Henkin v. Gibraltar Private Bank & Trust CompanyMOTION to Dismiss for Lack of JurisdictionE.D.N.Y.March 31, 2017UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK Edward R. Henkin, Plaintiff, v. Gibraltar Private Bank & Trust Company, Defendant. Case No. 16-cv-5452 (LDW) (AKT) NOTICE OF MOTION TO DISMISS PLEASE TAKE NOTICE that upon the annexed Declaration of Michael C. Sontag, dated March 2, 2017, the accompanying Memorandum of Law, and the Complaint herein, and all other prior pleadings and proceedings in this action, defendant Gibraltar Private Bank & Trust Company (“Gibraltar”), will move this Court, before the Honorable Leonard D. Wexler, at the United States Courthouse, 944 Federal Plaza, Central Islip, New York, on March 31, 2017, for an Order pursuant to Federal Rule of Civil Procedure 12(b)(2), dismissing the Complaint for lack of personal jurisdiction or, in the alternative, an Order pursuant to Federal Rule of Civil Procedure 12(b)(3), dismissing the Complaint for improper venue, and for any other just and proper relief. PLEASE TAKE FURTHER NOTICE that pursuant to the Court’s Order dated February 28, 2017, Plaintiff shall serve his opposition to this motion, if any, on or before March 24, 2017, and Gibraltar shall serve its reply papers on or before March 31, 2017. Case 2:16-cv-05452-LDW-AKT Document 27 Filed 03/31/17 Page 1 of 3 PageID #: 152 Dated: March 2, 2017 New York, New York Respectfully submitted, BUCKLEYSANDLER LLP Attorneys for Defendant Gibraltar Private Bank & Trust Company /s/ Ross E. Morrison Ross E. Morrison Dana W. Kumar 1133 Avenue of the Americas, Suite 3100 New York, New York 10036-6710 Tel: 212-600-2315 Fax: 212-600-2405 rmorrison@buckleysandler.com dkumar@buckleysandler.com Case 2:16-cv-05452-LDW-AKT Document 27 Filed 03/31/17 Page 2 of 3 PageID #: 153 CERTIFICATE OF SERVICE I hereby certify that on March 2, 2017, defendant Gibraltar Private Bank & Trust Company’s Notice of Motion to Dismiss, the Memorandum of Law in Support of Defendant’s Motion to Dismiss the Complaint, and the Declaration of Michael C. Sontag, dated March 2, 2017, were served via electronic mail upon: Darren Aronow Aronow Law P.C. 20 Crossways Park Drive North, Suite 210 Woodbury, New York 11797 Telephone: (516) 762-6700 Facsimile: (516) 342-5365 darren@dalawpc.com Justin Baxter Baxter & Baxter, LLP 8835 S.W. Canyon Lane, Suite 130 Portland, Oregon 97225-3451 Telephone: (503) 297-9031 Facsimile: (503) 291-9172 justin@baxterlaw.com BUCKLEYSANDLER LLP Attorneys for Defendant Gibraltar Private Bank & Trust Company By: Ross E. Morrison 1133 Avenue of the Americas, Suite 3100 New York, New York 10036 Telephone: (212) 600-2315 Facsimile: (212) 600-2405 rmorrison@buckleysandler.com /s/ Ross E. Morrison Case 2:16-cv-05452-LDW-AKT Document 27 Filed 03/31/17 Page 3 of 3 PageID #: 154 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK Edward R. Henkin, Plaintiff, v. Gibraltar Private Bank & Trust Company, Defendant. Case No. 16-cv-5452 (LDW) (AKT) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT GIBRALTAR PRIVATE BANK AND TRUST COMPANY’S MOTION TO DISMISS THE COMPLAINT Ross E. Morrison Dana W. Kumar Buckley Sandler LLP 1133 Avenue of the Americas, Suite 3100 New York, New York 10036 Tel.: (212) 600-2315 Counsel for Defendant Gibraltar Private Bank & Trust Company Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 1 of 27 PageID #: 155 TABLE OF CONTENTS Page Preliminary Statement ......................................................................................................................1 Factual Background .........................................................................................................................3 The Parties ...........................................................................................................................3 The Complaint .....................................................................................................................3 Argument .........................................................................................................................................4 I. Legal Standards ....................................................................................................................4 II. The Court Lacks Personal Jurisdiction Over Gibraltar ........................................................5 A. General Personal Jurisdiction Does Not Exist Over Gibraltar.....................6 B. Specific Personal Jurisdiction Does Not Exist Over Gibraltar ..................10 III. Venue is Improper in the Eastern District of New York ...................................................14 Conclusion .....................................................................................................................................16 Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 2 of 27 PageID #: 156 TABLE OF AUTHORITIES Page(s) Cases Blauschild v. Tudor, 31 F. Supp. 3d 527 (E.D.N.Y. 2014) .................................................................................15, 16 Bonkowski v. HP Hood LLC, No. 15-CV-4956 (RRM) (PK), 2016 WL 4536868 (E.D.N.Y. Aug. 30, 2016) ............5, 6, 8, 9 Brown v. Lockheed Martin Corp., 814 F.3d 619 (2d Cir. 2016)...............................................................................................5, 