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disregarding defendants' forum non conveniens motion after granting defendants' motion to dismiss for lack of personal jurisdiction
Summary of this case from Mount Whitney Invs., LLLP v. Goldman Morgenstern & Partners Consulting, LLCOpinion
10 Civ. 8899 (RMB)
03-02-2012
COERTE VAN WAGONER FELSKE, et al., Plaintiffs, v. CARL HIRSCHMANN III, et al., Defendants.
DECISION & ORDER
I. Introduction
On February 17, 2011, Coerte Van Wagoner Felske ("Felske"), a citizen of the United States and a New York resident, filed an amended complaint ("Complaint") on behalf of himself and his minor daughter, B., a citizen of Switzerland and a New York resident (together, "Plaintiffs") against B.'s mother and grandmother, Sandra Zita and Maya Zita, citizens and residents of Switzerland. (Compl. ¶¶ 1, 5-6.) Plaintiffs assert common law claims of unlawful interference with parental rights, intentional infliction of emotional distress, and false imprisonment. (Compl. ¶¶ 36-55.) Plaintiffs allege that Sandra Zita, Maya Zita, and Sandra Zita's former "paramour," Carl Hirschmann, conspired in 2008 unlawfully to take B. from New York to Switzerland and to keep her there in violation of court orders issued by the Swiss Cantonal Court in Zurich, Switzerland and the Swiss Supreme Court. (See infra p. 4; Compl. ¶¶ 5, 7, 22 ("[T]he retention of B. in Switzerland . . . was in violation of Felske's rights.").) Carl Hirschmann passed away on June 30, 2010, and Plaintiffs seek to sue his sons, Carl Hirschmann III and Michael Hirschmann (together, the "Hirschmann Defendants"), who are citizens and residents of Switzerland and who, "[u]pon information and belief . . . are personal representative(s) of the estate under Swiss law," but not his executor. (Compl. ¶ 3.) Plaintiffs also sued "John Doe" "as the personal representative of the Estate of Carl Hirschmann." (Compl. ¶ 3.)
There is also currently pending a custody proceeding in New York State Family Court, Suffolk County. See Felske v. Zita, Docket Nos. V02798-10-10A/10B & O-07592-10 (N.Y. Fam. Ct. (2008); (see also infra p. 4.)
On or about September 19, 2011, the Court dismissed the action against "John Doe" because of Plaintiffs' failure to effectuate service. (See Tr. of Proceedings, dated Sept. 19, 2011 ("Hr'g Tr."), at 3:17-24 (DEF. COUNSEL: "[W]ith regard to one of the defendants, this John Doe defendant that was named . . ., there has been no action, no further action, to serve or identify that defendant. And . . . we would submit that it is time for that defendant to be dismissed at least without prejudice." THE COURT: "Yes, that was the first thing I said, so that's done.")); see Fed. R. Civ. P. 4(m); see also Jones v. Mack, No. 08 Civ. 6089, 2012 WL 386269, at *6 (S.D.N.Y. Feb. 3, 2010) (where "Plaintiff has been provided ample opportunity to identify and serve the named John Doe defendant").
On October 6, 2011, the Hirschmann Defendants filed a motion to dismiss the Complaint ("Motion"), pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, arguing, among other things, that (1) "[j]urisdiction cannot be based on New York Civil Practice Law and Rules ('CPLR') § 301 because [the Hirschmann Defendants] are not doing business in New York State, were not served with process here, do not own property here, and have not consented to jurisdiction here"; (2) "[l]ong arm jurisdiction under CPLR § 302 is also not available" because "neither Carl nor Michael Hirschmann is an executor, administrator[,] or personal representative of the[ir father's] estate"; and (3) this action should also be dismissed based on the doctrine of forum non conveniens because "the allegedly wrongful events occurred in Switzerland; the location of non-party witnesses to those events, and records concerning them, is also in foreign countries; [and P]laintiffs' claims are primarily based on alleged violations of orders issued in Switzerland." (Mem. of Law in Supp. of Mot. to Dismiss, dated Oct. 6, 2011 ("Defs. Mem."), at 1-2.)
