Opinion
6:20-CV-06203 EAW
2021-03-03
Gary ZITO, Plaintiff, v. UNITED AIRLINES, INC., Defendant.
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.
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). 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 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 cause of action against the ... defendant, wherever arising, and whoever the plaintiff." Brown v. Lockheed Martin Corp. , 814 F.3d 619, 624 (2d Cir. 2016). "If personal jurisdiction exists under the forum state's laws, the district court must then determine if the exercise of such jurisdiction complies with federal due process requirements." Gaymar Indus. Inc. v. FirstMerit Bank, N.A. , No. 06-CV-70S, 2007 WL 894217, at *3 (W.D.N.Y. Mar. 21, 2007) (citing Metro. Life Ins. , 84 F.3d at 567 ).
B. General Jurisdiction
The Supreme Court has held that "[a] court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (citing Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 317, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ). "With respect to a corporation, the place of incorporation and principal place of business are paradig[m] ... bases for general jurisdiction." Daimler AG v. Bauman, 571 U.S. 117, 137, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) (quotation omitted); see Brown , 814 F.3d at 627 (" Daimler established that, except in a truly ‘exceptional’ case, a corporate defendant may be treated as ‘essentially at home’ only where it is incorporated or maintains its principal place of business—the ‘paradigm’ cases.").
Defendant contends that the Court cannot exercise general jurisdiction pursuant to Daimler and its progeny because it is not incorporated under the laws of New York State and it does not maintain its principal place of business in this state. (Dkt. 13-1 at 8-13). Defendant is neither incorporated in New York, nor does it have its principal place of business in New York. (Dkt. 1 at ¶ 6; see also Daly v. United Airlines, Inc. , No. 3:17-cv-00977 (CSH), 2017 WL 3499928, at *1 (D. Conn. Aug. 16, 2017) ("United is a Delaware corporation with a principal place of business in Chicago, Illinois")). Plaintiff does not controvert this assertion, and his own complaint alleges that Defendant merely conducts business in New York and has its principal place of business in the State of Illinois. (See Dkt. 8 at ¶ 4). In his response to the motion to dismiss, Plaintiff appears to concede that the Court cannot exercise general jurisdiction over Defendant, insofar as he does not make any meaningful argument as to general jurisdiction; rather, his arguments focus on why the Court has specific jurisdiction over his claim. (See Dkt. 20 at 4) ("In this case, the facts alleged in the amended complaint demonstrate that, at the very least, the Court may assert personal jurisdiction over Defendant under § 302(a)(1) ).
The amended complaint alleges that "Defendant ... regularly and continually conducts and transacts business, and contracts to supply goods or services, within the State of New York and this judicial district sufficient to satisfy the requirements for exercising general personal jurisdiction and venue over it, inasmuch as said defendant is a registered foreign business corporation authorized to conduct business in this judicial district." (Dkt. 8 at ¶ 7). However, in Daimler , the Supreme Court rejected the view that general jurisdiction could be found "in every State in which a corporation engages in a substantial, continuous, and systematic course of business." Daimler, 571 U.S. at 138, 134 S.Ct. 746. This assertion was described as "unacceptably grasping." Id. ; see also Hood v. Ascent Med. Corp., 13-cv-0628 (RWS) (DF), 2016 WL 1366920, at *8 (S.D.N.Y. Mar. 3, 2016) ("In the recent cases of Daimler and Goodyear , the Supreme Court made clear that the constitutional standard for finding a corporation to be essentially at home in a foreign jurisdiction is a stringent one, and that only a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there." (internal quotations omitted)), report and recommendation adopted, 2016 WL 3453656 (S.D.N.Y. June 20, 2016), aff'd , 691 F. App'x 8 (2d Cir. 2017).
Further, it is well-settled that mere registration to transact business in New York is an insufficient basis for establishing general jurisdiction. Sae Han Sheet Co., Ltd., v. Eastman Chem. Corp. , No. 17 Civ. 2734 (ER), 2017 WL 4769394, at *6 (S.D.N.Y. Oct. 17, 2019) ("In light of Daimler and the above pronouncements in Brown , the more recent authority in this district has held that corporations do not consent to general jurisdiction when they register under the various New York registration statutes."); Wilderness USA, Inc. v. DeAngelo Bros. LLC , 265 F. Supp. 3d 301, 310 (W.D.N.Y. 2017) ("every other federal district court in New York to squarely address whether a foreign corporation's registration with the secretary of state constitutes consent to general jurisdiction has held that this doctrine has been invalidated by the Supreme Court's decision in Daimler ").
