Opinion
Index No. 157220/2021 Motion Seq. No. 001
08-11-2023
ANGUS MURRAY, CASTLESTONE MANAGEMENT LLC Plaintiffs, v. JASON STONE, STONE HUNTING SAFARIS, Defendants.
Unpublished Opinion
PRESENT: HON. JENNIFER G. SCHECTER Justice
SUPPLEMENTAL DECISION + ORDER ON MOTION
JENNIFER G. SCHECTER, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,22, 23, 24, 25, 26, 27, 28, 29, 30, 31,32, 33, 34, 43, 47, 48 were read on this motion to/for DISMISS.
Plaintiff Angus Murray ("Murray") and his company Castlestone Management LLC ("CM") commenced this action alleging that Jason Stone ("Stone"), a hunting guide, and his company Stone Hunting Safaris ("Safaris") falsely represented measurements of animals that Murray had hunted and thereby fraudulently induced plaintiffs to (1) pay defendants trophy and hunt fees and (2) engage defendants for additional hunts (Dkt. 1 ¶¶ 3, 38, 41).
References to "Dkt." followed by a number refer to documents filed in this action on the New York State Courts Electronic Filing system (NYSCEF).
Murray found hunting beneficial for client development in South Africa (id. ¶ 12). He met Stone in Africa in 2000, and told him that he was interested in hunting "Top 10" trophy animals. Between 2001 and 2011, Murray engaged defendants for hunts in Africa (id. ¶¶ 12-26). Stone provided Murray with trophy measurements that resulted in "Top 10" or "Top 20" entries in Safari Club International ("SCI") record books (id. ¶¶ 3, 34). In 2020, however, Murray became concerned about the validity of his trophies and hired an independent measurer in Australia, where they were located, to measure them (id. ¶¶ 2930; Dkts. 31, 32). The measurements differed from those that Stone had reported and, after Murray informed it of the discrepancy, SCI removed Murray's entries from its books except for one, which went from top-10 placement to number 46 (Dkt. 1 ¶¶ 30, 32). Plaintiffs allege that as a result of defendants' fraud, their damages include "the amounts they have paid for trophy fees, the amounts they have incurred in rectifying Stone's false measurements, and a great deal of embarrassment and detriment to [Murray's] character at having the false records removed from the record books" (id. ¶ 36).
Analysis
Defendants move to dismiss, urging that the court lacks personal jurisdiction over them under CPLR 301 and 302. Where "a motion is made to dismiss a complaint for lack of personal jurisdiction, it is the plaintiff who bears the 'ultimate burden of proof to prove a basis for such jurisdiction" (Paterno v Laser Spine Institute, 112 A.D.3d 34, 39 [2d Dept 2013], affd 24 N.Y.3d 370 [2014]; James v iFinex Inc., 185 A.D.3d 22, 28-29 [1st Dept 2020]). Plaintiffs oppose dismissal but do not argue that there is any basis for general jurisdiction over defendants; therefore, they concede that CPLR 301 is inapplicable and analysis is limited to CPLR 302 long-arm jurisdiction.
CPLR 302 codifies the bases for long-arm jurisdiction in New York. The salient consideration is whether assertion of jurisdiction comports with due process (Pramer S.C.A. v Abaplus Inti. Corp., 76 A.D.3d 89, 95 [1st Dept 2010]). "Even if a defendant has engaged in purposeful acts in New York, there must also exist a substantial relationship between those particular acts and the transaction giving rise to the plaintiffs cause of action. The greater the distance between the transaction giving rise to the injury and the defendant's New York contacts, the less likely will there be a basis for New York jurisdiction" (id. [citation omitted]).
In an effort to meet their burden plaintiffs, for the most part, mistakenly focus on their own New York contacts (see, e.g., Dkt. 15 at 7, 9, 14 ["Plaintiffs decided to go on the hunts from New York. Plaintiffs engaged Stone from New York. Plaintiffs paid Stone from New York. And Plaintiffs acted in reliance on the false measurements, and engaged Stone for future hunts, from New York"], 20 ["Plaintiffs also arranged for Stone to be paid from New York"]). They point out that on the hunting invoices that defendants emailed to plaintiffs from outside the state (which could have been opened anywhere), defendants sometimes listed New York addresses for plaintiffs and that defendants were paid (by plaintiffs) using plaintiffs' New York bank accounts. Ultimately, plaintiffs fail to demonstrate, that defendants had sufficiently meaningful, purposeful contacts with New York to justify jurisdiction over them here.
