United States District Court, S.D. New York
OPINION & ORDER
VALERIE CAPRONI, United States District Judge
Duff & Phelps Securities LLC (“D&P”), a
New York investment bank, has sued Defendants Patricia and
Raymond Wisniewski (collectively, the
“Wisniewskis” or “Defendants”), New
Jersey residents, for breach of contract. Compl. ¶¶
1-3, 52-58. The Wisniewskis move to dismiss for lack
of personal jurisdiction, arguing that they never entered or
purposefully directed any activities towards New York in
connection with the disputed contract. Dkt. 15. For the
following reasons, the Court holds that it lacks personal
jurisdiction over the Defendants and therefore TRANSFERS this
case to the District of New Jersey.
2015, the Wisniewskis sought to sell Ms. Wisniewski's
thirty percent ownership interest, or acquire additional
ownership interest, in National Retail Systems, Inc.
(“NRS”), a New Jersey company. Patricia Decl.
¶¶ 2, 5; Raymond Decl. ¶¶ 2, 5; Usatine
Decl. ¶ 2. The Wisniewskis' attorney, Warren Usatine
of the law firm Cole Schotz, contacted various investment
banks, including D&P. Usatine Decl. ¶ 3. In advance
of a meeting at Cole Schotz's New Jersey office, Usatine
Decl. ¶ 4, D&P sent Usatine an overview of
D&P's qualifications and biographies of its
employees, all of whom were disclosed as working in
D&P's New York office. Melzer Decl. ¶ 5. D&P
also prepared a non-disclosure agreement for NRS'
confidential information, which D&P and NRS executed, and
a fee proposal for D&P's services, which the
Wisniewskis declined to accept. Melzer Decl. ¶¶
months later, Usatine again contacted D&P to renew
discussions about a potential engagement by the Wisniewskis.
Usatine Decl. ¶ 8; Melzer Decl. ¶ 9. D&P
submitted a revised proposal, which D&P converted into an
engagement letter (“Agreement”) at Usatine's
request. Melzer Decl. ¶¶ 9-13; Compl. ¶¶
17-19. Defendants do not dispute that D&P drafted and
prepared these documents in New York.
to the Agreement, the Wisniewskis agreed to retain D&P
“to act as their exclusive financial advisor in
connection with the potential sale of their interest in
NRS.” Compl. ¶ 23 (quoting Compl. Ex. A
(hereafter, “Agreement”) ¶ 1). The Agreement
was divided into two phases: during Phase 1, D&P would
advise on an auction process for the potential sale; in Phase
2, D&P would provide specified services related to the
sale. Compl. ¶¶ 26-27 (citing Agreement
¶¶ 1, 2). The initial term of the Agreement was six
months, after which the Agreement was automatically extended
on a month-to-month basis, absent thirty days written notice
of termination by either party. Compl. ¶ 25 (citing
Agreement ¶ 13). In March 2016, the parties executed the
Agreement-D&P from New York and the Wisniewskis from New
Jersey. Compl. ¶¶ 21-22; Patricia Decl. ¶ 7;
Raymond Decl. ¶ 7.
connection with Phase 1, D&P prepared a proposed auction
process for the potential sale transaction. Melzer Decl.
¶¶ 18-21. D&P met with Mr. Wisniewski and Cole
Schotz attorneys in New Jersey to discuss and finalize the
auction process proposal. Melzer Decl. ¶ 20. D&P
provided additional advice on the auction process through
conference calls with the Wisniewskis and Cole Schotz. Melzer
Decl. ¶ 21. Defendants do not dispute that, aside from
its attendance at the New Jersey meeting, D&P performed
all of its work in New York.
2016, the Wisniewskis abandoned the auction process. Compl.
¶ 42. Plaintiff alleges that the Wisniewskis violated
the Agreement by continuing negotiations to sell their
interest in NRS without informing D&P. Compl. ¶ 46.
