Patel v. Patel
| Decision Date | 14 July 2007 |
| Docket Number | No. 06-CV-6378 (ADS)(AKT).,06-CV-6378 (ADS)(AKT). |
| Citation | 497 F.Supp.2d 419 |
| Parties | Harshad R. PATEL, Dinesh R. Patel, Vinu K. Patel, and Vijay R. Patel, Plaintiffs, v. Mukesh J. PATEL, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Solomon M. Lowenbraun, Great Neck, NY, for the Plaintiffs.
Goldberg Segalls, LLP, by Edward V. Schwendemann, Esq., of Counsel, Mineola, NY, for the Defendant.
Harshad R. Patel ("Harshad"), Dinesh R. Patel ("Dinesh"), Vinu K. Patel ("Vinu"), and Vijay R. Patel ("Vijay") (collectively, the "plaintiffs") commenced this action against Mukesh J. Patel ("Mukesh" or the "defendant") seeking damages arising from the defendant's alleged breach of an agreement between the parties. Presently before the Court is the defendant's motion pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure to dismiss the complaint for lack of personal jurisdiction or, in the alternative, for a change of venue pursuant to 28 U.S.C. § 1404(a).
A motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(2) is "inherently a matter requiring the resolution of factual issues outside of the pleadings." Yellow Page Solutions, Inc. v. Bell Atl. Yellow Pages Co., No. 00 CIV. 5663, 2001 WL 1468168, at *1 (S.D.N.Y. Nov.19, 2001) (citation omitted). As a result, "all pertinent documentation submitted by the parties may be considered in deciding the motion." Id. The following facts are derived from the complaint, affidavits, and documentary exhibits submitted by parties, and are construed in the light most favorable to the plaintiff. Id. (citing CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986)).
The plaintiffs commenced this action on September 1, 2006, by filing a Summons and Verified Complaint in the Supreme Court of the State of New York, County of Nassau. The defendants were served with the complaint on or about November 7, 2006. On November 30, 2006, within thirty days of receipt of the complaint, the defendants removed the action to this Court.
The plaintiffs are individuals who have engaged in certain business ventures together. Harshad is a resident of Williamsport, Pennsylvania. Dinesh is a resident of Hollis, New York. Vinu is a resident of East Brunswick, New Jersey. Vijay is a resident of Nassau County, New York. Compl. ¶¶ 1-4. Together, during the mid1990s, the plaintiffs were the owners of limited liability companies known as Harmont, LLC ("Harmont") and RAM Properties, LLC ("RAM"). In addition, the plaintiff Harshad owned a 3.59% interest in a limited liability company known as Global Acquisitions and Management LPI. Each of these limited liability companies was organized under the laws of the State of Delaware. Harmont and RAM maintained their principal offices at 190 Jerusalem Avenue, Levittown, New York. Compl. ¶¶ 6-9, 12.
At an unspecified date, the plaintiffs encountered the defendant during the course of their business activities. The defendant Mukesh is a resident of South Carolina. In the Fall of the year 2000, the plaintiffs made an investment in a corporation called Global Acquisition and Management, Inc. ("GAMI") at the same time that Mukesh also made an investment in GAMI. The plaintiffs' investment in GAMI totaled approximately $700,000. The Court is not aware of the amount of the defendant's investment in GAMI. Compl. ¶¶ 15, 15; Affidavit of Vijay R. Patel ("Vijay Aff.") ¶ 4; Affidavit of Mukesh J. Patel ("Mukesh Aff.") ¶ 3.
On November 6, 2000, for reasons undisclosed to the Court, the plaintiffs sought the return of their investment from GAMI, and were able to retrieve $406,000. As of December 1, 2003, the plaintiffs had yet to recover from GAMI the remaining $294,000 of their original investment. Compl. ¶ 16-17; Vijay Aff. ¶ 5.
Apparently, around the time the plaintiffs were attempting to retrieve their investment from GAMI, they learned that GAMI also owed an unspecified amount of money to the defendant. Thus, in or around July 2002, the parties agreed to combine their efforts to retrieve the funds from GAMI. On August 3, 2002, the parties met in New Jersey at the residence of Vinu and conceived a plan for that purpose. The parties agreed that Mukesh would seek to recover the sum of $294,000 owed by GAMI to the plaintiffs, together with the money owed by GAMI to Mukesh, and that they would share the proceeds of that recovery, with the plaintiffs receiving 50% of the recovered sum, and the defendant recovering the remaining 50%. Compl. ¶¶ 8-19; Vijay Aff. ¶¶ 6-7. The Court finds no indication that any agreement between the parties was ever reduced to writing, and the defendant's counsel states that the purported agreement was oral.
In or about October 2003, the plaintiffs learned that Mukesh recovered approximately $745,000 from GAMI. However, Mukesh paid the plaintiffs only $295,000, which is less than 50% of the recovered amount. It is alleged that Mukesh should have paid $372,500 to the plaintiffs. The plaintiffs commenced this action seeking to recover the remaining $77,500 that they claim Mukesh owes them pursuant to their agreement. Compl. ¶¶ 20-22; Vijay Aff. ¶¶ 8-9.
In an affidavit submitted in support of the motion to dismiss, Mukesh states that he currently lives in Tega Cay, South Carolina. He has no employees or affiliates, either individuals or business entities, located or operating in New York. Mukesh does not own or use any real property located in New York. He has no bank accounts in New York. He has not conducted any personal business in New York for approximately twenty years. Mukesh Aff. ¶¶ 3-8.
