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exercising personal jurisdiction where individual defendant "played an active role in the negotiations of a Joint Venture Agreement . . . while directly and personally benefitting from" the project
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02 Civ. 9297 (WHP)
March 1, 2004
Gerald Padian, Tashjian Padian New York, N.Y. for Plaintiffs
Marshall R. King, Gibson, Dunn Crutcher LLP, New York, N.Y. for Defendants
MEMORANDUM AND ORDER
In this breach of contract and quantum meruit action, plaintiffs Joel Ross ("Ross"), Ross Properties, Inc. ("Ross Properties"), and Citadel Realty Group, LLC ("Citadel") allege that defendants UKI Ltd. ("UKI"), Tonex Holdings, Ltd. ("Tonex"), Jacob Schimmel, Abraham Moses Schimmel ("Marc Schimmel"), and Harry C. Schimmel breached a series of oral brokerage agreements with plaintiffs. Currently before this Court are motions to dismiss this action for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, by defendants Harry Schimmel, Marc Schimmel, and Tonex. For the reasons set forth below, Harry Schimmel's motion is granted, and Marc Schimmel's and Tonex's motions are denied.
BACKGROUND
I. The PartiesRoss is a licensed real estate broker in New York, and a principal in two New York-based real estate brokerage agencies, Ross Properties and Citadel. (Affidavit of Joel Ross in Opposition to Motion to Dismiss, dated May 22, 2003 ("Ross Aff.") ¶ 2; Complaint ("Compl.") ¶¶ 1-3.) UKI is a United Kingdom limited liability company, based in London, that serves as an advisor and asset manager for real estate investors. (Declaration of Abraham Moses Schimmel, dated January 15, 2003 ("M. Schimmel Decl.") ¶ 10.) Tonex is a holding company, organized under the laws of Gibraltar, that owns various subsidiaries that invest in real estate and other assets. (Declaration of Maurice Moses Benady, dated March 27, 2003 ("Benady Decl.") ¶ 3.) Tonex is beneficially owned by a trust whose beneficiaries are members of the Schimmel family. (Ross Decl. ¶¶ 27-28, Exs. 9, 11, 20, 26, 42-44.) Jacob Schimmel and Marc Schimmel, U.K. citizens who reside in London, England, are officers, directors, and shareholders of UKI. (M. Schimmel Decl. ¶¶ 2, 10; Declaration of Jacob Schimmel, dated June 20, 2003 ("J. Schimmel Decl.") ¶ 1; Compl. ¶ 6.) Harry Schimmel, Jacob and Marc Schimmel's father, is a U.K. citizen who has at times served as a consultant to UKI. (Declaration of Harry C. Schimmel, dated March 21, 2003 ("H. Schimmel Decl.") ¶¶ 2, 11.)
In October 1998, Ross was introduced to Jacob and Marc Schimmel, and agreed to assist the Schimmels in accessing sources of capital in the United States for various real estate acquisitions. (Ross Decl. ¶ 6.) Ross claims that although he personally dealt with Jacob and Marc Schimmel, they were "young, inexperienced and unsophisticated with regard to real estate financing, " and that Harry Schimmel was in fact the "head . . . of the entire Schimmel real estate empire." (Ross Decl. ¶¶ 7-8.)
II. The Westbrook Transactions
In October 1998, Ross introduced Marc and Jacob Schimmel to the principals of Westbook Partners, LLC ("Westbrook"), an opportunity fund based in New York that targeted real-estate investments. (Ross Decl. ¶ 9.) Over the course of the next few months, Ross, on behalf of Jacob and Marc Schimmel, negotiated a joint venture with Westbrook (the "Westbrook Joint Venture") in which the Schimmels would provide 10% of the equity and Westbrook would provide 90%, with the Schimmels managing the acquired properties. (Ross Decl. ¶¶ 10, 11.)
On November 4, 1998, UKI, by Marc Schimmel, entered into an agreement with Ross Properties (the "Joint Venture Agreement") under which Ross Properties was to be paid a commission based on the equity contributed by Westbrook for acquisitions of property by the Westbrook Joint Venture. (Ross Decl. ¶ 12, Ex. 3.) Ross was paid approximately $1.5 million under the Joint Venture Agreement. (Ross Decl. ¶ 14, Ex. 5.)
