Melnick v. Adelson-Melnick
| Decision Date | 22 December 2004 |
| Docket Number | No. 04 Civ. 5993(LAK).,04 Civ. 5993(LAK). |
| Citation | 346 F.Supp.2d 499 |
| Parties | Stuart L. MELNICK, Plaintiff, v. Wendy ADELSON-MELNICK, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Stuart L. Melnick, Stuart L. Melnick, LLC, Plaintiff pro se.
Peter T. Shapiro, Jones Hirsch Connors & Bull P.C., for Defendant.
This diversity action, which was removed from New York Supreme Court, is the latest episode in long running matrimonial litigation that continues and belongs in the courts of Connecticut. Defendant moves to dismiss for failure to state a claim, lack of subject matter jurisdiction, lack of personal jurisdiction, and improper venue and on the ground of forum non conveniens and for other relief, including sanctions.
The Court accepts as true, for purposes of this motion, the well pleaded factual allegations of the complaint save that it considers the affidavits specifically cited below solely insofar as they bear on the issue of personal jurisdiction.
Plaintiff and defendant were married in 1991 and divorced in 1997 pursuant to a judgment of the Superior Court for the State of Connecticut. A separation agreement providing, among other things, for visitation rights with respect to the minor child of the marriage was incorporated in the divorce decree.
The parties have had continuing disagreements with respect to visitation. In November 2003, in an effort to resolve these problems, they entered into a supplemental agreement that was reduced to an order of the Family Court in Connecticut.
Plaintiff, now a citizen of New York, claims that his former spouse, still a citizen of Connecticut, has breached the separation and supplemental agreements and otherwise misbehaved, chiefly in relation to his visitation rights. He allegedly has been unsuccessful in obtaining relief from the Connecticut courts. So he brought this action in New York Supreme Court, whence defendant removed it to this Court.
The complaint contains eight claims for relief:
• Breach of the separation and supplemental agreements, chiefly in relation to visitation.
• Breach of the covenant of good faith and fair dealing implicit in the separation and supplemental agreements, chiefly in relation to visitation.
• Fraud in the inducement of the separation and supplemental agreements in that the defendant allegedly had no intention of performing.
• Tortious interference with custodial rights.
• Intentional infliction of emotional distress.
• Negligent infliction of emotional distress.
• Prima facie tort.
• Punitive damages.
The complaint alleges in conclusory terms that the actions complained of either occurred in New York or have had a detrimental impact here.1 Its specific allegations, however, all contend that defendant improperly acted or failed to act in the State of Connecticut.2 It asserts — falsely, as shown below — that defendant commenced an unspecified proceeding against plaintiff in New York Family Court.3
Defendant has submitted an affidavit stating that she has resided in Connecticut for many years, that the child always has lived there, that she has had no contacts with New York pertaining to these matters except that she has received telephone calls and correspondence initiated by plaintiff from New York, and that she never has traveled to New York for any reason connected with the dispute with her ex-husband.4
The separation agreement, which is incorporated in the judgment of divorce, provides that plaintiff is to have "liberal and reasonable visitation," that the defendant shall meet plaintiff in Milford, Connecticut, on alternate weekends to exchange the child, and that the plaintiff shall pick up the child in Connecticut for specified holidays. Any disputes concerning visitation are to be mediated and then submitted to the Connecticut Superior Court either to incorporate any agreements reached in mediation in court orders or for resolution on motion.5 The supplemental agreement similarly provides for plaintiff to have "parenting time" with the child, with exchanges of the child to occur in Connecticut.6
Plaintiff's affidavit in opposition to the motion is extremely sparse on the issue of personal jurisdiction. He contends that the "Court appears to have ... personal jurisdiction" and again refers to the alleged New York Family Court action, but otherwise does not address the issue save to say — without a shred of support and in the face of the express terms of the agreements — "that defendant's obligations under the agreements between us, principally the Separation Agreement, were to have been performed, fulfilled and/or effectuated in the City and State of New York."7
Plaintiff's reference to the New York Family Court action is more circumspect than in the complaint. The complaint alleged that defendant "commenced" such an action.8 The affidavit, in contrast, says that "[d]efendant filed or caused to be filed a Family Court action here" in consequence of which he now makes child support payments to the State of New York.9 The reason for the change in wording is readily apparent, as defendant quite clearly did not commence any proceeding against plaintiff in the New York Family Court.10 What happened was quite different.
