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Rollo v. Escobedo

United States District Court, S.D. New York

June 15, 2017

ROBERT ROLLO, Plaintiff,
v.
GEORGE P. ESCOBEDO, et al., Defendants.

          OPINION & ORDER

          WILLIAM H. PAULEY III, District Judge.

         Plaintiff Robert Rollo brings this legal malpractice action against Defendants George P. Escobedo and Carabin & Shaw, P.C. (“Carabin Shaw”). Escobedo and Carabin Shaw move separately to dismiss the complaint for lack of personal jurisdiction.[1] For the reasons that follow, Defendants motions are granted.

         BACKGROUND

         In January 2005, Rollo, a citizen of Scotland, suffered a foot injury while doing construction work for a Texas-based defense contractor at Al Assad, a United States defense base in Iraq. (Compl. ¶ 7.) Because of that injury, Rollo was unable to work and sought compensation under the Defense Base Act, which incorporates the provisions of the Longshore and Harbor Workers Compensation Act. (Compl. ¶ 7.)

         Seeking representation for his claim, Rollo contacted the Texas law firm, Carabin Shaw, who referred him to Escobedo. (January 30, 2017 Affidavit of Rollo (“Rollo Aff.”), ECF No. 50, ¶ 4.) Escobedo is a life-long resident of Texas and only admitted to practice there. (January 3, 2017 Affidavit of Escobedo (“Escobedo Aff.”), ECF No. 38, ¶¶ 12, 13.) In May 2006, Rollo retained Escobedo to represent him for his claims. (Rollo Aff., ¶ 5; Compl. ¶ 8.)

         In March 2011, a dispute arose between Rollo and the contractor relating to the nature and extent of his benefits. (Compl., Ex. A at 38.) In September 2013, the parties elected to submit that dispute to mediation, which proceeded in Edinburgh, Scotland. (Compl. ¶ 10.) Following those proceedings, the parties reached a settlement, which was executed in October 2013. (Compl. ¶ 10.)

         Under the Defense Base Act, settlements of compensation claims must be submitted to a district director for approval. When the parties are represented by counsel, the settlement “agreement[ is] deemed approved unless specifically disapproved” by the United States Department of Labor District Director for the applicable district or an administrative law judge. 33 U.S.C. § 908(i)(1); 20 C.F.R. § 702.105; 20 C.F.R. § 702.243. The District Director assigned to matters involving injuries in Iraq is the Director for District No. 2, which is located in New York City. 20 C.F.R. § 704.101. In November 2013, the parties jointly submitted the settlement agreement to the District Director, who signed it. (Compl. ¶ 11; Compl. Ex. B.)

         Nearly three years after the approval of that settlement, Rollo filed this action, claiming that Escobedo failed to adequately represent him during the mediation and settlement process. In particular, he claims that Escobedo was unprepared for the mediation (Compl. ¶ 12), and that, although Rollo signed the settlement agreement, Escobedo never explained the terms of the agreement to him (Compl. ¶ 10).

         LEGAL STANDARD

         Rule 12(b)(2) of the Federal Rules of Civil Procedure authorizes motions to dismiss for lack of personal jurisdiction over a defendant. On such a motion, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant. See Bank Brussels Lamberts v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779 (2d Cir. 1999). “In order to survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction exists.” Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 167-68 (2d Cir. 2015) (quoting Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 167 (2d Cir. 2013)). The prima facie showing “must include an averment of facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over the defendant.” In re Terrorist Attacks on September 11, 2011, 714 F.3d 659, 673 (2d Cir. 2013) (quoting Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010) (internal quotation marks omitted)).

         “[I]n deciding a pretrial motion to dismiss for lack of jurisdiction a district court has considerable procedural leeway and it may determine the motion on the basis of . . . affidavits alone.” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (citation omitted). “Where the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiff's favor.” Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001) (citation omitted).

         DISCUSSION

         “District courts resolving issues of personal jurisdiction must . . . determine whether there is jurisdiction over the defendant under the relevant forum state's laws” and “whether an exercise of jurisdiction under these laws is consistent with federal due process requirements.” Bank Brussels Lamberts, 171 F.3d at 784; Chassman v. Bezzabeh, No. 15-CV-4869 (GHW), 2016 WL 7174669, at *2 (S.D.N.Y. Dec. 7, 2016). Here, New York's long-arm statute authorizes, in pertinent part, specific jurisdiction over non-domiciliaries who, in person or through an agent “transact[] any business within the state or contracts anywhere to supply goods or services in the state.” N.Y. CPLR § 302(a)(1).[2] Rollo contends this Court may exercise personal jurisdiction over Escobedo pursuant to this provision, which should be imputed to Carrabin Shaw due to its apparent authority over Rollo.

         Under New York law, “jurisdiction is proper even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.” Al Rushaid v. Pictet & Cie, 28 N.Y.3d 316, 323 (N.Y. 2016). “Purposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege of conducting ...


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