Plaintiffs had alleged an in-state injury, however, Plaintiffs have also failed to plead facts sufficient to support a prima facie case of personal jurisdiction under subsection 302(a)(3)(i). The Complaint contains no facts indicating that Seaford PD has any contacts with New York whatsoever, let alone that it has engaged in a "persistent course of conduct . . . in the state." Indeed, the Complaint only alleges that Delaware did not seek Doe's extradition following his arrest in New York. (Compl. ¶ 41.)
In their motion papers, Plaintiffs merely assert that Defendants issue
warrants, execute warrants, and seek extradition in New York, make New
York court appearances, and purchase goods and services from New York
manufacturers. (Pls.' Mem. 15.) These "conclusory non-fact-specific
jurisdictional allegations" are insufficient without further details,
Jazini, 148 F.3d at 185, which Plaintiffs could have included in the
Complaint or in affidavits (assuming that doing so would be consistent
with Plaintiffs' Rule 11 obligations), SNET, 624 F.3d at 138 (prima
facie showing of jurisdiction "may be made through the plaintiff's own
affidavits and supporting materials, containing an averment of facts
that, if credited, would suffice to establish jurisdiction
over the defendant") (internal quotation marks omitted).*fn7
Moreover, under subsection 302(a)(3)(i), a defendant's
contacts with New York must be part of "ongoing activity within New
York State." Ingraham v. Carroll, 687 N.E.2d 1293, 1295 (N.Y. 1997)
(emphasis added). They "must be regular, persistent or substantial,"
and, therefore, "[t]he one shot business transaction is insufficient .
. . ." Hearst Corp. v. Goldberger, No. 96-CV-3620, 1997 WL 97097, at
*14 (S.D.N.Y. Feb. 26, 1997) (quoting 1 Weinstein, Korn & Miller, New
York Civil Practice: CPLR ¶ 302.14 (1996)) (internal quotation marks
omitted). Thus, while "purchases from companies located in New York
can . . . demonstrate regular business dealings with the forum," Del
Ponte v. Universal City Dev. Partners, Ltd., No. 07-CV-2360, 2008 WL
169358, at *4 (S.D.N.Y. Jan. 16, 2008), those purchases must be of a
sufficient amount and regularity to constitute "ongoing activity" in
New York. See, e.g., David Tunick, Inc. v. Kornfeld, 813 F. Supp. 988,
991 (S.D.N.Y. 1993) (section 302(a)(3)(i) satisfied where defendant
purchased works of art from New York art galleries and collectors,
earned substantial revenue from art sales in New York, and engaged in
substantial non-business activities in New York, such as the
exhibition of his paintings there). Although Plaintiffs assert
Defendants have "purchase[d] . . .goods or services from New York manufacturers," that conclusory
assertion alone does not establish that Defendants engaged in a
"persistent course of conduct" in this State. See Maggi v. Women's
Coll. Hosp., No. 03-CV-768, 2007 WL 841765 (N.D.N.Y. Mar. 19, 2007)
(plaintiff's "conclusory statement that [out-of-state defendant]
'contracts business within the state of New York'" is insufficient to
allow a court to conclude that the defendant "solicits business or
engages in any other persistent course of conduct in the state of New
York"). Thus, Plaintiffs have failed to satisfy this prong of personal
jurisdiction under 302(a)(3)(i).
c. C.P.L.R. § 302(a)(3)(ii)
Subsection 302(a)(3)(ii) requires that a defendant "expected or should reasonably have expected the [tortious] act to have consequences in New York," and that "the defendant derived substantial revenue from interstate or international commerce." Penguin Group (USA) Inc. v. Am. Buddha, 946 N.E.2d 159, 162 (N.Y. 2011). "Both conditions - foreseeability and revenue - must be met before jurisdiction can be sustained." 2 Weinstein, Korn & Miller, supra, ¶ 302.14(3).
