Summary
declining to dismiss on the grounds of failure to comply with Local Rules 12.1 and 56.2 because pro se plaintiff was aware of rights protected by Rules
Summary of this case from Francis v. AccuBanc Mortg. Corp.Opinion
03 Civ. 6336 (SAS)
March 16, 2004
George Pieczenik, New York, New York, for Plaintiff
Michael B. Weiss, Esq. and S. Penny Windle, Esq., Cahill Gordon Reindel LLP, New York, New York, for Defendant Cambridge Antibody Technology Group
Ivor R. Elrifi, Esq.; Susan Gail Hecht, Esq. and H. Joseph Hameline, Esq., Mintz, Levin, Cohn, Ferris, Glovsky Popeo, New York, New York, for Defendant Domantis Inc
OPINION AND ORDER
Dr. George Pieczenik, appearing pro se, brings this action against multiple defendants, alleging patent infringement, patent invalidity, and Racketeer Influenced and Corrupt Organizations ("RICO") claims. Defendants Domantis Inc. and Cambridge Antibody Technology Group plc ("CAT") (collectively "defendants") now move to dismiss the action against them for lack of personal jurisdiction. In the alternative, defendants move to dismiss the action for failure to state a claim. Pieczenik counters with a series of papers styled "Cross Motions," seeking dismissal of defendants' motions citing their "failure to comply with Local Rules 12.1 and S6.2." For the reasons that follow, defendants' motions to dismiss for lack of personal jurisdiction are granted and Pieczenik's cross motions are denied.
18 U.S.C. § 1961 et seq.
Pieczenik has named only "Domantis" as a party to this action, making it unclear whether he is referring to Domantis Inc., a Massachusetts company, or its English parent, Domantis Limited. However, because he has only served Domantis Inc. and because Domantis Inc. is the party moving for dismissal, this Opinion addresses only the question of jurisdiction over Domantis Inc. and has no bearing on Pieczenik's suit against Domantis Limited. Although Pieczenik references Domantis Limited in his papers, as far as this Court is aware, Domantis Limited has never been served and is therefore not a party to this litigation.
CAT also seeks dismissal of Pieczenik's claims of patent invalidity for lack of subject matter jurisdiction. Because defendants' motions to dismiss for lack of personal jurisdiction are both granted, I do not consider their alternative grounds for dismissal.
See Cross Motion for Dismissal and in Opposition to Domantis' Motions for Failure to Comply with Local Rules 12.1 and 56.2; 12/27/03 Letter to the Court from Pieczenik (seeking dismissal of CAT's motion to dismiss, citing failure to comply with Local Rules 12.1 and 56.1); Plaintiffs Reply Memorandum of Law and Evidence in Further Support of His Cross Motion to Dismiss CAT's Motion to Dismiss and a Request for Reconsideration of Court's Ruling on MRC's and Aaron Klug's Relationship to CAT ("Pl. Reply CAT Mem.").
I. FACTS
B. Jurisdictional Allegations
A. The Moving Defendants 1. Domantis Inc.
See 12/4/03 Declaration of Robert J. Welna, Domantis Inc.'s Director of Finance, in Support of Domantis Inc.'s Motion to Dismiss ("Welna Decl.") ¶ 2-3; Third Amended Complaint ("Am. Compl.") ¶ 5. Pieczenik has amended his Complaint three times since the commencement of this action. When the instant motions were filed, the operative complaint was the Second Amended Complaint. But while the parties were in the process of briefing their respective motions, Pieczenik filed his Third Amended Complaint. Because the Jurisdictional allegations regarding Domantis Inc. and CAT have not changed from the Second to the Third Complaint, defendants' respective motion papers are deemed to address the Third Amended Complaint.
See Welna Decl.; Am. Compl. ¶ 5.
See Am. Compl. ¶ 7; 12/19/03 Declaration of Diane Mellett, CAT's General Counsel and Company Secretary, in Support of CAT's Motion to Dismiss ("Mellett Decl.") ¶ 2.
Pieczenik alleges that Domantis Inc. licenses rights under its phage display patents in "New York, the United States, and the world," thereby infringing and contributing to infringement of his '363 and '448 patents. Domantis Inc. counters that it does not "engage in any research or licensing activities in New York."
