United States District Court, E.D. New York
Hiltzik, Esq. Attorney for the Plaintiff
Reich & Daniel Attorneys for the Defendant By Robert J.
Lanza, Esq. Richard C. Ebeling, Esq., Of Counsel
MEMORANDUM OF DECISION & ORDER
D. SPATT United States District Judge
August 22, 2016, the Plaintiff Ashley Lebron, a Nassau County
resident, commenced this diversity action against the
Defendant Edwin Elpidio Encarnacion, a citizen and permanent
resident of the Dominican Republic, alleging various theories
of New York tort liability.
before the Court is a motion by the Defendant, seeking to
dismiss the complaint on the following grounds: (1) lack of
personal jurisdiction under Federal Rule of Civil Procedure
(“Fed. R. Civ. P.”) 12(b)(2); (2) forum non
conveniens; and (3) failure to state a claim under
reasons that follow, the Court finds that personal
jurisdiction over the Defendant is lacking, and therefore,
the portion of the motion seeking relief under Rule 12(b)(2)
Defendant is a professional baseball player who, during the
relevant time period, was employed by the Toronto Blue Jays.
the Plaintiff for the first time on August 20, 2013,
following a game between the Blue Jays and the New York
Yankees at Yankee Stadium in the Bronx.
carried on a non-romantic relationship until mid-February
2016, when, during a weekend visit to the Dominican Republic,
the two had sexual relations.
about February 17, 2016, as the Plaintiff was returning home
to New York, she began experiencing symptoms of, and was
later diagnosed with, genital herpes and chlamydia.
gravamen of this action is the Plaintiff's contention
that she contracted these sexually-transmitted diseases
(“STDs”) from the Defendant; that he knew at the
time of their liaison that he was infected with the STDs; and
that he tortiously failed to disclose that fact to her.
to this opinion, the Defendant contends that the complaint
must be dismissed because the Court lacks personal
jurisdiction over him.
The Standard of Review under Fed.R.Civ.P. 12(b)(2)
12(b)(2) authorizes a party to seek dismissal on the ground
that the Court lacks personal jurisdiction over him. However,
as the party attempting to invoke the Court's
jurisdiction, it is the Plaintiff that bears the burden of
showing that personal jurisdiction exists over the Defendant.
See Metropolitan Life Ins. Co. v. Robertson-Ceco
Corp., 84 F.3d 560, 566 (2d Cir. 1996).
to discovery, a plaintiff may defeat a motion to dismiss
based on legally sufficient allegations of
jurisdiction.” Id. (citing Ball v.
Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197
(2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct.
150, 112 L.Ed.2d 116 (1990)). In doing so, “the
plaintiff need only make a prima facie showing,
” and “[t]he allegations in the complaint must be
taken as true to the extent they are uncontroverted by the
defendant's affidavits.” MacDermid, Inc. v.
Deiter, 702 F.3d 725, 727 (2d Cir. 2012) (quoting
Seetransport Wiking Trader Schiffarhtsgesellschaft MBH
& Co., Kommanditgesellschaft v. Navimpex Centrala
Navala, 989 F.2d 572, 580 (2d Cir. 1993)).
The Applicable Legal Framework - A Two-Part Test
resolving questions of personal jurisdiction in a diversity
action, the Court must conduct a two-part inquiry:
“First, it must determine whether the plaintiff has
shown that the defendant is amenable to service of process
under the forum state's laws; and second, it must assess
whether the court's assertion of jurisdiction under these
laws comports with the requirements of due process.”
See Metropolitan Life Ins. Co., 84 F.3d at 567.
Part One: The Defendant's Amenability to Suit under New
the Court must determine whether, under the facts and
circumstances of a given case, New York law supports the
exercise of either general jurisdiction (also called
“all-purpose jurisdiction”) or specific
jurisdiction (also called “case-linked
jurisdiction”). See Brown v. Lockheed Martin
Corp., 814 F.3d 619, 624 (2d Cir. 2016). General
jurisdiction “permits a court to adjudicate any cause
of action against the [ ] defendant, wherever arising, and
whoever the plaintiff, ” while specific jurisdiction is
only “available when the cause of action sued upon
arises out of the defendant's activities in [the]
state.” Id. (citing Chloé v. Queen
Bee of Beverly Hills, LLC, 616 F.3d 158, 164 (2d Cir.
General (or “All-Purpose”) Jurisdiction
authority for New York courts to exercise general
jurisdiction over a non-domiciliary is found in New York
Civil Practice Law and Rules (“CPLR”) § 301,
which provides that “[a] court may exercise such
jurisdiction over persons, property, or status as might have
been exercised heretofore.” This provision has been
interpreted as authorizing jurisdiction over
non-domiciliaries “when their affiliations with the
State are so ‘continuous and systematic' as to
render them essentially at home in the forum state.”
Goodyear Dunlop Tires Organizations, S.A. v. Brown,
564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011)
(quoting Int'l Shoe Co. v. Washington, 326 U.S.
310, 317, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).
Specific (or “Case-Linked”) Jurisdiction
contrast, the statutory basis for specific jurisdiction is
found in New York's long-arm statute, which, as to causes
of action specifically arising from the Defendant's
conduct in the state, allows the Court to exercise personal
jurisdiction over a non-domiciliary who:
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
3. commits a tortious act without the state causing injury to
a person or property within the state, except as to a cause
of action for defamation of character arising from the act,
(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