Opinion
CV-028222/18
11-18-2019
Dasse DIARRA, Plaintiff, v. Isabella ALEXANDER, Defendant.
Plaintiff, Pro se Defendant, Erin Teske, Esq., Christian J. Soller, Esq., Hodgson Russ, LLP
Plaintiff, Pro se
Defendant, Erin Teske, Esq., Christian J. Soller, Esq., Hodgson Russ, LLP
Dakota D. Ramseur, J.
Self-represented Plaintiff Dasse Diarra commenced this action against Defendant Isabella Alexander alleging a failure to fully compensate Plaintiff for his services interpreting Bambara for Defendant's documentary. Defendant, by counsel, now moves to dismiss based on lack of personal jurisdiction and privity. For the reasons below, the motion is denied and the matter shall be scheduled for a pre-trial conference on June 10, 2020.
The motion's caption invokes the Honorable Sabrina Kraus, another judge of this Court. The parties confirmed on the return date that this was an error, and that no reason existed to refer the matter to Judge Kraus.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Plaintiff alleges that Defendant, a Georgia resident, contacted Plaintiff, a New York resident, by phone after receiving his information and qualifications through a mutual contact within Plaintiff's African community (Pl Aff p 1). After a phone conversation, Plaintiff coordinated with Defendant's assistants and, from July through September 2019, completed many full days of interpreting for Defendant's documentary in New York, the post-production site (Pl Aff p 2). During this time period, other than one text message from Defendant complimenting Plaintiff's services, Plaintiff communicated exclusively with Defendant's assistants (Pl Aff pp 2-3).
At the beginning of September 2019, Plaintiff expressed his concerns to one of Defendant's assistants, Hadrien Royo, about the lack of payment (Pl Aff p 3).Within the next few days, Plaintiff received $400.00 from Royo by Venmo (id. ; Pl Exh A ). Understanding this to be a down payment or perhaps travel reimbursement and not sufficient to compensate him for the significant number of hours spent interpreting at his usual rate of $600-750 per day, Plaintiff followed up, but subsequently received only $650.00 from Defendant, also by Venmo (Pl Exhs A-C ). Subsequent communications from Defendant asserted that the agreed-upon interpretation rate was $10 per hour (Pl Aff p 4, Pl Exh E ). Plaintiff and Defendant have never interacted in person.
Plaintiff's Exhibit E purports to be Plaintiff's transcription of several text messages from Defendant.
Defendant now moves to dismiss for lack of personal jurisdiction and privity.
Defendant's only statutory citation is to CPLR 302(a)(3), referencing tortious acts by non-domiciliaries. Given the substance of the motion, the Court addresses its prongs under CPLR 3211(a)(7) (failure to state a cause of action) and (8) (personal jurisdiction).
DISCUSSION
Jurisdiction
Defendant seeks dismissal pursuant to CPLR 302(a)(3), arguing that Defendant has no connection to New York and therefore is not subject to its jurisdiction. On such motions, which are governed by CPLR 3211 (a)(8), the plaintiff has the burden of presenting sufficient evidence, through affidavits and relevant documents, to demonstrate jurisdiction ( Coast to Coast Energy, Inc. v. Gasarch , 149 AD3d 485, 486 [1st Dept 2017] ). Plaintiff need only make a prima facie showing of jurisdiction through sufficient documentary evidence (id. ).
New York City Civil Court Act § 404(a), which in relevant part mirrors the language of CPLR 302(a), provides that this court may exercise longarm jurisdiction over a non-domiciliary, "who in person or through an agent:
transacts any business within the city of New York or contracts anywhere to supply goods or services in the city of New York; or
commits a tortious act within the city of New York, except as to a cause of action for defamation of character arising from the act; or
owns, uses or possesses any real property situated within the city of New York.
As the First Department has summarized in China Exp., Inc. v. Volpi & Son Mach. Corp. , (126 AD2d 239, 242 [1st Dept 1987], citing Intl. Shoe Co. v. Washington , 326 US 310, 316 [1945] and Burger King Corp. v. Rudzewicz , 471 US 462, 475 [1985] ):
Due process requires only that in order to subject a defendant to [personal jurisdiction] if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Recognizing that the unilateral activity of the party claiming a relationship with a nonresident defendant will not satisfy the minimum contacts requirement, the Supreme Court has held that there must be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. This requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts or of the unilateral activity of another party or a third person. Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a substantial connection with the forum State.
