Opinion
03 Civ. 6336 (SAS)
December 29, 2003
George Pieczenik, New York, New York, for Plaintiff (Pro Se)
Stephen S. Rabinowitz, Esq., Pennie Edmonds LLP, New York, New York, for Defendant Medical Research Council
OPINION AND ORDER
Dr. George Pieczenik, appearing pro se, commenced this action against numerous defendants alleging patent infringement. Dr. Pieczenik further alleges that patents owned by defendants are invalid in light of his '363 and '448 patents. Defendant MRC now moves to dismiss the action against it on two grounds:
Pieczenik also alleges that the Medical Research Council Laboratory of Molecular Biology ("MRC"), Cambridge Antibody Technology Group, PLC ("CAT"), and Domantis, Inc. ("Domantis") colluded with Dyax Corp. "to create artificial scientific collaborations and agreements . . . to give the impression of Dyax being more than a 'virtual' patent licensing company." Second Amended Complaint ("SAC") ¶ 53 (articulating Racketeer Influenced and Corrupt Organizations, 18 U.S.C. § 1961 et seq., ["RICO"] claim). Pieczenik also appears to be alleging that: this collusion resulted in a breach of contract by the MRC. See id. ¶ 36.
(1) lack of personal jurisdiction and (2) lack of subject matter jurisdiction. The MRC also argues that the RICO claims against it should be dismissed under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the MRC's motion to dismiss for lack of personal jurisdiction is granted.
Because the motion to dismiss based on lack of personal jurisdiction is granted, I will not address subject matter jurisdiction or failure to state a RICO claim.
I. BACKGROUND
A. The Moving Defendant
The MRC has its principal place of business in Cambridge, England. Pieczenik alleges that there is personal jurisdiction over the MRC in New York because the MRC: (1) entered into contracts with a New York resident (Pieczenik), (2) sends MRC scientists to speak in New York, (3) granted licenses to New York citizens, (4) uses legal counsel with offices in New York, and (5) has a majority ownership interest in CAT and an undisclosed interest in Domantis.
See SAC ¶ 36.
See 11/2/03 Letter to the Court from Dr. George Pieczenik ("11/2 Pl. Ltr.") at 2. Prior to the November 5, 2003 conference, the parties exchanged letters relating to Pieczenik's jurisdictional arguments. The parties agreed at the November 5, 2003 pre-motion conference that the MRC's pre-conference letter of October 30, 2003 should be deemed the motion, and Pieczenik's letter of November 2, 2003 should be considered his opposition papers relating to the MRC's motion. Transcript of November 5, 2003 Pre-Motion Conference ("Tr.") at 24. Due to some of the potentially inflammatory language contained in Pieczenik's letter, the parties' agreed that Pieczenik would redact and resubmit his letter for docketing. Pieczenik resubmitted his letter after this motion was fully submitted on November 26, 2003 (i.e., after the MRC had submitted its reply papers). In addition to redacting the letter as discussed on November 5, he added some new material. See 12/19/03 Letter to the Court from Dr. Pieczenik ("12/19 Pl. Ltr."). For instance, Pieczenik added the following language:
My condition for removing the MRC from the Amended Complaint is that it put a plaque up on its walls announcing my suggestion of monoclonals to Cesar Milstein, my demonstrating that acrylamide gels resolve by one nucleotide to Fred Sanger, my creation and then reduction to practice of the first combinatorial laboratory at the MRC and their allowing me to work in their laboratories on any experiment I may wish in the future at their expense and preserving my rights.Id. at 2. Although Pieczenik should have understood from the conference held on November 5, see Tr. at 27, that he was not entitled to append new arguments to his existing letter, because (1) he is proceeding pro se and is therefore entitled to some leeway in his submissions and (2) because the additional information does not relate to the jurisdictional issue, I will consider both letters as plaintiff's opposition for purposes of deciding this motion.
In violation of my individual rules and procedures, plaintiff also submitted a sur-reply, dated November 26, 2003. See 11/26/03 Letter to the Court from Dr. George Pieczenik ("11/26 Pl. Ltr."). Because the method by which the parties agreed to submit this motion was unorthodox, I will also consider this letter for purposes of this motion.
See SAC ¶¶ 25-27.
See 11/2 Pl. Ltr. at 3.
See SAC ¶¶ 8, 36. Martin Wood disputes this, stating, "The MRC does not own or occupy any premises or operate any facility in the State of New York, has no telephone number, postal address, bank accounts or agent for service of process in the State of New York, and is not licensed to do business in the State of New York." 10/29/03 Declaration of Martin Wood, MRC Technology's Director of Licensing and Agreements ("Wood Decl.") ¶ 4.