Plaintiffs allege that the Delaware warrant "came up in a background check" when Doe was pulled over in New York in September 2009. (Compl. ¶ 38.) Plaintiffs further assert that "the warrant issued and the sex offender data base are either derived from or connected to a statewide network which includes New York." (Pls.' Mem. 15.) The tortious acts alleged relate to Defendants' issuing of the warrant, not to Doe's designation as a sex offender, and it is those acts that must have had foreseeable consequences in New York.
Even assuming, without deciding, that it is reasonably foreseeable that the issuance by a local police department in Delaware of a warrant that may be found on a national database could have had consequences in New York - a questionable assumption because Plaintiffs do not allege the Seaford PD had any reason to believe Doe was in, or would be moving to, New York when the warrant was issued - Plaintiffs allege nothing that suggests Seaford PD "derives substantial revenue from interstate or international commerce." The Complaint, again, alleges nothing in this regard. Plaintiffs say in their motion papers that Defendants "derive substantial income from interstate commerce in the form of traffic tickets, fines, bail, licenses, donation and permits." (Pls.' Mem. 15.) Even if Seaford PD derives "substantial income" from these activities, they are nothing more than the regular tasks of a local police department. They are arguably not "commerce" - "[t]he buying and selling of goods, esp. on a large scale," Webster's II New Revised University Dictionary 286 (1988); cf. Ingraham, 687 N.E.2d at 1296 (suggesting that the "provision of medical services" may not meet the definition of "commerce") - and certainly not "interstate."*fn8 Cf. Gonzales v. Raich, 545 U.S. 1, 34 (2005) (Scalia, J., concurring in the judgment) (distinguishing between "interstate commerce" itself and "activities that substantially affect interstate commerce"). Indeed, Plaintiffs have not alleged that the routine police work of the Seaford PD - traffic tickets, fines, etc. - involved interstate travelers or anybody outside Delaware, such that their activities generate substantial income from interstate commerce. Cf. United States v. Mann, 493 F.3d 484, 495--96 (5th Cir. 2007) (vacating Hobbs Act convictions because prosecution failed to prove that drivers allegedly extorted for traffic violations by local police were traveling outside state); United States v. Box, 50 F.3d 345, 352 (5th Cir. 1995) (invalidating Hobbs Act counts because victims "were Texas residents and traveling within the state," and therefore "there was no showing that interstate commerce was affected.").
Plaintiffs have therefore failed to establish a prima facie case of jurisdiction under C.P.L.R. § 302(a)(3)(ii).
d. Due Process
Even if Plaintiffs established a statutory basis to exercise long-arm jurisdiction over the Seaford PD, the Court must then determine whether extension of personal jurisdiction would comport with the Due Process Clause of the Fourteenth Amendment. See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d Cir. 2002). To do so, the Court analyzes two components: "minimum contacts," and "reasonableness." Id.; see also Chloe, 616 F.3d at 164. Generally, a "court may exercise personal jurisdiction over a nonresident defendant only so long as there exist 'minimum contacts' between the defendant and the forum State." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). "The contacts must be such that 'maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" MacDermid, Inc. v. Deiter, - F.3d - , 2012 WL 6684580, at *4 (2d Cir. Dec. 26, 2012) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Where, as alleged here, "the claim arises out of, or relates to, the defendant's contacts with the forum . . . minimum contacts exist where the defendant purposefully availed itself of the privilege of doing business in the forum and could foresee being haled into court there." Bank Brussels Lambert, 305 F.3d at 127 (internal quotation marks omitted); see also Burger King, 471 U.S. at 475 ("[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."); Three Five Compounds, Inc. v. Scram Tech., Inc., No. 11-CV-1616, 2011 WL 5838697, at *6 (S.D.N.Y. Nov. 21, 2011) (same). "Physical presence in the forum state, however, is not required." MacDermid, 2012 WL 6684580, at *4.*fn9
If a plaintiff has established that a defendant has substantial minimal contacts, the Court must then determine whether the exercise of personal jurisdiction is reasonable. See Chloe, 616 F.3d at 172-73. To do this, the Court is to consider five factors: (i) the burden on the defendant; (ii) the interests of the forum state; (iii) the plaintiff's interest in obtaining relief; (iv) the interstate judicial system's interest in obtaining the most efficient resolution of the controversy; and (v) the shared interest of the several states in furthering fundamental substantive social policies. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113-14 (1987); MacDermid, 2012 WL 6684580, at *5; Chloe, 616 F.3d at 173.