It is undisputed that Defendant is not a New York corporation and does not maintain its principal place of business in this state; thus, this matter must represent an "exceptional case" in order for Defendant to be found "essentially at home" in New York. See Daimler , 571 U.S. at 139 n.19, 134 S.Ct. 746. Even viewing Plaintiff's allegations about Defendant's activities in New York State in the light most favorable to Plaintiff, the Court concludes that this is simply not an "exceptional case" as contemplated by the Supreme Court in Daimler , and as such, because Defendant does not maintain its principal place of business in New York and is not a New York corporation, Defendant is not "essentially at home" in this state and is not subject to general jurisdiction pursuant to Daimler ’s framework. See, e.g., Chufen Chen v. Dunkin’ Brands, Inc. , 954 F.3d 492, 500 (2d Cir. 2020) (court lacked general jurisdiction over plaintiffs’ claims where the defendant had franchises in New York, but was not incorporated or headquartered in New York, and plaintiffs "made no showing that the company's relationship with New York was in any way significant or exceptional in relation to the company's nationwide business activity"). Accordingly, the Court concludes that it lacks general jurisdiction over Defendant.
C. Specific Jurisdiction
Defendant next contends that the Court lacks specific jurisdiction. (Dkt. 13-1 at 13). In response, Plaintiff argues that the Court may assert specific jurisdiction over Defendant pursuant to C.P.L.R. § 302(a)(1). (Dkt. 20 at 4).
New York's long-arm statute provides that "a court may exercise personal jurisdiction over any non-domiciliary" who "transacts any business within the state or contracts anywhere to supply goods or services in the state." N.Y. C.P.L.R. § 302(a)(1). "To establish personal jurisdiction under section 302(a)(1), two requirements must be met: (1) The defendant must have transacted business within the state; and (2) the claim asserted must arise from that business activity." Eades v. Kennedy, PC Law Offs. , 799 F.3d 161, 168 (2d Cir. 2015) (citation omitted); see also Sole Resort, S.A. de C. V. v. Allure Resorts Mgmt., LLC , 450 F.3d 100, 103 (2d Cir. 2006). "Courts look to ‘the totality of the defendant's activities within the forum,’ to determine whether a defendant has ‘transact[ed] business’ in such a way that it constitutes ‘purposeful activity’ satisfying the first part of the test. As for the second part of the test, ‘[a] suit will be deemed to have arisen out of a party's activities in New York if there is an articulable nexus, or a substantial relationship, between the claim asserted and the actions that occurred in New York.’ " Best Van Lines, Inc. v. Walker , 490 F.3d 239, 246 (2d Cir. 2007) (alterations in original) (internal citations omitted). "Thus, this provision is ‘typically invoked for a cause of action against a defendant who breaches a contract with plaintiff, or commits a commercial tort against plaintiff in the course of transacting business or contracting to supply goods or services in New York.’ " Cordice v. LIAT Airlines , No. 14-cv-2924 (RRM)(LB), 2015 WL 5579868, at *4 (E.D.N.Y. Sept. 22, 2015) (quoting Levans v. Delta Airlines, 988 F. Supp. 2d 330, 334 (E.D.N.Y. 2013) ); see also Torres v. Monteli Travel, Inc. , No. 09-CV-2714 (ARR)(SMG), 2011 WL 2670259, at *8 (E.D.N.Y. July 7, 2011) ("[W]ith respect to non-commercial torts, courts have often found the requisite connection between the cause of action and the business transaction lacking; thus, they have held that such claims fail to satisfy the second prong of § 302(a)(1).").
Plaintiff's claims do not involve a breach of contract or commercial tort. However, Plaintiff argues that his "claim finds its genesis in the business transaction that he engaged in while residing in the County of Ontario, i.e. , his purchase from Defendant of a round-trip flight between New York and Florida," and that "[t]his is a sufficient nexus to establish personal jurisdiction under New York's long-arm statute." (Dkt. 20 at 5). Plaintiff further argues that his ticket was for travel between the Greater Rochester International Airport and Fort Myers, Florida. (Id. at 6).