Am. Compl. ¶ 27.
Welna Decl. ¶ 6. In one of his many letters to the Court, Pieczenik notes that "Domantis Limited advertises, on a Web site accessible in New York, a relationship with Imclone." 12/6/03 Letter to the Court from Pieczenik. Because this allegation is directed at Domantis Limited, rather than Domantis Inc., I do not consider it for purposes of the instant motion. However, I note that the allegation that a defendant's website is accessible to New York residents, unaccompanied by averments that the website is either highly interactive or that the plaintiffs claims arose out of the defendant's website activity, cannot provide the basis for jurisdiction under New York's jurisdictional statutes. See In re Ski Train Fire in Kaprun, Austria on November 11, 2000 (Siemens Austria), 230 F. Supp.2d 403, 408 (S.D.N.Y. 2002). Insofar as Pieczenik argues that jurisdiction can be exercised over Domantis Inc. or CAT on the basis of their respective websites, his allegations are inadequate under either of New York's jurisdictional statutes.
2. CAT
a. License Agreements
Pieczenik alleges that CAT, like Domantis Inc., infringes and contributes to the infringement of his patents by licensing rights in "New York, the United States, and the world." CAT identifies several license agreements that it has with New York entities: (1) a 1995 license and royalty agreement with Pfizer Inc., "a Delaware corporation that has an address in New York"; (2) a 1999 research and licensing agreement with G.D. Searle Co., an Illinois company that was eventually acquired by Pfizer Inc.; and (3) a 1996 agreement with New York Medical College in Valhalla, New York. None of these agreements were negotiated in New York or are governed by New York law, and only the third agreement required CAT to send materials and/or technology to New York. CAT also states that it transferred a therapeutic product candidate — Trabio(tm) — to two locations in New York, for use in clinical trials.
Am. Compl. ¶ 27.
Mellett Decl. ¶ 9; see also id. ¶¶ 10,12.
See id. ¶¶. 10, 12.
See id. ¶ 13.
b. Other Contacts
Pieczenik also offers many general jurisdictional allegations, scattered throughout his various submissions to the Court. First, he asserts that CAT is a defendant in a lawsuit brought by a former shareholder, Continental Venture Capital Limited ("CVC"), in New York state court. Second, he points to the fact that CAT listed a New York investment banker as a "contact person for the Subscription Agreement for raising money in both its initial subscription offering to the present." Third, CAT has purportedly entered into contracts with companies and individuals, located or doing business in New York, such as Dyax and Bristol-Myers Squibb." Fourth, Genzyme Corp., a company with "a continuous presence in Yonkers, New York as Genzyme Genetics," purportedly owns 11.28% of CAT. Fifth, CAT maintains its American Depository Receipts ("ADRs") in the Bank of New York, and is "required to continually monitor those assets either by phone, internet and/or mail." Aggregating the foregoing allegations, Pieczenik concludes that "[t]he bacteriophage that CAT uses comes from NY, the ideas come from New Yorker, the legal solutions come from New York. The only thing not from New York at CAT is the chutzpah and the accent."
PI. Reply CAT Mem.
12/6/03 Letter to the Court from Pieczenik.
Am. Compl. ¶ 7. Pieczenik also alleges, in the same sentence in his Amended Complaint that CAT "designated the Secretary of State of New York to receive process of service." Id. CAT disputes this in a sworn declaration, which states that CAT has not designated the New York Secretary of State, or any agent, to receive process in New York. See Mellett Decl. ¶ 5. Pieczenik has not addressed this issue in his subsequent submissions.
Plaintiffs Cross Motion and Response Against CAT's Reply Brief ("PI. CAT Mem.").
Id.
Id.
