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considering together both defendant's motion to vacate default judgment and motion to dismiss action for lack of personal jurisdiction
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05 Civ. 6641 (LMM).
August 10, 2006
MEMORANDUM AND ORDER
Defendant Tomika Shante Gaymon ("Defendant" or "Gaymon") moves to vacate the default judgment entered against her on February 9, 2006, pursuant to Fed.R.Civ.P. 55(c) and 60(b), and to to dismiss this action for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2).
For the reasons set forth below, Plaintiff's (1) motion to vacate the default judgment is granted, and (2) motion to dismiss this action for lack of personal jurisdiction is granted.
I. Statement of facts
Gaymon works as a medical assistant at the Waldorf Family Medical Center ("WFMC"), which is owned and operated by Medical Technical Services, Inc. ("MTSI") in Waldorf, Maryland. In 2003, Gaymon began dating Michael Alston, Jr. ("Alston"). Alston had a previous relationship with Plaintiff, Ebony Croskey ("Plaintiff" or "Croskey"), and together they had a son. Gaymon has never personally met either Croskey or her son.
In 2003, Croskey allegedly began making repeated and harassing calls to and leaving voicemail messages on Gaymon's personal cell phone. (Gaymon Aff. 2.) Croskey claims these were in response to offensive messages Gaymon left on her voicemail. (Am. Compl. 3.) On November 1, 2004, Gaymon received a text message on her cell phone from Croskey that stated, "Tell your boyfriend that his child is disabled." (Gaymon Aff. 3; Ex. A.) After speaking with a physician who worked with her at MTSI, Gaymon called New York Child Protective Services ("NYCPS") from her office phone. (Gaymon Aff. 3; Am. Compl. 4.) She identified herself, described her job and where she worked, and the text message she had received from Croskey. (Gaymon Aff. 3-4.) NYCPS called Gaymon back some time later for additional information. (Id.) This was the extent of Gaymon's contact with NYCPS. Croskey alleges that Gaymon intentionally led the NYCPS worker to believe that Croskey "was a current and/or former patient seeking unspecified services from WFMC." (Am. Compl. 1.) Croskey also alleges that Gaymon told NYCPS that Croskey had "disabled [her] child(ren), and that [she, i.e. Croskey] had emotional problems that was impairing [her] ability to properly care for [her] child(ren), resulting in [her] child(ren)'s minimal needs not being addressed." (Am. Compl. 1.)
Croskey called Gaymon at work to complain about Gaymon's report. Croskey also called MTSI to complain about Gaymon's use of the company phone when she called NYCPS, and demanded that disciplinary action be taken against Gaymon. Not satisfied with MTSI's actions, Croskey commenced legal action against MTSI on July 25, 2006 (which she subsequently decided not to pursue (see Order, February 9, 2006)). Arthur Leavitt, president of MTSI, advised Gaymon of the lawsuit in August 2005. (Gaymon Decl. 4.) Leavitt told Gaymon that MTSI's lawyers were attempting to dismiss the case and asked Gaymon to provide them with whatever information they needed. (Id.) Leavitt also asked Gaymon to forward any papers she received relating to the lawsuit. (Gaymon Decl. 5.) From this conversation, Gaymon states that she assumed she was named a party in the lawsuit, and that, given MTSI was handling the case, she assumed they were also handling the case on her behalf. (Id.) In September 2005, Croskey filed an amended complaint, adding WFMC and Gaymon as defendants. From October 2005 to January 2006, Gaymon received documents relating to the lawsuit and immediately forwarded them to Leavitt without reading them. (Id.)
Claims against all defendants (collectively, "MTSI") other than Gaymon were dismissed when this Court granted MTSI's Motion to Dismiss for Lack of Jurisdiction. (Order Granting Mot. to Dismiss, Feb. 9, 2006.)
On February 9, 2006, Plaintiff sought and this Court entered a default judgment against Gaymon, based on her failure to respond to the complaint. On March 20, 2006, Gaymon explained her confusion regarding the default in a conference call with Magistrate Judge Michael Dolinger, who granted Gaymon leave to file an application to vacate the default. Gaymon then filed the instant Motion to Vacate the Default Judgment and Motion to Dismiss for Lack of Personal Jurisdiction.
II. Motion to vacate default judgment against defendant
The motion to vacate the default judgment against the defendant, Tomika Shante Gaymon, is GRANTED.
"It is well established that default judgments are disfavored. A clear preference exists for cases to be adjudicated on the merits." Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 174-75 (2d Cir. 2001) (citing Cody v. Mello, 59 F.3d 13, 15 (2d Cir. 1995); Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 92, 95 (2d Cir. 1993) (holding that refusal to grant relief from default was an abuse of discretion "because [default] should be reserved by a trial court as a final, not a first, sanction imposed on a litigant"); SEC v. Mgmt. Dynamics, Inc., 515 F.2d 801, 814 (2d Cir. 1975)); see also State St. Bank Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 167 (2d Cir. 2004).