It is undisputed that CM is a New York entity with a New York address and bank account. For purposes of this motion, all of Murray's averments are accepted as true.
302(a)(2): Tortious Act Committed Within the State
Generally, there is long-arm jurisdiction over a non-domiciliary defendant who commits a tortious act in New York. Plaintiffs allege that because the false measurements that defendants provided were "read and relied on" in New York, the tortious conduct occurred here (Dkt. 15, 17). Misrepresentations made outside New York to a New York party are not tortious acts that have been committed in the state (Kramer v Vogel, 17 N.Y.2d 27, 31 [1966] ["in common sense and reality" everything defendants did was out of state]). "The New York long-arm statute providing for jurisdiction over nonresidents who commit a tort in New York requires the out-of-state resident to actually be in New York when the tort is committed" (Carmody-Wait, 2d New York Practice [March 2023 Update] § 121:116). Defendants' outside-New-York post-hunt provision of the false measurements to New York residents is not a tortious act committed within the state (see Premier S. C.A. v. Abaplus Inti. Corp., 76 A.D.3d at 97 ["our courts have traditionally required the defendant's presence here at the time of the tort"], citing Bauer Indus., Inc. v Shannon Luminous Materials Co., 52 A.D.2d 897 [2d Dept 1976] ["document containing fraudulent misrepresentations received in New York insufficient"]). Thus, there is no jurisdiction under CPLR 302(a)(2).
CPLR 302(a)(3): Tortious Act Without the State Causing Injury Within the State
Likewise, there is no jurisdiction pursuant to CPLR 302(a)(3), which provides in relevant part that subject to certain requirements, long-arm jurisdiction may be obtained if a tortious act is committed outside New York and causes injury within the state. Plaintiffs urge that they sustained injury in the state because they received and relied on the false measurements while in New York and they paid defendants from New York (Dkt. 15, 1920). In the context of a commercial tort, however, where the damage is solely economic, the '"situs of the injury is the location of the original [critical] event[s] which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff" (Paterno v Laser Spine Institute, 112 A.D.3d at 44; Deutsche Bank AG v Vik, 163 A.D.3d 414 [1st Dept 2018] ["That plaintiff felt economic injury in New York, alone, is an insufficient basis to confer jurisdiction"]; CRT Invs., Ltd. v BDO Seidman, LLP, 85 A.D.3d 470, 471472 [1st Dept 2011]; see also USA Sevens LLC v World Rugby Ltd., 191 A.D.3d 620, 621 [1st Dept 2021]; IMAX Corp, v Essel Group, 154 A.D.3d 464 [1st Dept 2017]; Magwitch, LLC v Pusser's Inc., 84 A.D.3d 529, 532 [1st Dept 2011]). As all of the original critical events that caused plaintiffs' injury-such as the taking of false measurements and preparation of the score sheets-occurred outside New York (regardless of Murray printing the information and himself sending it to SCI from his location in New York [see Dkt. 16 ¶ 40]), New York is not the situs of the injury under established caselaw and there is no jurisdiction over defendants pursuant to CPLR 302(a)(3).
Plaintiffs rely on a line of federal-court cases holding that, in the context of certain fraud allegations, personal jurisdiction can exist in New York pursuant to CPLR 302(a)(3), where the defendant intends that misrepresentations be relied upon by the plaintiff in New York and the plaintiffs' reliance results in direct financial losses incurred in New York (see Hargrave v OKI Nursery, Inc., 636 F.2d 897 [2d Cir 1980]; Palace Exploration Co. v Petroleum Dev. Co., 41 F.Supp.2d 427 [SDNY 1998]). The reasoning of these federal cases, despite being decades old, has not been adopted by any binding New York authority and predicating jurisdiction on plaintiffs' reliance in New York especially under circumstances such as these (see Dkt. 1 ¶ 42) would substantially expand New York's reach.
