DEFENDANT DAN RESLER'S MOTION TO DISMISS FOR LACK OF JURISDICTION OVER THE PERSON

COMES NOW, the defendant R. Daniel Resler, Ph. D. ("Dan Resler"), by counsel, and pursuant to Federal Rules of Civil Procedure 12(b)(2) and 56, moves this Court to dismiss Plaintiff's claims and causes of action against him because this Court lacks jurisdiction over his person.

In support of his motion to dismiss, Defendant submits the enclosed affidavit and the following Memorandum of Points and Authorities in Support.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

Statement of Facts

Dan Resler, Ph. D. is an associate professor in the Department of Mathematical Sciences at Virginia Commonwealth University in Richmond, Virginia. Dr. Resler resides in Richmond, is a domiciliary of the Commonwealth of Virginia and conducts no business in New York. He owns no realty in New York and has no contacts with the state, except for occasional visits there for purposes unrelated to this litigation. He has made no contracts to supply any goods or services in New York that give rise to claims in this case.

The plaintiff claims to be the owner of the trade name Pets Warehouse and a business which trades over the Internet using the name and URL,(Footnote 1) "Petswarehouse.com." (Compl. (paragraph) 2.) On April 10, 2001, Dr. Resler, using a computer located in Richmond, visited the Internet web page at the URL "petswarehouse.com." In addition to other pet supplies, the web page offered aquatic plants for use in aquariums, which would be sold and shipped to consumers by Pets Warehouse throughout the United States. Dr. Resler ordered some plants and provided his credit card information for payment purposes. After completing the order, an invoice was displayed showing the total cost of the order, as well as shipping costs in the amount of $7.50. Nowhere during the ordering process did any of the information presented to Dr. Resler indicate that shipping would be in excess of $7.50. Additionally, none of the web pages presented during the ordering process indicated that there could be or would be any delay in shipping the plants.(Footnote 2)

However, Dr. Resler did not immediately receive them. Between April 10 and May 15 - when he finally received his order - Dr. Resler called PetsWarehouse.com several times inquiring about the shipment. When he finally received the plants, a copy of the invoice he had seen on the computer the day he made his order was enclosed. However, the printed amount of $7.50 for shipping was lined through and someone had written in $18.50 for shipping costs. Dr. Resler's credit card was billed this additional amount. When he called the company about this additional charge, they refused to refund the excess over $7.50.

Dr. Resler had not been informed of the additional shipping costs and he had not agreed to pay it. Moreover, the delivery of his plants was, in his opinion, substantially delayed. Further, the information he had received from PetsWarehouse.com employees was inaccurate and he felt that he was treated rudely by them.(Footnote 3)

Dr. Resler participates in an electronic aquatic plants forum on the internet. This electronic bulletin board allows users to post questions and comments about issues regarding aquatic plants. On May 15, 2001, Dr. Resler posted a comment to the bulletin board regarding his experience in ordering plants from the Petswarehouse.com web site. He entered these comments from a computer in Richmond, Virginia and forwarded them electronically to the host server. After his comment, a number of other dissatisfied customers posted similar comments and Dr. Resler responded to some of these. All of his posts were generated from a computer in Richmond, Virginia.

Dr. Resler did not know, and does not now know, whether any of the posts were received and viewed by anyone within the state of New York. His only expectation was that the posts would be reviewed by anyone who had access to the bulletin board and that the text on the bulletin board could be searched by anyone with the appropriate web searching software in order to find the posting he had made.

Plaintiff filed this complaint pro se on May 30, 2001. He alleges that the defendant resides in Richmond, Virginia and uses the Internet screen name resler@liberty.mas.vcu.edu. (Compl. (paragraph) 8.) He alleges that Dr. Resler posted an email message to the Aquatic-Plants bulletin board on May 15, 2001, (Compl. (paragraph) 30), and that this message and others posted by Dr. Resler were defamatory. (Compl. (paragraphs) 31-36.) The gravamen of his Complaint is that the email messages posted by Dr. Resler on the Aquatic Plants electronic forum defamed him. (Id.)

