Opinion
05 CV 4260 (GBD).
July 13, 2006
MEMORANDUM DECISION AND ORDER
Plaintiff Gateway Overseas, Inc. ("Gateway"), in this diversity action, alleges breach of a commission agreement between Gateway and defendant Nishat (Chunian) Limited ("Nishat"), and a violation of an employment agreement between Gateway and defendant Gordon East ("East"). Gateway further alleges a conversion cause of action, and other state law claims of breach of duty of loyalty, tortious interference in performance of contract, tortious interference with employment agreement, tortious interference with business relations, and for payment of accrued commissions.
Defendants move to dismiss for lack of personal jurisdiction and failure to state a claim. Defendant Nishat additionally moves to dismiss for insufficiency of service of process. Defendants' motions to dismiss are granted.
Plaintiff alleges, in its complaint, that this Court has original jurisdiction over this action, pursuant to 28 U.S.C. § 1332, founded on diversity of citizenship and an amount-in-controversy exceeding $75,000. (Compl., ¶ 1(A)).
Defendant Nishat, a Pakistani corporation, is a textile mill operating in Pakistan. (Id., ¶¶ 3, 5). Nishat does not have any offices, affiliates, or subsidiaries in the United States.
(Goldfeld Aff., Ex. 11, ¶ 3). Nishat engages in the business of exporting merchandise including textile products to countries, including the United States. (Compl., ¶ 10). Gateway alleges that on or around February 28, 2000, plaintiff Gateway, a New York corporation, and Nishat entered into an agreement, whereby Nishat agreed to pay Gateway a 3% commission on each purchase order referred to Nishat by Gateway. (Id., ¶¶ 2, 7, Ex. A). Pursuant to the Gateway/Nishat commission agreement, plaintiff began to promote the business interests of Nishat, resulting in several buyers' orders, for which it was compensated according to their agreement. (Id., ¶ 9).
Exhibits annexed to the Affidavit of Orlee Goldfeld, sworn to on December 9, 2005, are referred to herein as "Goldfeld Aff., Ex. ___."
The letter from Nishat to Gateway, which contains the header "COMMISSION AGREEMENT" states:
We agree to pay you a commission of three percent of each and every order given to us by the buyers introduced by you. In this regard we are pleased to confirm our dealing with Westpoint Stevens and their worldwide offices will be through your good office. Each buyer introduced by you should be informed to us in writing and our written consent should be obtained for dealing with such buyers. . . .
This agreement will be governed by the laws of the State of New York, U.S.A.
(Id., Ex. A).
Around July 10, 2002, Gateway hired defendant East, a South Carolina resident, who possessed extensive experience in the textile trade industry. (Id., ¶ 10). East also possessed almost twenty years of work experience in the industry working with West Point Stevens, a prominent Gateway client. (Id.). In the normal operations of Gateway's business, East and Nishat had continued close contact. (Id. ¶ 12). In the course of the parties' relationship, Gateway instructed East to assist Nishat in jointly approaching and exploring business opportunities in the United States, Canada, and Mexico. (Id., ¶ 13).
On December 9, 2002, Gateway received an email from Nishat cancelling the Gateway/Nishat commission agreement. (Id., ¶ 14). After receiving this email, East informed Gateway that East knew that Nishat would seek to terminate the Gateway/Nishat commission agreement. (Id., ¶ 15). East further informed Gateway that East was terminating his employment agreement with Gateway. (Id.). Gateway alleges that this was a result of "a conspiracy to join hands directly and work together to achieve the sales that were being conducted by plaintiff, with the [ulterior] motive to circumvent plaintiff's interest, breach the commission [agreement] and [unjustly] enrich themselves." (Id., ¶ 13).