Defendant fell into arrears in child support payments. The Support Enforcement Division of the Connecticut Superior Court demanded payment from the plaintiff.11 Connecticut authorities then pursued the plaintiff in the New York Family Court.12
In Ball v. Metallurgie Hoboken-Overpelt, S.A.,13 the Second Circuit made clear that, in the face of a challenge to a district court's personal jurisdiction over a defendant, "the plaintiff's obligation varies depending on the procedural posture of the litigation."14 Prior to discovery, a plaintiff challenged by a Rule 12(b)(2) motion may defeat the motion by "pleading in good faith legally sufficient allegations of jurisdiction."15
17
A prima facie case is established if the plaintiff presents sufficient evidence to defeat a motion for directed verdict.18 In other words, the standard is akin to that on a motion for summary judgment.19 The pleadings, documents, and other evidentiary materials must be "`construed in the light most favorable to plaintiff and all doubts are resolved in its favor.'"20 Thus, once a plaintiff has alleged facts that, if proved, would support jurisdiction, a defendant cannot win a Rule 12(b)(2) motion merely by denying plaintiff's allegations. Rather, the defendant's moving papers must "`entirely refute the plaintiff's allegations.'"21
In this case, defendant's affidavit asserts that she is a resident of Connecticut and, in substance, that she has done nothing in relation to the matters in dispute that possibly could give rise to a claim in New York. The judgment of divorce and the supplemental agreement support these allegations, as they demonstrate that defendant's obligation with respect to affording visitation and "parenting time" was only to make the child available to plaintiff in Connecticut.22 In these circumstances, the plaintiff is obliged to come forward with evidence creating a genuine issue of fact material to the existence of personal jurisdiction.
Plaintiff's affidavit is long on argument and conclusions but short on evidence. He avers that "this Court appears to have ... personal jurisdiction."23 But the only facts alleged in support of that argument are that the defendant filed a Family Court action, registered the Connecticut divorce judgment in New York and sought injunctive relief in this action.24 He then argues — contrary to the language of the separation and supplemental agreements and of his own allegations that defendant breached those agreements by failing to make the child available to him in Connecticut — that the defendant's obligations under the agreements in suit were to have been performed or effectuated, and that the harm complained of by plaintiff occurred, in New York.25 But these assertions fall considerably short.
N.Y. CPLR § 302(a) provides in relevant part:
The registration of the divorce judgment, the Family Court action, and the motion for injunctive relief in this action afford no basis for personal jurisdiction, as none of plaintiff's claims for relief arise from those acts. The contention that plaintiff has been harmed here invokes Section 302(a), subd. 3, but it fails because there is not even a suggestion that defendant meets the requirements of Section 302(a), subd.3(i) or (ii). The only assertion that even approaches satisfaction of the...
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... ... Neither party has shown that the potentially relevant contract law of Virginia, Maryland or Kentucky differs from that of New York. See Melnick v. Adelson-Melnick, 346 F.Supp.2d 499, 506 n. 39 (S.D.N.Y.2004) ("As the parties have relied exclusively on New York cases and neither has referred ... ...
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...Metro. Life Ins. Co. , 84 F.3d at 567 (alteration in original) (quoting Ball , 902 F.2d at 197 ); see Melnick v. Adelson-Melnick , 346 F. Supp. 2d 499, 502 (S.D.N.Y. 2004). In assessing the plaintiff's showing, the court applies a "standard ... akin to that on a motion for summary judgment,......
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...Metro. Life Ins. Co. , 84 F.3d at 567 (alteration in original) (quoting Ball , 902 F.2d at 197 ); see also Melnick v. Adelson-Melnick , 346 F. Supp. 2d 499, 502 (S.D.N.Y. 2004). In assessing the plaintiff's showing, the court applies a "standard ... akin to that on a motion for summary judg......
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