While the Complaint and opposing declaration are far from clear on this point, Ross also appears to allege that he entered into a simultaneous oral agreement with the Schimmels at the time of the Joint Venture Agreement (the "Westbrook Oral Agreement"). Under the Westbrook Oral Agreement, Ross was to receive a brokerage commission of 1% of the gross proceeds of any transaction, other than those covered under the Joint Venture Agreement, involving the Schimmels (or any related entity) and Westbrook. (Compl. ¶ 14.)
A. The British Land Agreement
In March 1999, Tonex, through a wholly-owned subsidiary Allerbeck Limited, purchased a portfolio of properties from The British Land Company, PLC (the "Bond Portfolio"). (Ross Decl. ¶ 30, Exs. 13, 25.) Tonex financed the acquisition of the Bond Portfolio through a secured loan facility with a German bank, DG Bank AG (the "British Land Agreement"). (Ross Decl. Ex. 13; Compl. ¶ 18.) Ross alleges, however, that Tonex first procured a viable offer from Westbrook to fund the acquisition of the Bond Portfolio (the "Westbrook Offer"), and then leveraged the Westbrook Offer to obtain a more favorable deal from DG Bank AG. (Ross Decl. ¶ 31; Compl. ¶ 18.) Ross claims that, under the terms of the Westbrook Oral Agreement, he is entitled to a 1% brokerage commission on the British Land Agreement. Ross alleges that Jacob Schimmel acknowledged this debt, but that Marc Schimmel refused to pay it, stating that "we will do a lot more business with you [Ross] in the future and will make it up to you that way." (Ross Decl. ¶¶ 31-32.)
B. Project Alliance
In March 2001, Jacob Schimmel told Ross that the Schimmel family desired to sell many of their properties. (Ross Decl. ¶ 42.) Ross suggested to Jacob Schimmel that the family sell certain of their properties to Westbrook, and reminded him that if they did so, Ross would be owed a 1% commission under the Westbrook Oral Agreement. (Ross Decl. ¶ 42.) Jacob Schimmel agreed. (Ross Decl. ¶¶ 42-43, 47.) Later that year, Westbrook, along with another fund, purchased a $573,000,000 portfolio of properties beneficially owned by Marc Schimmel, Jacob Schimmel, and Tonex ("Project Alliance"). (Ross Decl. ¶¶ 44-45, Exs. 11, 30-32; Compl. ¶ 15.) Ross claims that, under the terms of the Westbrook Oral Agreement, he is owed a 1% commission as a result of Project Alliance.
III. The GMAC Transactions
In Spring 2000, Jacob Schimmel informed Ross that "the Schimmel family" was contemplating a possible takeover of Great Portland Estates Plc. ("Great Portland"), a publicly-traded real estate investment company in the U.K. (Ross Decl. ¶ 36.) In order to meet the Schimmel's need for a substantial amount of financing to complete the Great Portland takeover, Ross set up a series of meetings for Jacob and Marc Schimmel with officers of GMAC Commercial Mortgage ("GMAC") in New York. (Ross Decl. ¶ 37.)
On or about April 13, 2000, Ross and Jacob Schimmel entered into another oral agreement (the "GMAC Oral Agreement") pursuant to which Ross would be paid a fee of 1% of any senior financing and 2% of any mezzanine financing obtained from GMAC by the Schimmels and their related entities. (Ross Decl. ¶ 38; Compl. ¶ 22.) Although both Marc and Jacob Schimmel attended meetings with GMAC in New York through Summer 2000, the Great Portland transaction was never completed. (Ross Decl. ¶¶ 39-41, Ex. 29.) Ross, however, continued to cultivate the GMAC relationship on behalf of the Schimmels with an eye toward future deals. (Ross Decl. ¶ 41.)
In October 2002, Tonex acquired certain properties in the U.K. ("Project Aston Martin"). (Ross Decl. ¶¶ 54-55, Exs. 39-40.) GMAC financed Project Aston Martin, providing Tonex with a $210,000,000 loan facility. (Ross Decl. ¶ 54, Exs. 39-43; Compl. ¶ 23.) Ross claims that GMAC made additional loans to the Schimmels and related entities in excess of $785,000,000. (Ross Decl. ¶ 54; Compl. ¶¶ 24-27.) Ross claims that under the terms of the GMAC Oral Agreement, he is owed a commission on these loans.