Plaintiff further alleges that the Wisniewskis sold their NRS
ownership interest in August 2016 and that D&P is
entitled to a transaction fee of at least $750, 000 under the
Agreement. Compl. ¶¶ 48-51.
move to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(2), arguing that New York's long-arm statute does
not support the exercise of personal jurisdiction over
Defendants. Plaintiff argues that Defendants' deliberate
engagement of a New York firm subjects them to personal
jurisdiction in New York. For the following reasons, the
Court agrees with Defendants and TRANSFERS this case to the
District of New Jersey pursuant to 28 U.S.C. § 1631.
to trial,  when a motion to dismiss for lack of
jurisdiction is decided on the basis of affidavits and other
written materials, the plaintiff need only make a prima facie
showing.'” 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)). “With exceptions not
relevant here, a district court sitting in a diversity action
such as this may exercise personal jurisdiction to the same
extent as the courts of general jurisdiction of the state in
which it sits.” Bank Brussels Lambert v. Fiddler
Gonzalez & Rodriguez, 305 F.3d 120, 124 (2d Cir.
2002) (citing Fed.R.Civ.P. 4(k)(1)(A)). Accordingly, the
Court engages in a familiar two-step analysis, first
determining whether plaintiffs have made a prima facie
showing that defendants would be subject to personal
jurisdiction under the laws of the forum state and then
determining whether this exercise of jurisdiction would
comport with the Due Process Clause of the Fourteenth
are two types of personal jurisdiction: specific and
general.” Sonera Holding B.V. v. Çukurova
Holding A. §., 750 F.3d 221, 225 (2d Cir. 2014)
(per curiam). Plaintiff here does not allege general personal
jurisdiction but asserts that the Court has jurisdiction
pursuant to N.Y. C.P.L.R. § 302(a)(1). That statute
confers personal jurisdiction “over any non-domiciliary
. . . who in person or through an agent transacts any
business within the state or contracts anywhere to supply
goods or services in the state.” N.Y. C.P.L.R. §
302(a)(1). Jurisdiction under section 302(a)(1) may be
“proper ‘even though the defendant[s] never
enter 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.'”
Fischbarg v. Doucet, 880 N.E.2d 22, 26 (N.Y. 2007)
(quoting Deutsche Bank Sec, Inc. v. Mont. Bd. of
Invs., 850 N.E.2d 1140, 1142 (N.Y. 2006)). No single
event connecting a defendant to the forum state is
dispositive. CutCo Indus. v. Naughton, 806 F.2d 361,
365 (2d Cir. 1986). The Court must consider the totality of
the defendant's contacts with the forum state to
determine whether jurisdiction is proper. Id.
Although this “is an objective inquiry, it always
requires a court to closely examine the defendant[s']
contacts for their quality.” Licci v. Lebanese
Canadian Bank, 984 N.E.2d 893, 899-900 (N.Y. 2012).
evaluating a claim of personal jurisdiction under C.P.L.R.
302(a)(1), courts consider the so-called Agency Rent a
Car factors: (i) does the defendant have an ongoing
contractual relationship with a New York person or entity;
(ii) was the contract at issue negotiated or executed in New
York, and did the defendant visit New York for the purpose of
meeting with parties to the contract regarding the
relationship, after the contract was executed; (iii) is there
a choice-of-law clause in the contract; and (iv) does the
contract require the defendant to send notices and payments
into New York or subject the defendant to supervision in New
York. Agency Rent A Car Sys., Inc. v. Grand Rent A Car
Corp., 98 F.3d 25, 29 (2d Cir. 1996); Sunward
Elecs., Inc. v. McDonald, 362 F.3d 17, 22-23 (2d Cir.
2004) (same). “Although all factors are relevant, no
one factor is dispositive and other factors may be
considered.” Sunward, 362 F.3d at 23.
Ultimately, the existence vel non of personal
jurisdiction is based on the totality of the circumstances.