Merritt v. Shuttle, Inc.
| Decision Date | 15 July 1998 |
| Docket Number | No. 97-CV-2986 (TCP).,97-CV-2986 (TCP). |
| Citation | 13 F.Supp.2d 371 |
| Parties | Richard MERRITT and Mary-Jo Merritt, Plaintiffs, v. SHUTTLE, INC., U.S. Airways, Inc., Terry V. Hallcom, Joseph McNeil, John Blankenship, Kevin O'Donnell, Kent Jarrell, WUSA Television, Steven K. Wilson and John Does 1 through 50, in their individual capacities, the last 50 names being fictitious names of employees of Shuttle, Inc., U.S. Airways, Inc. and Federal Aviation Administration, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Richard Merritt, Lido Beach, NY, pro se.
Richard Merritt, Lido Beach, NY, for Mary-Jo Merritt
Jeffery I. Kohn, O'Melvery & Meyers, New York City, for Shuttle, Inc., U.S. Airways Inc., Steven K. Wilson.
Patrick P. Salisbury, Salisbury & Ryan, L.L.P., New York City, for Terry V. Hallcom.
Marianne Finnerty, U.S. Dept. of Justice, Torts Branch, Civil Division, Washington, DC, for Joseph McNeil, John Blankenship, Kevin O'Donnell, Kent Jarrell, WUSA Television, United States of America.
Defendant U.S. AIRWAYS, INC. ("US Airways") moves pursuant to Rule 12(b)(6) to dismiss the First Amended Complaint. Defendants UNITED STATES OF AMERICA, KEVIN O'DONNELL, JOHN BLANKENSHIP and JOSEPH McNEIL (collectively, "the federal defendants"), SHUTTLE, INC. ("Shuttle"), TERRY HALLCOM ("Hallcom") and STEVEN WILSON ("Wilson") move to dismiss the First Amended Complaint pursuant to Rules 12(b)(1), 12(b)(6) and 12(c) on the ground that this Court lacks subject matter jurisdiction or, alternatively, for failure to state a claim.1 Defendants WUSA TELEVISION ("WUSA") and KENT JARRELL ("Jarrell") move to dismiss the First Amended Complaint pursuant to Rules 12(b)(2) and 12(b)(6) on the basis that this Court lacks personal jurisdiction over these defendants or, alternatively, for failure to state a claim.
Plaintiff RICHARD MERRITT ("Merritt") worked for Shuttle as a pilot. On June 24, 1996, he was the captain of a Boeing 727 assigned to fly flight number 6500 from Washington National Airport to LaGuardia Airport. Plaintiff claims that he was told to proceed to his aircraft for an early departure at 4:15 p.m. that afternoon. Merritt claims that between 4:30 p.m. and 5:00 p.m., that same day, Shuttle, U.S. Airways and Federal Aviation Administration ("FAA") employees received information about severe weather — including a possible tornado — rapidly approaching Washington National Airport. Merritt avers that Shuttle and FAA employees failed to advise him of those warnings and directed him to take off. At 5:11 p.m., while FAA personnel were preparing to evacuate the flight tower, flight 6500 was cleared for takeoff. The severe weather passed directly over Washington National Airport as Merritt was taking off, causing a windshear that forced the 727's left wing to hit the runway just as it became airborne.
Merritt contends that Shuttle and FAA employees knew that the left wing of the aircraft had been damaged upon takeoff but failed to inform the crew of flight 6500. Merritt ultimately landed safely in New York. Merritt claims that he was detained for six hours upon his arrival while Shuttle employees altered aircraft log books. The next day, Merritt refused Shuttle management's order to undergo FAA interrogation regarding the incident because he believed that the order violated federal air regulations. Allegedly acting in conspiracy, U.S. Airways and Shuttle management and FAA personnel subsequently contacted the news media and reported that Merritt's own poor judgment caused the incident. The FAA revoked Merritt's pilot license at an emergency hearing and, after a review by the National Transportation Safety Board ("NTSB"), modified the revocation to a nine-month suspension. Thereafter, plaintiff was terminated from his employment by defendant Wilson. Plaintiff alleges that the grievance proceedings held to review his termination were tainted.
In the First Amended Complaint, plaintiff asserts several causes of action, including claims for negligence (first and second counts), violation of constitutional rights (third count), defamation (fourth count), violations of the Railway Labor Act, 45 U .S.C. § 151 et seq. ("RLA") (sixth count), violations of the Employee Retirement Income Security Act of 1974 ("ERISA") (seventh count), violations of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") (ninth count) and violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA") (tenth count).2 Plaintiff's wife MARY-JO MERRITT asserts a claim for loss of consortium (eighth count).