Sanda Zita and Maya Zita did not join in the Hirschmann Defendants' Motion.
On November 7, 2011, Plaintiffs' filed an opposition (1) conceding that there is no basis for personal jurisdiction under CPLR § 301 by not responding to the Hirschmann Defendants' argument (Pl. Opp'n at 1-17); (2) arguing that personal jurisdiction is proper under CPLR § 302(a) because the Hirschmann Defendants are "personally liable for [their father's] debt," and "fill the . . . role [of administrator or executor] as far as being a proper address for the receipt of claims"; and (3) New York is the appropriate forum for this case because "[t]he damages suffered by . . . Plaintiffs can best be measured where they are located, New York"; "[d]ocuments can be translated" and "witnesses are here or can come here"; and the "United States has a public interest in protecting its citizens and residents from wrongful retention abroad." (Mem. of Law in Opp'n to Mot. to Dismiss, dated Nov. 7, 2011 ("Pls. Mem."), at 2, 3-4, 12.)
On November 21, 2011, the Hirschmann Defendants filed a reply arguing, among other things, that Plaintiffs' "positions on virtually all [of] the issues involved in this motion (jurisdiction, proper parties, vicarious liability, . . . etc.), are based on interpretations of Swiss law and Swiss court decisions." (See Reply Mem. of Law in Further Supp. of Mot. to Dismiss, dated Nov. 21, 2011, at 7.)
The parties waived oral argument. (See Hr'g Tr. at 6:20-25.) They also agreed that the Hirschmann Defendants' motion to dismiss, if successful, would be with prejudice. (See Hr'g Tr. at 4:23-25, 5:1-3 (THE COURT: "Did you [Plaintiffs] want to amend your complaint before he makes his motion? Because if his motion succeeds, it won't be amended afterwards - the case will be over." PLS.' COUNSEL: "No, we are not aware of a need for any further amendment, your Honor.").)
II. Background
For the purposes of the Motion, the allegations of the Complaint are taken as true. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996).
Coerte Felske and Sandra Zita are the biological parents of B., who was born in Switzerland on February 14, 2000. (Compl. ¶ 8.) Felske and Sandra Zita were never married but they lived together with B. in New York City until Felske and Sandra Zita "separated in Spring 2004." (Compl. ¶ 9.) Beginning in February 2005, B. lived solely with Felske in New York City and visited Sandra Zita in Europe "approximately twice a year, once during her winter break from school and once in the summer." (Compl. ¶¶ 9-11.) In June 2008, Felske and Sandra Zita agreed that B. would travel from New York to Switzerland with Sandra's mother, Maya Zita, and that Sandra Zita would return B. to New York at the end of the summer, i.e., on September 2, 2008. (Compl. ¶ 13.) Sometime in August 2008, Carl Hirschmann "approached Felske at a party [where] both were attending and indicated to [Felske] that he and [Sandra] Zita intended to keep B. with them," and that B. "would not be return[ing] . . . to New York at the end of the summer." (Compl. ¶¶ 15-16.) In fact, Sandra Zita did not return B. to New York on September 2, 2008. (Compl. ¶¶ 4, 21.)
