Zito v. United Airlines, Inc., 6:20-CV-06203 EAW

• Court: United States District Courts. 2nd Circuit. United States District Court of Western District of New York
• Writing for the Court: ELIZABETH A. WOLFORD, United States District Judge
• Citation: 523 F.Supp.3d 377
• Parties: Gary ZITO, Plaintiff, v. UNITED AIRLINES, INC., Defendant.
• Docket Number: 6:20-CV-06203 EAW
• Decision Date: 03 March 2021

523 F.Supp.3d 377

Gary ZITO, Plaintiff,
v.
UNITED AIRLINES, INC., Defendant.

6:20-CV-06203 EAW

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

Signed March 3, 2021

523 F.Supp.3d 380

Jason E. Abbott, Fitzsimmons, Nunn, Fitzsimmons & Plukas, LLP, Rochester, NY, for Plaintiff.

Anthony William Eckert, III, Kma Zuckert, LLC, New York, NY, Michael Jason Cohen, Winne, Banta, Basralian & Kahn, P.C., Hackensack, NJ, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Gary Zito ("Plaintiff") commenced the instant action in state court on February 24, 2020, alleging a cause of action for negligence against defendant United Airlines, Inc. ("Defendant"), relating to an injury allegedly sustained while he was a passenger on a United Airlines flight departing Fort Myers, Florida on April 1, 2018. (Dkt. 1-1 at 7-9). The matter was removed to this Court on March 31, 2020. (Dkt. 1).

Currently pending before the Court are Defendant's motion to dismiss the amended complaint for lack of personal jurisdiction (Dkt. 13) and Plaintiff's motion for an extension of time to file a response (Dkt. 16). For the reasons that follow, the Court grants Plaintiff's motion for an extension of time to file a response (Dkt. 16), and it further grants Defendant's motion to dismiss (Dkt. 13).

BACKGROUND

I. Factual Background

The following facts are taken from the amended complaint (Dkt. 8), which the Court accepts as true. Plaintiff, a resident of Ontario County, New York, alleges that he was injured aboard United Airlines flight UA2397W, by a beverage cart that struck his left knee. (Id. at ¶¶ 2, 3, 13). On January 21, 2018, while he was in Ontario County, New York, Plaintiff purchased from Defendant a round-trip ticket for air travel between Rochester, New York and Fort Myers, Florida. (Id. at ¶ 10). Both Plaintiff's departing and returning flights included a layover, including a layover in Chicago, Illinois on his way to Florida on March 3, 2018, and a layover in Newark, New Jersey on his return trip to Rochester on April 1, 2018. (Id. at ¶¶ 11-12). At the time of the accident on April 1, 2018, Plaintiff was on the first leg of his return flight, i.e. , traveling from Florida to New Jersey, when he was struck by the beverage cart and sustained injuries. (Id. at ¶¶ 13, 14). Plaintiff alleges that he experienced immediate pain and swelling and, as a result of the injury, has had several cortisone injections to his left knee, an MRI scan, and has been diagnosed with left knee arthritis and a left knee medial meniscal tear. (Id. at ¶¶ 14-16).

II. Procedural Background

Plaintiff commenced this action on February 24, 2020, in New York State Supreme Court, Ontario County. (Dkt. 1-1 at 7-9). Defendant was served with the summons and complaint on March 3, 2020. (Dkt. 1-2). On March 31, 2020, Defendant timely removed the matter to this Court based on diversity of citizenship. (Dkt. 1).

523 F.Supp.3d 381

The Notice of Removal provides that Defendant conducts business at "233 S. Wacker Drive, Chicago, Illinois," and is incorporated under the laws of the state of Delaware, with its principal place of business in the state of Illinois. (Id. at ¶ 6).

Defendant moved to dismiss the complaint for lack of jurisdiction on April 7, 2020. (Dkt. 4). Thereafter, Plaintiff filed an amended complaint on April 28, 2020 (Dkt. 8), and Defendant moved to withdraw its previously-filed motion to dismiss the complaint (Dkt. 11; Dkt. 12). On May 12, 2020, Defendant filed a motion to dismiss the amended complaint. (Dkt. 13). The Court granted Defendant's motion to withdraw its original motion to dismiss on May 13, 2020, and ordered that Plaintiff respond to the motion to dismiss the amended complaint on or before June 2, 2020. (Dkt. 15).

On June 30, 2020, four weeks after the response deadline, Plaintiff filed a motion for an extension of time to file his response (Dkt. 16), which Defendant opposed (Dkt. 18). On July 9, 2020, Plaintiff filed a response opposing the motion to dismiss and requesting in the alternative that the Court transfer the action to the United States District Court for the Northern District of Illinois. (Dkt. 19; Dkt. 20).

