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Woods v. Pettine

United States District Court, S.D. New York

January 27, 2014



PAUL G. GARDEPHE, District Judge.

In this diversity action, pro se Plaintiff Brian Patrick Woods claims that Dr. Kenneth A. Pettine, a Colorado orthopedic surgeon, breached certain alleged "consultant agreements" to pay Woods compensation for referring professional athletes to Pettine's Colorado-based medical practice. (Cmplt. (Dkt. No. 1))

Pettine has moved to dismiss the Complaint for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) or, alternatively, for judgment on the pleadings under Rule 12(c). (Def. Mot. (Dkt. No. 19)) Because this Court lacks personal jurisdiction over Pettine, the motion to dismiss will be GRANTED.


"Because a motion to dismiss for lack of personal jurisdiction is inherently a matter requiring the resolution of factual issues outside of the pleadings[, ]... all pertinent documentation submitted by the parties may be considered in deciding the motion.'" CMNY Capital, L.P. v. Perry, 97 CIV. 6172 (MBM), 1998 WL 132846, at *1 (S.D.N.Y. Mar. 23, 1998) (quoting Pilates, Inc. v. Pilates Inst., Inc. , 891 F.Supp. 175, 178 n.2 (S.D.N.Y. 1995)). "Accordingly, the following facts are drawn from the complaint, affidavits, and documentary exhibits submitted by the parties, and are construed in the light most favorable to plaintiff, the non-movant." Id . (citing Cutco Indus., Inc. v. Naughton , 806 F.2d 361, 365 (2d Cir. 1986)).

The Complaint alleges that Woods entered into a "consultant agreement" with Pettine on April 19, 2012 (the "First Agreement"). (Cmplt. (Dkt. No. 1) ¶ 9; see also Dvorkin Decl. (Dkt. No. 20), Ex. C) Under the agreement, Pettine - who owns and operates a Colorado-based medical practice known as Orthopedic Stem Cell Institute ("OSCI") - agreed to pay Woods a 45% commission when he referred a professional athlete to Pettine, and that athlete underwent adult stem cell treatment at OSCI. (Dvorkin Decl. (Dkt. No. 20), Ex. C) The commission was based on the "total price paid [to Pettine]" for each stem cell procedure an athlete received. (Id. ¶ 5) The First Agreement also obligated Pettine to pay Woods a monthly $10, 000 draw against future commissions, but that obligation did not begin until sixty days after the First Agreement was executed, and was suspended if Woods did not refer an athlete to Pettine for stem cell treatment within sixty days. (Id.)

Near the end of the First Agreement's initial sixty-day period, Woods claims that Pettine induced him to leave his position with the New York Jets by promising him full-time employment with a base salary and additional job responsibilities, including "overseeing sports marketing efforts for [] OSCI" and "procuring partnerships with [] professional sports organizations and their respective labor unions, the majority of which are based in New York City." (Cmplt. (Dkt. No. 1) ¶¶ 15-21) Woods claims that he and Pettine then entered into a second consultant agreement (the "Second Agreement"), which provides that Woods will receive a base salary.[1] (Id. ¶ 18; see also Dvorkin Decl. (Dkt. No. 20), Ex. D) While Woods acknowledges that Pettine never signed the Second Agreement, he contends that such a contract exists in fact and that he fulfilled his obligations under this alleged agreement. (Id. ¶ 23) Woods further alleges that Pettine breached his obligations under the Second Agreement by making only sporadic payments to Woods.[2] (Id. ¶¶ 22-24)

Woods filed this action on January 14, 2013, and served Pettine with a summons and complaint at his home in Fort Collins, Colorado, on the same day. (Aff. of Service (Dkt. No. 4)). The Complaint alleges claims for (1) breach of contract, (2) promissory estoppel, (3) unjust enrichment, (4) quantum meruit and (5) breach of contract implied-in-fact. (Cmplt. (Dkt. No. 1) at 9-10)

During an April 26, 2013 conference concerning Defendant's proposed motion to dismiss for lack of personal jurisdiction, the Court offered Plaintiff an opportunity to conduct jurisdictional discovery, noting that it typically provides for a thirty-day period for such discovery in connection with a proposed motion to dismiss. (Apr. 26, 2013 Hearing Transcript at 7) Woods stated that he required only fourteen days for jurisdictional discovery. (Id.) Accordingly, the Court issued an order providing for jurisdictional discovery from April 26, 2013 to May 10, 2013. (Dkt. No. 12) Woods, however, conducted no jurisdictional discovery. (Dvorkin Decl. (Dkt. No. 20) ¶ 9)

Pettine filed his motion to dismiss on May 17, 2013, alleging that this Court lacks personal jurisdiction over him. (Def. Mot. (Dkt. No. 19)) In support of his motion, Pettine has submitted an affidavit stating that

(1) he resides in Fort Collins, Colorado, is licensed to practice medicine in Colorado and Wyoming, and maintains medical offices in Johnstown and Loveland, Colorado;
(2) he has never been licensed to practice medicine in New York, has never maintained an office or residence in the state of New York, does not own or use any real property in New York, does not maintain a mailing address or a bank account in New York, does not derive any revenue from New York, and has not transacted business in New York or engaged in any "persistent course of conduct" in New York.

(Pettine Aff. (Dkt. No. 20) ¶¶ 1-3, 5-9)

Pettine acknowledges entering into the First Agreement with Woods after meeting him in March 2012 in Indianapolis, Indiana, at the "NFL Combine" - a scouting event for college football players interested in turning pro. (Id. ¶¶ 10-11) As to the Second Agreement, Pettine states that he neither signed it nor consented to its terms. (Id. ¶ 21) He further contends that Woods has never referred any patients to his medical practice. (Id. ¶ 24) Finally, Pettine notes that both the First Agreement and the unexecuted Second Agreement contain mandatory arbitration clauses and choice of law provisions requiring that all disputes arising under the agreements be resolved in accordance with Colorado law. (Id. ¶¶ 15-16, 23)

Woods argues, however, that this Court may exercise personal jurisdiction over Pettine under (1) New York Civil Practice Law and Rules ("CPLR") Section 301, because Pettine is "doing business" in New York; and (2) CPLR § 302(a)(1), because Woods's injuries are fairly traceable to business that ...

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