Applying these principles, the Court concludes that the exercise of personal jurisdiction over the Seaford PD would not comport with the Due Process Clause. As noted, in their Complaint, Plaintiffs offer no allegations establishing Seaford's contacts with New York. In their Memorandum of Law in opposition to the Motion to Dismiss, Plaintiffs, in a single sentence, merely assert that both Defendants "maintained and had access to a national sex offender database, issued warrants nationwide, appear[ed] in court as witnesses and handle[d] nationwide extraditions which all pose the possibility of causing injury in another state, particularly New York." (Pls.' Mem. 17.) These allegations are inadequate to establish that the Seaford PD has regular contact with New York.
First, Plaintiffs general allegations lump both Seaford PD and DSP together, but the Supreme Court has made clear that "[e]ach defendant's contacts with the forum State must be assessed individually." Calder v. Jones, 465 U.S. 783, 790 (1984); see also Rush v. Savchuk, 444 U.S. 320, 332 (1980) ("The requirements of International Shoe . . . must be met as to each defendant over whom a . . . court exercises jurisdiction."). Thus, whatever may be said about Plaintiffs' generalized claims about DSP and the Seaford PD collectively, they have offered nothing by way of a specific allegation of Seaford PD's contacts with New York.
Second, the aforementioned one-line list of allegations, even if directed only at the Seaford PD, is far too conclusory and nonspecific to make out a prima facie case of contacts between the Seaford PD and New York. Indeed, courts have regularly held that a plaintiff asserting jurisdiction must tender specificallegations about the defendant's contacts with the forum state. See Gmurzynska v. Hutton, 257 F. Supp. 2d 621, 625 (S.D.N.Y. 2003) (noting that "conclusory allegations are not enough to establish personal jurisdiction"); Plunket v. Doyle, No. 99-CV-11006, 2001 WL 175252, at *3 (S.D.N.Y. Feb. 22, 2001) ("Because plaintiff has alleged no facts beyond conclusory allegations, tending to show that defendants or their agents had contacts with New York and availed themselves of this forum, plaintiff has not met her due process burden."); GTE New Media Servs., Inc. v. Ameritech Corp., 21 F. Supp. 2d 27, 36 (D.D.C. 1998) (noting that while "the plaintiff is entitled to his complaint and any doubts resolved in the light most favorable to him," the plaintiff "cannot rest on bare allegations or conclusory statements and must allege specific facts connecting each defendant with the forum"); Schwartz v. CDI Japan, Ltd., 938 F. Supp. 1, 4 (D.D.C. 1996) ("The plaintiff must allege specific facts connecting each defendant with the forum state and cannot rest on bare allegations or conclusory statements.").*fn10 Thus, the Court finds that Plaintiffs' general allegations do not establish minimum contacts between the Seaford PD and New York.*fn11
Plaintiffs' allegations regarding the Seaford PD's conduct in this case also fail to establish that the Seaford PD has purposefully availed itself of the privilege of conducting business in New York such that specific jurisdiction would comport with Due Process. Taking Plaintiffs' allegations to be true, the Seaford PD issued a warrant for Doe's arrest, after falsely being told by a DSP detective of Doe's failure to abide by the sex offender registration requirements. (Compl. ¶ 25.) Plaintiffs acknowledge that at the time the warrant was issued, Doe was still living in Delaware. (Id. ¶ 35.) Moreover, the Complaint contains no allegations that any official from the Seaford PD took any active steps to execute the arrest warrant after it was issued, let alone that any Seaford PD official initiated contact with any New York officials to seek their cooperation in the arrest and extradition of Doe. Instead, the Complaint alleges that New York officials were only made aware of the warrant when they pulled Doe over for a traffic violation and a background check was done on him by New York law enforcement officials. (Id. ¶¶ 37-38.) And, in fact, Plaintiffs admit that neither DSP nor the Seaford PD sought Doe's extradition. (Id. ¶ 41.) Thus, all that Plaintiffs have alleged is that the Seaford PD issued an arrest warrant for Doe before he moved to New York, that the warrant was lodged in some nationwide database (presumably NCIC)*fn12 , that the warrant led to Doe's arrest in New York after he was stopped by New York officials on a traffic violation, and that nobody from the Seaford PD asked New York officials to assist in the extradition (let alone the arrest) of Doe.