The Court finds that these facts do not establish specific jurisdiction under C.P.L.R. § 302(a)(1). Cordice is instructive on this issue. There, the plaintiff asserted jurisdiction "based on the location from which she purchased her ticket" in New York. 2015 WL 5579868, at *4-5. The Court found that the plaintiff had failed to establish a basis for jurisdiction under C.P.L.R. § 302(a)(1), explaining that her claim "arises not from the sale of the ticket, but from an alleged tort that took place on a flight from Trinidad and Tobago to St. Vincent. The mere purchase of a ticket in New York is insufficient to establish personal jurisdiction based upon an injury that occurred elsewhere while travelling on that ticket." Id. at *4. See also Gelfand v. Tanner Motor Tours, Ltd. , 339 F.2d 317, 321-22 (2d Cir. 1964) (where plaintiffs, residents of New York, were injured while riding on a bus from Las Vegas, Nevada to Grand Canyon, Arizona, U.S. District Court in New York did not have jurisdiction under CPLR § 302 : "We assume for the sake of argument that the sale of the tickets by defendants to plaintiffs through Herren-Rogers was a business transaction within New York. We cannot, however, agree that plaintiffs’ cause of action in tort arose from that sale. The alleged negligence of defendants, the subsequent injury to plaintiffs, and every relevant occurrence connecting these two events, all took place three thousand miles from Long Island, New York. It cannot even be said that the duty of due care owed by defendants to plaintiffs arose in New York, for that duty did not finally arise until plaintiffs boarded defendants’ bus in Las Vegas. We are referred to no appellate court cases, nor has our own research disclosed any, which uphold jurisdiction over a personal injury claim on anything like such slender grounds."); Simmons v. Nat'l R.R. Pass. Corp. , No. 19 Civ. 6986(LGS), 2020 WL 2904847, at *3 (S.D.N.Y. June 3, 2020) ("Courts in this circuit have consistently found ... the purchase of a ticket or the signing of a contract in New York that is the ‘but-for cause of an out-of-state, non-commercial tort’ is not sufficient to create the necessary nexus."); Rodriguez v. Circus Circus Casinos, Inc. , No. 00 Civ. 6559(GEL), 2001 WL 21244, at *3 (S.D.N.Y. Jan. 9, 2001) (declining to find personal jurisdiction where "[e]ven if [plaintiff] had made his hotel reservation over [defendant's] website [in New York] ... the personal injuries at the heart of this lawsuit arose, if at all, from the allegedly negligent conduct of the defendants in Nevada rather than from the making of a hotel reservation. Absent the requisite nexus, there is no basis for long-arm jurisdiction over [defendant]"); Corke v. Sameiet M.S. Song of Norway , 435 F. Supp. 308, 310 (W.D.N.Y. 1977) (where plaintiff, a resident of New York, was injured aboard a Royal Caribbean Cruise in the Caribbean, finding no jurisdiction pursuant to C.P.L.R. § 302(a)(1), because "the alleged acts of negligence [were] so removed from the delivery of the ticket within New York that they [were] no longer part of such transaction."), rev'd on other grounds , 572 F.2d 77 (2d Cir. 1978).
Plaintiff attempts to distinguish these cases on the grounds that he "did more than just purchase from Defendant a ticket for travel out of state," because he "purchased a ticket for travel to and from the Greater Rochester International Airport and Fort Myers, Florida," and "[w]hile en route, Defendant had a duty to exercise reasonable care for Plaintiff's safety." (Dkt. 20 at 5-6). In other words, Plaintiff emphasizes that his flight itinerary included flights with an initial departure from, and final arrival in, Rochester, New York. While the fact that Plaintiff's departure and return destination for his flights was New York, his injury—which is at issue in this case—occurred during the leg of his return trip from Florida to New Jersey, and not during a return flight to New York.
In support of his argument that the court has specific jurisdiction, Plaintiff cites Lebel v. Tello , 272 A.D.2d 103, 707 N.Y.S.2d 426 (2000), which he contends demonstrates that § 302(a)(1) may be invoked outside a commercial tort or breach of contract. In that case, the defendant, a California resident, contracted to purchase an airplane from the plaintiff in New York, and to receive flight instruction, including a cross-country flight to California. Id. at 103, 707 N.Y.S.2d 426. The defendant traveled to New York where he received flight instruction and reviewed flight plans for three days before the cross-country trip with plaintiff to California. Id. A few days after the cross-country trip began, the airplane crashed during a takeoff in New Mexico, with the defendant at the controls. Id. The First Department found that New York had jurisdiction because "defendant's significant and purposeful acts in New York with regard to the transaction at issue were sufficient to confer jurisdiction under the statute," and "although the accident occurred in Santa Fe, it plainly arose out of the transaction of business in New York since there was a clearly articulable nexus between the accident and the transactions in New York." Id. at 104, 707 N.Y.S.2d 426. Lebel is plainly distinguishable. The transactions in Lebel connecting the accident to New York, i.e. , that the defendant contracted to purchase an airplane and receive flight instruction in New York, and then traveled to New York, where he received flight instruction and reviewed flight plans before embarking on additional flight instruction, are far more purposeful than Plaintiff's purchasing a round-trip ticket in New York, with an eventual destination of New York, particularly where the accident did not occur on a flight to or from New York. Cf. McConney v. Amtrak , No. 18-CV-05290 (NGG) (RER), 2020 WL 435366, at *3 (E.D.N.Y. Jan. 28, 2020) (finding that the plaintiff failed to establish specific jurisdiction pursuant to C.P.L.R. § 302(a)(1), but noting that allegations that plaintiff purchased her train ticket in New York; the final destination of the train on which the plaintiff sustained an injury was New York; that Amtrak "operates over 900 trains in and out ... of New York on a weekly basis," and that Amtrak accepted service of process at its office located at 400 West 31st Street, New York, NY 10001, may well establish a prima facie case of jurisdiction). Plaintiff's allegations regarding the connection of his injury to New York simply do not rise to that level.