After East left Gateway, East formed a company named Nishat Chunian Marketing Company, Inc. ("NCMC"). NCMC engaged in marketing Nishat's products to the United States. NCMC and defendant Nishat are separate entities, with neither possessing an ownership interest in the other. (Goldfeld Aff., Ex. 11, ¶ 21)
Gateway alleges that on January 2, 2003, Nishat admitted in writing that Gateway was owed $13,347.96 in accrued unpaid commissions for the period of October 12, 2002 to November 29, 2002. (Compl, ¶ 15(a)). This amount was never remitted to Gateway. Nishat informed Gateway that Gateway would receive the money upon Gateway's waiver and release of Nishat from future claims relating to the alleged Gateway/Nishat commission agreement. (Id.).
Plaintiff initiated the instant lawsuit and attempted to serve the complaint in this action on Nishat by engaging a private attorney in Lahore, Pakistan to personally deliver the papers to Nishat's offices in Pakistan. (Chaubey Aff., Ex. 1). Plaintiff thereafter served its complaint upon defendant East by leaving a copy of the papers with his wife at their South Carolina residence. (Goldfeld Aff., Ex. 1).
Exhibits annexed to the Affirmation of Sanjay Chaubey, counsel for plaintiff, in support of its motion for preliminary injunction, dated November 22, 2005, are referred to herein as "Chaubey Aff., Ex. ___."
On September 8, 2005, the parties appeared before the Court for a status conference. (Id., Ex. 5). At that conference, the parties addressed Nishat's objection to service of process. (Id., Ex. 5 at 8). Nishat argued that plaintiff's failure to comply with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("Hague Convention") was fatal to plaintiff's case against Nishat. (Id.). Counsel for plaintiff admitted that he did not comply with the Hague Convention. (Id.). He argued that he should be excused from doing so because attempting to serve in compliance with the Hague Convention would be futile in Pakistan. (Id.) Counsel for plaintiff represented that using a private attorney to serve process, as he did, was the "only best available method to serve in Pakistan." (Id.). The Court suggested that plaintiff's position would be bolstered if counsel actually attempted service pursuant to the Hague Convention. (Id., Ex. 5 at 9-10).
At the conference, plaintiff suggested that perhaps individual service on defendant East was enough to serve Nishat. (Id.). Counsel for defendants represented that East was not an officer, director, shareholder, or employee of Nishat, and that service upon East would not effect proper service upon Nishat. (Id.). This representation was also made in the sworn statements of the Managing Director of Nishat, submitted in support of defendants' motion to dismiss. (Goldfeld. Aff., Ex. 11, ¶ 25).
On October 27, 2005, plaintiff sent a process server to the NCMC office in South Carolina and attempted to serve Nishat with process by redelivering the same papers to East. (Id., Ex. 9, ¶ 21). At that time, East advised the process server that he was not authorized to accept service on behalf of Nishat. (Id.). East further informed the process server that East worked for a company other than defendant Nishat. (Id.). The process server served Mr. East. (Id.)
A. Motion to Dismiss — Nishat
Service of Process
Defendant Nishat argues that the Court lacks personal jurisdiction over it because of plaintiff's insufficient service of process. Nishat submits that plaintiff's failure to serve the summons and complaint through the Hague Convention is fatal to this action. Plaintiff argues that it should not be required to serve Nishat through the Hague Convention since such an attempt would be futile. Plaintiff also argues that its service of Nishat by delivering the summons and complaint to East at his residence in South Carolina is sufficient to effect proper service.
Pursuant to Federal Rule of Civil Procedure 12(b)(5), a complaint may be dismissed for insufficient service of process. "In considering a motion to dismiss pursuant to 12(b)(5) for insufficiency of process, a Court must look to matters outside the complaint to determine whether it has jurisdiction." Mende v. Milestone Tech., Inc., 269 F.Supp. 2d 246, 251 (S.D.N.Y. 2003). "Once a defendant challenges the sufficiency of service of process, 'the burden of proof is on the plaintiff to show the adequacy of service.'" Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 658 (S.D.N.Y. 1997) (internal quotations and citations omitted).
The acceptable methods of service of a summons and complaint in federal court are set forth in Federal Rule of Civil Procedure 4. Rule 4(h) provides:
Service Upon Corporations and Associations. Unless otherwise provided by federal law, service upon a domestic or foreign corporation . . . shall be effected: (1) in a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant; or (2) in a place not within any judicial district of the United States in any manner prescribed for individuals by subdivision (f). . . .
