Plaintiff Ramirez filed a lawsuit against defendant veterinarian Bruno alleging, among other claims, veterinary malpractice in failure to diagnosis arthritis in a prepurchase examination. The lawsuit was brought in New York where Ramirez lives although the horse was sold and the prepurchase examination was made by defendant in New Jersey. The veterinarian made a motion to dismiss because of no personal jurisdiction.
In this opinion, the U.S. District Court dismisses the lawsuit. The defendant is not subject to jurisdiction under the New York long-arm statute because his activities were not sufficiently connected to New York. Plaintiff is free to file her lawsuit in New Jersey.
Defendant Dr. Donald J. Bruno ("Dr. Bruno") moves, pursuant to Rules 12(b)(1) and 12(b)(2) of the Federal Rules of Civil Procedure, to dismiss plaintiff Ms. Arleen Ramirez's ("Ramirez") complaint on grounds that the Court lacks subject matter and personal jurisdiction. The complaint alleges: (1) veterinary malpractice: (2) breach of contract; (3) negligent misrepresentation; (4) breach of good faith; and (5) breach of fiduciary duty. Furthermore, Ms. Ramirez has moved to amend her complaint to allege fraud. Ms. Ramirez seeks compensatory and punitive damages, as well as interest, costs and attorney's fees. For the reasons set forth below, Dr. Bruno's motion to dismiss is granted, the complaint dismissed, and the motion to amend the complaint is denied.
Ramirez is a resident of New York.
Dr. Bruno is a New Jersey resident and is a veterinarian who operates Equine Sports Medicine in Pompton Plains, New Jersey.
Prior Proceedings and Background
For purposes of the instant motion to dismiss, the allegations of the complaint are accepted as true. The facts are presented below accordingly, and do not constitute factual findings.
Ramirez, a New York resident, entered into an agreement with Nancy Banta to purchase her horse, located at Ms. Banta's New Jersey stable, for $3,300. The agreement was expressly conditioned on the horse passing a veterinarian examination. Ramirez called Dr. Bruno from her office in New York to arrange for the examination. Dr. Bruno, whose residence and veterinary office are in New Jersey, first examined the horse at Ms. Banta's stable on June 27, 1995.
At the conclusion of the examination, Dr. Bruno stated that the horse's rear leg was "off" and prescribed a painkilling drug and exercise. On July 6, 1995, Dr. Bruno reexamined the horse in New Jersey. He called Ramirez at her office in New York to report that the horse remained "off" and recommended that the treatment be continued. Dr. Bruno conducted a third examination on July 26, 1995, and at the conclusion he advised Ramirez that although the horse still appeared to be "off", the cause was a loose shoe. Furthermore, Ramirez claims that Dr. Bruno concluded that the horse "passed" the examination.
Shortly thereafter, Ramirez completed the purchase and transferred the horse to another stable in New Jersey. The horse's condition did not improve, and Ramirez arranged for another examination by Dr. Bruno. Dr. Bruno called Ramirez in New York to report that the horse suffered from a muscle tone problem and that the treatment should be continued.
After several more months and continued deterioration in the horse's condition, Ramirez sought the advice of two other veterinarians. The first examination, on March 27, 1996, included x-rays and resulted in the diagnosis of arthritis. The second examination was at the University of Pennsylvania New Bolton Center on May 28, 1996. There, the veterinarians also took x-rays and diagnosed a traumatically fractured right rear leg. The New Bolton Center prescribed stall rest and re-examined the horse on November 18, 1996, and concluded that the horse could not be used for riding.
Ramirez filed her complaint on April 15, 1997. Defendants filed the instant motion to dismiss on August 15, 1997. Oral argument was heard on September 3, 1997, at which time the motion was deemed fully submitted.
I. Standard For Motion To Dismiss For Lack of Personal Jurisdiction.
To defeat a motion to dismiss for lack of personal jurisdiction, a plaintiff need only make a prima facie showing that jurisdiction exists. See Hoffritz for Cutlery, Inc. v. AmaJac, Ltd. ., 763 F.2d 55, 57 (2d Cir.1985). "While the plaintiff ultimately bears the burden of establishing the existence of jurisdiction over defendants by a preponderance of the evidence, the burden should not be imposed on the plaintiff at the pleading stage." Hubbell v. Pass & Seymour, Inc., 883 F.Supp. 955, 962 (S.D.N.Y.1995) (quoting Soviet Pan Am Travel Effort v. Travel Comm. Inc., 756 F.Supp. 126, 130 (S.D.N.Y.1991)).
In the absence of an evidentiary hearing or further factual development through discovery, the pleadings and affidavits must be construed in the light most favorable to the plaintiff. Hubbell, 883 F.Supp. at 962. See Editorial Musical Latino Americana. S.A. v. Mar Int'l Records, Inc., 829 F.Supp. 62, 64 (S.D.N.Y.1993) (plaintiff's complaint and affidavits are to be construed, and any doubts are to be resolved, in the light most favorable to the plaintiff): see also Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (on motion to dismiss pleadings are considered in light most favorable to pleader).