B. Jurisdictional Allegations
1. Contract Between Pieczenik and the MRC
Pieczenik alleges that the MRC signed agreements with a New York resident (Pieczenik), which "gives this Court jurisdiction, thereby. The "contract" is a letter from an MRC employee to Pieczenik, briefly describing the terms of Pieczenik's employment (for several months in 1987 and 1988) as a visiting scientist at the MRC. Specifically, the contract prospectively addressed the filing of patents during the period of Pieczenik's research at the MRC. Both parties entered into the agreement while Pieczenik was living in England. Pieczenik alleges that when he entered into the agreement, he was a New York resident. He does not allege that this contract was negotiated in New York, signed by either party in New York, or performed in New York. However, Pieczenik alleges that the contract was faxed to him in New York years later "because [he] didn't have a copy of it."
SAC ¶ 36.
This employee is probably Gordon Koch, although that is not evident from the letter that Pieczenik submitted, which is cut off above the signature line. See 7/20/87 Letter to George Pieczenik from Gordon Koch, MRC employee ("Koch Ltr."), Ex. B to SAC. Attached with the letter is a form filled out by Pieczenik (listing his local address as a hotel in Cambridge and his permanent home address, which is a New York residence) and a document entitled "Notes for the Guidance of Visiting Scientific Workers" dated February 1981, which was signed by Pieczenik in March of 1988. The series of documents apparently all relate to the Koch Letter and Pieczenik's tenure as a visiting scientist and were all signed and negotiated by the parties in England. See Tr. at 22-24. As such, I will consider these documents as a single "contract," entered into in England.
See Tr. at 22.
See id.; see also Koch Ltr.
See Tr. at 22.
See 11/2 Pl. Ltr. at 1.
Tr. at 23.
2. MRC Scientists Visiting New York
Pieczenik alleges that the MRC has "always sent scientists to New York to speak and present its discoveries; even Plaintiff's discoveries." Additionally, Pieczenik alleges that the MRC and its scientists have "gotten grants from N.Y. institutions such as the Rockefeller Foundation through out [sic] its whole history. MRC scientists have always presented work, phage antibodies, inter alia, at New York Universities . . . and received awards from such institutions."
11/2 Pl. Ltr. at 2.
Id.
3. License Agreements
Pieczenik alleges that the MRC has licensed 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. The MRC disputes this, alleging that the "MRC has never granted licenses under its phage display patents to any entity located in the State of New York, although some of the MRC's licensees are free to grant sublicenses internationally." Moreover, "[a] part from one license to a Japanese company, the MRC has licensed its phage display patents only to entities located in the United Kingdom." Finally, the MRC states that it does not "control, direct, or supervise the activities of its licensees in granting sublicenses under the MRC's phage display patents."
SAC ¶ 25; see also id. ¶¶ 26-27.
Wood Decl. ¶ 5.
Id.
Id.
4. Legal Counsel in New York
Pieczenik argues that "having legal council [sic] as agents in New York is grounds for jurisdiction. Several of the MRC patents in this area of phage display and combinatorial libraries have and still use firms with offices in New York, i.e. Katten Muchin Zavis Rosenman, Rogalskyj Weyand, et al." The MRC states that "[a] 11 of the United States patents and patent applications owned or co-owned by the MRC have been prosecuted by patent attorneys or patent agents located in Illinois, Virginia and California and the MRC has never used patent attorneys or agents located in the State of New York for prosecuting its phage display patents."
11/2 Pl. Ltr. at 2.
Wood Decl. ¶ 5. Even assuming that Pieczenik is correct and the MRC does "still use firms with offices in New York," 11/2 Pl. Ltr. at 3, the fact that a law firm maintains an office in New York is insufficient to confer jurisdiction. This is particularly true where, as here, the law firm in question is not even a New York-based firm.
5. Ownership in CAT and Domantis
Pieczenik alleges that the MRC has a "major ownership interest in CAT and undisclosed interest in Domantis." CAT is incorporated in Australia and has its principal place of business in Cambridge, England. Domantis is a Delaware corporation that operates scientific laboratories in Cambridge, England and has commercial offices in Cambridge, Massachusetts. According to Wood, the MRC owns approximately 1.6% of the shares in CAT and 11% of the shares of Domantis. II. LEGAL STANDARD
SAC ¶ 8.
See id. ¶ 7.
See id. ¶ 5.