"When a district court decides a motion to vacate a default judgment pursuant to the provisions of [Federal Rule of Civil Procedure] 60(b), the court's determination must be guided by three principal factors: '(1) whether the default was willful, (2) whether the defendant demonstrates the existence of a meritorious defense, and (3) whether, and to what extent, vacating the default will cause the nondefaulting party prejudice.'" State St. Bank, 374 F.3d at 167 (quoting S.E.C. v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998)); see also American Alliance Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 59 (2d Cir. 1996). Furthermore, "[i]n order to make a sufficient showing of a meritorious defense in connection with a motion to vacate a default judgment, the defendant need not establish his defense conclusively, but he must present evidence of facts that, if proven at trial, would constitute a complete defense." State St. Bank, 374 F.3d at 167 (citations and quotations omitted).
Gaymon has presented clear evidence of facts that, if proven at trial, would constitute a complete defense to her default. Gaymon mistakenly, but understandably, believed that MTSI was representing both the Medical Center and herself in the lawsuit. As in Pecarsky, the default here lacks the requisite willfulness necessary to justify upholding a default judgment. 249 F.3d at 175. Given that Gaymon made a reasonable mistake that MTSI was already representing her, the default judgment is hereby VACATED.
III. Personal jurisdiction
On a motion to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2), the Plaintiff has the burden of showing that the court has jurisdiction. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). When a court has not held an evidentiary hearing or a trial on the merits, "the plaintiff must allege facts that, 'if credited . . . would suffice to establish jurisdiction over the defendant.'" Chaiken v. VV Publ'g Corp., 119 F.3d 1018, 1025 (2d Cir. 1997) (quoting Metro. Life, 84 F.3d at 567). At this stage, a court must construe all pleadings and affidavits in the light most favorable to the plaintiff.Atlantic Mut. Ins. Co., Inc. v. CSX EXPEDITION, No. 00 Civ. 7668, 2003 WL 21756414, at *1 (S.D.N.Y. Jul. 30, 2003); (citingLandoil Res. Corp. v. Alexander Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1991)).
In diversity cases, such as this one, federal courts must apply a two-part test to determine: (1) whether a statutory basis exists for personal jurisdiction under the New York long arm statute and, if so, (2) whether jurisdiction is proper under principles of due process. Flemming, Zulak Williamson, LLP. v. Unbar, No. 04 Civ. 421, 2004 WL 2496092, at *2 (S.D.N.Y. Nov. 5, 2004) (citations omitted); Metro Life, 84 F.3d at 567. In this case, the Court finds there is no personal jurisdiction under New York law and need not reach the second inquiry.
A. General jurisdiction under N.Y.C.P.L.R. 301
N.Y.C.P.L.R. 301 establishes general jurisdiction over a non-domiciliary defendant "engaged in . . . a continuous and systematic course of doing business [in New York]." Beacon Enters. Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir. 1983). There is clearly no general jurisdiction in this case.
B. Long arm jurisdiction under N.Y.C.P.L.R. 302
Next, the Court looks to New York's long arm statute, N.Y.C.P.L.R. 302, to see whether there may be specific jurisdiction over Gaymon. Plaintiff specifically cites Section 302(a)(3)(i) as the basis for jurisdiction in this case. (Pl.'s Opp'n Aff. at 6.) N.Y.C.P.L.R. 302(a)(3)(i) states, in relevant part:
The remaining sections of N.Y.C.P.L.R. 302-(a)(1), (a)(2), and (a)(3)(ii) — do not provide a basis for jurisdiction. Plaintiff does not allege that either (a)(1) or (a)(2) apply in this case. (Pl.'s Opp'n Aff. at 6-7.) Regardless, neither provide jurisdiction.
N.Y.C.P.L.R. 302(a)(1) gives jurisdiction where the defendant "transacts any business within the state or contracts anywhere to supply goods or services in the state." "Transacts any business" is interpreted to require a defendant to have "engaged in purposeful activities" in New York and that there be a "substantial relationship between the transaction and the claim asserted." Gaymon clearly did not conduct any business in New York.