Although Plaintiff does not argue that any additional provisions apply, the Court has considered the allegations contained in Plaintiff's amended complaint in light of the remaining provisions of C.P.L.R. § 302(a) pursuant to which jurisdiction could be proper in New York, and finds that none are applicable here. C.P.L.R. § 302(a)(2) applies when a nondomiciliary commits a tortious act within the state, and plainly is not applicable here, where the alleged tortious conduct occurred at some point in the sky between Florida and New Jersey. C.P.L.R. § 302(a)(3) permits personal jurisdiction over a non-domiciliary for a tort occurring outside of New York if it caused injury to a plaintiff within New York, so long as the non-domiciliary does business in the state; however, this provision does not extend to injuries that occur outside of New York but merely manifest themselves in New York. See Cordice , 2015 WL 5579868, at *5 ("Although [the plaintiff]’s symptoms persisted after she returned to New York, her original injury did not occur in New York and therefore there is no basis for jurisdiction under § 302(a)(3)."). Finally, C.P.L.R. § 302(a)(4) provides for personal jurisdiction over a nondomiciliary when it owns, uses, or possesses real property within the state which, based on the allegations in Plaintiff's amended complaint, does not appear to be implicated here.
In sum, the Court finds that it lacks specific jurisdiction over Plaintiff's claim. While he may have purchased his ticket in New York, and planned an eventual return to New York, his injury occurred aboard a flight from Florida to New Jersey—not a flight to New York. The law does not support the Court's exercising personal jurisdiction over Plaintiff's claim on these grounds. Accordingly, Defendant's motion to dismiss is granted.
III. Plaintiff's Request to Transfer Venue
In the last paragraph of his response to Defendant's motion to dismiss, Plaintiff requests in the alternative that, should the Court find it lacks personal jurisdiction, that it exercise its discretion to transfer this action to the United States District Court for the Northern District of Illinois. (Dkt. 20 at 7). On February 16, 2021, the Court directed Defendant to file a response to Plaintiff's request to transfer (Dkt. 21), which Defendant filed on March 1, 2021 (Dkt. 22). Defendant opposes transfer of venue to the Northern District of Illinois on the grounds that Plaintiff has failed to show that the transfer would be in the interest of justice, the running of the statute of limitations alone does not mandate transfer, and the request is procedurally improper. (Id. ).
28 U.S.C. § 1406(a) provides that "[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." "Courts enjoy considerable discretion in deciding whether to transfer a case in the interest of justice." Daniel v. Am. Bd. of Emergency Med. , 428 F.3d 408, 435 (2d Cir. 2005) ; see also Minnette v. Time Warner , 997 F.2d 1023, 1026 (2d Cir. 1993). When determining whether a transfer is in the interest of justice, the Court considers: "(1) the convenience of parties; (2) the convenience of witnesses; (3) the relative ease of access to sources of proof and the locus of operative facts; (4) the availability of process to compel attendance of unwilling witnesses; (5) the cost of obtaining willing witnesses; (6) the practical problems indicating where the action can be tried more expeditiously and inexpensively (e.g., calendar congestion); and (7) the totality of circumstances." Palm Bay Int'l, Inc. v. Cork Alliance, Inc. , No. 09 CV 494(SJF)(MLO), 2010 WL 11556546, at *7 (E.D.N.Y. Sept. 20, 2010) (quoting French Transit, Ltd. v. Modern Coupon Sys., Inc. , 858 F. Supp. 22, 27 (S.D.N.Y. 1994) ). "The Second Circuit has interpreted § 1406(a) broadly to allow transfers, especially when a plaintiff's claims would be time-barred by the applicable statutes of limitations if [ ]he refiles the case." Wohlbach , 2018 WL 3611928, at *4. Plaintiff, as the proponent of the transfer motion, has the burden of establishing that personal jurisdiction and venue would be proper in the transferee forum. Id. at *3.