DISCUSSION
I. Rule 12(b)(2) Standards
On a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2), the plaintiff bears the burden of showing that the court has jurisdiction over the moving defendant(s). Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). To satisfy that burden where, as here, the parties have conducted jurisdictional discovery but no evidentiary hearing has been held, a plaintiff need only make a prima facie showing of personal jurisdiction.Metro. Life Ins., 84 F.3d at 567. Such a prima facie showing is satisfied by "an averment of facts that, if credited by [the ultimate trier of fact], would suffice to establish jurisdiction over the defendant." Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990).
In reviewing a Rule 12(b)(2) motion, a court must construe all pleadings and affidavits "in the light most favorable to the plaintiff and doubts are resolved in the plaintiff's favor, notwithstanding a controverting presentation by the moving party." A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993); accord Metro. Life Ins., 84 F.3d at 567;Landoil Res. Corp. v. Alexander Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1990). However, a plaintiff may not rely merely on conclusory statements or allegations to establish jurisdiction.Ball, 902 F.2d at 197.
II. Exercise of Personal Jurisdiction
In a federal diversity case such as this, the resolution of issues concerning personal jurisdiction are governed by the law of the state in which the district court sits. DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001); CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986). Accordingly, New York law controls personal jurisdiction in this action. The issue currently before this Court is whether the moving defendants are subject to personal jurisdiction under New York law on the theory that they transacted business within the meaning of Section 302(a)(1) of the New York Civil Practice Law and Rules ("CPLR"), a provision of New York's long-arm statute, and, if so, whether doing so comports with constitutional due process guarantees. See Int'l Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945); accord Metro. Life Ins., 84 F.3d at 567 ("[T]he amenability of a foreign corporation to suit in a federal court in a diversity action is determined in accordance with the law of the state where the court sits, with 'federal law' entering the picture only for the purpose of deciding whether a state's assertion of jurisdiction contravenes a constitutional guarantee.") (quoting Arrowsmith v. United Press Int'l. 320 F.2d 219, 223 (2d Cir. 1963) (en banc)).
A. Jurisdiction Under CPLR 302(a)(1)
CPLR 302(a)(1) permits a court to exercise jurisdiction over a person or entity that "in person or through an agent . . . transacts business within the state or contracts anywhere to supply goods and services in the state." N.Y. CPLR § 302(a)(1) (McKinney's 2004). Specifically, jurisdiction under CPLR 302(a)(1) is proper where: (1) the defendant has transacted business in New York; and (2) the cause of action arises out of the subject matter of the transacted business.CutCo Indus., 806 F.2d at 365.
Plaintiffs concede, as they must, that the moving defendants lack the systemic contacts required to be held to be "doing business in the New York" under CPLR § 301.
First, a non-domiciliary transacts business under CPLR 302(a)(1) where he "purposefully avails [himself] of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws." CutCo Indus., 806 F.2d at 365 (quoting McKee Elec. Co. v. Rauland-Borg Corp., 20 N.Y.2d 377, 382 (1967)). A court must look to the totality of the circumstances in deciding whether the defendant has engaged in such purposeful activity. CutCo Indus., 806 F.2d at 365. Second, the court must find "some articulable nexus between the business transacted and the cause of action sued upon." McGowan v. Smith, 52 N.Y.2d 268, 272 (N.Y. 1981); accord Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467 (N.Y. 1988) (requiring a "substantial relationship between the transaction and the claim asserted"); see also PDK Labs, Inc. v. Freidlander, 103 F.3d 1105, 1109 (2d Cir. 1997); Agency Rent a Car Sys., Inc. v. Grand Rent a Car Corp., 98 F.3d 25, 29-31 (2d Cir. 1996); CutCo Indus., 806 F.2d at 365. In a breach of contract case, the pivotal inquiry is "whether the defendant has performed purposeful acts in New York in relation to the contract." A.C.K. Sports, Inc. v. Doug Wilson Enters., 661 F. Supp. 386, 390 (S.D.N.Y. 1989).