DISCUSSION

I. Plaintiff's Motion for an Extension of Time

The Court turns first to Plaintiff's motion for an extension of time to file his response to Defendant's motion to dismiss the amended complaint. (Dkt. 16). As explained above, Plaintiff was required to file his response on or before June 2, 2020 (Dkt. 15); however, Plaintiff failed to respond or seek an extension by that deadline. In support of his motion for an extension of time, Plaintiff offers that his missing the deadline constitutes excusable neglect, and his failure to file a timely response was "due in large measure to the ongoing COVID-19 pandemic and civil unrest," and the closure of his office from mid-March to June 3, 2020. (Dkt. 16). On July 2, 2020, Defendant filed a response opposing Plaintiff's motion. (Dkt. 18). Before the Court could rule on the motion for an extension of time, Plaintiff filed his response to Defendant's motion to dismiss on July 9, 2020. (Dkt. 19; Dkt. 20).

The Court recognizes that the COVID-19 pandemic upended many aspects of daily life, and it does not discount the challenges faced by Plaintiff's counsel while his office was closed from mid-March to June 3, 2020. However, by Plaintiff's counsel's own admission, he knew that Defendant filed the present motion to dismiss the day after it was filed because he "logg[ed] into the PACER system on May 12," but then apparently never bothered to look at the docket again until becoming aware on June 30, 2020, of the Court's scheduling order issued almost seven weeks earlier. (See Dkt. 16 at 5). This not only represents an egregious lack of diligence, but it also ignores this Court's Local Rule 7(b)(2)(B) which would have required a response to the motion to dismiss within 14 days after filing absent a Court scheduling order setting a different deadline. In other words, if Plaintiff's counsel became aware of the motion to dismiss on May 12, 2020, but was unaware of the Court's scheduling order setting a response deadline of June 2, 2020, then he should have understood at a minimum that the deadline by operation of the Local Rule was 14 days after filing—or May 26, 2020. Thus, ignorance of the Court's scheduling order is no excuse.

Nonetheless, while the Court does not countenance the missed deadline here, in an exercise of discretion and because Defendant will not be prejudiced by Plaintiff's late filing, the Court grants Plaintiff's motion

523 F.Supp.3d 382

for an extension of time, and it will consider Plaintiff's response in connection with its assessment of Defendant's motion to dismiss the amended complaint.

II. Defendant's Motion to Dismiss for Lack of Personal Jurisdiction

A. Standard

Defendant moves to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(2), arguing that the Court lacks personal jurisdiction. (Dkt. 13). "The requirement that a court have personal jurisdiction flows not from Art. III, but from the Due Process Clause.... It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty." Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). "On a Fed. R. Civ. P. 12(b)(2) motion to dismiss for lack of personal jurisdiction, [the] plaintiff bears the burden of showing that the court has jurisdiction over the defendant." In re Magnetic Audiotape Antitrust Lit., 334 F.3d 204, 206 (2d Cir. 2003). "Prior to discovery, a plaintiff may survive a Rule 12(b)(2) motion to dismiss by pleading in good faith legally sufficient allegations of jurisdiction." DiFillippo v. Special Metals Corp., 299 F.R.D. 348, 352 (N.D.N.Y. 2014) (citing Metro. Life Ins. Co. v. Robertson–Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996) ). "That is, where a court relies only upon the pleadings and supporting affidavits, a plaintiff need only make a prima facie showing of personal jurisdiction over a defendant." Id. (citing CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986) ).

"In general, a ‘district court's personal jurisdiction is determined by the law of the state in which the court is located.’ " Mrs. U.S. Nat'l Pageant, Inc. v. Miss U.S. Org., LLC , 875 F. Supp. 2d 211, 219 (W.D.N.Y. 2012) (quoting Spiegel v. Schulmann , 604 F.3d 72, 76 (2d Cir. 2010) ). "There are two ways that New York exercises personal jurisdiction over non-residents: general jurisdiction pursuant to [ New York Civil Practice Law and Rules ("CPLR") 301 ] ... or specific jurisdiction pursuant to [ CPLR 302 ]." Thackurdeen v. Duke Univ. , 130 F. Supp. 3d 792, 798 (S.D.N.Y. 2015) (quotation marks and citation omitted), aff'd , 660 F. App'x 43 (2d Cir. 2016). "Specific jurisdiction is available when the cause of action sued upon arises out of the defendant's activities in a state. General jurisdiction, in contrast, permits a court to adjudicate any...