7, 8 Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158 (2d Cir. 2010).................................................................................................6, 10 Cole v. Capital One, N.A., No. GJH-15-1121, 2016 WL 2621950 (D. Md. May 5, 2016) ................................................13 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) .........................................................................................................1, 6, 7 Doe v. Nat’l Conference of Bar Exam’rs, No. 16-CV-264 (PKC), 2017 WL 74715 (E.D.N.Y. Jan. 6, 2017) ..........................................14 Fisher v. Int’l Student Exch., Inc., 38 F. Supp. 3d 276, 285 (E.D.N.Y. 2014) ..............................................................................16 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) .......................................................................................................1, 5, 6, 7 Gucci Am., Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014).......................................................................................................7 Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353 (2d Cir. 2005).....................................................................................................14 Hill v. HSBC Bank plc, No. 14-CV-9745 (LTS), 2016 WL 4926199 (S.D.N.Y. Sept. 15, 2016) .........................................................................................................................11 Ingenito v. Riri USA, Inc., 89 F. Supp. 3d 461 (E.D.N.Y. 2015) .........................................................................................4 International Shoe Co. v. Washington, 326 U.S. 310 (1945) ................................................................................................................10 Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 3 of 27 PageID #: 157 Johnson v. Warren Fed. Credit Union, No. 15-CV-1354-D, 2016 WL 3633437 (W.D. Okla. June 29, 2016).................................5, 13 Jonas v. Estate of Leven, 116 F. Supp. 3d 314 (S.D.N.Y. 2015)........................................................................................2 Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 937 F.2d 44 (2d Cir. 1991).....................................................................................................8, 9 Landoil Res. Corp. v. Alexander & Alexander Servs., Inc., 565 N.E.2d 488 (N.Y. 1990) .....................................................................................................6 Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50 (2d Cir. 2012)..................................................................................................... 4-5 New Son Yeng Produce, LLC v. A & S Produce, Inc., No. 07-CV-4292 (KAM) (RML), 2009 WL 2568566 (E.D.N.Y. Aug. 19, 2009) ........................................................................................................................................15 NewMarkets Partners LLC v. Oppenheim, 638 F. Supp. 2d 394 (S.D.N.Y. 2009)................................................................................11, 12 Norcom v. Lease Fin. Group, LLC, No. 13-CV-2252 (KI), 2014 WL 2747652 (D. Or. June 17, 2014) .........................................13 PDK Labs, Inc. v. Friedlander, 103 F.3d 1105 (2d Cir. 1997).....................................................................................................5 Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30 (2d Cir. 2010).........................................................................................................4 Reich v. Lopez, 38 F. Supp. 3d 436 (S.D.N.Y. 2014)..........................................................................................8 Shostack v. Diller, No. 15-CV-2255 (GBD) (JLC), 2016 WL 958687 (S.D.N.Y. Mar. 8, 2016) ...........................5 Sonera Holding B.V. v. Cukurova Holdings A.S., 750 F.3d 221 (2d Cir. 2014).......................................................................................................6 Strauss v. Crédit Lyonnais, S.A., 175 F. Supp. 3d 3 (E.D.N.Y. 2016) .......................................................................................4, 7 Stroud v. Tyson Foods, Inc., 91 F. Supp. 3d 381 (E.D.N.Y. 2015) .........................................................................................6 Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 4 of 27 PageID #: 158 Sullivan v. Barclays PLC, No. 13-CV-2811 (PKC), 2017 WL 685570 (S.D.N.Y. Feb. 21, 2017) .....................................8 Taormina v. Thrifty Car Rental, No. 16-CV-3255 (VEC), 2016 WL 7392214 (S.D.N.Y. Dec. 21, 2016)...................................8 In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659 (2d Cir. 2013).....................................................................................................10 Troma Entm’t, Inc. v. Centennial Pictures, Inc., 729 F.3d 215 (2d Cir. 2013).......................................................................................................4 Walden v. Fiore, 134 S. Ct. 1115 (2014) .................................................................................................10, 11, 12 Waldman v. Palestine Liberation Org., 835 F.3d 317 (2d Cir. 2016).....................................................................................................10 Weiss v. Nat’l Westminster Bank PLC, 176 F. Supp. 3d 264 (E.D.N.Y. 2016) .......................................................................................7 Zellerino v. Roosen, 118 F. Supp. 3d 946 (E.D. Mich. 2015) .............................................................................12, 13 Statutes 28 U.S.C. § 1391 ......................................................................................................................14, 15 15 U.S.C. § 1681 et seq.......................................................................................................... passim N.Y. Bus. Corp. L.