II. APPLICABLE LAW
A. Local Rules 12.1 and 56.2
Rule 12.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York provides that "[a] represented party moving to dismiss . . . against a party proceeding pro se, who refers in support of the motion to matters outside the pleadings as described in Federal Rule of Civil Procedure 12(b) . . ., shall serve and file the notice required by Local Civil Rule 56.2 at the time the motion is served." Federal Rule of Civil Procedure 12(b), in turn, references "matters outside the pleadings" only in the context of "a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted." Local Rule 56.2 provides that "[a]ny represented party moving for summary judgment against a party proceeding pro se shall serve and file as a separate document, together with the papers in support of a motion, a "Notice to Pro Se Litigant Opposing Motion For Summary Judgment" in the form indicated [in the rule]."
See Fed.R.Civ.P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.).
Local Rule 12.1, read in conjunction with Rule 12(b) and Local Rule 56.2, requires that a represented party moving for summary judgment against a pro se litigant apprise that litigant of the consequences of failing to respond to the motion. Local Rule 12.1 is intended to satisfy the prerequisites in this Circuit for granting a motion for summary judgment in a case involving a pro se litigant. Specifically, a court may not grant a summary judgment motion where one of the litigants is unrepresented unless: "(1) the court apprises the pro se litigant of the consequences of failing to respond to the motion, (2) an opposing party has already provided the litigant with the requisite notice, or (3) it is clear that the litigant understands 'the nature and consequences of a summary judgment motion.'"
See Arum v. Miller, No. 00 Civ. 7476, 2003 WL 23205689, at *3 (E.D.N.Y. Feb. 8, 2003) (citing Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994); Champion v. Artuz, 76 F.3d 483,486 (2d Cir. 1996); M.B. v. Reish, 119 F.3d 230, 232 (2d Cir. 1997); and Vital v. Interfaith Med. Center, 168 F.3d 615,620-21 (2d Cir. 1999)).
B. Personal Jurisdiction
Inasmuch as "[t]his case relates to the infringement [and invalidity] of patents [it] is governed by the law of the Federal Circuit." "When determining a personal jurisdiction case under Federal Circuit law, [a court] must first apply the state long — arm statute and then determine whether asserting jurisdiction would violate federal due process." Because the Federal Circuit's approach to evaluating personal jurisdiction is consistent with that of the Second Circuit, I will weigh the jurisdictional issues relating to Pieczenik's patent claims under the precedents of state and federal courts in this Circuit.
Hypoxico, Inc. v. Colorado Altitude Training LLC, No. 02 Civ. 6191, 2003 WL 21649437, at *1 (S.D.N.Y. July 14, 2003).
Id. at *2
See id.
1. Legal Standard
Upon motion, a court is obligated to dismiss an action against a defendant over which it has no personal jurisdiction. A plaintiff bears the ultimate burden of establishing, by a preponderance of the evidence, that the court has jurisdiction over the defendant. However, "[p]rior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith . . . legally sufficient allegations of jurisdiction, i.e., by making a prima facie showing of jurisdiction." A plaintiff "can make this showing through his own affidavits and supporting materials[,] containing an averment of facts that, if credited . . ., would suffice to establish jurisdiction over the defendant." Thus, a court may consider materials outside the pleadings, but must credit the plaintiffs averments of jurisdictional facts as true. "[W]here the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiff's favor, notwithstanding a controverting presentation by the moving party."
See Fed.R.Civ.P. 12(b)(2); see also In re Ski Train Fire in Kaprun, Austria, 230 F. Supp.2d at 406.
See Kernan v. Kurz-Hastings, Inc., 175 F.3d 236,240 (2d Cir. 1999); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994).
Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181,184 (2d Cir. 1998) (citations and quotation marks omitted); see also Koehler v. Bank of Berm., Ltd., 101 F.3d 863,865 (2d Cir. 1996).
Whitaker v. American Telecasting Inc., 261 F.3d 196, 208 (2d Cir. 2001) (citations and quotation marks omitted).
See Hsin Ten Enter: USA, Inc. v; Clark Enters, 138 F. Supp.2d 449, 452 (S.D.N.Y. 2000).
See Metropolitan Life Ins. Co. v. Robertson-Ceco. Corp., 84 F.3d 560, 567 (2d Cir. 1996).
A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993); see also Whitaker, 261 F.3d at 208.