Defendant WUSA and its announcer Jarrell move to dismiss the First Amended Complaint pursuant to Rule 12(b)(2) for lack of personal jurisdiction and Rule 12(b)(6) for failure to state a claim.
According to Rule 12(b)(2), a complaint is subject to dismissal when the court lacks jurisdiction over the person upon whom it is served. Fed.R.Civ.P. 12(b)(2). When a defendant challenges personal jurisdiction by a motion to dismiss, the burden is on the plaintiff to prove jurisdiction. Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). In an action based upon diversity of citizenship, New York law determines whether a defendant who has not consented to jurisdiction is amenable to suit. See Savin v. Ranier, 898 F.2d 304, 306 (2d Cir.1990).
New York's Civil Practice Laws and Rules ("CPLR") § 301 provides: "A court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore." (McKinney 1990). Decisional law prior to and continuing under the CPLR, therefore, is the basis for determining whether a court may exercise jurisdiction over defendants who do not consent. FCNB Spiegel Inc. v. Dimmick, 163 Misc.2d 152, 619 N.Y.S.2d 935, 937 (1994). According to case law, a foreign corporation "doing business" within the state subjects itself to personal jurisdiction as long as it does business "not occasionally or casually, but with a fair measure of permanence and continuity ...." Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (1917). This principle was extended to apply to individual defendants in ABKCO Indus., Inc. v. Lennon, 85 Misc.2d 465, 377 N.Y.S.2d 362, 366-67 (1975).
Plaintiffs' First Amended Complaint fails to allege that either WUSA or Jarrell engaged in any activities that constitute "doing business" in the State of New York. Indeed, the First Amended Complaint fails to recite a basis upon which the New York courts may exercise personal jurisdiction at all. See Compl. at ¶ 14. Rather, it is only in plaintiffs' opposition to this motion that plaintiffs allege defendants have any New York contacts at all by arguing that WUSA sells videotapes and written transcripts of its broadcasts in a mail order business. Pls.' Mem. at 16. Moreover, the opposition is silent regarding Jarrell's contacts with the State of New York.
The jurisdictional omission in the First Amended Complaint notwithstanding, even assuming plaintiffs' allegations in their opposition are true and WUSA indeed directs mail orders into New York, WUSA's contacts with New York as described here do not subject it to personal jurisdiction. Honda Assoc., Inc. v. Nozawa Trading, Inc., 374 F.Supp. 886, 890 (S.D.N.Y.1974). The test of jurisdiction is whether
the aggregate of the corporation's activities in the state [is] such that it may be said to be present in the state not occasionally or casually, but with a fair measure of permanence and continuity ... and [whether] the quality and nature of the corporation's contacts with the state [are] sufficient to make it reasonable and just according to traditional notions of fair play and substantial justice that it be required to defend the action [in the state.]
Diskin v. Starck, 538 F.Supp. 877, 880 (E.D.N.Y.1982) (quoting Laufer v. Ostrow, 55 N.Y.2d 305, 309-10, 449 N.Y.S.2d 456, 434 N.E.2d 692 (1982)) (ellipsis in original).
The quality and nature of WUSA's and Jarrell's contacts with New York are insufficient to require them to defend this action. For instance, WUSA's broadcast signal does not reach New York; neither WUSA nor its parent corporation, The Detroit News, Inc., which is incorporated and has its principal place of business in Michigan, are qualified to do business in New York; and neither entity owns any property in the State. Jarrell does not own property in New York and has not lived here for twenty years. Indeed, the only jurisdictional allegation plaintiffs make against Jarrell is: Compl. at ¶ 13.
Therefore, this Court may not properly exercise jurisdiction over WUSA or Jarrell pursuant to CPLR § 301.
Moreover, jurisdiction over WUSA and Jarrell is inappropriate under CPLR § 302(a)(1), which provides:
[A] court may exercise 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) (McKinney 1990).
Although a defendant need not engage in "systematic and continuous" transactions in New York, there must be a direct and substantial relationship between the instate activities and the cause of action. Diesel Sys., Ltd. v. Yip Shing Diesel Eng'g Co., 861 F.Supp. 179, 182 (E.D.N.Y.1994). WUSA and Jarrell argue that plaintiffs' libel claim is not substantially related to the transaction of their business in New York. Defendants contend that "[p]...
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