Rule 4(f) provides:
Service Upon Individuals in a Foreign Country. Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed . . . may be effected in a place not within any judicial district of the United States . . . by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. . . .
As Pakistan, the country in which Nishat is located, is a signatory to the Hague Convention, the Federal Rules required service to Nishat in a manner consistent with the Convention's provisions. Plaintiff's attempted service of process by the use of a private attorney to personally deliver the summons and complaint in Pakistan to Nishat is insufficient to meet the requirements of the Hague Convention. The Hague Convention is the method of service to be used between countries that are party to the Convention. "The Convention provides simple and certain means by which to serve process on a foreign national." Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 706 (1988). The Hague Convention provides that an applicant must send a request for service directly to the central authority designated by the government of the receiving country, who will then serve the document or shall arrange to have it served by the appropriate agency. 20 U.S.T. 362, T.I.A.S. 6638, Art. 2. Once the service is completed, the central authority or another designated authority will complete a certificate as to whether service was made or not and will return the certificate to the applicant. Id., Art. 5. The central authority must provide a certificate of service that conforms to a specified model. Id., at Art 6.
Despite the Court's guidance during the September 2005 conference, plaintiff made no attempt to serve defendant Nishat through means comporting with the Hague Convention. Plaintiff did not send a request for service to the central authority in Pakistan. In the September conference, plaintiff represented to the Court that it was informed that an attempt to serve through Pakistan's central authority, pursuant to the Hague Convention, would be futile. Plaintiff's mere assertion that attempting to serve defendant Nishat through the Hague Convention would be futile is an insufficient defense to defendant's 12(b)(5) motion.
Plaintiff's attempt to serve defendant Nishat by delivering papers to East in South Carolina also constitutes insufficient service of process. Rule 4(h)(1) of the Federal Rules provides that service can be made pursuant to the law of the state where the district court is located, or in which service is effected, or by delivering a copy of the summons and complaint to "an officer, a managing or general agent," or to "any other agent authorized by appointment or by law to receive service of process." C.P.L.R. § 311(a)(1) allows for service to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. In determining whether service of process was proper, "the burden is on the plaintiff to show a basis for an inference that the defendant has authorized a particular person to accept service of process on its behalf." American Institute of Certified Public Accountants v. Affinity Card, Inc., 8 F.Supp.2d at 376.
Gateway argues that its substituted service upon Defendant East on October 27, 2005, is sufficient to satisfy service requirements because East is an agent for Nishat. Gateway cites to the United States Supreme Court decision in Volkswagenwerk as support for its position that service upon an agent of a foreign corporation obviates the need to comport with the Hague Convention. In that case, service of process was made upon Volkswagenwerk's wholly-owned United States subsidiary. The American subsidiary was an involuntary agent for service of process according to Illinois state law. In addition, the foreign corporation and its American subsidiary shared common members of their boards of directors. Further, the American subsidiary was its parent's exclusive distributor and importer in the United States. In light of these factors, the Supreme Court held that the plaintiff was not obilgated to serve the foreign corporation pursuant to the Hague Convention because substituted service was already accomplished pursuant to state law. Id. at 707-08.
Plaintiff retained and sent a process server to defendant East's business address at the NCMC offices to serve him, as an agent for Nishat, with the summons and complaint. Defendant East is not an "officer, a managing or general agent" or "agent authorized by appointment or by law to receive service of process." Indeed, plaintiff's counsel was informed by counsel for defendant Nishat, during the September 2005 conference, that defendant East is not an officer, director, shareholder, or employee of defendant Nishat. Defendant East has no discretion in managing any aspect of Nishat's business. "Under the federal rules, service of process upon a non-employee who makes no representations as to authorization to receive service is not effective." American Institute of Certified Public Accountants, 8 F.Supp.2d 372, 378 (S.D.N.Y. 1998). He is not authorized by Nishat to accept service of process on its behalf.