Under N.Y.C.P.L.R. 302(a)(2), a court can exercise personal jurisdiction over a non-domiciliary if that person commits a tortious act within the state. Most courts, adhering to the restrictive approach, have refused to apply N.Y.C.P.L.R. 302(a)(2) to claims based on tortious statements that made their way to New York only by mail or telephone. See, e.g., Stein v. Annenberg Research Inst., No. 90 Civ. 5224, 1991 WL 143400 (S.D.N.Y. Jul. 19, 1991); see also N.Y. CPLR § 302 (McKinney 2006). For example, a majority of the Appellate Division inBauer Industries, Inc. v. Shannon Luminous Materials Co. held that a nondomiciliary's mailing of a letter containing fraudulent representations to New York was not a tortious act "within the state." 383 N.Y.S.2d 80, 80 (N.Y.App.Div. 2d Dep't 1976). And, in Bensusan Restaurant Corp. v. King, within the context of websites, the Second Circuit held that a defendant's physical presence in New York is a prerequisite to jurisdiction under Section 302(a)(2). 126 F.3d 25, 28 (2d Cir. 1997). Gaymon states she has never even visited New York (Gaymon Decl. Apr. 12, 2006, ¶ 3) and the Amended Complaint and Plaintiff's opposition do not allege Gaymon was ever physically present in New York. Gaymon's telephone call to New York alone does not satisfy this provision.
N.Y.C.P.L.R. § 302(a)(3)(ii) also clearly does not apply, as it requires the defendant to have derived "substantial revenue from interstate or international commerce." The defendant had no business relationship with New York whatsoever, and the Amended Complaint makes no allegations about Gaymon's revenue from commerce.
[A] court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent: . . . (3) commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from . . . services rendered, in the state.
In this case, Plaintiff claims jurisdiction based on Gaymon's tortious acts outside the state causing injury to Croskey in New York based on Gaymon's "persistent course of conduct" toward New York. (Pl.'s Opp'n Aff. 7.) In applying N.Y.C.P.L.R. 302(a)(3), Plaintiff must establish: (1) whether the allegations of the complaint concern a tortious act; (2) whether the act caused injury within the state of New York; and (3) whether the defendant engaged in additional contacts with New York, establishing a "persistent course of conduct" toward New York.
1. Tortious act
As to the first issue, the Amended Complaint does not allege any specific tortious acts. The closest the Amended Complaint comes to alleging a tort is Plaintiff's claim that Defendant made "false allegations" (Am. Compl. 1, 3) — a claim that is most reasonably construed as one for defamation. However, New York's long arm statute specifically excludes actions for defamation under both sections (a)(2) and (a)(3). World Wrestling Fed'n Entm't, Inc. v. Bozell, 142 F. Supp. 2d 514, 533 (S.D.N.Y. 2001). Only those torts that plaintiff alleges other than defamation would qualify under (a)(3).
Based on the plaintiff's conclusory claims and allegations, the Court cannot ascertain what other tort the plaintiff means to assert. Even if the facts as the plaintiff presents them could be construed as another tort, such as intentional infliction of emotional distress, it is well established that where the crux of the complaint sounds in defamation, court will refuse to allow a cause of action for emotional distress. See Wilson v. Merrill Lynch, Pierce, Fenner Smith, Inc., 490 N.Y.S.2d 553, 555 (N.Y.App.Div. 2d Dep't 1985) (Without such a rule, any defective defamation or libel claim could be revived by pleading it as one for intentional infliction of emotional distress, circumventing the restrictions on defamation claims.); see also Fischer v. Maloney, 43 N.Y.2d 553, 557-58 (N.Y. 1978).
In Plaintiff's opposition, Plaintiff also claims Gaymon violated a state criminal law, but does not state how defendant's violation gives rise to a tort. Specifically, Plaintiff claims Gaymon violated N.Y. Penal Law 240.50, which criminalizes falsely reporting an incident in the third degree, but does not identify how this violation in any way gives rise to a tort (other than defamation) against her. Even if such a violation could be construed as negligence, the plaintiff fails to demonstrate that a private right of action to recover damages may be implied from Section 240.50. See Kwasnik v. City of N.Y., 748 N.Y.S.2d 510, 510 (N.Y.App.Div. 2d Dep't 2002) (refusing to imply private right of action based on Section 240.50(2).); Sean M. v. City of N.Y., 795 N.Y.S.2d 539, 548 (N.Y.App.Div. 1st Dep't 2005) (holding, with respect to analogous Social Services Law regarding filing a false child abuse complaint, that there was "no private right of action to a plaintiff alleging negligence in connection with the furnishing of information pertinent to the placement of a child in protective care"); see also Sheehy v. Big Flats Cmty. Day, 73 N.Y.2d 629, 633-634 (N.Y. 1989); Burns Jackson Miller Summit Spitzer v. Lindner, 59 N.Y.2d 314, 325, 329-331 (N.Y. 1983);Hammer v. American Kennel Club, 758 N.Y.S.2d 276, 280 (N.Y.App.Div. 1st Dep't 2003). Thus, the Court believes a New York court would decline to imply a civil cause of action or a tort based on an alleged violation of Penal Code Section 240.50.