Plaintiff also claims that "[t]his Court has personal jurisdiction over the defendants under the New York State Long Arm Statute, Sections 302(a)(1) and 302(a)(3)(i) of the CPLR." (Compl. (paragraph) 3.) However, he provides no allegations showing that Dr. Resler transacted any business in New York and he alleges no contracts by Dr. Resler to supply any goods or services in New York. Finally, plaintiff does not claim that Dr. Resler regularly does business in New York or that he derives any revenue from business activities there. In short, his Complaint provides no factual basis for the conclusion that the New York Long Arm Statute applies.

Argument

I. The New York Long Arm Statute, N.Y. C.P.L.R. (Section) 302(a)(1), Does Not Permit this Court to Exercise Personal Jurisdiction over the Defendant.

A. The Plaintiff Fails to Make a Prima Facie Showing of Jurisdiction by His Pleading.

In this diversity case, the assessment of whether the Court may exercise personal jurisdiction over the defendant is determined by state law. Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir. 1983). Under New York law, the plaintiff bears the initial burden of proving that his factual allegations from the pleadings establish a prima facie showing of jurisdiction. Ball v. Metallurgie Hoboken-Overpelt, 902 F.2d 194, (2d Cir. 1990) (citing Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985)).

Mr. Novak alleges that New York has jurisdiction over the person of Dr. Resler based on section 302(a)(1) of New York's Long Arm Statute, which states:

N.Y. C.P.L.R. (Section) 302(a)(1). Mr. Novak has failed to allege in his recitation of the facts that Dr. Resler or his agent either transacted any business within the state, or contracted anywhere to supply goods or services in the state.

At this stage of the proceeding - that is, until an evidentiary hearing on the matter is held - pleadings and affidavits are construed in the light most favorable to the plaintiff. Beacon Enterprises, Inc., 715 F.2d at 768. Even viewing the evidence in this favorable light, however, Plaintiff cannot show personal jurisdiction over the defendant in this forum. In fact, Mr. Novak makes no specific, direct allegation that Dr. Resler had any contact whatsoever with the state of New York. At best, Mr. Novak asks this Court to accept his inference that, because Dr. Resler used an Internet-based bulletin board, and because persons within the state of New York could access Dr. Resler's message on that bulletin board, regardless whether anyone actually did, Dr. Resler necessarily had contact with the state of New York sufficient to establish the state's jurisdiction over him. While the pleadings must be read in the light most favorable to the plaintiff at this stage of the proceedings, Mr. Novak stretches the presumption afforded him by expecting this Court to find contacts where no contacts have been alleged.

B. The Court May Not Exercise Jurisdiction under N.Y. C.P.L.R. (Section) 302 (a)(1) Because the Defendant Did Not Transact Any Business within New York.

The New York statute permits the exercise of jurisdiction on the basis of this subsection only where the claim arose out of the transaction of business. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 59-60 (2d Cir. 1985) ("the cause of action [must be] sufficiently related to the business transacted that it would not be unfair to deem it to arise out of the transacted business and to subject the defendants to suit in New York."); Fontanetta v. American Board of Internal Medicine, 421 F.2d 355, 357 (2d Cir. 1970); Jolivet v. Crocker, 859 F. Supp. 62 (E.D.N.Y. 1994). Here, defendant did not transact business in New York and the alleged defamation did not arise out of the Internet transaction between the plaintiff and the defendant.

Defendant's transaction with PetsWarehouse.com does not demonstrate that he was "purposely avail[ing him]self of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws." Mayes v. Leipsiger, 674 F.2d 178 (2d Cir. 1981) (citations omitted). To be sure, it was Plaintiff's solicitation of orders from Virginia - through the use of the World Wide Web - that initiated the single business transaction between the parties. Dr. Resler never traveled to New York to facilitate the transaction and it was immaterial to him that plaintiff was located there.

This case is precisely analogous to Mayes. There, the Second Circuit refused to find that (Section) 302 (a)(1) allowed the exercise of personal jurisdiction over California attorneys who represented a New York client in California-based litigation. After acknowledging "the fact that the defendant was never present in New York in connection with the contract sued on is not dispositive," the court nonetheless found "no activity in New York in which the defendants sought to participate," even though numerous communications between the attorneys and others, working on behalf of the client, were communicated to New York:

Id. The same is true here. Plaintiff solicited Dr. Resler's business by its web page published to and in Virginia. The purchasing agreement was completed by Dr. Resler in Virginia. Defendant did not need or intend to reach into New York to complete his order. He had no intention of having any contact with that state when he placed his order. He simply entered his order from the computer in Richmond, Virginia and intended to take delivery of the product there. Nothing about this isolated transaction shows any nexus to New York. He did - and was required to do - nothing in New York. In short, "there was no activity in New York in which [he] sought to participate." Id.