As noted, on September 12, 2008, Felske initiated a legal action for custody of B. in New York State Family Court, Suffolk County. See Felske v. Zita, Docket Nos. V02798-10-10A/10B & O-07592-10 (N.Y. Fam. Ct. (2008); (see also supra n.1.) On February 7, 2009, while the Family Court action was pending, Felske initiated a separate action, pursuant to the Hague Convention on Civil Aspects of International Child Abduction, in the Swiss Cantonal Court in Zurich, Switzerland. See van Wagoner-Felske v. Zita, Business # NL090113/U (Court of the Canton Zűrich, 2nd Civil Chamber) (2009). On November 3, 2009, the Swiss Cantonal Court found that "B.'s place of habitual residence was New York, that Felske had . . . custody over B. under the laws of the State of New York, [and] that the retention of B. in Switzerland . . . was in violation of Felske's rights." (Compl. ¶ 22); see also van Wagoner-Felske v. Zita, Business # NL090113/U (Court of the Canton Zűrich, 2nd Civil Chamber) (2009). The Swiss Cantonal Court ordered the return of B. to New York. (Compl. ¶ 23.) Sandra Zita appealed the Swiss Cantonal Court decision and on January 11, 2010 the Swiss Supreme Court affirmed and "ordered" Sandra Zita "to return B." "to the U[nited] S[tates]." (Verdict, van Wagoner-Felske v. Zita, Federal Court, Division II of Civil Law (2010), ¶ 2.)
The Honorable Joan M. Genchi is currently presiding over the trial of the custody case. See Felske, Docket Nos. V02798-10-10A/10B & O-07592-10; (see also supra n.1 above.)
Notwithstanding the January 11, 2010 Order of the Swiss Supreme Court, Sandra Zita did not return B. to New York, and, instead, she continued to keep her "hidden away in Hirschmann's mansion in the Swiss Alps." (Compl. ¶¶ 21-22.) In February 2010, B. was "physically seized by Swiss police from [Carl] Hirschmann's residence," and "flown immediately to the United States." (Compl. ¶ 24.)
On July 30, 2010, Carl Hirschmann passed away "without leaving behind any valid will." (Aff. of Mark Livschitz, dated Oct. 5, 2011 ("Livschitz Aff."), ¶ 20.) The Hirschmann Defendants are distributees, but "not executors, administrators, or otherwise appointed representatives of their father's estate." (See Livschitz Aff. ¶ 20; Aff. of Michael Hirschmann in Supp. of Mot. to Dismiss, dated Oct. 5, 2011 ("Michael Hirschmann Aff."), ¶ 3; Aff. of Carl Hirschmann III in Supp. of Mot. to Dismiss, dated Oct. 5, 2011 ("Carl Hirschmann Aff."), ¶ 3.)
For the reasons stated below, the Hirschmann Defendants' motion to dismiss is granted.
III. Legal Standard
"A motion to dismiss must be granted if a court lacks personal jurisdiction over a defendant." John Wiley & Sons, Inc. v. Treeakarabenjakul, No. 09 Civ. 2108, 2009 WL 1766003, at *3 (S.D.N.Y. June 18, 2009). District courts resolving issues of personal jurisdiction must "determine whether there is jurisdiction over the defendant under the relevant forum state's laws." Whitaker v. Fresno Telsat, Inc., 87 F. Supp. 2d 227, 229 (S.D.N.Y. 1999) (citing Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999)).
A plaintiff effectively concedes a defendant's arguments by his failure to respond to them. See Rosenblatt v. City of N.Y., No. 05 Civ. 5521, 2007 WL 2197835, at *7 (S.D.N.Y. July 31, 2007); Abrahams v. Young & Rubicam Inc., 79 F.3d 234, 237 n.2 (2d Cir. 1996).
Section 302(a) of the CPLR provides that "a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator . . . ." See N.Y.C.P.L.R. § 302(a) (McKinney 2010). New York's Estates, Powers and Trust Laws define an administrator or executor as "a person who has received letters to administer the estate of a decedent." N.Y. Est. Powers & Trusts Law § 1-2.13; see also Jimenez-Rodoli v. Dist. 15 Machinist's Union, No. 10 Civ. 8378, 2011 WL 4494555, at *1-2 (S.D.N.Y. Sept. 27, 2011).
IV. Analysis
(1) CPLR § 301
The Hirschmann Defendants argue that there is no basis for personal jurisdiction under CPLR § 301 because "they are not doing business in New York State, were not served with process here, do not own property here, and have not consented to jurisdiction here." (Defs. Mem. at 1.) Because Plaintiffs fail to respond to this argument in their memoranda of law (see Pl. Opp'n at 1-17), Plaintiffs have effectively conceded that there is no basis for jurisdiction under CPLR § 301. See Rosenblatt, 2007 WL 2197835, at *7; see also First Cap. Assset Mgmt., Inc. v. Brickelbush, Inc., 281 F. Supp. 2d 369, 393 (S.D.N.Y. 2002); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir. 2000).