Plaintiffs have provided this Court with no evidence that East is, by state law, an involuntary agent of defendant Nishat. Nishat's managing director submitted a declaration expressly stating that Nishat does not have any offices, affiliates, or subsidiaries in the United States and that NCMC was formed by East, and is not related to defendant Nishat in any way. Further, NCMC is not a subsidiary or affiliate of Nishat and Nishat has no ownership interests in NCMC. Unlike the Volkswagenwerk case, there is neither a parent-subsidiary relationship, nor common owners or directors. Plaintiff's attempted service upon East does not constitute proper service upon Nishat.
As plaintiff failed to effect proper service on Nishat, Nishat's motion to dismiss, pursuant to Rule 12(b)(1) is granted.
Personal Jurisdiction
______ Nishat also moves to dismiss the complaint against it for lack of personal jurisdiction. Nishat argues that plaintiff has made insufficient allegations in the complaint to provide a basis for this Court's jurisdiction. Plaintiff submits as its basis for personal jurisdiction over Nishat the choice of law clause contained in the Gateway/Nishat commission agreement, and the allegations of Nishat's tortious acts against Gateway.
When responding to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that the court has jurisdiction over the defendant.See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). Where the district court decides a pretrial motion to dismiss for lack of personal jurisdiction on the basis of the written record, without holding an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdiction through its own affidavits and supporting materials to defeat the motion. Welinsky v. Resort of the World D.N.V., 839 F.2d 928, 930 (2d Cir. 1988). "Personal jurisdiction of a federal court over a non-resident defendant is governed by the law of the state in which the court sits-subject, of course, to certain constitutional limitations of due process."Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994).
A court's general jurisdiction is based on a defendant's general business contacts with the forum state and permits a court to exercise jurisdiction in a case where the subject matter is unrelated to the defendant's business contacts. Metro. Life Ins. Co. v. Robertson-CECO Corp., 84 F.3d 560, 568 (2d Cir. 1996). C.P.L.R. § 301 permits the exercise of jurisdiction over a foreign corporation on any cause of action if the defendant is engaged in a continuous and systematic course of "doing business" in New York so as to warrant a finding of its "presence" in New York. Landoil Res. Corp. v. Alexander Alexander Servs., 918 F.2d 1039, 1043 (2d Cir. 1990); Hoffritz For Cutlery, Inc. v. AMJAC, Ltd., 763 F.2d 55, 58 (2d Cir. 1985); McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643 (1981). That the presence is continuous and systematic, not occasional or casual is critical to a finding that a basis for general jurisdiction exists. Tauza v. Susquehanna Coal Corp., 220 N.Y. 259, 267, 115 N.E. 915 (1917). For that reason, courts employ a pragmatic test that relies heavily on basic indicia of "doing business" and "presence." Those indicia include: the existence of an office in New York, the solicitation of business in New York, the presence of bank accounts or other property in New York, and the presence of employees or agents in New York. Landoil Res. Corp., 918 F.2d at 1043. This Court does not have general personal jurisdiction over defendant Nishat. Gateway submits no allegations or evidence of a systematic presence of Nishat in New York sufficient to invoke general personal jurisdiction over Nishat pursuant to C.P.L.R. § 301.
Where general personal jurisdiction is lacking, New York's long-arm statute provides for specific jurisdiction over non-resident defendants under certain circumstances. It provides in relevant part:
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent:
1. transacts any business within the state or contracts to supply goods or services in the state; or
2. commits a tortious act within the state . . .; or
3. commits a tortious act without the state causing injury to person or property within the state . . . if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce. . . .
N.Y.C.P.L.R. § 302(a).
C.P.L.R. §§ 302(a)(1) and (a)(3) do not provide this Court with a sufficient basis to exercise jurisdiction over Nishat. C.P.L.R. § 302(a)(1) requires that two conditions be met before New York courts may exercise jurisdiction over non-domiciliary: (1) the non-domiciliary must transact business within New York, and (2) the claim against the non-domiciliary must arise from that business transaction. Longwood Resrouces Corp. v. C.M. Exploration Co., Inc., 988 F.Supp. 750 (S.D.N.Y. 1997). For a cause of action to "arise from" a party's activities, there must be an articulable nexus, or substantial relationship, between the claim asserted and the events occurring in New York. Kronisch v. United States, 150 F.3d 112 (2d Cir. 1998).