Nothing about this isolated transaction shows any nexus to New York and, accordingly, the Court could not find, even upon the most favorable view of the evidence that defendant was "transacting business" within New York. However, even if this transaction suffices for that purpose, Plaintiff's assertion of jurisdiction under this section still fails because the cause of action sued upon did not arise from the transaction in question.

In Talbot v. Johnson Newspaper Corp., 71 N.Y.2d 827, 522 N.E.2d 1027, 527 N.Y.S.2d 729 (N.Y. 1988), the New York Court of Appeals addressed the question of whether a cause of action sounding in defamation "arose" from a "business" transaction from which allegedly defamatory information appeared to have been derived. In Talbot, a California resident whose daughter had attended four years of college in New York wrote two letters critical of the conduct of the basketball coach at the school attended by the daughter. The offended coach brought an action in New York sounding in defamation. Defendants moved to dismiss for want of personal jurisdiction, alleging that they had not transacted any business in New York. The trial court denied the motion, finding that sending the daughter to college in New York satisfied that requirement and that the alleged defamation arose out of that "business." The Appellate Division reversed and the Court of Appeals affirmed, noting that the nexus between the defamation - which occurred nearly two years after the daughter left the school - and the business transacted was insufficient to support long-arm jurisdiction. While the Court noted the lengthy interval between the business and the alleged defamation, that fact was not dispositive. Indeed, as the trial court noted, the observations of the daughter, from which the alleged defamation was derived occurred only because of the "business transacted." Rather, the absence of a "substantial relationship" between the defamation and the business transacted defeated the assertion of jurisdiction. Id.

Here, the absence of a nexus between the transaction conducted and the defamation is apparent on the face of the Complaint because Plaintiff pled no facts relating to the purchase by Dr. Resler. The point is clear. The defamation action stands independent of the isolated transaction between the parties. Like Talbot, there is no substantial relationship between the defamation and the plant purchase and, therefore, the cause of action did not arise from that business.

II. This Court May Not Exercise Jurisdiction under N.Y. C.P.L.R. (Section) 302 (a)(3)(i) Because Dr. Resler Does Not Regularly Conduct Business in New York, He Does Not Derive Substantial Revenue from any Activities There, and Claims of Defamation are Specifically Excluded from the Long Arm Statute.

Plaintiff also contends that (Section) 302(a)(3)(i) gives this Court jurisdiction over the defendant. This is plainly wrong for two reasons.

A. Section 302(a)(3)(i) Explicitly Exempts Defamation from the State's Reach.

Section 302(a)(3)(1) states in relevant part:

N.Y. C.P.L.R. ¤ 302 (a)(3)(i). Mr. Novak's first count against Dr. Resler is for libel. (Compl. (paragraphs) 30-36.) This count falls squarely within the defamation exception to this section of the long arm statute.

The fact that Mr. Novak has alleged a second count as to Dr. Resler (Claim Three in the Complaint) in the guise of intentional infliction of emotional distress does not allow him to skirt the statute's defamation exception. (Compl. (paragraphs) 44-46, 51.) The plain gravamen of the complaint is defamation. Mr. Novak cannot avoid the impact of the statutory exception by careful labeling. As this Court has reiterated, "Plaintiff's attempt to convert the alleged tort from defamation to something else must be rejected as spurious." Jolivet v. Crocker, 859 F. Supp. 62, 65 (E.D.N.Y. 1994) (quoting American Radio Assoc, AFL-CIO v. A.S. Abell. Co., 58 Misc. 2d 483, 296 N.Y.2d 8, 237 N.E.2d 876, 290 N.Y.S.2d 732 (1968)).

B. No Facts Exist to Support the Statute's Requirement that Dr. Resler Regularly Conducts Business in New York or Derives Substantial Revenues from Any Activities There.

The United States Court of Appeals for the Second Circuit has construed the language of (Section) 302(a)(3)(i). "Insofar as is pertinent herein [the New York Legislature] restricted the exercise of jurisdiction under sub-paragraph (a)(3) to persons who expect or should reasonably expect the tortious act to have consequences in the state and in addition derive substantial revenue from interstate commerce." Bensusan Restaurant Corp. v. King, 126 F.3d 25 (2d Cir. 1997) (emphasis added).

Mr. Novak pleads no facts to support his assertion that Dr. Resler regularly does or solicits business in New York, that he engages in any persistent course of conduct there, or that he derives any revenue from goods used there or services rendered there, whether substantial or otherwise. Even if Plaintiff could demonstrate that his cause of action against Dr. Resler is premised on some claim other than defamation, his assertion of jurisdiction under this section would still be lacking because he cannot demonstrate the requisite contact revenue or business nexus with the forum. See Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 425 N.Y.S.2d 783, 402 N.E.2d 122 (N.Y. 1980).

Here, the defendant has no ongoing relationship with New York, he derives no revenue from New York (or from interstate commerce), he solicits no business there and he has virtually no connection with the state. In short, there is no basis for a finding that jurisdiction is supported by ¤ 302(a)(3)(i).

III. The Exercise of Personal Jurisdiction in this Case Would Offend Due Process.

Not only does New York's long arm statute not confer jurisdiction over Dr. Resler under the facts of this case, constitutional due process limitations would also be violated if this Court were to exercise jurisdiction. In order for this Court to do so, the defendant must "have certain minimal contacts with [New York] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Here, Dr. Resler's contacts with the forum are so attenuated, so infrequent, and so unrelated to the cause of action asserted that the exercise of jurisdiction in this case would offend the due process guaranteed by the U.S. Constitution.

The most analogous U.S. Supreme Court case on point is Calder v. Jones, 465 U.S. 783 (1984). In Calder, the Court held that the state of California could assert personal jurisdiction over two Florida defendants whose contacts with the state of California also were minimal. Similar to the case at bar, Calder involved the alleged publication of a defamatory article written and edited by the two defendants about the actress Shirley Jones, a California resident. The National Enquirer, the defendants' employer, subsequently published the article. In finding it proper for the California court to exercise personal jurisdiction over the defendants, however, the Supreme Court found instructive the fact that the defendants knew their story would be read in California by virtue of the over 600,000 issues of the publication sold in that state. The Court said the defendants "knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation." Id. at 789-90.

Dr. Resler is not the National Enquirer. There is no allegation that he published his opinions to any residents of New York, let alone 600,000. There is no allegation that he purposefully directed his opinions there. For jurisdiction to exist, Dr. Resler must have "purposefully avail[ed himself] of the privilege of conducting activities with the forum state." Hanson v. Denckla, 357 U.S. 235, 253 (1958). Here, he has not. Dr. Resler's activity - the posting of his opinions on an Internet bulletin board - does not amount to purposeful availment.

Clear analogy can be drawn to a recent case decide in the United States District Court for the Southern District of New York. In American Network, Inc. v. Access America/Connect Atlanta Inc., 975 F. Supp. 494 (S.D.N.Y. 1997), the court found that merely placing a web page into the public domain, without more, offends notions of constitutional due process such that it would be unfair for New York courts to exercise jurisdiction over a Georgia defendant.

R. Daniel Resler, Ph. D.

By: ________________________________

Joseph Infranco, Esquire
NYS Bar # 9313
Migliore & Infranco
353 Veterans Memorial Highway
Commack, NY 11725-4325
631-543-3663
631-543-3682 (telefax)

Certificate of Service

I hereby certify that a true copy of the above document was served upon the following parties by first class mail on August ___, 2001:

By: ________________________________

Footnote 1. A URL, or "uniform resource locator" is the alphanumeric code which allows a computer user to locate a specific web page on the world wide web.

Footnote 2. Plaintiff has since revised the web pages at Petswarehouse.com. When an Internet user views any of the aquatic plants for sale, the description includes a warning that additional shipping costs will be included in the order.

Footnote 3. These are not the only complaints Dr. Resler has about the service he received from Petswarehouse.com, nor even the most significant. One of their most troubling business practices was that one of the reports generated by the internet business - which was provided to any internet user who typed the right alphanumeric characters in address line of his web browser - displayed Dr. Resler's credit card number unencrypted.