* * *
Even a single contract can support in personam jurisdiction as long as it creates a substantial connection with the forum. A critical consideration is whether the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.
The Court first notes that Defendant's citation to CPLR 302(a)(3) is inapposite ( Amigo Foods Corp. v. Mar. Midland Bank-New York , 39 NY2d 391, 396 [1976] ["We find no merit in the additional argument that a breach of a contract constitutes a tortious act and may form a basis for long-arm jurisdiction under CPLR 302."] ). However, under the relevant statutes, NYCCCA § 404(a)(1)/ CPLR 302(a)(1), "[l]ong-arm jurisdiction over a nondomiciliary exists where (i) a defendant transacted business within the state and (ii) the cause of action arose from that transaction of business. If either prong of the statute is not met, jurisdiction cannot be conferred under CPLR 302(a)(1)" ( Johnson v. Ward , 4 NY3d 516, 519 [2005] ).
"A ‘substantial relationship’ must be established between a defendant's transactions in New York and a plaintiff's cause of action in order to satisfy the nexus requirement" (id. [holding that "plaintiffs have failed to establish a sufficient nexus between the purported transactions of business in New York and the negligence claim [because p]laintiffs' cause of action arose out of defendant's allegedly negligent driving in New Jersey, not from the issuance of a New York driver's license or vehicle registration. that defendant had a New York license and registration is merely coincidental."] ). "The greater the distance between the transaction giving rise to the injury and the defendant's New York contacts, the less likely will there be a basis for New York jurisdiction ( Pramer S.C.A. v. Abaplus Intern. Corp. , 76 AD3d 89, 95 [1st Dept 2010] ; see also Alberta & Orient Glycol Co. Ltd. v. Factory Mut. Ins. Co. [NY Sup Ct, New York County 2007], affd , 2008 NY Slip Op. 01855 [1st Dept 2008] ["A claim ‘arises out’ of a party's transaction of business if it is sufficiently related to the business transacted that it would not be unfair to deem it to arise out of the transacted business, that is, if an "articulable nexus" exists between the claim and the transaction and the defendant has "purposefully availed [it]self of the privilege of conducting activities within New York and thereby invok[ed] the benefits and protections of its laws."] ).
Although each inquiry into longarm jurisdiction is sui generis , two leading cases have established opposite poles (Siegel & Connors, NY Prac. § 86 [6th Ed.] ). At one pole is a decision declining the exercise of longarm jurisdiction, Kramer v. Vogl , 17 NY2d 27 [1966] ). In Kramer , the defendant was an Austrian leather manufacturer which, by an agreement made in Europe, made the plaintiff its exclusive American distributor (id. ). All of the defendant's contacts with plaintiff in New York were by mail, and the plaintiff bought the leather outright to be shipped f.o.b. European ports, thereby terminating the seller's obligations at the f.o.b. point ( id. at 30 ). After the plaintiff sued the defendant for fraud, alleging that the defendant gave distribution rights to others in violation of the parties' agreement, the Court of Appeals held that defendant had not, simply by taking orders from and shipping to New York, transacted business in New York for longarm purposes ( id. at 31-32 ). There are numerous cases, closer to Kramer , where jurisdiction was not exercised based solely on an out-of-state entity's negotiation and contract with a New York plaintiff without additional contact (see e.g. J. E. T. Adv. Assoc., Inc. v. Lawn King, Inc. , 84 AD2d 744, 745 [2d Dept 1981] [holding that "[t]he contract was negotiated by telephone or mail, and no meetings were held in New York. All of the New York activities relating to the contract were performed by plaintiff and cannot be attributed to the defendant."] ).