The determination of whether a federal court has personal jurisdiction over a defendant is a two — step process. First, the court must determine whether the plaintiff has shown that the defendant is subject to personal jurisdiction under the forum state's laws. Second, the court must evaluate whether its assertion of jurisdiction pursuant to the forum state's laws comports with the requirements of due process. 2. Personal Jurisdiction in New York
See Bensusan Rest Corp. v. King, 126 F.3d 25,27 (2d Cir. 1997); Met Life, 84 F.3d at 567.
See Bensusan Rest. Corp., 126 F.3d at 27; Met Life, 84 F.3d at 567. Because defendants are not subject to personal jurisdiction under New York's jurisdictional statutes, it is unnecessary to address the constitutional requirements for personal jurisdiction.
Pieczenik fails to identify the statutory provisions on which his jurisdictional arguments are based. Accordingly, I will evaluate his allegations under both sections 301 and 302.
Because Pieczenik appears to allege no facts supporting jurisdiction under sections 302(a)(2) or 302(a)(3), these sections warrant only brief discussion. First, Pieczenik does not allege (hat either Domantis Inc. or CAT committed a tortious act while physically present in New York. As such, there is no basis for exercising jurisdiction over defendants on the basis of section 302(a)(2). See N.Y. C.P.L.R. § 302(a)(2) (McKinney 2003); see also Westvaco. Corp. v. Viva Magnetics Ltd., No. 00 Civ. 9399, 2002 WL 1933756, at *2 (S.D.N.Y. Aug. 20, 2002) (noting that section 302(a)(2) requires that the tortious act be physically performed within New York — State); Millennium, L.P. v. Dakota Imaging. Inc., No. 03 Civ. 1838, 2003 WL 22940488, at *5 (S.D.N.Y. Dec. 15, 2003). Second, Pieczenik does not aver facts suggesting that either Domantis Inc. or CAT regularly does or solicits business in New York, engages in any other persistent course of conduct, or derives substantial revenue from interstate or international commerce. Accordingly, section 302(a)(3) cannot serve as a basis for the exercise of personal jurisdiction over Domantis Inc. See N.Y. C.P.L.R. § 302(a)(3) (McKinney 2003).
a. Section 301
Under New York law, a foreign corporation can be sued for all purposes if it is present or "doing business" in the state. Under this test, "a foreign corporation is amenable to suit in New York if it is 'engaged in such a continuous and systematic course' of 'doing business' here as to warrant a finding of its 'presence' in this jurisdiction." That is, a "corporation is 'doing business' and is therefore 'present' in New York and subject to personal jurisdiction with respect to any cause of action . . . if it does business in New York 'not occasionally or casually, but with a fair measure of permanence and continuity.'" "The doing business standard is a stringent one because a corporation which is amenable to the Court's general jurisdiction may be sued in New York on causes of action wholly unrelated to acts done in New York."
See N.Y. C.P.L.R. § 301 (McKinney 2003); Aerotel Ltd. v. Sprint Corp., 100 F. Supp.2d 189 191 (S.D.N.Y. 2000) (interpreting section 301).
Aerotel Ltd., 100 F. Supp.2d at 191-92 (quoting Frummer v. Hilton Hotels Int'l, Inc., 19 N.Y.2d 533, 536 (1967)).
Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88,95 (2d Cir. 2000) (quoting Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir. 1985)).
Jacobs v. Felix Block Erben Verlag fur Buhne Film und Funk KG, 160 F. Supp.2d 722, 731 (S.D.N.Y. 2001) (quotation marks omitted)
To determine whether a foreign corporation is doing business in New York, courts have focused on a traditional set of indicia, assessing whether the company: (1) has an office in the state; (2) has any bank accounts or other property in the state; (3) has a phone listing in the state; (4) does public relations work there; and (5) has individuals permanently located in the state to promote its interests. However, these factors are only intended to provide guidance — they do not amount to a "formula" for testing jurisdiction. As the Second Circuit has noted, "There is no talismanic significance to any one contact or set of contacts that a defendant may have with a forum state; courts should assess the defendant's contacts as a whole."
See Wiwa, 226 F.3 dat98.