§ 1301 ................................................................................................................9 N.Y. C.P.L.R. § 301 ............................................................................................................... passim N.Y. C.P.L.R. § 302 ............................................................................................................... passim Rules Fed. R. Civ. P. 12(b)(2)................................................................................................................1, 4 Fed. R. Civ. P. 12(b)(3)....................................................................................................................1 Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 5 of 27 PageID #: 159 1 Pursuant to Fed. R. Civ. P. 12(b)(2) and (b)(3), Defendant Gibraltar Private Bank & Trust Company (“Gibraltar”), respectfully submits this memorandum of law in support of its motion to dismiss the Complaint for lack of personal jurisdiction or, in the alternative, for improper venue. Preliminary Statement In his Complaint, Plaintiff Edward R. Henkin, a real estate developer who lives in East Hampton, New York, alleges that Gibraltar, a Florida-based savings association, violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §1681 et seq. In December 2007, Plaintiff obtained a second lien home equity loan from Gibraltar’s Florida headquarters for property located in Miami-Dade County, Florida. After Plaintiff defaulted on that loan as well as the primary mortgage on the property, Plaintiff entered into an agreement whereby Gibraltar accepted less than the full amount of the outstanding loan balance in satisfaction of the loan. According to the Complaint, Plaintiff then complained to the three major credit reporting agencies about how they were reporting the status of his loan. The Complaint alleges that Gibraltar violated the FCRA by failing to conduct a reasonable investigation in response to these complaints and continuing to report his loan as delinquent to the credit reporting agencies. The Court should dismiss the Complaint because personal jurisdiction does not exist over Gibraltar. Under the Supreme Court’s decisions in Daimler AG v. Bauman, 134 S. Ct. 746, 749 (2014), and Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011), an out-of-state corporate defendant must be “essentially at home” in New York, i.e., it must be incorporated or have its principal place of business here, for this Court to have general personal jurisdiction over and adjudicate any and all claims against Gibraltar, regardless of whether those claims have any connection to New York. Gibraltar, a federally chartered savings association, is not “essentially at home” in New York: its headquarters are in Coral Gables, Florida, it has a total of seven branches and 276 employees in Florida, and these operations account for Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 6 of 27 PageID #: 160 2 approximately ninety-five percent of Gibraltar’s gross revenue. By contrast, Gibraltar’s only non-Florida branch is a single branch located in Manhattan, New York, which has a total of eight employees and accounts for approximately five percent of Gibraltar’s gross revenue. Moreover, under well-established principles, the fact that Gibraltar is registered to do business in New York, and that plaintiff alleges that it has filed foreclosure actions in this State against New York properties, does not establish general personal jurisdiction. The Court also lacks specific personal jurisdiction over Gibraltar because Plaintiff’s FCRA claims have no connection whatsoever to New York. Indeed, Plaintiff’s claims involve a loan issued by Gibraltar in Florida for property located in Florida, and Plaintiff’s complaints about how Gibraltar reported the loan to the credit reporting agencies were addressed exclusively by Gibraltar employees located in Gibraltar’s Coral Gables headquarters. And as a matter of law, the fact that Plaintiff resides in New York and claims his injury occurred here are insufficient links with this State to establish personal jurisdiction over a foreign defendant like Gibraltar. The Court therefore should dismiss the Complaint. In the alternative, the Eastern District of New York is not the proper venue for this action. Gibraltar has no presence in this District and, as noted, none of the events giving rise to Plaintiff’s claims occurred here. Accordingly, venue is improper and the Court can dismiss the Complaint on this basis as well. Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 7 of 27 PageID #: 161 3 Factual Background 1 The Parties Plaintiff, a real estate developer, currently resides in East Hampton, New York. 2 (Compl., ¶ 2). Gibraltar is a federally chartered savings association headquartered in Coral Gables, Florida. (Declaration of Michael Sontag, dated March 2, 2017 (“Sontag Decl.”), ¶ 4). Gibraltar has seven branches in Florida, including its Coral Gables headquarters. (Id.). Gibraltar has approximately 276 employees in total at its seven Florida branches, and derives nearly all of its gross revenue (i.e., approximately ninety-five percent), from these Florida branches. (Id.). Gibraltar has a single non-Florida branch, which is located at 280 Park Avenue, New York, New York. (Id., ¶ 5). The New York branch has eight employees, and Gibraltar correspondingly derives a very small amount of its gross revenue (i.e., approximately five percent), from this branch. (Id.). The Complaint Plaintiff obtained a second lien home equity line of credit loan from Gibraltar on December 6, 2007 (the “Loan”), for property located in Miami-Dade County, Florida. (Compl., ¶ 6, Ex. A). The Loan was originated and underwritten out of Gibraltar’s Florida headquarters by Gibraltar employees located there. (Sontag Decl., ¶ 6). After Plaintiff defaulted on the principal mortgage on the property held by JP Morgan Chase, and JP Morgan Chase commenced foreclosure proceedings against the property, Plaintiff defaulted on his Loan with Gibraltar. (Id., 1 In deciding a motion to dismiss a complaint for lack of personal jurisdiction, the Court may consider materials outside the pleadings, including affidavits and other written materials. Jonas v. Estate of Leven, 116 F. Supp. 3d 314, 323 (S.D.N.Y. 2015) (citing MacDermid, Inc. v. Deiter, 702 F.3d 725, 727 (2d Cir. 2012)). 2 Plaintiff operates “Edge Hill Homes,” which specializes in developing “Custom Luxury Homes in Miami, Palm Beach and the Hamptons.” See “Edge Hill Homes,” available at http://edgehillhomes.net/#welcome1 (last visited February 15, 2017). Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 8 of 27 PageID #: 162 4 ¶ 7). On May 29, 2013, Plaintiff and Gibraltar entered into an agreement whereby Gibraltar accepted less than the full amount of the outstanding Loan balance in satisfaction of the Loan. (Compl., ¶ 7, Ex. A). The Complaint alleges that Plaintiff subsequently sent Gibraltar, as well as the three major Credit Reporting Agencies (i.e., Experian, Equifax and TransUnion) (the “CRAs”), letters disputing the manner in which the CRAs were reporting the Loan on Plaintiff’s credit reports. (Id., ¶ 9). Plaintiff alleges that Gibraltar violated the FCRA, 15 U.S.C. § 1681s-2(b), by failing to conduct a reasonable investigation in response to his complaints to the CRAs, and continuing to report to the CRAs that the Loan was delinquent, thereby negatively impacting his credit and rendering him unable to obtain a mortgage for property owned by Plaintiff’s real estate company. (Compl., ¶¶ 10-11, 13-17). Gibraltar employees located in Gibraltar’s Florida headquarters conducted all investigations concerning Plaintiff’s inquiries, complaints or disputes concerning his Loan and how Gibraltar was reporting the Loan or the history of the Loan to the CRAs, and made all responses to all such inquiries, complaints or disputes. (Sontag Decl., ¶ 8). No employees at Gibraltar’s New York branch had any involvement in any way with such inquiries, complaints or disputes. (Id.). Argument I. Legal Standards On a motion made pursuant to Fed. R. Civ. P. 12(b)(2), the plaintiff bears the burden of establishing that a court has personal jurisdiction over a defendant, and must make a prima facie showing that jurisdiction exists. See Troma Entm’t, Inc. v. Centennial Pictures, Inc., 729 F.3d 215, 217 (2d Cir. 2013); Strauss v. Crédit Lyonnais, S.A., 175 F. Supp. 3d 3, 16 (E.D.N.Y. 2016); Ingenito v. Riri USA, Inc., 89 F. Supp. 3d 461, 471-72 (E.D.N.Y. 2015). To make the Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 9 of 27 PageID #: 163 5 requisite showing, a plaintiff must plead “legally sufficient allegations of jurisdiction, including an averment of facts that, if credited[,] would suffice to establish jurisdiction over the defendant.” Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 35 (2d Cir. 2010) (alteration in original) (internal quotation marks omitted). In assessing whether a plaintiff has met this burden, courts “will not draw argumentative inferences in the plaintiff’s favor” nor are they required to “accept as true a legal conclusion couched as a factual allegation.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012) (internal quotation marks omitted). II. The Court Lacks Personal Jurisdiction Over Gibraltar Courts may exercise either general or specific personal jurisdiction over an out-of-state corporate defendant. Goodyear, 564 U.S. at 919. General jurisdiction “allows a court to adjudicate ‘any and all’ claims against a defendant, regardless of whether the claims are connected to the forum state.” Bonkowski v. HP Hood LLC, No. 15-CV-4956 (RRM) (PK), 2016 WL 4536868, at *2 (E.D.N.Y. Aug. 30, 2016) (quoting Goodyear, 564 U.S. at 919); see Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d Cir. 2016) (general jurisdiction “permits a court to adjudicate any cause of action against the corporate defendant, wherever arising, and whoever the plaintiff”). Specific jurisdiction is “available when the cause of action sued upon arises out of the defendant’s activities in a state.” Id. In determining whether personal jurisdiction exists over an out-of-state defendant in New York, courts first look to New York’s long-arm statute, i.e. New York Civil Practice Law and Rules (“CPLR”) §§ 301 and 302, and Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 10 of 27 PageID #: 164 6 second, to whether exercising jurisdiction under that statute comports with due process. 