According to Mukesh, the only communications he had with the plaintiffs regarding the issues raised in this lawsuit were limited to conversations between he and Harshad, while Harshad was in Williamsport, Pennsylvania. Mukesh states that the only other communications he had with the plaintiffs occurred at the August 3, 2002 meeting at Vinu's residence in New Jersey. At that time, the parties mutually agreed to hire a Greensboro, North Carolina law firm to protect their interests with respect to real estate investments that they made in business entities located in Greensboro, North Carolina and in the State of Florida. Finally, Mukesh states that the parties did not agree that New York would be the forum for any dispute between them, and the issue of a choice of forum was never discussed. Mukesh Aff. ¶¶ 9-11.
By contrast, the only allegation in the plaintiffs' complaint regarding the defendant's contact with or activities in New York is the allegation that the plaintiffs invested in GAMI "after inducements and sales efforts by defendant Mukesh were offered and directed to the plaintiffs at their offices in Levittown, New York." Compl. ¶ 15. In an affidavit, the plaintiff Vijay states that he acted as an accountant for the plaintiffs, and in that capacity he conducted business with the defendant from his office in Nassau County, New York. Vijay states that during the course of those business dealings, the defendant directed billings to Vijay's New York office; had telephone conversations with Vijay while Vijay was at his New York office; and received funds from the plaintiffs and their limited liability companies. Vijay Aff. ¶ 10.
As additional evidence of the defendant's contacts with and activities in New York, the plaintiffs submit an uncashed check, dated October 16, 2006, from Mukesh to the plaintiff Harshad. Vijay Aff., Ex. C. The defendant objects to the Court considering this check because it was offered in an attempted compromise of the dispute giving rise to this action. See F.R.E. 408 (). Also, the defendant submitted evidence that he drew the check outside of New York, and mailed it to the plaintiff Harshad from South Carolina to Harshad's address in Pennsylvania. Mukesh Aff., ¶¶ 6-7 & Ex. C.
The plaintiffs also submit two e-mail messages from the defendant to Vijay at a "Yahoo.com" e-mail address. The plaintiffs claims that the e-mails represent the defendant's requests for reimbursement for payments he made to the Philadelphia law firm of Saul Ewing LLP and the Greensboro law firm of Smith Moore LLP. Although the plaintiffs claim that the emails represent a request for payments from the plaintiffs, the Court has reviewed the messages and finds that they contain no express request. Vijay Aff. ¶¶ 15-18, & Exs. D-F. Mukesh states that he was not in New York when he sent these e-mails and that he did not know where Vijay conducted business or where he would be when he received the e-mails. Mukesh Aff., ¶¶ 10-14.
Also annexed to the Vijay Affidavit are copies of checks made payable to Saul Ewing and Smith Moore, drawn from an account in the name of Harmont, LLC. Vijay Aff. ¶ 18, & Exs. D-E. The plaintiffs claim they delivered these checks from New York to the defendant. Mukesh is not and never was, a member or owner of Harmont, and states that he did not prepare or sign the checks. Mukesh Aff., ¶¶ 20-21.
Next, Vijay states that he "and the defendant have had many telephone conversations to and from the defendant with [Vijay] in his office in Nassau County, where [he] has performed his managerial duties for the investments for the plaintiffs." Vijay Aff. ¶ 25. Finally, the plaintiffs submit a billing statement from Smith Moore in North Carolina addressed to Saul Ewing in Philadelphia. Vijay Aff., Ex. F.
In a motion to dismiss for lack of personal jurisdiction pursuant to Fed. R.Civ.P. 12(b)(2), the plaintiffs bear the burden of demonstrating that the Court has jurisdiction over the defendant. See Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir.2001) (citation omitted); Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir.1999) (citation omitted). Where, as here, the parties have not yet conducted discovery, the plaintiffs...
To continue reading
Request your trial
-
Honorable Otto J. Reich & Otto Reich Assocs., LLC v. Lopez
...most often used to find jurisdiction over a corporate defendant, this test can be applied to a nonresident individual.” Patel v. Patel, 497 F.Supp.2d 419, 425 (E.D.N.Y.2007); see also Moneygram Payment Sys., Inc. v. Consorcio Oriental, S.A., 05 Civ. 10773(RMB), 2007 WL 1489806, at *3 (S.D.N......
-
Honorable Otto J. Reich & Otto Reich Assocs., LLC v. Lopez
...most often used to find jurisdiction over a corporate defendant, this test can be applied to a nonresident individual.” Patel v. Patel, 497 F.Supp.2d 419, 425 (E.D.N.Y.2007) ; see also Moneygram Payment Sys., Inc. v. Consorcio Oriental, S.A., 05 Civ. 10773(RMB), 2007 WL 1489806, at *3 (S.D.......
-
Honorable Otto J. Reich & Otto Reich Assocs., LLC v. Lopez, 13-CV-5307 (JPO)
...often used to find jurisdiction over a corporate defendant, this test can be applied to a nonresident individual." Patel v. Patel, 497 F. Supp. 2d 419, 425 (E.D.N.Y. 2007); see also Moneygram Payment Sys., Inc. v. Consorcio Oriental, S.A., 05 Civ. 10773 (RMB), 2007 WL 1489806, at *3 (S.D.N.......
-
Fahey v. Breakthrough Films & Television Inc.
...such as the existence of an office, bank accounts, or other property in the state.” Giannetta, 2021 WL 2593305, at *6 (quoting Patel, 497 F.Supp.2d at 425). have failed to establish that this Court has general jurisdiction over any Defendant. First, Plaintiffs have not provided any basis to......