See Wood Decl. ¶ 5. Pieczenik's contentions regarding the MRC's ownership interest in CAT and Domantis warrant only brief discussion. First, neither CAT nor Domantis is alleged to have any significant ties to New York. Second, even assuming that CAT and Domantis do business in or have engaged in relevant business activities in New York, and assuming that the MRC has a majority ownership in CAT, Pieczenik fails to allege that the MRC exercises any control over the activities of CAT. As the Second Circuit has explained:
Where the claim is that the foreign corporation is present in New York state because of the activities there of its subsidiary, the presence of the subsidiary alone does not establish the parent's presence in the State. . . . For New York courts to have personal jurisdiction in that situation, the subsidiary must be either an "agent" or a "mere department" of the foreign parent . . . To establish that a subsidiary is an agent of the parent, the plaintiff must show that the subsidiary does all the business which [the parent corporation] could do were it here by its own officials. . . . In determining whether the subsidiary is a "mere department" of the parent . . . the court must consider four factors . . . common ownership . . .; financial dependency of the subsidiary on the parent corporation; the degree to which the parent corporation interferes in the selection and assignment of the subsidiary's executive personnel and fails to observe corporate formalities; and the degree of control over the marketing and operational policies of the subsidiary exercised by the parent.Jazini v. Nissan Motor Co., 148 F.3d 181, 184-85 (2d Cir. 1998) (quotation marks and citations omitted) (articulating the basic standard governing the New York presence of a parent through its subsidiary in the context of section 301 of New York's Civil Practice Law and Rules); see also Realuyo v. Villa Abrille, No. 01 Civ. 10158, 2003 WL 21537754, at *6 n. 3 (S.D.N.Y. July 8, 2003) ("Although a foreign parent corporation may be subject to the Court's long-arm jurisdiction based on the activities of a subsidiary, the subsidiary must [be] an agent or mere department of the corporation."). For the foregoing reasons, Pieczenik's allegations that the MRC holds a majority ownership in CAT and an undisclosed interest in Domantis cannot establish personal jurisdiction over the MRC in New York.
It should be noted that inasmuch as "[t]his case relates to the infringement of patents [it] is governed by the law of the Federal Circuit." Hypoxico, Inc. v. Colorado Altitude Training LLC, No. 02 Civ. 6191, 2003 WL 21649437, at *1 (S.D.N.Y. July 14, 2003). The Federal Circuit's approach to evaluating a defendant's motion to dismiss for lack of personal jurisdiction is consistent with that of the Second Circuit.See id. at *2. Moreover, "[w] hen determining a personal jurisdiction case under Federal Circuit law, this Court must first apply the state long-arm statute and then determine whether asserting jurisdiction would violate federal due process." Id.
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 plaintiff's 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 on November 11, 2000 (Siemens Austria), 230 F. Supp.2d 403, 406 (S.D.N.Y. 2002).
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, 148 F.3d at 184 (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 Enter., 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.
See Bensusan Rest. Corp., 126 F.3d at 27; Met Life, 84 F.3d at 567.
See Bensusan Rest. Corp., 126 F.3d at 27; Met Life, 84 F.3d at 567. Because the MRC is not subject to personal jurisdiction under New York's jurisdictional statutes, it is unnecessary to address the constitutional requirements for personal jurisdiction.
III. DISCUSSION
Plaintiff fails to identify the statutory provisions on which his jurisdictional arguments are based. Accordingly, I will evaluate his jurisdictional arguments under both sections 301 and 302.
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) (codifying caselaw that utilizes "doing business" standard); 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 Bloch 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. See Wiwa, 226 F.3d at 98. While plaintiff does not allege that the MRC has any of these five contacts, this alone does not mean that there is no jurisdiction under section 301. See Met Life, 84 F.3d at 570 ("[C]ontacts with the forum state should not be examined separately or in isolation. 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."); Landoil Res. Corp. v. Alexander Alexander, Servs., Inc., 918 F.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)).
Pieczenik has failed to allege facts sufficient to support a finding of personal jurisdiction over the MRC under section 301. Pieczenik does not provide any basis upon which to infer that the MRC is "doing business" in New York. Plaintiff alleges that MRC scientists come to New York to speak and present new discoveries and accept awards, but such speaking engagements do not amount to "doing business" in New York.
See 11/2 Pl. Ltr. at 2.
See Landoil Res. Corp., 918 F.2d at 1044 (finding that sporadic business trips of short duration, made by different employees for purposes of solicitation, were insufficient to establish employer's systematic and continuous presence in New York).