3 Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163-64 (2d Cir. 2010). A. General Personal Jurisdiction Does Not Exist Over Gibraltar General personal jurisdiction does not exist over Gibraltar in New York. CPLR § 301 confers “jurisdiction where a company ‘has engaged in such a continuous and systematic course of “doing business” [in New York] that a finding of its “presence” [in New York] is warranted.’” Sonera Holding B.V. v. Cukurova Holdings A.S., 750 F.3d 221, 224 (2d Cir. 2014) (alterations in original) (quoting Landoil Res. Corp. v. Alexander & Alexander Servs., Inc., 565 N.E.2d 488, 490 (N.Y. 1990)). After the Supreme Court’s decisions in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. at 919, and Daimler AG v. Bauman, 134 S. Ct. at 749, the relevant inquiry under § 301, like the constitutional inquiry, is not “whether a corporation’s activities within a forum are ‘in some sense continuous and systematic,’ but rather ‘whether the corporation’s affiliations with the State are so continuous and systematic as to render [it] essentially at home in the forum state.’” Bonkowski, 2016 WL 4536868, at *2 (alteration in original) (emphasis added) (quoting Daimler, 134 S. Ct. at 749). According to Goodyear and Daimler, the paradigm forums for general jurisdiction are a corporation’s place of incorporation and its principal place of business. Daimler, 134 S. Ct. at 760 (citing Goodyear, 564 U.S. at 924). Jurisdiction can be established in states other than an entity’s state of incorporation or 3 In federal question cases, “where a defendant resides outside the forum state, a federal court applies the forum state’s personal jurisdiction rules if the federal statute does not specifically provide for national service of process.” PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997) (internal quotation marks omitted). The FCRA does not provide for national service of process and thus, New York law applies. See Johnson v. Warren Fed. Credit Union, No. 15-CV-1354-D, 2016 WL 3633437, at *2 (W.D. Okla. June 29, 2016); Shostack v. Diller, No. 15-CV-2255 (GBD) (JLC), 2016 WL 958687, at *2 (S.D.N.Y. Mar. 8, 2016). Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 11 of 27 PageID #: 165 7 principal place of business only in the very rare case where a plaintiff can show that the business’ activities in the forum render it “essentially at home” there. Id. at 749. This is an exceedingly high standard. After Daimler, courts have noted that it is “incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business.” Stroud v. Tyson Foods, Inc., 91 F. Supp. 3d 381, 387 (E.D.N.Y. 2015) (emphasis added) (quoting Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014)). It is only an “‘exceptional’ case” where a jurisdiction other than an entity’s state of incorporation or principal place of business may exercise general jurisdiction over an out-of-state defendant. Brown, 814 F.3d at 627; Stroud, 91 F. Supp. 3d at 387 (describing “stringent” standard that exists after Daimler). Indeed, “a corporation ‘that operates in many places can scarcely be deemed at home in all of them.’” Id. at 629 (quoting Daimler, 134 S. Ct. at 762 n.20). This means that “when a corporation is neither incorporated nor maintains its principal place of business in a state, mere contacts, no matter how ‘systematic and continuous,’ are extraordinarily unlikely to add up to an ‘exceptional case.’” Id.; see Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135 (2d Cir. 2014) (presence of New York bank branches insufficient to establish personal jurisdiction in New York over bank). Under these standards, general personal jurisdiction clearly does not exist over Gibraltar. As noted, Gibraltar, a federally chartered savings association, is headquartered in Coral Gables, Florida, and it has seven branches and 276 employees in that state that account for approximately ninety-five percent of its gross revenue. (Sontag Decl., ¶ 4). Gibraltar’s only non-Florida branch is a single one located in Manhattan, which has a total of eight employees and accounts for approximately five percent of its gross revenue. (Id., ¶ 5). Given these circumstances, Gibraltar’s principal place of business is in Florida, and it is not “essentially at home” in New Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 12 of 27 PageID #: 166 8 York based on a single branch located there. See Goodyear, 564 U.S. at 919; Gucci Am., Inc., 768 F.3d at 135 (New York branch offices of bank incorporated and headquartered elsewhere insufficient to establish general jurisdiction in New York over bank); Weiss v. Nat’l Westminster Bank PLC, 176 F. Supp. 3d 264, 277-78 (E.D.N.Y. 2016) (maintenance of New York bank branch insufficient