United States District Court, S.D. New York
OPINION AND ORDER
EDGARDO RAMOS, District Judge.
Myrella Ikeda ("Plaintiff" or "Ikeda") brings this personal injury action following a beauty makeover gone awry. Plaintiff underwent an allegedly botched organic "hydration" hair treatment at the J. Sisters Beauty Salon ("J. Sisters") in Manhattan which left her with thinning hair and an injured scalp. Plaintiff filed the instant action against J. Sisters, the beauty salon's co-owner, Jonice Padilha ("Padilha"), and the hair stylist who attended to her, Antonio Luis Rosa ("Rosa"). In turn, J. Sisters, Padilha and Rosa (collectively, "Third-Party Plaintiffs" or "Defendants") filed a Third-Party Complaint against Organic Salon Systems ("Organic Salon"), HERB UK Limited ("HERB UK"), and International Hair and Beauty Systems ("International Hair") (collectively, "Third-Party Defendants)-the entities involved in the manufacture, marketing, and distribution of the product that purportedly caused Plaintiff's injuries. Third-Party Plaintiffs allege eleven causes of action, including negligence, strict products liability, breach of implied and express warranties, and indemnification. HERB UK moves to dismiss the Third-Party Complaint in its entirety for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Third-Party Def.'s Mot. Dismiss, Doc. 27. For the reasons set forth below, HERB UK's motion to dismiss is DENIED.
A. The Dispute
On October 29, 2011, Ikeda, an aspiring model, arrived at J. Sisters in Manhattan for a beauty appointment. Compl., Doc. 2 at ¶¶ 3, 12, 14. She had set the appointment up through a friend, who coordinated to feature her transformation in the Brazilian magazine, Malu. Id. ¶¶ 8-12. At her appointment, Ikeda was introduced to Rosa, who would be styling her hair. Id. ¶ 19.
Rosa began by giving Ikeda an organic hair hydration treatment, using a product called Naturalite White Lightening Powder. Id. ¶ 23. Ikeda's scalp almost immediately began to sting and burn, which Rosa indicated was "normal." Id. ¶ 24. One hour later, Rosa washed the product out of Ikeda's hair and placed her under a vapor fan, where she was left for at least another hour. Id. ¶¶ 26, 28. When Rosa returned, he applied an organic toner on Ikeda's hair and again placed her under a vapor fan. Id. ¶¶ 32-33. Throughout this time, Ikeda's scalp was burning until she eventually could not feel it. Id. ¶ 26, 28, 33. When Rosa used a blow dryer to dry Ikeda's hair an hour later, her scalp began to itch and her hair-which had changed texture- also started falling out. Id. ¶ 36. At this point, Ikeda ended the appointment. Id. ¶¶ 40-45.
According to the Complaint, Ikeda went from being a "normal, smiling, happy" person "with beautiful hair" to feeling like "a monster with a terrible appearance." Id. ¶ 47. She also alleges damage to her scalp, including burning, itching and numbness, along with psychological injuries. Id. As time went on, Ikeda became depressed, unmotivated and isolated, giving up professional and educational opportunities as a result of her condition. Id. ¶¶ 53, 58, 60. Her hair is now "thinner, uneven and less lustrous than before." Id. ¶ 63.
Ikeda filed the instant action on May 19, 2014. See Compl. She asserts three causes of action: (1) negligence; (2) recklessness; and (3) negligent supervision. Id. at ¶¶ 67-75. Her claim for damages totals nearly $3 million. See id. ¶¶ 69, 72, 75. On September 25, 2014, Defendants filed a Third-Party Complaint against the Third-Party Defendants, which are identified as being responsible for manufacturing, distributing, and marketing Naturlite White Lightening Powder. See Third-Party Compl. ¶¶ 33-45. HERB UK filed its motion to dismiss on November 13, 2014. Doc. 27.
B. HERB UK's New York Contacts
Third-Party Plaintiffs allege that HERB UK manufactures Naturlite White Lightening Powder under the brand name "Organic Colour Systems." Giannetta Decl., Doc. 31 at ¶ 7. HERB UK is organized under the laws of the United Kingdom and maintains its principal place of business in the British town of Lymington, Hampshire. Third-Party Compl. ¶¶ 8-9. HERB UK has never been licensed to do business in New York State, nor have any of its directors, officers, or employees ever participated in the purchase, sale, distribution, resale, financing or service of any goods or services within the state. Perfitt Aff., Doc. 29 at ¶¶ 11-12. It does not maintain any offices, bank accounts, telephone listings, property or assets in New York. Id. ¶¶ 16-20. HERB UK does not have a designated agent for service of process in New York. Id. ¶ 10. It has neither sold products over the internet to customers in the United States nor entered into any contract to perform services within New York State. Id. ¶¶ 22, 27.
At the time the motion was filed, the HERB UK website indicated that it manufactures products under two brands: Organic Colour Systems, which is used exclusively in salons, and Tints of Nature, which targets the retail market. Giannetta Decl., Doc. 31, Ex. C. The website also boasts that it "exports to over 40 countries worldwide." Id. Meanwhile, the Organic Colour Systems website, as of December 18, 2014, states that its products are only available in select salons, featuring a cluster of national flags-including the American flag-presumably to symbolize where it conducts its business. Giannetta Decl., Ex. B. It also indicates that the brand is not aspiring to have its products "stocked by every salon around the world-just like-minded salons that are concerned about health, both theirs and their customers, and the condition of their client' hair[.]" Giannetta Decl., Ex. E.
The Third-Party Complaint alleges that HERB UK sold Naturlite White Lightening Powder to Third-Party Defendants Organic Salon "and/or" International Hair, which in turn sold the product to Third-Party Plaintiffs. Third-Party Compl. ¶¶ 44-45. Third-Party Plaintiffs further claim that HERB UK targeted the national market through its distributor, International Hair. Giannetta Decl., Doc. 31 at ¶ 6. In its motion, HERB UK confirms that it sells its product solely to International Hair, which is based in Florida and with whom it does not have any common owners, principals, managers, employees, websites, bank accounts, telephone numbers, offices, mailing addresses, assets, or property interests. Third-Party Def.'s Mem. L. Supp. Mot. Dismiss, Doc. 28 at 6. International Hair sells a wide variety of products from several manufacturers. Id.
II. Legal Standard
As a preliminary matter, the Court notes that, in addition to Federal Rule of Civil Procedure 12(b)(2), HERB UK's motion to dismiss for lack of personal jurisdiction is made pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") §§ 3211(a)(1), (2), (7), and (8). See Doc. 28 at 2. "The Federal Rules of Civil Procedure apply to a civil action after it is removed from a state court' to a United States district court." Hubbard v. Kelley, 752 F.Supp.2d 311, 315 (W.D.N.Y. 2009) (quoting Fed.R.Civ.P. 81(c)(1)). ...