Pieczenik also cryptically argues that "New York has a continuing historical relationship with England, the Queen and her dominions in that New York is not New Amsterdam." The meaning of this statement is not entirely clear, but inasmuch as Pieczenik is asserting that the MRC, as a public entity established pursuant to Royal Charter, has a continuous presence in New York by virtue of the "historical" relationship between England and New York, he is mistaken.
11/2 Pl. Ltr. at 3.
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."
Section 302(a)(1) reads, in relevant part: "[A] court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent 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) (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 plaintiff's complaint." Cosmetech Int'l LLC v. Per 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).
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. The Second Circuit has used the following factors to evaluate whether a defendant is "transacting business" in New York:
See Sterling Nat'l Bank Trust Co. of N.Y. v. Fidelity Mortgage Investors, 510 F.2d 870, 873 (2d Cir. 1975).
(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. Supp.2d 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)).
1. Breach of Contract Between the MRC and Pieczenik
Pieczenik argues that the "contract" between himself (a New York resident) and the MRC provides a basis for this Court to assert jurisdiction over the MRC. His argument fails because he has not alleged facts sufficient to support a finding that the MRC transacted business in New York. Assuming, arguendo, that the 1987 Koch letter and accompanying documents form a "contract," this contract was negotiated and entered into by both parties in England. The "contract" does not contain a choice-of-law provision. While, under certain circumstances, a single contact or transaction may be sufficient to satisfy the "transacting business" standard, the formation of a contract in England, albeit between an English citizen and a New York resident, does not amount to "transacting business" in New York. The MRC did not purposefully avail itself of the laws of this forum simply because it entered into an agreement with a New York resident.
For support, Pieczenik relies on Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819) (invalidating, pursuant to the Contracts Clause, state legislature's attempts to change and amend the charter of Dartmouth College). He argues "[t]his contract between Plaintiff and the MRC is . . . as valid as the contract creating Dartmouth College by King George III if not more so." 11/2 Pl. Ltr. at 1. But the Woodward case does not address whether jurisdiction over a non-domiciliary is proper under New York's jurisdictional statutes. Pieczenik also argues, in a "Memorandum of Law" attached to his Second Amended Complaint, that:
Under the Bush Doctrine, George Bush directed United States armed forces into combat in Panama for the stated purposes of "safeguard[ing] American lives, restor[ing] democracy, preserv[ing] the Panama Canal treaties, and seiz[ing] Noriega to face federal drug charges in the United States." United States v. Noriega, 746 F. Supp. 1506, 1511 (S.D. Fla. 1990). The jurisdictional power of this Court under this Doctrine reaches all the way across the Atlantic, if not around the world to hold heads of governments under the jurisdiction of the US Courts for crimes committed in the US or against American citizens elsewhere.
Memorandum of Law to SAC ¶ 1. The "Bush Doctrine" argument lacks merit for rather obvious reasons. The assertion of jurisdiction over a foreign military leader for narcotics-related crimes is hardly analogous to the assertion of jurisdiction over a foreign, publicly funded scientific entity for alleged patent infringement claims.
This presents a wholly different situation from that involving negotiations conducted in New York. "Preliminary negotiations conducted in New York qualify as a 'transaction of business' if they have 'substantially advanced or were substantively important or essential to the formation' of a contract outside New York." Ainbinder, 282 F. Supp.2d at 187.
2. Patent Infringement
Pieczenik claims that the MRC owns, uses, and has filed patents that infringe on his patents. In connection with these activities, the MRC has allegedly licensed rights under its phage display patents in New York, which infringe and contribute to the infringement of his '363 and '448 patents. Pieczenik fails adequately to allege facts conferring jurisdiction over the MRC in New York. He does not allege that the licenses were negotiated in or executed in New York. As the Federal Circuit explained to Pieczenik in a related case, "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." In the absence of forum-specific contacts rising to the level of "transacting business," this Court lacks authority to assert jurisdiction over the MRC as to the patent infringement claims.
See SAC ¶ 24.
See id. ¶¶ 25-26.
Pieczenik v. Dyax Corp., 265 F.3d 1329, 1335 (Fed. Cir. 2001).
3. Patent Invalidity and Inventorship
Pieczenik alleges that the MRC owns unidentified patents that are invalid in light of his '363 and '448 patents. Pieczenik also argues that he is entitled to be added as a named inventor on unidentified patents owned by the MRC. But Pieczenik does not allege any facts upon which this Court could find jurisdiction over the MRC as to these patents. Specifically, the MRC is not alleged to have transacted business in New York in connection with these patents. Accordingly, there is no basis under section 302(a)(1) to assert personal jurisdiction over the MRC with respect to Pieczenik's claims of patent invalidity or inventorship.