At the opposite pole is Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc. , in which the defendant, an Illinois corporation, sold complicated machinery to the plaintiff, a New York corporation after preliminary negotiations in New York and contract execution in Chicago ( 15 NY2d 443 [1965] ). The Illinois corporation also sent two engineers to New York for several months to assist installation (id. ). The Court of Appeals declined to determine whether any particular New York contact conferred jurisdiction, holding instead that the test is "not quantitative but qualitative and that the inquiry should determine whether ‘defendant has engaged in some purposeful activity in this State in connection with the matter in suit’ " (Siegel & Connors, NY Prac. § 86 [6th Ed.], quoting Longines-Wittnauer , 15 NY2d at 457 ).
Indeed, " CPLR 302(a)(1) ... is a single act statute and proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" ( Scheuer v. Schwartz , 42 AD3d 314, 315 [1st Dept 2007] ). The Longines-Wittnauer Court thus found that the Illinois corporation's "activities in this State are sufficient to satisfy the statutory criterion of transaction of business as well as the constitutional requirement of ‘minimum contacts" ( id. at 467 ; cf McKee Elec. Co. v. Rauland-Borg Corp. , 20 NY2d 377, 382 [1967] [declining to exercise longarm jurisdiction despite defendant's high-level employee's visit to New York and use of subject product in New York because the employee spent "less than a full working day" in New York and because plaintiff's product's use was unilateral. "Otherwise, every corporation whose officers or sales personnel happen to pass the time of day with a New York customer in New York runs the risk of being subjected to the personal jurisdiction of our courts."] ).
Importantly, a defendant's physical presence in New York is not required for longarm jurisdiction (see Fischbarg v. Doucet , 38 AD3d 270, 275 [1st Dept 2007] [exercising jurisdiction where the defendants "had plaintiff [law firm] do extensive work for them, plaintiff's records indicating over 238.4 hours, all in New York, and had plaintiff work for them exclusively from New York, even while defending them in the Oregon action."] ). The defendant may be "present" in New York through an agent; a plaintiff "need only convince the court that [the agent] engaged in purposeful activities in [New York] in relation to his transaction for the benefit of and with the knowledge and consent of the [nondomiciliary defendant] and that they exercised some control over [the agent] in the matter" ( Kreutter v. McFadden Oil Corp. , 71 NY2d 460, 467 [1988] ; see also Kaczorowski v. Black and Adams , 293 AD2d 358, 358 [1st Dept 2002] [exercising jurisdiction in cause of action for legal services where nondomiciliary retained and utilized services of New York attorney]; see also Otterbourg, Steindler, Houston & Rosen, P.C. v. Shreve City Apartments Ltd. , 147 AD2d 327, 332-33 [1st Dept 1989] ["The final standard for jurisdiction is reasonableness—whether the defendant is unfairly burdened by the compulsion to contest a suit in a forum outside his domicile. It does not appear unfair to us to require the defendant to respond in New York to the plaintiffs for services resulting in a judgment on his behalf rendered in New York."] ). However, "[t]he plaintiff may not rely on its own activity, or the activity of its agent, as a predicate for jurisdiction over the defendant. By merely accepting funds from, or placing an order with, the defendant, the plaintiff's agent does not become the defendant's agent" ( Pramer S.C.A. v. Abaplus Intern. Corp. , 76 AD3d 89, 95-96 [1st Dept 2010] ).
Here, even accepting Defendant's contention that she is and has been a Georgia resident with no physical presence, property, or accounts in New York, there is nevertheless a basis to exercise longarm jurisdiction. Defendant contends, for example, that "with the exception of an email exchange," she never spoke with Plaintiff; rather, Defendant contends, Plaintiff was hired and dealt exclusively with Royo, "[Defendant's] editor" who, "pursuant to the Film Editor Agreement" between Royo and Defendant, "performed all editing services and oversaw all assistant editing services in connection with the Film," including interpretation (Def Aff ¶¶ 5-6). If not with Royo, Defendant argues, then Plaintiff's contacts would have been with "the corporation under which anyone working on the film generally worked, The Burning LLC" (Def Aff ¶ 5).
For jurisdictional purposes, Plaintiff's affidavit successfully rebuts Defendant's arguments and carries Plaintiff's burden. Plaintiff's affidavit avers direct contact, on numerous occasions, between the parties, including an initial text in which Defendant purportedly stated that an assistant would call "with details on the job from his New York number" and, later, a Venmo payment directly from Defendant (Pl Aff p 1). Plaintiff also describes and documents nineteen days of work in New York City with Defendant's assistants, including Royo (Pl Aff pp 2-4, Exhs B-D ).