Gateway has failed to make a prima facie showing that this Court has personal jurisdiction over Nishat under New York's long-arm statute. Plaintiff argues that the mere existence of the choice of law clause in the agreement, which specifies New York law as governing the agreement, is sufficient for this Court to exercise personal jurisdiction over Nishat. This fact standing alone, however, is an insufficient basis for personal jurisdiction. See Cutco Indus., Inc. v. Naughton, 806 F.2d 361, 366-67 (2d Cir. 1986). The commission agreement does not contain a provision by which Nishat consents to subject itself to the personal jurisdiction of New York. Gateway does not allege that any agent of Nishat ever traveled to New York pursuant to, or in connection with, the Gateway/Nishat commission agreement. Further, Gateway makes no allegation that the Gateway/Nishat commission agreement was, in any way, negotiated or executed in New York. Gateway has therefore failed to articulate a "transaction of business" in New York, within the meaning of C.P.L.R. § 302(a)(1), by Nishat.
Plaintiff also argues that its tort claims against Nishat are sufficient to meet the requirements of C.P.L.R. § 302(a). Gateway, however, submits no allegations or evidence that Nishat committed any tortious act within New York to invoke specific jurisdiction under C.P.L.R. § 302(a)(2). C.P.L.R. § 302(a)(3)(ii), the commission of a tortious act committed outside New York causing injury to person or property within the state, also fails to extend this Court personal jurisdiction over Nishat. Courts determining whether there is injury in New York sufficient to provide § 302(a)(3) jurisdiction must apply a situs-of-injury test, which calls upon the court to locate the "original event which caused the injury."Bank Brussels Lambert v. Fiddler Gonzales Rodriguez, 171 F.3d 779, 791 (2d Cir. 1999). "[T]he situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are felt by the plaintiff."Mareno v. Rowe, 910 F.2d 1043, 1046 (2d Cir. 1990). "The occurrence of financial consequences in New York due to the fortuitous location of plaintiffs in New York is not a sufficient basis for [personal] jurisdiction under § 302(a)(3) where the underlying events took place outside New York." United Bank of Kuwait v. James M. Bridges, Ltd., 766 F.Supp. 113, 116 (S.D.N.Y. 1991).
Gateway's tort claims against Nishat are premised on one central allegation, that "[d]efendants entered a conspiracy to join hands directly and work together to achieve sales that were being conducted by plaintiff, with the [ulterior] motive to circumvent plaintiff's interest, breach the commission [agreement] and unjustifiably enrich themselves." This conclusory allegation is insufficient to meet plaintiff's burden of establishing personal jurisdiction in New York over Nishat. Accepting the allegation as true, and construing it in the light most favorable to the plaintiff, plaintiff has not alleged New York as the situs of the injury. The mere fact that plaintiff is a New York corporation is insufficient to meet the requirements of C.P.L.R. § 302(a)(3)(ii).
Plaintiff has not made a prima facie showing of personal jurisdiction over Nishat under either the New York general personal jurisdiction statute, or the New York long-arm statute. Accordingly, even if plaintiff were to effect proper service of process, his complaint would still be dismissed as against defendant Nishat for lack of personal jurisdiction.