Plaintiff argues that the Court may transfer venue pursuant to § 1404(a) or § 1406(a). Because the Court has concluded that it lacks personal jurisdiction over Plaintiff's claim, § 1406(a) applies. See Wohlbach v. Ziady , No. 17 Civ. 5790 (ER), 2018 WL 3611928, at *3 n.5 (S.D.N.Y. July 27, 2018).
As an initial matter, Plaintiff's request to transfer, which he makes in the last paragraph of his response, fails to comport with the Court's Local Rules of Civil Procedure, which require that all motions be accompanied by a notice of motion outlining the relief sought. See L. R. Civ. P. 7(a)(1) ("A notice of motion is required for all motions, and must state: the relief sought, the grounds for the request, the papers submitted in support, and the return date for the motion, if known."). Plaintiff has not included a notice of motion with his request to transfer venue, and therefore it is procedurally improper. Nor does Plaintiff's one-paragraph request to transfer articulate why venue would be proper in the Northern District of Illinois, other than the conclusory statement that it would "appear to be the only alternative venue." (Dkt. 20 at 7). See Krisko v. Marvel Ent., LLC , 473 F. Supp. 3d 288, 302 (S.D.N.Y. 2020) (denying motion to transfer based, in part, on the plaintiff's request, which "more properly styled as a motion to transfer, rather than appended as an alternative argument in an opposition to [defendant's] motion to dismiss—provides no information that would permit this Court to determine whether the Central District of California would be the appropriate venue for [plaintiff's] claims, or whether a court in that district could exercise personal jurisdiction over [the defendant]."). For example, Plaintiff has not articulated why transfer to the Northern District of Illinois serves the interest of justice, in terms of the convenience of the witnesses and the parties, access to sources of proof, or the locus of operative facts. This is particularly problematic in light of the fact that Plaintiff's injury, by his own allegations, occurred during a flight from Florida to New Jersey and, other than the fact that Defendant has its principal place of business there, has no apparent connection to the Northern District of Illinois.
Plaintiff contends that granting Defendant's motion to dismiss would "irreparably harm" him and not serve the interest of justice, because recommencement of the action in Illinois may not be possible given the statute of limitations. (Dkt. 20 at 7). However, as recently explained by the court in Krisko :
Section 1406 was enacted to protect "plaintiffs who were diligent in initiating suit [from] forfeit[ing] their action as a result of venue quirks of which responsible plaintiffs would not necessarily have known." Spar, Inc. v. Info. Res., Inc. , 956 F.2d 392, 394 (2d Cir. 1992). It should not be used to "reward plaintiffs for their lack of diligence in choosing a proper forum." Id. Generally, the Second Circuit has found "[a] compelling reason for transfer" when "a plaintiff's case, if dismissed, would be time-barred on refiling in the proper forum." Daniel, 428 F.3d at 435 (internal quotation marks and citations omitted); see also Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993) ("Given that the functional purpose of 28 U.S.C. § 1406(a) is to eliminate impediments to
the timely disposition of cases and controversies on their merits, the transfer of this action, when the statute of limitations has run, is in the interest of justice."). This protection, however, is not limitless; the Circuit has also explicitly warned against transfer when it would "reward plaintiffs for their lack of diligence in choosing a proper forum" and allow them to "bargain hunt" for forums after commencing an action. Spar , 956 F.2d at 394-95.
Krisko , 473 F. Supp. 3d at 301.
As the party commencing this litigation, Plaintiff had his choice of forum. Although Plaintiff was aware that the events giving rise to his claim occurred somewhere between Florida and New Jersey, he "chose to file the Complaint in [New York] without providing any colorable basis for venue here." Wohlbach , 2018 WL 3611928, at *5 (declining to transfer case pursuant to § 1406, explaining that "[t]he purpose of § 1406 is to protect plaintiffs who were diligent in initiating suit from forfeiting their action as a result of venue quirks of which responsible plaintiffs would not necessarily have known." (alterations and quotations omitted)). Because Plaintiff has failed to carry his burden to demonstrate that a transfer to the Northern District of Illinois serves the interest of justice, coupled with the fact that his request is procedurally improper, his request for transfer of venue to the Northern District of Illinois is denied, and his amended complaint is dismissed without prejudice.
CONCLUSION
For the foregoing reasons, the Court grants Plaintiff's motion for an extension of time (Dkt. 16). The Court also grants Defendant's motion to dismiss the amended complaint for lack of personal jurisdiction (Dkt. 13), and denies Plaintiff's associated request to transfer venue to the Northern District of Illinois (see Dkt. 20). Plaintiff's amended complaint is dismissed without prejudice.
SO ORDERED.