Plaintiff also claims "a federal law [was] violated when [Gaymon] illegally used her place of employment . . . and illegally imposed [sic] as a certified nurse assistant to help facilitate a false child abuse neglect allegations [sic] against [Croskey] to Child Protective Services." (Am. Compl. 1.) Since plaintiff does not state which specific federal law was violated, the Court cannot determine what tort, if any, the plaintiff is alleging.
New York Penal Law Section 240.50 provides:
A person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he: . . . (4) [r]eports, by word or action, to the statewide central register of child abuse and maltreatment, as defined in title six of article six of the social services law, an alleged occurrence or condition of child abuse or maltreatment which did not in fact occur or exist.
N.Y. Penal Law § 240.50 (McKinney 2006).
Even under an independent analysis of § 240.50(4), the Court finds that a New York court would decline to find a private right of action. "'Whether a private right of action should be implied from a statute which on its face provides only for penal sanctions . . . depends upon the intent of the statute.'"Hammer, 758 N.Y.S.2d at 280 (quoting Stoganovic v. Dinolfo, 461 N.Y.S.2d 121 (N.Y.App. 4th Dep't 1983). "Where a statute does not explicitly provide for a private cause of action, such a right may only be implied where three factors are established: (1) plaintiff must be one of the class for whose benefit the statute was enacted; (2) recognition of a private right of action must promote the legislative purpose; and (3) creation of such a right must be consistent with the legislative scheme." Id. (citation omitted).
The Legislative Memorandum that supports the incorporation of false reporting of child abuse into NY Penal Law Section 240 indicates that "the State's child abuse hotline has been subject to repeated misuse by those individuals seeking to make child abuse reports for harassment purposes, especially during the course of matrimonial proceedings and child custody disputes. Such misuse severely impairs the ability of the State's child protective services system to receive and investigate child abuse reports. . . . The . . . legislation is therefore necessary in order to establish appropriate criminal sanctions and to create mechanisms for referral of suspected false reports to law enforcement officials." N.Y. Penal Law § 240.50 (McKinney Practice Commentary 1999). The purpose of the statute is to benefit the State's over-extended protective services system, not accused parents, such as Plaintiff. Therefore, Croskey does not establish the first factor, and this Court believes New York courts would not imply a private right of action.
2. Act causing injury within New York
As to the second issue under CPLR 302(a)(3)(i), Croskey also fails to allege that the act caused an injury within the state of New York. Croskey simply states that "New York City's authorities warranted an investigation against me based on false allegations" and requests a remedy of $80,000. (Am. Compl. 3.) She does not allege any emotional, physical, or pecuniary injury.
3. Persistent course of conduct
Plaintiff does not establish that Defendant has the additional minimum contacts with New York required to establish long arm jurisdiction under N.Y.C.P.L.R. § 302(a)(3)(i). N.Y.C.P.L.R. § 302(a)(3)(i) provides four alternative forms of ongoing New York activity by defendant, any one of which, when combined with defendant's commission of a tortious act outside the state causing injury within the state, will permit the assertion of long arm jurisdiction. The only form of activity that could possibly be applicable here is whether Gaymon engaged in a "persistent course of conduct" toward New York. There are few reported decisions construing this provision. Although the ongoing conduct contemplated by this alternative need not be business-related, the conduct must be concrete enough to establish some kind of regular conduct. One case suggests that it might be broad enough to cover an out-of-state student who regularly attended a university within New York for three semesters. Porcello v. Brackett, 85 446 N.Y.S.2d 780, 781-82 (N.Y.App.Div. 4th Dep't 1981). Although Croskey claims that Gaymon "voluntarily engaged in a persistent course of conduct in the state of New York" (Pl.'s Opp'n Aff. 7), Croskey alleges no further contact with New York other than Gaymon's phone call to NYCOS. If Porcello defines the outer bounds of what qualifies as "persistent conduct," the conduct in this case certainly lie far beyond even those outer bounds. Croskey clearly fails to establish that Gaymon had any additional contact with New York.
Thus, for the reasons stated above, this Court has no long arm jurisdiction over Gaymon.
C. Due process
Because this Court has determined there is no statutory basis for the Court to assert personal jurisdiction over Gaymon, it is not necessary to consider whether assertion of personal jurisdiction over this defendant would violate the Due Process Clause of the Fourteenth Amendment. See Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 198 (2d Cir. 1990).
IV. Conclusion
For the reasons stated above, the default judgment is VACATED.
Additionally, the contacts in this case are insufficient to allow an exercise of personal jurisdiction over the defendant. Gaymon's motion to dismiss plaintiff's complaint for lack of personal jurisdiction is GRANTED.
Plaintiff's claims against all other defendants having been dismissed, the Clerk is ordered to close this case.
SO ORDERED.