(2) CPLR § 302(a)
The Hirschmann Defendants argue, among other things, that there is no basis for personal jurisdiction under CPLR § 302(a) because the Hirschmann Defendants are not the "executors or administrators" of their father's estate, which "is the only predicate stated in CPLR § 302 for asserting personal jurisdiction over someone other than the non-domiciliary actor himself." (Defs. Reply at 2.) Plaintiffs argue that jurisdiction is proper under CPLR § 302(a) because the Hirschmann Defendants are "personally liable for the[ir father's] debt" and "fill the same role as far as being a proper address for the receipt of claims." (Pl. Opp'n at 4.)
Section 302(a) of the CPLR provides that a Court may exercise jurisdiction over only a "non-domiciliary, or his executor or administrator." N.Y.C.P.L.R. § 302(a) (McKinney 2010). A court may not deem an individual to be an administrator or an executor of an estate "absent proof that [such individual(s)] was granted testamentary letters of administrator regarding the [e]state." Garcia v. City of N.Y., No. 08 Civ. 2152, 2009 WL 261365, at *1 (E.D.N.Y. Feb. 4, 2009); see also Del Valle v. Veterans Admin., Kingsbridge, 571 F. Supp. 676, 679 (S.D.N.Y. 1983).
Plaintiffs fail to provide any evidence that the Hirschmann Defendants were granted testamentary letters of administrator regarding their father's estate. See N.Y. Est. Powers & Trusts Law § 1-2.13; see also Garcia, 2009 WL 261365, at *1; Allen ex rel. Allen v. Devine, Nos. 09 Civ. 668, 10 Civ. 1319, 2011 WL 5117619, at *4 (E.D.N.Y. Oct. 5, 2011). In fact, Plaintiffs indicate that there is an executor or administrator ("John Doe") other than the Hirschmann Defendants. (See Compl. ¶ 3.) Plaintiffs' allegation that, "upon information and belief," the Hirschmann Defendants "are personal representative(s) of the estate" and "are liable for the debts of the estate" is insufficient to establish personal jurisdiction. (Compl. ¶ 3); see also Senese v. Hindle, No. 11 Civ. 0072, 2011 WL 4536955, at *7 (E.D.N.Y. Sept. 9, 2011) ("Conclusory allegations showing the presence of jurisdiction, particularly those stated only 'upon information and belief' are insufficient to establish . . . personal jurisdiction over the defendant.") (internal citation omitted); Ganoe v. Lummis, 662 F. Supp. 718, 724 (S.D.N.Y. 1987); see also N.Y.C.P.L.R. § 302(a) (McKinney 2010).
(3) Forum Non Conveniens
Having granted the Hirschmann Defendants' motion to dismiss for lack of personal jurisdiction, the Court need not address their arguments for dismissal based on forum non conveniens. See Panacea Solutions, Inc. v. Roll, No. 05 Civ. 10089, 2006 WL 3096022, at *6 (S.D.N.Y. Oct. 31, 2006); In re Ski Train Fire in Kaprun, Austria on November 11, 2000, 342 F. Supp. 2d 207, 209 n.2 (S.D.N.Y. 2004).
V. Conclusion & Order
For the reasons stated herein the Hirschmann Defendants' motion to dismiss [#24] is granted.
The remaining parties shall appear before the Court for a settlement conference on March 26, 2012 at 9:30 a.m. in Courtroom 12D of the United States Courthouse, 500 Pearl Street, New York, New York. The remaining parties are directed to engage in good faith settlement negotiations prior to the conference. Dated: New York, New York
March 2, 2012
/s/ _________
RICHARD M. BERMAN, U.S.D.J.