to establish general personal jurisdiction in New York over bank); Strauss, 175 F. Supp. 3d at 17-18 (same); see also Brown, 814. F.3d at 629 (“[W]hen a corporation is neither incorporated nor maintains its principal place of business in a state, mere contacts, no matter how ‘systematic and continuous,’ are extraordinarily unlikely to add up to an ‘exceptional case.’”). Plaintiff’s arguments concerning general personal jurisdiction are meritless. Plaintiff pleads that Gibraltar is a “foreign corporation duly authorized and qualified to do business in the State of New York . . . .” (Compl., ¶ 3). However, the fact that Gibraltar is registered to do business in New York is insufficient to confer jurisdiction. Brown, 814 F.3d at 637 (registering to do business in a state does not amount to corporate consent to general jurisdiction, and therefore does not establish personal jurisdiction in that state); Bonkowski, 2016 WL 4536868, at *3 (company registered to do business in New York and with manufacturing operations in New York not subject to general personal jurisdiction in New York); see also Sullivan v. Barclays PLC, No. 13-CV-2811 (PKC), 2017 WL 685570, at *39 (S.D.N.Y. Feb. 21, 2017) (registering to do business in New York insufficient to establish general personal jurisdiction where claim is unrelated to activities of New York branch); Taormina v. Thrifty Car Rental, No. 16-CV-3255 (VEC), 2016 WL 7392214, at *5-7 (S.D.N.Y. Dec. 21, 2016) (having nearly 200 offices and locations in New York, as compared with company’s overall activities, and registering to do business in New York insufficient to establish general personal jurisdiction). Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 13 of 27 PageID #: 167 9 Plaintiff’s argument that Gibraltar’s past utilization of New York courts establishes general jurisdiction in New York (see Pl. Pre-Motion Letter, ECF No. 19), fares no better. The Second Circuit has held that “[a] party’s consent to jurisdiction in one case . . . extends to that case alone. It in no way opens that party up to other lawsuits in the same jurisdiction in which consent was given, where the party does not consent and no other jurisdictional basis is available.” Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 937 F.2d 44, 50 n.5 (2d Cir. 1991); see Bonkowski, 2016 WL 4536868, at *3 (rejecting argument that a company had consented to general jurisdiction in New York by utilizing state and federal courts in New York on numerous occasions); see also Reich v. Lopez, 38 F. Supp. 3d 436, 457 (S.D.N.Y. 2014) (rejecting argument that “previous use of New York courts” was sufficient to establish personal jurisdiction). And under N.Y. Bus. Corp. L. § 1301, a company is not even “considered to be doing business” in New York by “[m]aintaining or defending any action or proceeding, whether judicial, administrative, arbitrative or otherwise” in the State. 4 Because Plaintiff has not alleged sufficient facts to show that Gibraltar is “essentially at home” in New York, the Court lacks general personal jurisdiction over Gibraltar. 4 In his pre-motion conference letter to the Court (ECF No. 19), Plaintiff points to a 2012 foreclosure case filed by Gibraltar in a New York State court. In the complaint in that action (attached hereto as Exhibit 1), Gibraltar states that its “principal place of business” is in Florida and that it “maintains a branch” in Manhattan. Contrary to Plaintiff’s suggestion, these statements obviously do not acknowledge that Gibraltar is subject to general personal jurisdiction in New York. And, as noted, Gibraltar’s filing of that action -- which involved foreclosure proceedings against a New York property and thus was appropriately filed in New York -- does not establish general personal jurisdiction over it in New York. See Klinghoffer, 937 F.2d at 50 n.5. Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 14 of 27 PageID #: 168 10 B. Specific Personal Jurisdiction Does Not Exist Over Gibraltar Specific jurisdiction also does not exist over Gibraltar. As with general jurisdiction, Courts look to the New York long arm statute, as well as whether exercising jurisdiction under that statute comports with due process. Chloe, 616 F.3d at163-64. CPLR § 302(a) provides that “[a]s to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over a non-domiciliary.” The acts enumerated in § 302 include, in relevant part “commit[ting] a tortious act without the state causing injury to person or property within the state.” C.P.L.R. § 302(a)(1), (3). 5 The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution requires that a foreign defendant have “‘certain minimum contacts’” with the forum state “‘such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The inquiry “focuses on the relationship among the defendant, the forum, and the litigation,” and “the defendant’s suit-related conduct must create a substantial connection with the forum State.” Id. (internal quotation marks omitted); see Waldman v. Palestine Liberation Org., 835 F.3d 317, 335 (2d Cir. 2016) (relationship between “defendant and the forum must arise out of contacts that the defendant himself creates with the forum”) (internal quotation marks omitted). A defendant’s “mere knowledge that a plaintiff resides in a specific jurisdiction would be insufficient to subject a defendant to specific jurisdiction in that jurisdiction if the defendant does nothing in connection with the tort in that jurisdiction.” Id. at 5 The enumerated acts in § 302 also include “transact[ing] any business within the state.” However, Gibraltar’s New York branch cannot serve as a basis for specific jurisdiction because there is no nexus between Plaintiff’s claims and the New York branch. Plaintiff’s claims concern Gibraltar’s investigation of and responses to plaintiff’s complaints to the CRAs about how Gibraltar reported his Loan to the CRAs. All such investigations and responses were handled exclusively by Gibraltar employees located in Gibraltar’s Florida headquarters. (Sontag Decl., ¶ 8). Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 15 of 27 PageID #: 169 11 338; see In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 674 (2d Cir. 2013) (“[F]act that harm in the forum is foreseeable . . . is insufficient for the purpose of establishing specific personal jurisdiction.”). The Court lacks specific jurisdiction over Gibraltar because Plaintiff’s claims do not arise out of, or relate to, any contacts that Gibraltar has with New York. See Walden, 134 S. Ct. at 1121-22. Indeed, although Plaintiff conclusorily alleges that “a substantial part of the claim arose in New York” (Compl., ¶ 5), his claims have no connection whatsoever to this State. The FCRA, 15 U.S.C. § 1681s-2(b), requires that furnishers of information, after receiving notice of a dispute from a CRA, “conduct an investigation with respect to the disputed information” and “if the investigation finds that information is incomplete or inaccurate, report those results” to the CRAs. Plaintiff alleges that Gibraltar violated the FCRA by failing to conduct a reasonable investigation in response to his complaints to the CRAs, and continuing to report to the CRAs that the Loan was delinquent. (Compl., ¶¶ 10-11, 13-17). Significantly, however, these allegations involve a loan that was originated and underwritten out of Gibraltar’s Florida headquarters for property located in Florida. (Sontag Decl., ¶ 6). Moreover, Gibraltar employees located in Gibraltar’s Florida headquarters conducted all investigations concerning Plaintiff’s complaints as to how Gibraltar was reporting the Loan or the history of the Loan to the CRAs, and Gibraltar employees located in the Florida headquarters prepared and made all responses to the CRAs concerning Plaintiff’s complaints. (Id., ¶ 8). Employees in Gibraltar’s New York branch had no involvement in any of this conduct. (Id.). Thus, Gibraltar’s alleged conduct in connection with Plaintiff’s claims occurred in Florida and has no connection to New York, and therefore is insufficient to establish jurisdiction here. See Hill v. HSBC Bank plc, No. 14-CV-9745 (LTS), 2016 WL 4926199, at *4 Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 16 of 27 PageID #: 170 12 (S.D.N.Y. Sept. 15, 2016) (court lacked personal jurisdiction when “[n]one of the business activities allegedly conducted by the Foreign Defendants occurred in New York”). Further, Plaintiff’s argument that he is a New York resident and Gibraltar’s alleged actions purportedly caused him to suffer an injury to his credit here, i.e., he was unable to obtain a mortgage for property in New York owned by his business, cannot establish specific jurisdiction under either CPLR § 302(a)(3) or the Constitution. See Walden, 134 S. Ct. at 1125 (“[M]ere injury to a forum resident is not a sufficient connection.”). “The occurrence of financial consequences in New York due to the fortuitous location of plaintiffs in New York is not a sufficient basis for jurisdiction under § 302(a)(3) where the underlying events took place outside New York.” NewMarkets Partners LLC v. Oppenheim, 638 F. Supp. 2d 394, 403 (S.D.N.Y. 2009) (quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 209 (2d Cir. 2001)). As discussed above, all of Gibraltar’s alleged conduct occurred in Florida, and the fact that Plaintiff’s credit was allegedly impacted in New York is only because New York is where Plaintiff chose to be. Indeed, he presumably would have experienced the same alleged impact in any state where he chose to live and apply for a mortgage. See Walden, 134 S. Ct. at 1125 (“Respondents would have experienced [the] same lack of access [to funds] in California, Mississippi, or wherever else they might have traveled and found themselves wanting more money than they had.”); NewMarkets Partners LLC, 638 F. Supp. 2d at 403 (“[J]urisdiction ‘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.’”) (quoting Fantis Foods, Inc. v. Standard Importing Co. Inc., 402 N.E.2d 122, 126 (N.Y. 1980)). Plaintiff’s “claimed injury does not evince a connection between” Gibraltar and New York because the injury suffered by Plaintiff is “not the Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 17 of 27 PageID #: 171 13 sort of effect that is tethered to [New York] in any meaningful way.” Walden, 134 S. Ct. at 1125. The Supreme Court’s decision in Walden v. Fiore is instructive. In Walden, 134 S. Ct. at 1119, the plaintiffs, residents of Nevada, filed suit in that state alleging that federal officials had infringed their constitutional rights by unreasonably seizing money from them in Georgia. In