Bohn v. Bartels

• Decision Date: 12 December 2007
• Docket Number: No. 06 Civ. 1390(PKL).,06 Civ. 1390(PKL).
• Citation: 620 F.Supp.2d 418
• Parties: Rita BOHN, Plaintiff, v. Michael F. BARTELS, Companhia de Seguros Mundial Confianca, S.A. and Companhia de Seguros Fidelidade Mundial, S.A., Defendants.
• Court: U.S. District Court — Southern District of New York

Page 418

620 F.Supp.2d 418

Rita BOHN, Plaintiff, v. Michael F. BARTELS, Companhia de Seguros Mundial Confianca, S.A. and Companhia de Seguros Fidelidade Mundial, S.A., Defendants.

No. 06 Civ. 1390(PKL).

United States District Court, S.D. New York.

December 12, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William Waterman, Jr., Attorney at Law, William Waterman, Jr., Esq., New York, NY, for Plaintiff.

Cozen O'Connor, Jed M. Weiss, Esq., New York, NY, for Defendants.

OPINION AND ORDER

LEISURE, District Judge.

Defendants, Michael F. Bartels ("Bartels"), Companhia de Seguros Mundial Confianca, S.A. ("Mundial Confianca"), and Companhia de Seguros Fidelidade Mundial ("Fidelidade") (collectively "defendants"), move this Court to dismiss the Complaint filed against them by plaintiff Rita Bohn ("Bohn").¹ Fidelidade seeks dismissal pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure on the basis that this Court lacks personal jurisdiction over it and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a cause of action. In addition, all defendants seek dismissal pursuant to the doctrine of forttm non conveniens, as well as dismissal based on the pendency of an action in Portugal. For the following reasons, defendants' motion is GRANTED.

BACKGROUND

This action arises out of an accident that occurred on March 2, 2003 at the Lajes Air Force Base, Terceira Island, Azores, Portugal.² (Complaint ¶ 4.) At approximately 11:00 p.m. on March 2, 2003, Bohn was crossing a street at the Lajes Air Force Base when she was struck by a vehicle being driven by Bartels, a member of the. United States Air Force stationed at Lajes Air Force Base. (Complaint ¶ 5.) At the time of the accident, Bohn—a teacher employed by the United States Department of Defense in a school for United States military children on the Lajes Air Force Base—was accompanied by her two daughters, Ashley and Meredith, and one of her students, Nicole Snead. (Bohn Decl. ¶¶ 2-5.) Fidelidade, a Portuguese insurance company with its principal place of business in Lisbon, Portugal, had issued an automobile liability policy that covered Bartels from July 25, 2002 until July 24, 2003. (Figueiredo Aff. ¶¶ 2-5.)

Some time after the March 2, 2003 accident, both Bohn and Bartels left Portugal. Bohn moved to Japan, where she was stationed with the United States Department of Defense. (Bohn Decl. ¶ 1.) Bartels moved to New York and became a student at the State University of New York in Oneonta. (Complaint ¶ 3; Pl.'s Opp. at 5.)

Bohn filed two lawsuits related to this accident. On February 23, 2006, Bohn filed suit against Fidelidade and Bartels in the Court of the Judicial District of Vila da Praia da Vitoria in Portugal. (Weiss Decl. Ex. C.) Fidelidade has filed a response in the Portuguese action. (Weiss Decl. Ex. D.) Based on the information currently before this Court, Bartels has not yet responded.

In addition, Bohn filed a Complaint in this Court against defendants on February 21, 2006 claiming that Bartels was negligent at the time of the accident. (Complaint ¶ 6.) After receiving two extensions of time to answer or move, defendants filed this motion to dismiss on June 5, 2006. Bohn filed her Opposition on July 31, 2006. Defendants replied and the case was fully submitted on August 14, 2006.

DISCUSSION

Defendants seek dismissal of the claims against them, on several grounds. Fidelidade seeks dismissal pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure on the basis that this Court lacks personal jurisdiction over it and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a cause of action. In addition, all defendants seek dismissal pursuant to the doctrine of forum non conveniens as well as dismissal due to the pendency of the parallel action in Portugal.