Met Life, 84 F.3d at 570; see also Land oil Res. Corp. v. Alexander Alexander, Servs., Inc., 918 E.2d 1039, 1043 (2d Cir. 1990) ("The Court must analyze a defendant's connections to the forum state 'not for the sake of contact — counting, but rather for whether such contacts show a continuous, permanent and substantial activity in New York.'") (quoting Weinstein, Korn Miller, New York Civil Practice, ¶ 301.16, at 3-32)).
b. Section 302(a)(1)
Under section 302(a)(1) of New York's long — arm statute, a court may exercise personal jurisdiction over a nondomiciliary if "the nondomiciliary transact[s] business within the state, [and] the claim against the nondomiciliary arise[s] out of that business activity." A nondomiciliary "transacts business" in New York if it "purposefully avails [itself] of the privilege of conducting activities within New York, thus invoking the benefits and protections of its laws." A court's determination of whether a defendant "transacts business" in New York is based on an assessment of the sum of the defendant's activities.
Section 302(a)(1) reads, in relevant part: "[A] court may exercise personal jurisdiction over any non — domiciliary . . . who in person or through an the state or contracts anywhere to supply C.P.L.R. § 302(a)(1) (McKinney 2003).
CutCo. Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986). Because jurisdiction under section 302(a)(1) requires consideration of whether a cause of action arose out of a party's transaction of business in New York, it is necessary to "determine the issue of personal jurisdiction separately for each cause of action asserted in the plaintiffs complaint." Cosmetech Int'l LLC v. Der Kwei Enter, and Co., 943 F. Supp. 311,317 (S.D.N.Y. 1996); see also Ainbinder v. Potter, 282 F. Supp.2d 180,184 (S.D.N.Y. 2003).
CutCo. Indus., Inc., 806 F.2d at 365 (quoting McKee Elec. Co. v. Rauland-Borg Corp., 20 N.Y.2d 377, 382(1967)); see also Fort Knox Music Inc. v. Baptiste, 203 F.3d 193, 196 (2d Cir. 2000) ("[T]he statute allows jurisdiction only over a defendant who has 'purposefully availed himself of the privilege of conducting activities within New York and thereby invok[ed] the benefits and protections of its laws.'") (quotations marks omitted).
See Sterling Nat'l Bank Trust Co. of N.Y. v. Fidelity Mortgage Investors, 510 F.2d 870, 873 (2d Cir. 1975).
Where the cause of action is based on a contractual relationship, courts in the Second Circuit employ the following factors to evaluate whether a defendant is "transacting business" in New York:
(1) whether the defendant has an on — going contractual relationship with a New York corporation; (2) whether the contract was negotiated or executed in New York and whether, after executing a contract with a New York business, the defendant has visited New York for the purpose of meeting with parties to the contract regarding the relationship; (3) what the choice — of — law clause is in any such contract; and (4) whether the contract requires notices and payments to be sent into the forum state or requires supervision by the corporation in the forum state.
Hutton v. Priddy's Auction Galleries, Inc., 275 F. Supped 428, 439 (S.D.N.Y. 2003) (citing Agency Rent A Car Sys., Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29(2d Cir. 1996)).
This list of factors is not exhaustive, and a court's ultimate determination is based on a totality of the circumstances. However, as evidenced by the preceding factors, "the mere existence of a contract with a New York corporation is not sufficient to constitute the transaction of business under section [302(a)(1)] of the CPLR." In particular, "the grant of licensing rights to a New York corporation does not constitute the transaction of business within the meaning of the New York long — arm statute." Thus, where a foreign defendant enters into a licensing agreement with a New York company, but lacks any other contacts with New York relating to that contract, the grant of licensing rights alone cannot serve as the basis for jurisdiction under section 302(a)(1).
See Agency Rent A Car Sys., Inc., 98 F.3d at 29.
Pieczenik v. Dyax Corp., 265 F.3d 1329, 1335 (Fed. Cir. 2001).
Id. (citing cases).
See id.
III. DISCUSSION
A. Pieczenik's Cross Motions
I first address Pieczenik's contention that defendants' motions should be dismissed because of their failure to comply with Local Rules 12.1 and 56.2. Pieczenik initially made this argument in his letter to the Court dated December 27, and reiterated his concerns during the December 30, 2003 conference, adding that they could not remedy their alleged failure to comply because the "time [had] passed." During that conference, I explained to Pieczenik that the purpose of the rule is to provide notice to pro se litigants and ensure that they are aware of the consequences of failing to respond to a motion. When Pieczenik responded that he "hop[ed] to save [himself] a lot of trouble," by prevailing on a technicality, he was clearly informed that his argument lacked merit. Moreover, I formally notified Pieczenik of his rights in a December 31 Order, even though (1) Local Rules 12.1 and 56.1 do not actually govern the motions at issue and (2) Pieczenik appeared to already know of the consequences, should he fail to respond. In light of the December conference and the consequent Order, Pieczenik's decision to reargue this issue in his subsequent submissions to the Court is baffling. However, because he cross moves on the basis of the Local Rules, it is necessary to briefly revisit the issue once more. In short, because Local Rule 12.1 does not apply to the motions at issue and because, even if it did, Pieczenik was notified of his rights, his cross — motions for dismissal on the basis of Local Rules 12.1 and 56.2 are denied.
See Transcript of December 20, 2003 Conference at 14.
Id.
See 12/31/03 Order.
Pieczenik has considerable familiarity with the procedural aspects of federal litigation, having pursued a patent action against Dyax Corp. in the district courts of New York and Massachusetts and appealed the same action to the Federal Circuit. See Pieczenik v. Dyax Corp., No. 00 Civ. 0243, 2000 WL 959753 (S.D.N.Y. July 11, 2000) (dismissing action against Dyax Corp. for lack of personal jurisdiction), aff'd, 265 F.3d 1329; Pieczenik v. Dyax Corp., 226 F. Supp.2d 314 (D. Mass. 2002) (granting summary judgment to Dyax, finding no literal infringement by Dyax of the '363 patent or infringement under the doctrine of equivalents), aff'd, 76 Fed. App. 293 (Fed. Cir. 2003) (unpublished opinion). Following an adverse judgment in the Federal Circuit, Pieczenik filed a petition for a writ of certiorari from the Supreme Court. Pieczenik also alludes to a previous lawsuit in which he "sued the FDIC and Neil Bush on a RICO, in front of Judge" Cederbaum [sic]" Pl. Reply CAT Mem.
B. Motion to Dismiss for Lack of Personal Jurisdiction
a. Section 301
1. Domantis Inc.
As an initial matter, I note that Pieczenik fails to allege, and Domantis Inc. appears to lack, all of the traditional indicia associated with "doing business" in New York. Specifically, Domantis Inc. is not alleged to maintain a New York office, have any property or a phone listing in the state, conduct public relations work in New York, or have individuals located in the state to promote its interests. Although failure to allege these facts, by itself, does not mean that jurisdiction under section 301 is lacking, Pieczenik fails to provide any basis upon which to infer that Domantis Inc. is "doing business" in New York. Even if true, Pieczenik's sole jurisdictional allegation regarding Domantis Inc. — that it "licenses rights under its patents in New York, the United States and the world" — does not suggest that Domantis Inc. conducts business in New York with any regularity, and certainly not on a systematic and continuous basis. As such, Pieczenik offers no basis upon which this Court can exercise jurisdiction over Domantis Inc. under section 301.
Am. Compl. ¶ 27.
b. Section 302(a)(1)
i. Patent Infringement
Pieczenik has also failed to allege facts sufficient to support a finding of jurisdiction under section 302(a)(1) with respect to Pieczenik's patent infringement claims. Pieczenik's sole allegation linking Domantis Inc. to the forum state is that it licenses rights under its patents in New York and that by so doing, infringes or contributes to the infringement of his patents. Notably, Domantis Inc. offers a sworn declaration stating that it does not engage in any licensing activities in New York. Moreover, even crediting Pieczenik's allegation as true, the Federal Circuit has advised that "the grant of licensing rights to a New York corporation does not constitute the transaction of business within the meaning of the New York long — arm statute." Where the only allegation linking Domantis Inc. to New York is a vague statement that Domantis Inc. licenses rights throughout the world, including New York, it cannot provide the basis for jurisdiction under section 302(a)(1).