B. Motion to Dismiss — East
Motion to Dismiss Gateway's Conversion Claim
Defendant East argues that "plaintiff has failed to state a claim for conversion, and that [the conversion cause of action] should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules." To establish conversion the plaintiff "must demonstrate legal ownership or an immediate superior right of possession to a specific identifiable thing." AMF Inc. v. Algo Distrs., 396 N.Y.S.2d 460 (App.Div. 1975). Money can be the subject of a conversion action "where there is a specific identifiable fund, and an obligation to return or otherwise treat in a particular manner the specific fund in question." Manufacturers Hanover Trust Co. v. Chemical Bank, 559 N.Y.S.2d 704, 711-12 (App.Div. 1990). If the allegedly converted monies cannot be described or identified in the same manner as specific chattel, it is not the proper subject of a conversion action.9310 Third Avenue Assoc. v. Schafer Food Service Co., 620 N.Y.S.2d 255, 256 (App.Div. 1990). Moreover, an action for conversion of money cannot be maintained where damages are merely being sought for breach of contract. Peters Griffin Woodward, Inc., 452 N.Y.S.2d at 600.
Gateway alleges that "[d]efendants have committed conversion by using the resources of the plaintiff for their material gain and are liable for payment for the costs and expenses incurred by plaintiff on traveling, boarding, office resources and infrastructure[,] including man power used by defendants in the amount of $110,000.00." (Chaubey Aff. Ex. E ¶ 19). This conclusory allegation fails to specifically identify property that defendants allegedly converted. Plaintiff cannot articulate a "specific identifiable thing." To establish a cause of action for conversion, Gateway must allege an act of conversion consisting of an unauthorized assumption and exercise of the right of ownership or dominion over plaintiff's goods or personal chattel. Id. Gateway has not done so. Seeking to recover defendant East's business and related travel expenses paid by plaintiff is an insufficient basis upon which to assert a conversion claim. Accordingly, Gateway has failed to state a claim of conversion.
Remaining State Law Claims
Plaintiff's remaining claims are state law causes of action seeking unspecified damages. The Court declines to exercise supplemental jurisdiction over these remaining state law claims. A court may decline to exercise supplemental jurisdiction over state law claims if "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3);Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001);see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988) (in considering the discretionary exercise of supplemental jurisdiction, the United States Supreme Court noted that "in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.").
Gateway alleges two prayers for relief to meet the amount-in-controversy element of a diversity action: plaintiff's breach of contract claim against Nishat seeking lost profits "in an amount believed to be over US $1.75 million" on the Gateway/Nishat commission agreement, and plaintiff's conversion claim against both defendants seeking $110,000. For each of its remaining state law causes of action, plaintiff seeks damages "in an amount as determined by this honorable [C]ourt." None of these additional causes of action invoke this Court's diversity jurisdiction.
Given plaintiff's allegation of "earned and accrued commission due" of $13,347.96, there is no factual allegation in the complaint to support a claim of damages in an amount over $1.75 million.
The remaining state law causes of action against East are for breach of duty of loyalty and diversion of corporate opportunity, tortious interference with performance of contract, and tortious interference in plaintiff's business relations.
All of plaintiff's claims against Nishat are dismissed for insufficient service of process and for lack of personal jurisdiction. The conversion claim against East is dismissed for failure to state a cause of action. This Court declines to exercise supplemental jurisdiction over the remaining state law claims. See Giordano, 274 F.3d at 754; Nat'l Westminster Bank, PLC v. Grant Prideco, Inc., 343 F.Supp.2d 256, 258 (S.D.N.Y. 2004) (in diversity case, declining to exercise supplemental jurisdiction following the pretrial disposal of the jurisdiction-conferring claim). Accordingly, plaintiff's remaining state law claims are dismissed without prejudice.
Defendant East argues that the grounds on which this Court should dismiss the entire action against him should be for lack of subject matter jurisdiction because Gateway cannot satisfy the amount-in-controversy requirement of 28 U.S.C. § 1332(a). This Court cannot dismiss this action for lack of subject matter jurisdiction. See Hall v. Earthlink Network, Inc., 396 F.3d 500, 506-07 (2d Cir. 2005). ("Generally, for purposes of diversity jurisdiction, the amount in controversy is established as of the date of the complaint and is not reevaluated based on post-filing events. . . . dismissing one or more aggregated claims does not defeat jurisdiction even when it reduces the amount of controversy to below the jurisdictional threshold.").
As the defendants' motions to dismiss all claims are granted, it is not necessary to address the parties' other arguments with respect to dismissal.
SO ORDERED: