Opinion
Index No. 653405/2021 Motion Seq. No. 002
05-13-2022
V6C0 LLC, Plaintiff, v. BUSINESS ADVOCATE LAW PLLC, JOSEPH DANIEL BARIAULT, WASTE MANAGEMENT SOLUTION LLC, WMS SUPPLIES LLC, DIANA GLENN, ATHENA BIOHEALTH LLC, DIVA LAUREN, FIRST DEFENSE INTERNATIONAL GROUP, INC., FIRST DEFENSE INTERNATIONAL SECURITY SERVICES CORP., HAROLD W. WILLIAMS, JR. Defendants.
Unpublished Opinion
DECISION+ ORDER ON MOTION
HON. JOEL M.COHEN JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67 were read on this motion to DISMISS
Upon the foregoing documents, and for the reasons stated on the record following oral argument on May 12, 2022, it is
ORDERED that the motion of defendants Joseph Daniel Bariault and Business Advocate Law PLLC (collectively, "Bariault") to dismiss the complaint is granted on the ground that this Court lacks personal jurisdiction over those defendants. The dismissal is without prejudice to Plaintiff pursuing its claim against Bariault elsewhere.
A court in New York may exercise personal jurisdiction over a non-domiciliary defendant where (i) the court has long-arm jurisdiction over the defendant under CPLR 302, and (ii) the exercise of such jurisdiction comports with due process (Williams v Beemiller, Inc., 33 N.Y.3d 523, 528 [2019]). Plaintiff failed to establish that Defendant transacts business or committed a tort in New York under CPLR 302 or that exercising jurisdiction over Bariault would comply with due process.
Defendant is a Seattle-based lawyer. He submitted evidence showing that his Washington IOLTA Trust Account was opened in Washington (NYSCEF 66). Although Plaintiff concedes that it had no communication with Bariault, Plaintiff argues that Bariault "represented" in an escrow agreement (to which Plaintiff was not a party) that he had a bank account in New York. While the escrow agreement (governed by Colorado law and providing for exclusive jurisdiction in Colorado) does list a New York address for Bank of America wire transfers, that does not mean that this out-of-state lawyer's IOLTA account (subject to regulation under Washington law) itself was opened or located in New York and there is no evidence to suggest it was. It is well established that "indirect use of the New York banking system does not constitute the transaction of business in New York pursuant to CPLR 302 (a) (1). Nor does it constitute the commission of a tort within New York pursuant to CPLR 302 (a) (2)" (Bluewaters Communications Holdings, LLC v Ecclestone, 122 A.D.3d 426, 427 [1st Dept 2014] [internal citations omitted]).
Indeed, if the Court were to hold otherwise, every wire transfer made through a Bank of America account opened anywhere in the United States (or perhaps the world) that is effected by the bank in New York would confer jurisdiction upon this Court. Exercising personal jurisdiction in such circumstances "would not satisfy the well-established principles of due process, which require that defendants could 'reasonably foresee' facing suit in the forum" (State v First Abu Dhabi Bank PJSC, 2022 NY Slip Op 22113 [Sup Ct, NY County 2022], citing Copp v Ramirez, 62 A.D.3d 23, 30-31 [1st Dept 2009]).
The bottom line is that Bariault, a sole practitioner in Seattle, does not conduct business in New York, does not operate offices in New York, does not have any employees in New York, and did not "purposefully avails [himself] of the privilege of conducting activities within the forum State" (Beemiller, 33 N.Y.3d at 528 [citation omitted]). Bariault's extremely limited contacts with New York are too attenuated to satisfy due process requirements (Walden v Fiore, 571 U.S. 277, 283-284 [2014]).
It is further ORDERED that the complaint is dismissed without prejudice as against Defendants Joseph Daniel Bariault and Business Advocate Law PLLC, with costs and disbursements to said defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendants; and it is further ORDERED that the action is severed and continued against the remaining defendants; and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 14 IB) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further
ORDERED that the parties upload a transcript of the proceedings to NYSCEF upon receipt.
This constitutes the decision and order of the Court.