— In addition to affirmative acts, jurisdiction is also appropriate under CPLR 302(a)(1) pursuant to the so-called "agency theory." To be considered an agent for jurisdictional purposes, the putative agent must have acted in the state "for the benefit of, and with the knowledge and consent of" the non-resident principal. Grove Press, Inc. v. Angleton, 649 F.2d 121, 122 (2d Cir. 1981);accord Galgav v. Bulletin Co., Inc., 504 F.2d 1062, 1065 (2d Cir. 1974) (an agent must act "at the request and for the business purposes of" the principal). In addition, the Second Circuit has interpreted CPLR 302(a)(1) to require a showing that the principal exercised some control over the activities of the alleged agent. CutCo Indus., 806 F.2d at 366; accord Grove Press, 649 F.2d at 122 ("[A] showing must be made that the alleged agent acted in New York for the benefit of, with the knowledge and consent of, and under some control by, the nonresident principal."). Thus, if plaintiffs can demonstrate that personal jurisdiction vests over an agent of one of the moving defendants, and that the agent acted on behalf of the moving defendant in the transaction at issue, personal jurisdiction will be imputed to the moving defendant.
B. Due Process
In addition to determining whether the New York long-arm statute extends the state's jurisdiction over a non-domiciliary defendant, a court must also determine whether exercise of this jurisdiction comports with federal due process. Bank Brussels Lambert v. Fiddler Gonzalez Rodriguez, 305 F.3d 120, 127 (2d Cir. 2002). To do so, a court must undertake a two-step analysis: (1) a "minimum contacts" inquiry; and (2) a "reasonableness" inquiry. Bank Brussels Lambert, 305 F.3d at 127; Metro. Life Ins., 84 F.3d at 567.
Under the "minimum contacts" inquiry, a court must determine whether the defendant "has 'certain minimum contacts [with the forum]. . . such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 152 (2d Cir. 2001) (quotingCalder v. Jones, 465 U.S. 783, 788 (1984)) (alteration in original and internal citations omitted). To establish minimum contacts with New York, a plaintiff must show that the moving defendant "purposefully availed" himself of the privilege of doing business in New York and "should reasonably anticipate being haled into court there."World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980); accord Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (requiring that "there be some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws").
Under the second step of the due process analysis, a court must determine "whether the assertion of personal jurisdiction comports with 'traditional notions of fair play and substantial justice' — that is, whether it is reasonable under the circumstances of the particular case." Metro. Life Ins., 84 F.3d at 568 (quoting Int'l Shoe, 326 U.S. at 316). In evaluating reasonableness, courts must consider the following five factors: "(1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies." Metro. Life Ins., 84 F.3d at 568; accord Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113-14 (1987); Burger King, 471 U.S. at 476-77; Bank Brussels Lambert, 305 F.3d at 129.
III. Defendant Harry Schimmel
Even after construing all pleadings and affidavits in the light most favorable to plaintiffs, and resolving all doubts in their favor, plaintiffs are unable to make a prima facie showing of personal jurisdiction over defendant Harry Schimmel. Harry Schimmel is a citizen and resident of the U.K., and it is undisputed that he undertook no affirmative acts in New York with respect to the transactions at issue. Further, the indirect actions alleged by plaintiffs are insufficient to establish jurisdiction under either the CPLR or federal due process.
For example, while plaintiffs assert generally that Harry Schimmel was a consultant to UKI and therefore personally benefitted from the transactions at issue, they present no evidence to rebut defendants' specific averment that Harry Schimmel's consultancy was limited to properties managed by UKI that pre-dated the earliest of the Ross transactions. (H. Schimmel Decl. ¶ 11; Reply Declaration of Harry C. Schimmel, dated June 19, 2003 ("H. Schimmel Reply Decl.") ¶ 5.) See, e.g., Kreutter, 71 N.Y.2d at 467 (must be a "substantial relationship between the transaction and the claim asserted"); McGowan, 52 N.Y.2d at 272 (must find "some articulable nexus between the business transacted and the cause of action sued upon").
Further, plaintiffs claim that this Court may exercise jurisdiction over Harry Schimmel pursuant to an agency theory on the grounds that he was a beneficial owner of at least some of the properties sold to Westbrook pursuant to Project Alliance. However, this Court may not exercise jurisdiction over Harry Schimmel under the agency theory absent any proof that he knew about, authorized, and exercised some control over the actions of Jacob Schimmel, Marc Schimmel, UKI, or Ross with respect to the Westcliff Oral Agreement. (H. Schimmel Decl. ¶ 11; H. Schimmel Reply Decl. ¶¶ 11, 13, 15.) See, e.g., Grove Press, 649 F.2d at 122 (in order to exercise jurisdiction over an agent, a court must find that the agent "acted in New York for the benefit of, with the knowledge and consent of, and under some control by, the nonresident principal"); Drucker Cornell v. Assicurazioni Generali S.p.A., Consol., Nos. 97 Civ. 2262, 98 Civ. 9186 (MBM), 2000 WL 284222, at *6 (S.D.N.Y. March 16, 2000) (in finding no jurisdiction under agency theory, stating "plaintiffs cannot rely upon such wholly non-specific allegations as the sole basis for connecting [defendant] to the alleged conspiracy").
Finally, plaintiffs' allegation that Harry Schimmel was the Chairman of UKI, and therefore is subject to the jurisdiction of this Court based on UKI's contacts, is unavailing. Even if Harry Schimmel were Chairman of UKI (Ross Decl. Ex. 2), plaintiffs make no effort to pierce UKI's corporate veil, nor could they on the record before this Court. Harry Schimmel's position with UKI does not by itself subject him to the jurisdiction of this Court. See, e.g., Black v. USA Travel Auth., No. 99 Civ. 11278 (WHP), 2001 WL 761070, at *4 (S.D.N.Y. July 6, 2001) ("It is well-settled that 'where a corporation is doing business in New York, an officer of the corporation does not subject himself, individually to . . . jurisdiction unless he is doing business in [New York] individually.'") (quoting United Mizrahi Bank Ltd. v. Sullivan, No. 97 Civ. 9282 (LMM), 2000 WL 1678040, at *3 (S.D.N.Y. Nov. 6, 2000)).
The gravamen of plaintiffs jurisdictional allegations concerning Harry Schimmel are that he is the "patriarch of the Schimmel family" and "de facto head of the Schimmel family empire." (Pl. Opp. at 1, 18; see also Ross Decl. ¶¶ 7-8 (Harry Schimmel is the "head . . . of the entire Schimmel real estate empire.").) Such conclusory allegations are insufficient to support a prima facie showing of personal jurisdiction under the New York long-arm statute, and do not comport with constitutional due process requirements. See Ball, 902 F.2d at 197. Accordingly, Harry Schimmel's Rule 12(b)(2) motion is granted, and all claims against defendant Harry C. Schimmel are dismissed.
The parties' various letters to this Court while the current motions were sub judice have no impact on this Court's determination. (Letters to the Court from Gerald Padian, Esq., dated August 19, September 18, and October 21, 2003; Letters to the Court from Marshall R. King, Esq., dated August 20, September 16, September 18, and October 27, 2003.) Plaintiffs' allegations that defendants were somehow trying to game this Court by asserting attorney-client privilege for Harry Schimmel based on a common interest while simultaneously arguing absence of personal jurisdiction are attractive, but ultimately fail to withstand scrutiny. Defendants' arguments concerning the "common interest" privilege for Harry Schimmel were based on transactions wholly separate from the Ross transactions that are the subject of this motion.See Ross v. UKI Ltd., No. 02 Civ. 9297 (WHP) (JCF), 2004 WL 67221, *3-8 (S.D.N.Y. Jan. 15, 2004).
IV. Defendants Marc Schimmel and Tonex
In contrast to their allegations concerning Harry Schimmel, plaintiffs have made out a sufficient prima facie case for this Court's exercise of personal jurisdiction over both Marc Schimmel and Tonex under an agency theory. Plaintiffs have alleged that Marc Schimmel knew of and consented to actions by Jacob Schimmel, UKI, and Ross in New York, and that he exercised at least "some control" over those actions. See Grove Press, 649 F.2d at 122. For example, Marc Schimmel played an active role in the negotiation of the Joint Venture Agreement in both his personal and corporate capacities (Ross Decl. ¶ 10-11), while directly and personally benefitting from Project Alliance (Ross Decl. ¶¶ 44-45, Exs. 11, 30-32). See CutCo Indus., 806 F.2d at 366 ("[W]here there is joint control of a business enterprise — similar to that existing in a partnership or joint venture — enough control has been shown to establish prima facie this particular element of agency to satisfy long-arm jurisdiction.").