Section 302(a)(1) requires courts to separately consider whether jurisdiction exists for each cause of action asserted in a plaintiffs complaint. See Cosmetech Int'l LLC, 943 F. Supp. at 317. Pieczenik's arguments premised on section 302(a)(1) as to his patent invalidity warrant only brief discussion. Pieczenik does not sufficiently allege that Domantis, Inc. transacted business in New York related to his patent invalidity claims. Accordingly, there is no basis under section 302(a)(1) to assert personal jurisdiction over Domantis Inc. as to Pieczenik's claims of patent invalidity.
See Am. Compl. ¶ 27.
Welna Decl. ¶ 6.
Pieczenik, 265 F.3d at 1335.
ii. RICO
Pieczenik submits that the Medical Research Council Laboratory of Molecular Biology, CAT, Dyax Corp., and Domantis Inc. colluded to "give the impression of Dyax being more than a 'virtual' patent licensing company." Pieczenik further asserts that certain unidentified defendants committed mail fraud, and that "[t]o the extent that communications were had with potential investors and pharmaceutical houses over . . . [Domantis Inc.'s] telephone [number] the foregoing also constituted wire fraud within the meaning of 18 U.S.C. § 1343." But he fails to allege any facts suggesting that a connection exists between New York and Domantis Inc. regarding this collusion. Absent any contacts between Domantis Inc. and the forum state, this Court lacks personal jurisdiction over Domantis Inc. as to the RICO claims.
Am. Compl. ¶ 58.
See id. ¶¶ 66-67.
Id. ¶ 67.
2. CAT
a. Section 301
The majority of Pieczenik's jurisdictional allegations are unrelated to his claims against CAT. Therefore, at best, these allegations can only support a finding of jurisdiction under section 301. Apparently opting for the "scatter — shot" approach to jurisdictional pleading, Pieczenik argues that this Court can exercise general jurisdiction over CAT based on the following: (1) pending state court litigation brought against CAT by CVC; (2) CAT's listing of a New York investment banker as a contact person for the Subscription Agreement purportedly at issue in the CVC litigation; (3) CAT's designation of the Secretary of State of New York to receive process of service; (4) CAT's entry into contracts with New York businesses; (5) 11.28% ownership of CAT by a New York company; and (6) CAT's maintenance of ADRs in the Bank of New York. Notably, Pieczenik does not allege that CAT has any of the traditional indicia of "doing business" in New York and CAT specifically states that it has no facilities, operations, employees, assets or bank accounts in New York.
See Mellett Decl. ¶ 3.
Pieczenik's allegations fail to satisfy the stringent "doing business" standard of section 301 because, even when aggregated, they do not suggest that CAT is doing business in New York on a systematic and continuous basis. Each of these allegations merits only brief discussion. First, CVC's lawsuit against CAT is based upon an agreement executed between those parties — Although Pieczenik argues that this is significant because "CAT has always had the 'intent' to use the New York Courts to resolve it's [sic] legal issues arising from its creation," a single agreement giving rise to litigation does not evidence continuous contact with New York. Second, CAT's listing of a non — CAT employee as a contact person on the CVC Subscription Agreement also fails to suggest that CAT is "present" in New York for purposes of section 301. Third, Pieczenik's argument that CAT enters into contracts with New York businesses, such as Dyax Corp. and Bristol-Myers Squibb, is flawed in several ways. As Pieczenik's ongoing litigation against Dyax Corp. has demonstrated, Dyax Corp. is neither located nor does business in New York and CAT has submitted a sworn declaration stating that it has not entered into any license agreements with Bristol-Myers Squibb. Additionally, even if CAT enters into contracts with other, unnamed New York businesses, he avers no facts to suggest that these contracts are sufficiently significant in volume and frequency to constitute "doing business" in New York. As such these alleged "contracts" cannot support a finding of jurisdiction over CAT pursuant to section 301. Fourth, allegations of minority ownership unaccompanied by averments suggesting that CAT is a mere department or alter ego of Genzyme Corporation render Genzyme Corp.'s purported contacts with New York, if they exist, irrelevant for jurisdictional purposes. Fifth, CAT's designation of the Bank of New York as a depository for its ADRs cannot support a finding of general jurisdiction under New York law. Accordingly, there is no basis upon which to exercise jurisdiction over CAT under section 301.
