Opinion
012063/06.
Decided November 21, 2006.
Motion by the attorneys for the defendant Skies America Publishing Co., Inc. (Skies) for an order pursuant to CPLR 3211(a)(8) and CPLR 327dismissing the complaint on the grounds that the Court lacks personal jurisdiction over the defendant, and alternatively that this Court constitutes an inconvenient forum is granted.
Plaintiff, University Sports Publications Co., Inc. (USP) is in the business of selling game-day, game-site advertising for collegiate and professional sports events to customers who are seeking exposure to spectators at these venues. On or about December 9, 2004, USP purchased all the interest in Professional Sports Publications, Inc. (PSP) through a purchase of all outstanding PSP stock. Since December 9, 2004, PSP was a wholly-owned subsidiary of USP. Defendant Richard Thomas Rizzo is a resident of the State of California. From on or about April 16, 2001, up to and including April 19, 2005, Rizzo was an employee of PSP and (following December 9, 2004) its parent USP. Rizzo's title at PSP was Regional Sales Director of the West Coast Region. Defendant Skies American Publishing Co., Inc.
(Skies) is an Oregon corporation which maintains its principal place of business in Beaverton, Oregon. Skies is in the business of providing publishing and communications services to clients (complaint ¶ 1-4).
The complaint alleges that defendant Skies conspired with co-defendant Richard Thomas Rizzo, while an employee of USP to steal USP's accounts for advertising in the game program and yearbook of the Los Angeles Lakers. The complaint further alleges Skies and Rizzo used USP's proprietary customer lists to contact USP customers and interfere with USP's relationship with them. As a result of these alleged tortious actions USP claims it suffered considerable harm. Defendant Skies claims this Court has no jurisdiction over it, and that in any event New York is an inappropriate and inconvenient forum for the adjudication of this dispute.
CPLR § 302(a)(3)(ii) provides that
A court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent . . . commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he . . . expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.
The attorney for the plaintiff argues that the complaint meets the criteria set forth in CPLR 302(a). Plaintiff claims the alleged tortious conduct of the defendant was committed outside of New York State causing injury in the State. Plaintiff alleges at least one USP customer in New York was contacted directly by Skies. USP has submitted a list of USP customers based in New York that advertised in either the game program or the yearbook of the Los Angeles Lakers basketball team from 2002 through 2005. The plaintiff also submitted a printed reproduction of the content of Skies' 2004 Internet site.
In order to invoke jurisdiction, the evidence must demonstrate that "the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted." Wright v 299 Union Ave. Corp., 288 AD2d 382, 383, quoting Kreutter v McFadden Oil Corp., 71 NY2d 460 at 467; see also Johnson v Ward, 4 NY3d 516; Armouth International, Inc. v Haband Co., Inc., 277 AD2d 189. "A substantial relationship' must be established between a defendant's transactions in New York and a plaintiff's cause of action in order to satisfy the nexus requirement of the statute." Johnson v Ward, supra at 519. "An essential criterion in all cases is whether the quality and nature' of the defendant's activity is such that it is reasonable and fair to require him to conduct his defense in that State." Riblet Products Corp. v Nagy, 191 AD2d 626; Liberatore v Calvino, 293 AD2d 217; Courtroom Television Network v Focus Media, Inc., 264 AD2d 351. As the party seeking to assert personal jurisdiction, the plaintiff bears the burden of proof on this issue. Ying Jun Chen v Lei Shi, 19 AD3d 407; Brandt v Toraby, 273 AD2d 429. Applying the above-cited principles, and crediting the non-conclusory allegations advanced by USP ( Brandt v Toraby, 273 AD2d 429; Mass v Cornell University, 94 NY2d 87), the court agrees that plaintiff has failed to demonstrate that the court has personal jurisdiction over the defendants pursuant to CPLR 302.