In addition, Marc Schimmel was intimately involved in the negotiation of the failed Great Portland takeover, which led directly to the GMAC Oral Agreement and Project Aston Martin. (Ross Decl. ¶¶ 39-41, Ex. 29.) See, e.g., Kreutter, 71 N.Y.2d at 467 (must be a "substantial relationship between the transaction and the claim asserted"). Therefore, at this stage of the proceedings, Marc Schimmel may be presumed to have consented to, and exercised some control over, the execution of the Westbrook Oral Agreement and GMAC Oral Agreement in New York, thus subjecting him to jurisdiction under CPLR 302(a)(1).See A.I. Trade Fin., 989 F.2d at 79-80 (court must construe all pleadings and affidavits "in the light most favorable to the plaintiff and doubts are resolved in the plaintiff's favor, notwithstanding a controverting presentation by the moving party.") (emphasis added); see also CutCo Indus., 806 F.2d at 366 ("Under traditional agency law, joint participation in a partnership or joint venture establishes 'control' sufficient to make each partner or joint venturer an agent of the others.").
Further, exercising personal jurisdiction over Marc Schimmel comports with the requirements of the due process clause. Through his actions and the actions of his agents, Marc Schimmel purposefully availed himself of the privilege of doing business with plaintiffs in New York, and could reasonably anticipate having to defend his actions in a New York court.World-Wide Volkswagen, 444 U.S. at 297. As a result, Marc Schimmel has sufficient "minimum contacts" with New York such that the exercise of this Court's jurisdiction over him "does not offend traditional notions of fair play and substantial justice."Calder, 465 U.S. at 788. Further, after considering the factors established by the Supreme Court in Metro. Life Ins., 84 F.3d at 568, this Court's exercise of jurisdiction over Marc Schimmel is reasonable under the circumstances of this case. Accordingly, Marc Schimmel's motion to dismiss for lack of personal jurisdiction is denied.
As with Marc Schimmel, plaintiffs have made a sufficient prima facie showing that Jacob Schimmel, UKI, and Ross acted as agents of Tonex with respect to at least some of the transactions at issue. Tonex was the eventual Schimmel-controlled counterparty in the British Land Agreement (Ross Decl. ¶ 31, Ex. 13) and Project Aston Martin (Ross Decl. ¶ 54-55, Exs. 39-40), and was a direct beneficiary of Project Alliance (Ross Decl. ¶¶ 44-45, Exs. 11, 30-32). Further, plaintiffs have credibly alleged control over Tonex by members of the Schimmel family including Marc and Jacob Schimmel (Ross Decl. ¶¶ 27-28, Exs. 42-44), and UKI's role as Tonex's managing agent with respect to the above-mentioned transactions (Ross Decl. ¶ 54, Exs. 42-44). See A.I. Trade Fin., 989 F.2d at 79-80. Accordingly, plaintiffs have sufficiently demonstrated that Tonex knew of and consented to actions by Jacob Schimmel, UKI, and Ross in New York, and that it exercised at least "some control" over those actions, and thus personal jurisdiction under CPLR 302(a)(1) is appropriate. See Grove Press, 649 F.2d at 122.
In addition, this Court finds that, like Marc Schimmel, Tonex had sufficient minimum contacts with New York, and that the exercise of personal jurisdiction over Tonex comports with the "traditional notions of fair play and substantial justice" embodied in the due process clause of the Fourteenth Amendment. Int'l Shoe, 326 U.S. at 316. Therefore, Tonex's motion to dismiss based on lack of personal jurisdiction is denied.
CONCLUSION
For the foregoing reasons: (1) defendant Harry C. Schimmel's Rule 12(b)(2) motion to dismiss based on lack of personal jurisdiction is granted, and plaintiffs' claims against him are dismissed; (2) defendant Abraham Moses ("Marc") Schimmel's Rule 12(b)(2) motion is denied; and (3) defendant Tonex Holdings Ltd.'s Rule 12(b)(2) motion is denied.SO ORDERED.