United States District Court, E.D. New York
MEMORANDUM AND ORDER
JAMES ORENSTEIN, Magistrate Judge.
Plaintiff Matthew Paul Gould ("Gould") has asserted a claim under the Jones Act, 36 U.S.C. § 30104, et seq., seeking damages arising from injuries he claims to have sustained while working as a tankerman on a vessel owned and operated by his employer, defendant Moran Towing Corporation ("Moran"). Docket Entry ("DE") 29 (Complaint). On July 22, 2013, Moran filed a Third Party Complaint seeking indemnification from Select Medical Corporation ("Select") on the ground that the latter company, which Moran engaged to provide physical therapy services to Gould, acted negligently and thereby exacerbated Gould's injuries. DE 37 (Third Party Complaint). Select now moves to dismiss the Third Party Complaint on the ground that it is not subject to this court's jurisdiction. DE 42 (Motion to Dismiss). For the reasons set forth below, I agree and therefore grant the motion.
Gould alleges that he sustained the injuries at issue on November 14, 2010, while working on Moran's barge. Third Party Complaint ¶ 10. He later returned to his home in Florida, where a doctor diagnosed his injury as a rotator cuff tear, performed surgery to repair it, and prescribed a course of physical therapy. Id. ¶¶ 11-12. Acting pursuant to its obligations as a maritime employer, Moran arranged for Gould to receive physical therapy at a facility in Pensacola called Select Physical Therapy Pine Forest ("Pine Forest"). Id. ¶¶ 7, 13. Pine Forest provided physical therapy to Gould from April 19 through September 9, 2011. Id. ¶ 15. However, Moran alleges that Pine Forest was negligent, and that as a result Gould re-injured his rotator cuff and required further surgery; Gould now asserts that in the aftermath of his second injury and surgery, he cannot return to his former employment. Id. ¶¶ 17-18. Moran alleges that an appropriate course of physical therapy would have allowed Gould to resume his work as a tankerman. Id. ¶ 19.
In seeking to establish personal jurisdiction over Select, Moran makes the following allegations, all of which I assume to be true for purposes of the instant motion. Select is a Delaware corporation. Id. ¶ 7. Through its Select Medical Outpatient Division, which operates the Pine Forest facility in Pensacola, see id., "Select derives substantial revenue from interstate commerce and advertises its ability to and provides [sic] services to patients in New York through its website." Id. ¶ 9. When Moran set out to arrange Gould's physical therapy, its agent in New York, Universal Coordinating Care, LLC ("Universal"), entered into a contract for such services with Pine Forest. Id. ¶ 13. Pine Forest provided reports about Gould's treatment to Universal, which "administered and monitored" the therapy services in New York. Id. ¶¶ 14, 15. Moran paid Select for the therapy. Id. ¶ 14.
Gould filed his Complaint against Moran on October 8, 2012, and later amended it on May 9, 2013. DE 1; DE 29. Moran answered on November 9, 2012. DE 9. On April 1, 2013, Moran moved to transfer venue of the case to the Northern District of Florida. DE 16. In explaining why such a transfer would be in the interest of justice, Moran wrote that "Select cannot be sued in this District." DE 16-5 (memorandum of law in support of motion to transfer) at 3; see also id. at 6-7 (arguing that Moran's claim that Pine Forest's negligence "exacerbated plaintiff's injury cannot be [tried] in this Court"); id. at 8 (contending that a joint trial of Gould's personal injury claim and Moran's negligence claim is "only possible in the Northern District of Florida"). The court heard argument and denied the motion on April 29, 2013. DE 26.
Thereafter, the parties unanimously consented to refer the case to me for all proceedings including entry of a final judgment, and Moran then sought and received leave to file its Third Party Complaint against Select (which likewise consented to have a magistrate handle the case). See DE 33; DE 36; DE 47; 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. Moran filed the pleading on July 22, 2013. DE 37. Select then filed the instant motion on September 4, 2013, and the parties completed the briefing on October 11, 2013. See DE 42; DE 48. No party has requested oral argument.
As Moran's claim against Select rests on diversity jurisdiction, New York law determines the issue of personal jurisdiction. Cargill, Inc. v. Sabine Trading & Shipping Co., Inc., 756 F.2d 224, 228 (2d Cir. 1985). Moran, as the party asserting the claim, bears the burden of establishing that Select is subject to this court's personal jurisdiction. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). In opposing Select's pre-discovery motion to dismiss, Moran may rely on "legally sufficient allegations of jurisdiction[, ]" id. (citations omitted), and is entitled to have the court resolve any pertinent factual disputes in its favor. Alterseekers, Inc. v. BrandForce SF, LLC, 2013 WL 5236533, at *4 (E.D.N.Y. Sept. 16, 2013).
Moran relies on a provision of New York's long-arm statute that extends personal jurisdiction over a non-domiciliary that "commits a tortious act without the state causing injury to person or property within the state... if he... expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce...." N.Y. C.P.L.R. 302(a)(3)(ii) (cited in Opp. at 6). To prevail on that jurisdictional theory, Moran must establish that:
(1) the defendant [ i.e., Select] committed a tortious act outside New York; (2) the cause of action arose from that act; (3) the tortious act caused an injury to a person or property in New York; (4) the defendant expected or should reasonably have expected the act to have consequences in New York; and (5) the ...