The Court concludes that these facts do not establish "purposeful availment." Actually, this is the conclusion of courts nationwide, which have regularly have rejected assertions of personal jurisdiction against out-of-state law enforcement officials who have merely issued warrants and lodged their warrants in nationwide databases. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 693 (9th Cir. 2001) ("[New York State Department of Corrections Services] as an entity may not have directed its efforts to arrest Robert Sanders toward California by simply registering Robert Sanders's fugitive warrant with the NCIC . . . ."), overruled on other grounds as recognized by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002); Hicks v. Assistant Attorney Gen'l, No. 08-CV-362, 2010 WL 5067611, at *5 (W.D. Mo. Dec. 6, 2010) ("The posting of the warrant for plaintiff's arrest on NCIC . . . is not an activity that can support this Court's exercise of jurisdiction over defendant . . . ."); Snyder v. Snyder, No. 063072, 2007 WL 894415, at *4 (D. Minn. Mar. 21, 2007) ("Posting a warrant on the NCIC system is not an act of purposeful availment."); Cook v. Holzberger, 788 F. Supp. 347, 351 (S.D. Ohio 1992) (holding that "simply accessing the information available through the NCIC system is insufficient to constitute 'purposeful availment,'" and that to hold otherwise "would subject law enforcement officers to personal jurisdiction in every state"). Courts also have found personal jurisdiction wanting where the out-of-state law enforcement officials responded to inquiries from forum state officials executing the warrant, or where out-of-state officials merely exchanged telephone calls with forum state officials or submitted forms incidental to extradition of the defendant from the forum state (none of which ever happened here). See, e.g., Tisdale v. Nadramia, No. 11-CV-647, 2012 WL 693563, at *4 (D.S.C. Feb. 7, 2012) (holding that contacts with forum state law enforcement officials that were incidental to extradition were insufficient to establish purposeful availment), report and recommendation adopted by 2012 WL 693525; Ray v. Simon, No. 07-CV-1143, 2008 WL 5412067, at *16 (D.S.C. Dec. 24, 2008) (rejecting personal jurisdiction where the "only asserted contacts" that New Jersey law enforcement officials had with South Carolina were the filing of "various forms" and "multiple telephone calls" to South Carolina); Hicks, 2010 WL 5067611, at *5 (conversations with forum state law enforcement officials insufficient to demonstrate purposeful availment where forum state official located plaintiff in the forum state and initiated contact with out-of-state officials responsible for warrant); Snyder, 2007 WL 894415, at *4 ("[T]he warrant, fax, and alleged transfer of information are not enough to establish that defendants have availed themselves of the benefits and protections of [the forum state]."); Williams v. Cook County Sheriff's Dep't, No. 93-CV-212, 1995 WL 75386, at *2 (N.D. Ill. Feb. 22, 1995) ("[A] phone call by a law enforcement official from one state notifying a law enforcement agency in another state of the apprehension of a wanted person does not give rise to minimum contacts sufficient to subject the law enforcement officer to personal jurisdiction in the foreign state where the law enforcement agency is located.").