I. Personal Jurisdiction Over Fidelidade

a. Rule 12(b)(2)

Fidelidade asserts that all claims against it must be dismissed under Rule 12(b)(2) of the Federal Rules of Civil Procedure because Bohn cannot meet its burden of establishing that this Court has personal jurisdiction over it. (Def.'s Mot. at 5.) When considering a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, it is well established that "the plaintiff bears the burden of showing that the court has jurisdiction over the defendant." In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003) (per curiam); Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). "Prior to discovery, a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction." Metro. Life, 84 F.3d at 566. Ultimately, personal jurisdiction must be proven by a preponderance of the evidence, either at an evidentiary hearing or at trial. See A. I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993). "But 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 plaintiffs favor, notwithstanding a controverting presentation by the moving party." Id.; see also Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir.2001).

A district court sitting in diversity applies the forum state's law to determine whether it has personal jurisdiction over a defendant. See Geller Media Mgmt., Inc. v. Beaudreault, 910 F.Supp. 135, 137 (S.D.N.Y.1996) (Leisure, J.) (citing Fed.R.Civ.P. 4(k)(l)(A)). If the forum state's law allows the exercise of personal jurisdiction, then the Court must determine whether doing so comports with due process guarantees of the United States Constitution. See Metro. Life, 84 F.3d at 567 (quoting Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir.1963) (en banc)). Thus, to determine whether the Court has personal jurisdiction over Fidelidade, it must engage in a two-part inquiry. First, the Court must determine whether there is personal jurisdiction over Fidelidade under New York state law. Second, if New York law provides for personal jurisdiction, the Court must determine whether the assertion of jurisdiction comports with the constitutional requirements of due process. Id.; see also Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

b. Personal Jurisdiction Under New York Law

A court may exercise two types of jurisdiction over a defendant: general and specific. See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). New York law provides for both general and specific personal jurisdiction. See N.Y. C.P.L.R. §§ 301-302 (McKinney 2001). In the case of general jurisdiction, plaintiffs claim need not arise out of defendant's contacts with the forum state, but defendant's contacts must be substantial. Id. § 301. For specific jurisdiction, defendant's contacts need not be as substantial, but plaintiffs claim must arise out of those contacts. Id. § 302. In this case, Bohn concedes that the Court may not exercise general personal jurisdiction over Fidelidade. (Pl.'s Opp. at 14.) Bohn asserts that the Court may exercise specific personal jurisdiction pursuant to section 302(a)(1) of the New York Civil Practice Law and Rules. (Pl.'s Opp. at 14.)

Section 302(a)(1) allows a court to exercise specific jurisdiction over a nondomiciliary 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). With the addition of the "contracts anywhere" provision,³ New York courts may "exercise jurisdiction over a nondomiciliary who contracts outside this State to supply goods or services in New York even if the goods are never shipped or the services are never supplied in New York, so long as the cause of action ... arose out of that contract." Sirius Am. Ins. Co. v. SCPIE Indem. Co., 461 F.Supp.2d 155, 161 (S.D.N.Y.2006) (citing 1979 Report of N.Y. Law Revision Comm., McKinney's Sessions Laws of N.Y., 1450-53).

Bohn does not dispute Fidelidade's contention that it does not transact any business within New York. (Pl.'s Opp. at 14.) Rather, Bohn asserts that Fidelidade is amenable to suit under the "contracts anywhere" clause of section 302(a)(1). (Pl.'s Opp. at 14-15.) Citing the large number of Americans stationed at the Air Force base and the large percentage pf those with cars, Bohn states that "it would be reasonable for Fidelidade to expect that in the event of an accident involving defendant Bartels, particularly an accident involving one of the many other Americans on the base and in the base community, he might well be sued in the United States, namely the state of his domicile." (Pl.'s Opp. at 15.) Thus, Bohn argues that by issuing a policy to a domiciliary of New York, Fidelidade was contracting to supply services in New York. (Pl.'s Opp. at 15.)

Bohn concedes that she has found no case law holding a foreign insurer who does not do business in New York subject to jurisdiction by reason of an obligation to defend the insured in New York. (Pl.'s Opp. at 15.) Instead, Bohn supports her position by analogizing the instant case to those permitting jurisdiction over an out-of-state party giving a guarantee payable in New York.⁴ (Pl.'s Opp. at 15-16.) The line of cases cited by Bohn, however, involves a promise specifically'directed towards New York. See, e.g., A.I. Trade Fin., Inc., 989 F.2d at 82 (stating that payment in New York was not "an incidental or fortuitous aspect of the transaction" where making the guarantee payable in New York was critical to the success of the transaction); Rielly Co. v. Lisa B. Inc., 181 A.D.2d 269, 586 N.Y.S.2d 668 (3d Dep't 1992) (holding that nondomiciliary's guarantee of New York corporation's debt was sufficient for long-arm jurisdiction where the promise "enabled [the New York...