See id. ¶¶ 24, 27, 28; see also 35 U.S.C. § 102 (e).
See SAC ¶¶ 36-37.
5. RICO
Pieczenik claims that Dyax, Domantis, the MRC, and CAT have colluded to "give the impression of Dyax being more than a 'virtual' patent licensing company." In addition to allegations that certain unidentified defendants committed mail fraud, Pieczenik asserts that "[t]o the extent that communications were had with potential investors and pharmaceutical houses over . . . [the MRC's] telephone [number] the foregoing also constituted wire fraud within the meaning of 18 U.S.C. § 1343." He does not, however, allege any facts relating to this conspiracy that would suggest a connection between New York and the MRC. In the absence of any forum-related contacts, personal jurisdiction over the MRC as to the RICO claims is lacking.
Id. ¶ 53.
See id. ¶ 59.
Id. ¶ 60.
C. Section 302(a)(2)
Under section 302(a)(2), personal jurisdiction over a non-domiciliary may be asserted over a defendant that "commits a tortious act within the state." "Second Circuit decisions make it clear that the statutory provision requires that the tortious act itself physically be performed within New York State." Pieczenik does not allege that the MRC engaged in activities in New York relating to its alleged patent infringement. Thus, Pieczenik has failed to allege that MRC committed a tortious act within New York, and jurisdiction is lacking under section 302(a)(2).
N.Y. C.P.L.R. § 302(a)(2) (McKinney 2003).
Westvaco Corp. v. Viva Magnetics Ltd., No. 00 Civ. 9399, 2002 WL 1933756, at *2 (S.D.N.Y. Aug. 20, 2002).
Similarly, Pieczenik does not allege that the MRC acted in New York with respect to the breach of contract or RICO claims.
B. Section 302(a)(3)
Under section 302(a)(3), personal jurisdiction may be asserted over a non-domiciliary if the non-domiciliary "commits a tortious act without the state" injuring a person within New York, and either (i) "regularly does or solicits business, or engages in any other persistent course of conduct," or (ii) derives substantial revenue from interstate commerce and expects or reasonably should expect the tortious act to have consequences in the state.
N.Y. C.P.L.R. § 302(a)(3) (McKinney 2003).
Pieczenik fails adequately to allege that the MRC regularly does or solicits business in New York or derives substantial revenue from interstate or international commerce. Accordingly, section 302(a)(3) provides no basis for the assertion of personal jurisdiction over the MRC.
Pieczenik argues that the MRC is not an eleemosynary institution because a website indicates that the MRC is pursuing international financing and collaborations. See 11/26 Pl. Ltr. (citing http://www.britishcouncil.org). Even crediting Pieczenik's allegation as true, as I must, it does not follow from the fact that the MRC is "pursuing international financing and collaborations" that the MRC derives significant revenue from international commerce. Moreover, the website cited by Pieczenik clearly states that the MRC is a "national organisation funded by the UK taxpayer" through "the UK Government" — more precisely, through "an annual Grant in aid from Parliament via the Office of Science and Technology." http://www.mrc.ac.uk/index/about.htm.
He further alleges that the MRC generates revenue through CAT and possibly Domantis. More precisely, he says, "One groom can't dance at two weddings at the same time. An eleemosynary institution cannot create a commercial enterprise whose shares are guaranteed by the Bank of New York and still pretend to be a pure research institution on the Cam watching the punts." 11/2 Pl. Ltr. at 1. But Pieczenik contends only that the MRC has a "major ownership interest in CAT and undisclosed interest in Domantis." SAC ¶ 8. He fails to allege fact sufficient to support a finding that the MRC derives substantial revenue from international commerce. Accordingly, Pieczenik fails to adequately allege that there is personal jurisdiction over the MRC pursuant to section 302(a)(3).
IV. CONCLUSION
For the foregoing reasons, the MRC's motion to dismiss for lack of personal jurisdiction is granted. The Clerk of the Court is directed to close this motion and dismiss the case against the MRC.
Pieczenik requests "leave to amend in order to plead facts that could support a finding of jurisdiction under a conspiracy theory." 11/26 Pl. Ltr. But Pieczenik has been afforded several opportunities to amend his complaint and there is an insufficient basis to permit him to continue to do so ad infinitum. Accordingly, plaintiff's motion to replead jurisdictional facts is denied.
SO ORDERED.