PL CAT Mem.
Am. Compl. ¶ 7.
See Pieczenik, 2000 WL 959753, at *6.
See Mellett Decl. ¶ 11.
Although "the presence of [a] subsidiary alone does not establish the parent's presence in the state," Jazini, 148 F.3d at 184 (citing Volkswagenwerk AG v. Beech Aircraft Corp., 751 F.2d 117,120 (2d Cir. 1984)), personal jurisdiction over a foreign parent exists where its New York subsidiary is either a "mere department," or an "agent," of the parent. Id. (citing Koehler, 101 F.3d at 865). "Conversely, jurisdiction exists over a subsidiary that is a mere department of a parent corporation which has a presence in New York." In re Ski Train Fire in Kaprun, Austria, 230 F. Supp.2d at 409.
The inquiry as to whether a parent's contacts with the forum state should be ascribed to a subsidiary or affiliate is guided by four factors: (1) common ownership; (2) financial dependency of the subsidiary on the parent; (3) the degree to which the parent interferes in the selection and assignment of the subsidiary's personnel and fails to observe corporate formalities; and (4) the degree of control that the parent exercises over the subsidiary's marketing and operational policies. See id. (citing Beech Aircraft, 751 F.2d at 120-22). Pieczenik has made no allegations suggesting that any of these factors are present, nor has he provided any reason as to why CAT and Genzyme Corp. should be considered as a single entity for jurisdictional purposes.
See Wiwa, 226 F.3d at 97; Whiteman v. Federal Republic of Aus., No. 00 Civ. 8006, 2002 WL 31368236, at *6 (S.D.N.Y. Oct. 21, 2002).
b. Section 302(a)(1)
As a threshold matter, I note that Pieczenik appears to have withdrawn his RICO claims against CAT and thus, I do not consider whether jurisdiction is proper under section 302(a)(1) as to the RICO claims. As for his patent infringement claims, Pieczenik appears to premise his jurisdictional argument on the contracts between CAT and companies either located in and/or conducting business in New York. But he fails adequately to allege that: (1) CAT transacts business in New York and (2) this transaction of business bears a nexus to his claims of patent infringement.
Pl. CAT Mem. (''Plaintiff withdraws his RICO claims, without prejudice, against CAT").
See id. Jurisdiction over Pieczenik's patent invalidity claims is similarly unsupported by Pieczneik's allegations. Because Pieczenik fails adequately to allege that CAT transacted business in New York from which his patent invalidity claims arose, there no basis under section 302(a)(1) to exercise personal jurisdiction over CAT.
First, he does not aver facts supporting a finding that CAT transacts business in the forum state. For instance, he does not allege that any of these contracts were negotiated or executed in New York. To the contrary, CAT states that these contracts were negotiated and executed by CAT from England. Nor does he submit that any of the contracts had a choice — of — law clause providing that the laws of New York would govern contract interpretation and/or disputes or that any of the contracts between CAT and New York entities require notices or payments be sent into the forum state or require supervision by CAT in New York. Indeed, the only averment that Pieczenik makes that even hints at CAT's transaction of business pursuant to one of these contracts is his submission that CAT has a "continuous research and licensing agreement with Pfizer." However, this allegation, by itself, cannot establish a prima facie showing that there is jurisdiction over CAT in New York.
See Mellett Decl. ¶¶ 9,10,12.
Pl. CAT Mem.
Second, even if Pieczenik had adequately averred facts suggesting that this Court could exercise jurisdiction over CAT, he has not properly alleged that there is any nexus between these licensing agreements and his patent claims. Accordingly, he has failed to establish a prima facie showing that jurisdiction over CAT in New York may be properly exercised under section 302(a)(1).
IV. CONCLUSION
For the reasons set forth above, defendants' motions to dismiss for lack of personal jurisdiction are granted and Pieczenik's cross motions are denied. The Clerk of the Court is directed to close these motions [numbers 63,69, and 72 on the docket sheet].
SO ORDERED.