II. Personal Jurisdiction over Dr. Bruno Is Not Established
To determine personal jurisdiction over a non-domiciliary in a diversity case this Court applies the long-arm statute of the forum state. See Hoffritz, 763 F.2d at 57 (citing United States v. First Nat'l City Bank, 379 U.S. 378, 381-82, 85 S.Ct. 528, 13 L.Ed.2d 365 (1965)). Here, Ramirez contends that Dr. Bruno is subject to personal jurisdiction based on New York's Long Arm Statute, section 302(a)(3), which establishes jurisdiction over a person who "commits a tortious act without the state causing injury to person or property within the state, ... if he ... expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce." N.Y.C.P.L.R. § 302(a)(3) (McKinney 1990). [FN1]
FN1. New York's long-arm statute provides:
As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non- domiciliary, or his executor or administrator, who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or services in the state: or
2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
3. commits a tortious act without the state causing injury to person or property within the state, ... if he:
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce: or
4. owns, uses or possesses any real property situated within the state.
N.Y.C.P.L.R. § 302(a) (McKinney 1990).
Dr. Bruno contends that personal jurisdiction is improper since, inter alia, there was no injury "within the state." Ramirez contends that personal jurisdiction is conferred by the fact that Ramirez has property only in New York, and therefore the financial injury can only be felt in New York, relying on Hargrave v. Oki Nursery, Inc., 636 F.2d 897 (2d Cir.1980). Although the court in Hargrave did note that Hargrave had property only in New York, id. at 900, its holding was based on facts not present here. There, the alleged misrepresentations were received in New York, where plaintiff was located and doing business. The defendant shipped diseased grape vines from California to New York for the purpose of planting the vines in New York, which, after being planted in New York, failed to thrive. Id. Indeed, the court noted that plaintiff was injured in no state other than New York. Id. On these facts, the court held that there was injury in New York, and that it was reasonable for the defendant to expect such injury. Therefore, personal jurisdiction under Section 302(b)(3) was established. See Trafalgar Capital Corp. v. Oil Producers Equipment, 555 F.Supp. 305, 313 (S.D.N.Y.1983) (noting Hargrave facts).
Marine Midland Bank v. Keplinger Associates, 488 F.Supp. 699 (S.D.N.Y.), is also cited by Ramirez. In Marine Midland, the plaintiff alleged that defendant misrepresented the facts concerning a Utah coal mining project. Id. at 700. In that case, the New York bank commissioned reports from defendant for the express purpose of making an investment decision which could lead to the origination of financing. The allegedly fraudulent reports were sent to the bank in New York, and the resulting project financing was administered in New York. Id. at 703. Therefore, the reliance on the reports leading to the bad investment decision, which was the injury complained of, was in New York. On these facts, the court further held that it was reasonable for defendant to expect the injury to occur in New York. Id. Accordingly, the court concluded that personal jurisdiction would lie.
The fact that a plaintiff's property is in New York, and therefore any financial loss necessarily has some consequence in New York, is not sufficient to assert personal jurisdiction under Section 302(a)(3). In Dogan v. Harbert Construction Corp., 507 F.Supp. 254 (S.D.N.Y.1980), the plaintiff alleged that he was fraudulently induced to enter into a contract to help secure construction contracts in Saudi Arabia and Bahrain. The court noted that the place of injury for jurisdictional purposes usually is where the critical events take place, and that neither the formation of the contract nor the services to be rendered were in New York. Id. at 262. The court held that a financial loss in New York that occurs because the plaintiff is domiciled in New York is too indirect to establish the type of injury in New York necessary to establish jurisdiction under Section 302(a)(3). See Fantis Foods, Inc. v. Standard Importing Co., Inc., 49 N.Y.2d 317, 326-27, 425 N.Y.S.2d 783, 402 N.E.2d 122 (1980) (residence or domicile of the injured party is insufficient predicate for jurisdiction, "which must be based upon a more direct injury within the State and a closer expectation of consequences within the State than the indirect financial loss resulting from the fact that the injured person resides or is domiciled there").
Here, the only injury in New York is that the financial loss resulting from Dr. Bruno's allegedly tortious acts in New Jersey can only be felt in New York because Ramirez only has property in New York. Ramirez does not dispute, however, that Dr. Bruno did not solicit her business in New York, nor perform any veterinary services to Ramirez in New York. The information upon which Ramirez allegedly relied was substantially delivered in New Jersey, not New York. The horse was not delivered to New York, but rather remained in New Jersey even after Ramirez's purchase. There are no facts here other than a consequential financial loss in New York that would establish an injury in New York. Accordingly, plaintiff's claim of personal jurisdiction under Section 302(a)(3) must fail.
For the reasons set forth above, Dr. Bruno's motion to dismiss the complaint for lack of personal jurisdiction is granted, the complaint is dismissed, and Ramirez's motion to amend her complaint is denied as futile.
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