Twine v. Levy

• Decision Date: 09 October 1990
• Docket Number: No. 89 CV 941.,89 CV 941.
• Citation: 746 F. Supp. 1202
• Parties: James Charles TWINE, Plaintiff, v. Gilbert W. LEVY and Levy & Hamilton, P.C., Defendants.
• Court: U.S. District Court — Eastern District of New York

746 F. Supp. 1202

James Charles TWINE, Plaintiff, v. Gilbert W. LEVY and Levy & Hamilton, P.C., Defendants.

No. 89 CV 941.

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

October 9, 1990.

James Charles Twine, pro se.

Kevin J. O'Neill, Morris & Duffy, New York City, for defendants.

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

Defendants move for dismissal pursuant to Fed.R.Civ.P. 12(b). Defendants base their motion on the following grounds: lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2); improper venue, Fed.R.Civ.P. 12(b)(3); insufficiency of service of process, Fed.R.Civ.P. 12(b)(5); and failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). For reasons to be discussed below, defendants' motion is granted on the basis of a lack of personal jurisdiction.

FACTS

Plaintiff filed a legal malpractice suit in this Court. His claim is based on diversity jurisdiction; i.e., plaintiff is a domiciliary of New York and defendants are domiciliaries of the State of Washington.

Plaintiff alleges that on April 24, 1987, defendant, Gilbert Levy, represented him at a sentencing hearing in the United States District Court for the Western District of Washington. It is alleged that Mr. Levy — plaintiff's court-appointed counsel — negligently failed to object to certain inaccurate and prejudicial information contained in plaintiff's presentence report.

Plaintiff's complaint is devoid of any statements supporting a finding of personal jurisdiction by this Court. In his response to the present motion, plaintiff asserts that the Court has personal jurisdiction over the defendants based on a series of correspondence between defendant, Gilbert Levy, and plaintiff concerning Mr. Levy's representation of plaintiff. As a jurisdictional predicate, plaintiff relies on several phone conversations between himself and Mr. Levy while defendant was in Washington and plaintiff was in New York, as well as several letters sent to him by defendant Levy from Washington. In addition, plaintiff contends that certain actions taken by him at the behest of his attorney, Mr. Levy, provide sufficient contacts with New York for this Court to exercise personal jurisdiction over defendants in this action.¹

Gilbert Levy was a partner in the erstwhile law firm of Levy & Hamilton. Both Mr. Levy and his former law firm are defendants in this action. Defendant, Gilbert Levy, is licensed to practice law in Washington; he is not, nor has he ever been, licensed to practice law in New York. Mr. Levy resides in Seattle, Washington and has never been a resident of New York. Mr. Levy never was served with process in New York; he does not maintain any offices for the transaction of business in New York; he does not have any agents in New York upon whom process may be served; nor does he employ anyone to conduct business on his behalf in New York. Defendant's Affidavit at 2. These facts are uncontradicted.

Defendant, Levy & Hamilton, was a partnership formed in accordance with the laws of the State of Washington. Levy & Hamilton was never licensed to do business in New York; it did not have any affiliates, subsidiaries, or employees conducting or soliciting business in New York; nor did it maintain any agents in New York upon whom process could be served. Defendant Partnership's Affidavit at 1-2. These facts, too, are uncontradicted.

DISCUSSION

In a case based on diversity of citizenship, federal courts apply the law of the forum state in determining whether to exercise personal jurisdiction over the defendants. Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985); Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir.1963) (en banc). Thus, in the present case, the Court looks to New York's law regarding personal jurisdiction.

Application of New York law to the question of personal jurisdiction requires a twofold analysis. A determination must first be made as to whether New York law provides a basis for the exercise of personal jurisdiction over defendants. See New York Civil Practice Law and Rules §§ 301-302 ("CPLR"). If the Court determines that New York law provides for the exercise of jurisdiction over defendants, the analysis then ascends to a constitutional level. This second tier of inquiry requires the Court to determine whether the exercise of personal jurisdiction over defendants would offend due process. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In light of the Court's decision below that these defendants are not subject to personal jurisdiction under New York law, any due process inquiry becomes superfluous.

NEW YORK LONG-ARM JURISDICTION

Plaintiff claims that the Court may exercise personal jurisdiction based on several provisions of the CPLR, including: the "doing business" standard, CPLR § 301; transacting business in New York, CPLR § 302(a)(1); tortious activity within New York, CPLR § 302(a)(2); and tortious activity without the state which causes injury in New York, CPLR § 302(a)(3). These assertions will be addressed seriatim.