By contrast, where the allegations are that out-of-state law enforcement officials either had an established relationship with the forum state officials or otherwise closely coordinated their activities in the apprehension and/or extradition of the defendant, courts have found sufficient contacts to support personal jurisdiction. See, e.g., Lee, 250 F.3d at 693 (holding that there was personal jurisdiction in California over New York law enforcement officials who took "deliberate actions" of working with Los Angeles police officials to arrange for the extradition of a fugitive, which actions included "regular" communications and the transmission of an "identification packet"); Adelphin v. Detective Gabriel Camacho, No. 98-CV-6299, 1999 WL 301805, at *3-4 (E.D. Pa. May 11, 1999) (holding that defendants "purposely directed their activities toward this forum using Pennsylvania's legal system and law enforcement agents to secure plaintiff's arrest for the City of Camden"). But, Plaintiffs have not alleged any such proactive conduct by the Seaford PD, which, in fact, did not request New York officials to arrest Doe and which did not request his extradition. Instead, New York officials happened upon Doe's arrest warrant when they stopped him for a traffic violation. This mere fortuity, however, does not establish that the Seaford PD purposefully availed itself of New York's legal system or that it should have foreseen that it would be haled into New York's courts. See Hicks, 2010 WL 5067611, at *5 ("Defendant . . . undoubtedly would have had similar conversations with whatever jurisdiction arrested plaintiff, whether plaintiff was located in Kansas, Missouri, or any other state. These are exactly the sort of random, attenuated or fortuitous contacts that have been held insufficient to justify exercise of personal jurisdiction."). Therefore, the Court finds that it would not comport with Due Process to exercise personal jurisdiction over the Seaford PD.*fn13
3. Leave to Amend
Plaintiffs have sought leave to amend the Complaint to allege "causes of action of violation of due process and violation of equal protection rights." (Letter from Rick S. Cowle, Esq., to the Ct. (June 2, 2010), at 6.) The Court takes this request as one to add claims under 42 U.S.C. § 1983. See Fenner v. City of New York, 392 F. App'x 892, 893 (2d Cir. 2010) (summary order) (noting that § 1983 displaces implied causes of action grounded directly in the Constitution for constitutional violations). Though leave to amend should generally be freely granted, "a district court may properly deny leave when amendment would be futile." Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45, 50 (2d Cir. 1999). Adding the proposed § 1983 claims would be futile: against DSP, they would still be barred by Delaware's sovereign immunity as states are not "persons" subject to suit under § 1983, see Will v. Mich. Dep't of State Police, 491 U.S. 58, 64-65 (1989), and amendment would not cure the Court's lack of personal jurisdiction over Seaford PD, see Hunter v. Deutsche Lufthansa AG, 863 F. Supp. 2d 190, 202 (E.D.N.Y. 2012) (where plaintiff moved to amend complaint to add new federal statutory claims, motion denied as futile because "the Court does not have personal jurisdiction over [the defendant], . . . and so the addition of claims against [that defendant] would likewise be unable to withstand a motion to dismiss for lack of personal jurisdiction"); see also Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002) (leave to amend may properly be denied when amended complaint could not "withstand a motion to dismiss"). Leave to amend is therefore denied.
For the reasons stated herein, the claims against Defendant DSP are dismissed without prejudice for lack of subject matter jurisdiction. As to Defendant Seaford PD, the Court has the discretion to transfer this case to a district in which personal jurisdiction and venue would be proper (i.e., the District of Delaware), rather than dismissing it outright, if the interests of justice warrant it. See Songbyrd, Inc. v. Estate of Grossman, 206 F.3d 172, 179 & n.9 (2d Cir. 2000). Plaintiffs here have opposed a transfer to Delaware (Pls.' Mem. 19-23), but Plaintiffs may suffer prejudice if this case is dismissed. See Del. Code Ann. tit. 10, § 8119 (statute of limitations on personal injury actions is two years in Delaware); see also Stair v. Calhoun, No. 07-CV-3906, 2009 WL 792189, at *15 n.11 (E.D.N.Y. Mar. 23, 2009) (declining to order a transfer in lieu of dismissing for lack of personal jurisdiction where plaintiffs did not request transfer and plaintiffs would not suffer prejudice in the form of a "statute of limitations issue" if they chose to re-file). Plaintiffs are therefore directed to inform the Court by letter within twenty days whether they continue to oppose a transfer to the District of Delaware in light of this Court's opinion. If Plaintiffs' position is unchanged, or if the Plaintiffs do not respond, the Court will dismiss the claims against Seaford PD for lack of personal jurisdiction.