Defendant Richard Thomas Rizzo was a resident of California (complaint ¶ 3). Defendant Skies is an Oregon corporation that maintains its principal place of business in Beaverton, Oregon (complaint ¶ 4). The complaint does not allege that defendant Skies was present or doing business in New York. The complaint does not allege that New York has jurisdiction. The only mention of New York in the complaint is that New York is the principal place of business of the plaintiff. Plaintiff does not dispute the following: defendant Skies was not present in New York; plaintiff's former employee defendant Rizzo never resided in New York and was not employed by the plaintiff in New York; no contact between defendant Skies and defendant Rizzo took place in New York; no contacts between the defendants and the Lakers took place in New York. The attorney for the defendant claims that while the plaintiff lists 14 New York-based advertisers that have advertised in the Laker's publications produced by USP between 2002 and 2005, only two, by plaintiff's own admission, published ads in 2005: Calvin Klein, Inc. and Tangible Media Group (i.e. Midway Games, Inc.) (Wong affidavit Exhibit A). Further, other than the reference to one unnamed New York based customer of USP in 2005 who allegedly inquired about the future placement of advertising in the Lakers game program or yearbook (Wong Affidavit ¶ 3), there is no allegation, either in the complaint or in plaintiff's opposition papers, that Skies obtained any of the alleged New York advertisers for the Lakers publication to be prepared for the 2006-2007 season.
There is no allegation that the situs, or the original event which caused plaintiff's alleged injury occurred in New York. The claims against Skies rest on plaintiff's charge that defendant Rizzo misappropriated plaintiff's confidential information, and disclosed it to Skies, and that Skies used this confidential information to acquire the Lakers account. Even accepting these conclusory allegations as true for purposes of this motion, the original event which caused plaintiff's alleged injury is defendant Rizzo's alleged disclosure of plaintiff's confidential information to Skies, and it is not alleged that any contact between Skies and Rizzo took place in New York. Defendant, a non-domiciliary of New York, denies any significant contacts with New York State. The plaintiff, who had the burden on this issue, has provided no evidence to justify the exercise of personal jurisdiction over the defendant. See Carte v Parkoff, 152 AD2d 615. The attorneys for the plaintiff's reference to over 41 printed pages from Skies' website does not demonstrate Skies' significant contact to New York (see Affirmation of Kathryn S. Catenacci, Exhibit A, at 1, 8, 11, 12, 15, 16, 19, 21, 32, 33, 34, d36, 37, 41). Carte v Parkoff, supra.
The only connection between the alleged tort claims asserted against Skies and any injury or foreseeable consequence in New York is the fact that plaintiff is domiciled here. This is an insufficient basis for personal jurisdiction. See Fantis Foods, Inc. v Standard Importing Co., Inc., 49 NY2d 317; Bill-Jay Machine Tool Corp. v Koster Industries, 29 AD3d 504.
The factors which the court must weigh when deciding a motion to dismiss on forum non conveniens, include "the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the situs of the underlying action, and the burden which will be imposed upon the New York courts." Wentzel v Allen Machinery, Inc., 277 AD2d 446, citing Silver v Great American Ins. Co., 29 NY2d 356; Cheggour v R'Kiki, 293 AD2d 507. In opposing this aspect of the motion, plaintiff relies on the fact that it is domiciled in this State. New York courts may not retain jurisdiction of an action that has no substantial nexus to New York ( see Wentzel v Allen Machinery, Inc., supra at 447; Cheggour v R'Kiki, supra at 508) and by express statutory authority this extends to cases where a party is a resident or is domiciled in the state. See CPLR 327(a). Both of the defendants are out of state residents. Moreover, potential witnesses, documents, and transactions relevant to plaintiff's claims are located, or took place, in either Oregon or California. The fact that the plaintiff is domiciled in this state is insufficient for this court to retain jurisdiction.
The motion to dismiss the complaint pursuant to CPLR 3211(a)(8) and CPLR 327 is granted.
This decision is the order of the Court and terminates all proceedings under index no. 012063/06.