A. "Doing Business"

Section 301 of the CPLR provides courts with the power to exercise personal jurisdiction over a non-domiciliary defendant based on the traditional notion of the defendant's presence within the state. See Bryant v. Finnish Nat. Airline, 15 N.Y.2d 426, 208 N.E.2d 439, 260 N.Y.S.2d 625 (1965). Subsumed within this notion of presence is the concept that a non-domiciliary defendant will be deemed "present" in New York if the defendant engages in a continuous and systematic course of business in New York; i.e., the defendant is doing business in New York. Frummer v. Hilton Hotels Inc., 19 N.Y.2d 533, 536, 227 N.E.2d 851, 853, 281 N.Y.S.2d 41, 43, cert. denied, 389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266 (1967); Amajac, 763 F.2d at 58.

The "doing business" standard requires more than just occasional or casual business activities within the state; rather, the defendant's conduct must be "with a fair measure of permanence and continuity." Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915, 917 (1917); see Laufer v. Ostrow, 55 N.Y.2d 305, 310, 434 N.E.2d 692, 694, 449 N.Y.S.2d 456, 458 (1982). The business conducted by the non-domiciliary must be sufficiently consistent and persistent to support the legal fiction that the non-domiciliary defendant is present within the state. Frummer, 19 N.Y.2d at 536, 227 N.E.2d at 853, 281 N.Y. S.2d at 43; Delagi v. Volkswagenwerk AG of Wolfsburg, 29 N.Y.2d 426, 430-31, 278 N.E.2d 895, 896, 328 N.Y.S.2d 653, 656 (1972). If so, courts may exercise personal jurisdiction over non-domiciliaries because they have voluntarily availed themselves of the benefits and protections that accompany the privilege of conducting business in New York. In short, because the non-domiciliary defendants are considered to be present within the state, they may properly be haled into a New York court. See, e.g., Frummer, 19 N.Y.2d at 536, 227 N.E.2d at 853, 281 N.Y.S.2d at 43.

While "doing business" as a basis of in personam jurisdiction is historically associated with corporate defendants, the concept has been readily extended to partnerships as well. See Pine & Co. v. McConnell, 298 N.Y. 27, 80 N.E.2d 137 (1948). There remains, however, some concern as to whether the "doing business" standard may be applied to non-domiciliary defendants who are natural persons. Flexner v. Farson, 248 U.S. 289, 39 S.Ct. 97, 63 L.Ed. 250 (1919). Although most courts and scholars agree that the doing business standard as applied to individuals would pass constitutional muster (see Lamar v. American Basketball Association, 468 F.Supp. 1198, 1199 n. 1 (S.D.N.Y.1979) (list of authorities in agreement), the New York courts are presently split on this question. Compare ABKCO Industries, Inc. v. Lennon, 85 Misc.2d 465, 377 N.Y.S.2d 362 (1975), aff'd in part and mod in part, 52 A.D.2d 435, 440, 384 N.Y.S.2d 781, 783-84 (1st Dep't 1976) (doing business standard applicable to individuals); with Nilsa B.B. v. Blackwell H., 84 A.D.2d 295, 306, 445 N.Y.S.2d 579, 587 (2d Dep't 1981) (questioning First Department's broad holding in ABKCO). Several courts have followed the holding in ABKCO, see, e.g., Lamar, 468 F.Supp. at 1202, but the issue has yet to be resolved by the New York Court of Appeals.

Assuming, arguendo, that New York would extend the doing business standard to individual non-domiciliary defendants, plaintiff's complaint and response to the present motion are devoid of any allegations establishing that either defendant was doing business in New York. Defendants are not licensed to do business in New York and they have no agents conducting business on their behalf in New York. Defendants did not even solicit plaintiff's business; rather, they were appointed by the Washington court to represent plaintiff. Several phone calls by defendant Levy from Washington to New York, as well as several letters from Mr. Levy to plaintiff in no way establish a pattern of continuous business activity by defendants within New York. Assuming plaintiff's allegations are true, as the Court must on a motion to dismiss, Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964), they do not establish a course of doing business in New York on the part of defendants that would even approach the threshold of doing business for purposes of CPLR 301.

B. Transacting Business

Plaintiff asserts that the Court has personal jurisdiction over defendants based on defendants' transaction of business in New York. CPLR § 302(a)(1). It is true that the New York Court of Appeals has on occasion sanctioned the exercise of jurisdiction based primarily on phone contacts with New York by a non-domiciliary defendant. Ehrlich-Bober & Co. v. Univ. of Houston, 49 N.Y.2d 574, 578-79, 404 N.E.2d 726, 728-29, 427 N.Y.S.2d 604, 606-07 (1980); Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 16-18, 256 N.E.2d 506, 508-09, ...