Because Defendant's reply is solely an attorney affirmation, none of these contacts are disputed directly by Defendant; indeed, though counsel characterizes Plaintiff's transcribed text messages as incomplete or selectively-cited, the existence of the communication is not disputed (Pl Exhs E, F ). To the extent that Defendant argues that any relationship to New York was limited to the corporation created to produce the documentary, "The Burning LLC," the "Film Editor Agreement" with Royo submitted by Defendant makes no mention of that corporation (Def Exh C ). There is also no other evidence of the corporation's existence. Thus, adding Plaintiff's allegations to Defendant's conceded contacts and communication with assistants in New York City acting in furtherance of Defendant's documentary, Plaintiff has demonstrated Defendant's minimum contacts with New York City and their connection to Plaintiff's cause of action.
Failure to state a cause of action
Defendant argues that the Complaint should be dismissed because the parties never had any agreement, let alone one that is sufficiently definite so as to be enforceable (Soller Affirm p 3). It is too early, at this juncture, for dismissal on that basis.
On a motion to dismiss pursuant to CPLR 3211(a)(7), the Court must accept the facts as alleged in the complaint as true, afford the pleadings a liberal construction, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( CPLR 3026 ; Leon v. Martinez , 84 NY2d 83, 87-88 [1994] ). "A court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (id. ).
While it is true that "if an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract, [c]ontracting parties are often imprecise in their use of language, which is, after all, fluid and often susceptible to different and equally plausible interpretations. Imperfect expression does not necessarily indicate that the parties to an agreement did not intend to form a binding contract" ( 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp. , 78 NY2d 88, 91 [1991] ). "Courts have consistently held that where it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain. Under such circumstances, striking down a contract as indefinite and in essence meaningless is at best a last resort" ( Aiello v. Burns Intern. Sec. Services Corp. , 110 AD3d 234, 244 [1st Dept 2013], citing 166 Mamaroneck Ave. , 78 NY2d at 91 ; see also Salerno v. Leica, Inc. , 258 AD2d 896, 896 [4th Dept 1999] [affirming denial of dismissal of action to recover salary, bonuses, vacation pay, and severance where provision stating that "a severance package commensurate with [plaintiff's] level of contribution and position in [defendant's] organization" is sufficiently definite to be enforceable] ).
It is unclear, at this juncture, whether any explicit or oral agreement between the parties ever existed. But even in the absence of such an agreement, there remains the possibility of recovery under quasi-contractual, equitable theories (see e.g. UETA Latinamerica, Inc. v. Zafir , 129 AD3d 704, 705-06 [2d Dept 2015] [unjust enrichment] ). At minimum, payments from both Royo and Defendant to Plaintiff for "translation work," (Pl Exh A ), could support a conclusion that this was not merely an unenforceable "agreement to agree," and that the parties had either agreed upon, or had some way to ascertain, a payment rate (see Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher , 52 NY2d 105, 109 [1981] ; cf Mark Bruce Intern. Inc. v. Blank Rome, LLP , 60 AD3d 550, 551 [1st Dept 2009] ["The exchange of e-mails, which did not set forth the fee for plaintiff's services or an objective standard to determine it, was too indefinite to be enforceable"] ). To the extent that Defendant argued, on the return date, that the unjust enrichment claim should be dismissed because it duplicates the breach of contract claim, that argument was not present anywhere in Defendant's papers; even if it could be considered, however, dismissal would be inappropriate at this juncture because, to the extent that Defendant herself denies the existence of a contract, a quasicontractual cause of action would supplant, not duplicate, a contractual cause of action.
CONCLUSION AND ORDER
For the above reasons, it is hereby
ORDERED that Defendant's motion to dismiss is DENIED in its entirety, and the parties shall appear for a pre-trial conference on June 10, 2020 at 9:30 a.m., 111 Centre St., Room 325, New York, New York.
This constitutes the decision and order of the Court.