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Hack v. Stang

United States District Court, S.D. New York

September 18, 2014

Charles Hack, Plaintiff,
v.
Robert Stang, Defendant.

MEMORANDUM & ORDER

ALISON J. NATHAN, District Judge.

Plaintiff Charles Hack brings this action to recover on a promissory note issued to Defendant Robert Stang. Defendant, who is a resident of Oregon, has moved to dismiss the action for lack of personal jurisdiction, or, in the alternative, to transfer it to the District of New Jersey. For the reasons that follow, both requests are denied.

I. Background

The following facts are taken from the pleadings[1] and other submissions of the parties. See Mantella v. Hall, 947 F.Supp. 92, 95 (S.D.N.Y. 1996) ("Because a motion to dismiss based on 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.'") (quoting Pilates, Inc. v. Pilates Inst., Inc., 891 F.Supp. 175, 178 n.2 (S.D.N.Y. 1995)). Because the parties have not requested an evidentiary hearing and the motion is being decided without one, the Court resolves all disputes in Plaintiff's favor. See Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 86 (2d Cir. 2013).

A. Factual Background

Plaintiff Charles Hack is a resident of New York, and Defendant Robert Stang is a resident of Oregon. See Hack Aff. Summ. Judg. ¶¶ 2, 4. Prior to 2000, Mr. Stang resided in New York, and he continues to own a co-op studio apartment in New York City. Stang Reply Deel. ¶¶ 3-4. From 1977 until June 1990, Mr. Stang "was a partner and President of a wellknown real estate development and management company" in New York, and he continues to hold a New York real estate broker's license and maintain an office in New York. Hack Deel. ¶¶ 13, 16. Mr. Stang has been involved in three lawsuits in New York: a 1995 suit related to his real estate business, and two matrimonial suits (dating from 1998 and 2000) against his former wife. Stang Reply Deel.¶ 7.

Mr. Stang's business relationship with Mr. Hack began during Mr. Stang's time in New York and continued after his move away from the state. See Hack Deel.¶¶ 6-10. For example, at some point after 2002, the parties met in New York City to discuss Mr. Back's buying out Mr. Stang's interest in a "real estate venture in Westchester County." Hack Deel.¶ 10. Recently, in 2012, Mr. Stang sold to Mr. Hack a 49.9% interest in ReNewal Willingboro, LLC ("Willingboro"), an entity owning property in Willingboro, New Jersey. Stang Deel.¶ 3.

In 2012, at around the same time that the Willingboro deal was being negotiated, Mr. Stang discussed borrowing $150, 000, payable over four years, from Mr. Hack during a series of meetings in New York. See Stang Deel. ¶¶ 4-5; see also Hack Deel. ¶ 21. In June 2012, Mr. Hack called Mr. Stang to offer to loan him $100, 000, and on June 28, 2012, the parties executed a promissory note for that amount, payable in one year. See Hack Aff. Summ. Judg. ¶ 5, Ex. A. Mr. Stang was in Oregon when the agreement was reached, and he signed the note in Oregon. Stang Deel.7para; 4. The top of the note states, "New York, New York, " and the payments are directed to be made to Mr. Hack at his New York address. See Hack Aff. Summ. Judg., Ex. A.

B. Procedural History

Mr. Hack commenced this action in New York State court on July 18, 2013, alleging that Mr. Stang had failed to make payments due under the note. See Hack Aff. Summ. Judg. Pursuant to CPLR § 3213, the action was brought as a "motion for summary judgment in lieu of complaint." See Dkt. No. 1. On August 18, 2013, the action was removed to this Court on the basis of diversity. See id. Mr. Stang filed this motion on November 27, 2013, Dkt. No. 15, with supplemental briefing following the Supreme Court's decision in Daimler AG v. Bauman, 134 S.Ct. 746 (2014), see Dkt. No. 26.

Meanwhile, two other lawsuits were instigated between the parties. First, Mr. Stang filed suit against Mr. Hack in the District of New Jersey, alleging that Mr. Hack had breached agreements related to the Willingboro transaction. See Stang Deel. ¶ 11. Second, Mr. Hack filed a suit against Mr. Stang, seeking to recover on a separate promissory note, which is also pending before this Court.

II. Personal Jurisdiction

Defendant moves to dismiss for lack of personal jurisdiction. Plaintiff counters that Defendant has waived the defense of lack of personal jurisdiction by failing to raise the issue prior to this point, and that, in any event, personal jurisdiction is proper under N.Y. CPLR §§ 301 and 302(a)(l). For the reasons that follow, the Court finds that the defense has not been waived, ...


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