Opinion
900060/2019
07-20-2021
C.N.H., Plaintiff, v. Richard LEVINE, Defendant.
Plaintiff- Marie E. Napoli, Esq., Napoli Shkolnik, PLLC, 360 Lexington Avenue, New York, NY 10017 Defendant- Elior D. Shiloh, Esq., Lewis Brisbois Brisgaard & Smith LLP, 77 Water Street, New York, NY 10005 Facebook- Jeffrey D. Vanacore, Esq., Perkins Coie LLP, 1155 Avenue of the Americas, New York, NY 10036
Plaintiff- Marie E. Napoli, Esq., Napoli Shkolnik, PLLC, 360 Lexington Avenue, New York, NY 10017
Defendant- Elior D. Shiloh, Esq., Lewis Brisbois Brisgaard & Smith LLP, 77 Water Street, New York, NY 10005
Facebook- Jeffrey D. Vanacore, Esq., Perkins Coie LLP, 1155 Avenue of the Americas, New York, NY 10036
Steven M. Jaeger, J.
Papers submitted on the motion:
Notice of Motion x
Plaintiff's Affirmation in Support x
Affirmation in Opposition x
Affirmation in Reply x
Upon the foregoing papers, Plaintiff C.N.H.’s motion for an order pursuant to CPLR § 2308(a), CPLR § 3124 and Judiciary Law § 753 holding non-party Facebook, Inc., in civil contempt for failing to comply with a subpoena seeking the production of certain documents and pursuant to CPLR § 3124 compelling non-party Facebook, Inc., to comply with the aforementioned subpoena by producing the requested documents is decided as follows.
In this Child Victims Act case, Plaintiff C.N.H. ("Plaintiff") seeks to compel non-party Facebook, Inc., ("Facebook") to provide her with certain communications she had with Defendant Richard Levine ("Defendant") on the Facebook messaging platform through various accounts she had with Facebook.
On September 22, 2020, this Court entered a So Ordered Judicial Subpoena ordering Facebook to produce all communications between Plaintiff and Defendant between the years 2011 and the present. On or about September 25, 2020, the Subpoena was served on Facebook through its designated agent for service of process in the State of New York. On September 28, 2020, Facebook acknowledged receipt of the Subpoena and promptly objected to the production of the requested information. Plaintiff then, on October 22, 2020, had the Subpoena so ordered by the Superior Court of San Mateo, California, where Facebook's headquarters is located. Facebook was again served with a copy of the subpoena, and on November 4, 2020 it objected again. Plaintiff then filed the instant motion, via Order to Show Cause, seeking to have this Court hold Facebook in contempt for its non-compliance with the Subpoena and to compel Facebook to comply with the Subpoena.
Facebook, in opposition to Plaintiff's motion, raises the threshold issue of whether, as a foreign corporation which does business in the State of New York, it is subject to general personal jurisdiction within the state. Citing United States Supreme Court precedent ( Daimler AG v Bauman , 571 US 117 [2011] ) and recent holdings of the New York County Supreme Court ( Kline v Facebook , 62 Misc 3d 1207[A] [Supreme Court, New York Co. 2019] and Amelius v Grand Imperial LLC , 57 Misc 3d 835 [Supreme Court New York Co., 2017] ) Facebook argues that it is not subject to general personal jurisdiction in New York. Plaintiff has taken no position on the caselaw cited by Facebook.
Facebook is a Delaware corporation with its principal place of business in California. In order for Facebook, as a foreign corporation which maintains an office in New York, to be subject to general personal jurisdiction (for the Court to enforce the subpoena) it must be demonstrated, in accordance with United States Supreme Court precedent, that Facebook's "affiliations with the State are so continuous and systematic as to render it essentially at home" in New York ( Daimler , 571 US at 137 [2011] ).
This Court is not persuaded that Facebook is subject to general personal jurisdiction in this State. In the first instance, Plaintiff, by not providing argument opposing Facebook's legal argument, has not provided this Court with a basis for concluding that it has general personal jurisdiction over Facebook. However, even assuming arguendo that Plaintiff had, it is unlikely that this Court would have found Plaintiff's argument to be availing. Indeed, this Court acknowledges, as the New York County Supreme Court did in Amelius ( also cited by Facebook), that Daimler "casts significant doubt on the notion that a corporation could ever be subject to general jurisdiction in a state that is neither its state of incorporation nor its principal place of business." ( Amelius , 57 Misc 3d at 849 ).
Thus, the Court is persuaded that the decisions of the New York County Supreme Court cited by Facebook are analogous to the instant motion. Most instructive is the Supreme Court's decision in Kline , which held, specifically concerning Facebook, that the mere presence of Facebook's office within the State of New York was not sufficient to render Facebook's contacts with New York so "continuous and systematic" as articulated by the Supreme Court in Daimler as to render Facebook "at home" within the State ( Kline , 62 Misc 3d 1207[A] ).
Therefore, it is
ORDERED , that Plaintiff's motion for an order pursuant to CPLR § 2308(a), CPLR § 3214 and Judiciary Law § 753 holding non-party Facebook, Inc., in civil contempt for failing to comply with a subpoena seeking the production of certain documents and compelling non-party Facebook, Inc., to comply with the aforementioned subpoena by producing the requested documents is DENIED.
All applications not specifically addressed herein are DENIED .
This constitutes the decision and order of the Court.