CPLR 302(a)(1): Transaction of Business Within the State Out of Which the Cause of Action Arises
Determining whether the court has jurisdiction pursuant to the transacts-any-business-within-the-state provision requires examination of "whether what defendant did in New York constitutes a sufficient 'transaction' to satisfy the statute" (State of New Yorkv Vayu, 39 N.Y.3d 330, 332 [2023] citing David D. Siegel &Patrick M. Connors, New York Practice § 86 [6th ed, Dec. 2022 update]). Courts look to the quality of the in-state contacts and whether they were purposeful such that defendants availed themselves of the "privilege of conducting activities in [New York], thus invoking the benefits and protections of its laws" (Vayu, 39 N.Y.3d at 332; Licci v Lebanese Canadian Bank, 20 N.Y.3d 327, 338 [2012][purposeful availment requires close examination of the defendant's contacts for their quality]).
Plaintiffs give this provision short shrift and do not provide any meaningful analysis (see Dkt. 15 at 24-25 ["Here, the Complaint alleges a series of fraudulent misrepresentations -fourteen (14) of them are set forth in Exhibit A"]). To be sure, they have not alleged a cause of action that arises from defendants' transaction of business within the state that is sufficient to establish jurisdiction. Defendants, who are licensed in and operate out of South Africa, are South African, never visited New York nor do they have any "employees, agents, operations, offices or bank accounts in New York" (Dkt. 4 ¶¶ 7, 9-11, 26-29).Defendants did not "project themselves" into the forum to get the protections of New York law here (Dkt. 4 ¶¶ 21-22, Dkts. 9, 23-25; Paterno, 112 A.D.3d at 41-42; Warck-Meister v Diana Lowenstein Fine Arts, 7 A.D.3d 351 [1st Dept 2004][telephone, fax and e-mail communications inadequate transactional predicates for an assertion of jurisdiction under the circumstances]; contrast Vayu, 39 N.Y.3d 330 [2023][defendant came to New York and described New York plaintiff as its "partner"]; Fischbarg v Doucet, 9 N.Y.3d 375, 382 [2007][California defendants' retention of New York lawyer projected them into New York's legal service market, invoking the benefits and protections of New York's laws related to the attorney client relationship]). Even if Murray communicated with defendants from New York and made payments to defendants from a New York bank account, there is insufficient evidence that defendants expressly or knowingly aimed their conduct at New York (see e.g. Dkt. 15 at 13 ["Stone did not testify as to Murray's locations when he booked his hunts; clearly Stone did not know"]).
Safaris' website is not alleged to be related to plaintiffs' cause of action in any way (Dkt. 15 at 10 citing Dkt. 4 ¶ 11 [Stone met Murray after he booked a safari through another South African company's website]).
Jurisdiction, moreover, cannot be predicated simply on invoices that these out-of-state defendants emailed to plaintiffs, which sometimes listed a New York address for plaintiffs, or based on their receipt of payment from plaintiffs' New York bank account (see Magwitch, LLC v Pusser's Inc., 84 A.D.3d 529, 531 [1st Dept 201 l]["the acts of sending payments to a New York bank account and correspondence to a New York address, and engaging in telephone discussions" with plaintiffs principal, who was also defendants' legal advisor, while he was in New York were insufficient]; Dizengoff v Hine Builders, LLC, 2017 WL 2210113 [Sup Ct, NY County 2017] [evidence ofa New York bank account, invoices and claims sent to a New York address deemed insufficient for long-arm jurisdiction]; see also Hanson v Denckla, 357 U.S. 235 at 253 [1958]["The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State"]). These acts are not sufficiently purposeful invocation of the benefits and protections of our laws. Additionally, the fraud alleged involves misrepresentations about animals hunted and measured in Africa, which were later moved to a different location outside of the United States. As alleged and based on all the evidence submitted, plaintiffs fail to establish that defendants transacted business in New York or that defendants could reasonably anticipate being haled into court in New York under these circumstances.
In the end, plaintiffs have not demonstrated that there is personal jurisdiction over defendants in New York and this action must be dismissed.
Accordingly, it is ORDERED that defendants' motion to dismiss is GRANTED and the complaint is dismissed in its entirety with costs and disbursements to defendants as taxed by the Clerk of the Court and the Clerk is directed to enter judgment accordingly.