finding that personal jurisdiction did not exist in Nevada over the federal officials, the Court held that none of the alleged tortious conduct had occurred in Nevada, and the plaintiff “cannot be the only link between the defendant and the forum.” Walden, 134 S. Ct. at 1122. The Court further held that, to establish specific personal jurisdiction, “the relationship must arise out of contacts that the ‘defendant himself’ creates with the forum State.” Id. at 1122 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)); see also Zellerino v. Roosen, 118 F. Supp. 3d 946, 951-52 (E.D. Mich. 2015) (holding in an FCRA case that the relevant contacts must be those between the defendant, the forum and the litigation, and the “analysis does not change . . . when intentional torts are involved, even if it was foreseeable that the plaintiff would be harmed” in the forum). Thus, the fact that Plaintiff claims he was injured in New York is insufficient to establish specific personal jurisdiction. Similarly, courts construing claims under the FCRA have found that alleged harm occurring in the plaintiff’s home state is insufficient to establish personal jurisdiction over a foreign defendant. See, e.g., Johnson, 2016 WL 3633437, at *1 (personal jurisdiction did not exist in plaintiff’s home state over federally chartered credit union where the “underlying credit transaction was conducted elsewhere”); Cole v. Capital One, N.A., No. GJH-15-1121, 2016 WL 2621950, at *3 (D. Md. May 5, 2016) (personal jurisdiction did not exist in plaintiff’s home state in FCRA action alleging improper access of a credit report where the defendant obtained Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 18 of 27 PageID #: 172 14 plaintiff’s credit report in another state); Zellerino, 118 F. Supp. 3d at 952 (defendant’s conduct in improperly accessing the plaintiff’s credit report in the defendant’s home state did not establish jurisdiction over the defendant in the state where the plaintiff allegedly suffered an injury from those actions). Finally, Plaintiff’s argument in his pre-motion conference letter (ECF No. 19), that personal jurisdiction exists because Gibraltar allegedly corresponded with Plaintiff in New York is unavailing. Plaintiff’s claims involve Gibraltar’s investigation of and responses to Plaintiff’s complaints about how Gibraltar reported the status of his Loan to the CRAs. All of that conduct occurred in Florida (Sontag Decl., ¶ 8), and merely sending mail to Plaintiff’s New York residence cannot serve as a basis for jurisdiction. See Norcom v. Lease Fin. Group, LLC, No. 13-CV-2252 (KI), 2014 WL 2747652, at *3 (D. Or. June 17, 2014) (sending notices or letters to plaintiff and garnishing plaintiff’s bank account in his home state insufficient to establish jurisdiction in that state over foreign defendant in FCRA action); see also Doe v. Nat’l Conference of Bar Exam’rs, No. 16-CV-264 (PKC), 2017 WL 74715, at *10 (E.D.N.Y. Jan. 6, 2017) (rejecting argument that mailings to plaintiff were sufficient to establish personal jurisdiction because the mailings were “at best, coincidental to Plaintiff’s claims”) (internal quotation marks omitted). In sum, because the Court lacks both general and specific jurisdiction, the Complaint should be dismissed. III. Venue is Improper in the Eastern District of New York In the alternative, venue is improper in the Eastern District of New York. Pursuant to 28 U.S.C. § 1391(b), venue is proper in i) “a judicial district in which any defendant resides,” or ii) in “a judicial district in which a substantial part of the events or omissions giving rise to the Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 19 of 27 PageID #: 173 15 claim occurred.” Plaintiff bears the burden of establishing proper venue. Blauschild v. Tudor, 31 F. Supp. 3d 527, 531 (E.D.N.Y. 2014). Under the first prong, a corporation is deemed to reside in “any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State.” 28 U.S.C. § 1391(d). Here, even if the Court finds that Gibraltar is subject to general personal jurisdiction in New York - which, as noted above, it should not - the appropriate venue for Plaintiff’s action could not be the Eastern District because Gibraltar has no presence there and thus does not “reside” in this District. Under the second prong, for venue to be proper “significant events or omissions material to the plaintiff’s claim must have occurred in the district in question, even if other material events occurred elsewhere.” Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2d Cir. 2005) (internal quotation marks omitted). Courts examining venue “must focus on where the defendant’s acts or omissions occurred,” because the purposes of the statute is to “protect[] a defendant from the inconvenience of having to defend an action in a trial court that is either remote from the defendant’s residence or from the place where the acts underlying the controversy occurred.” Id. at 532-33 (internal quotation marks omitted) (alteration in original). Here, Plaintiff cannot show that a “substantial part of the events or omission giving rise to the claim occurred” in this District. 28 U.S.C. § 1391(b). As discussed above, none of Gibraltar’s conduct with respect to Plaintiff’s claims took place in New York, but rather occurred at Gibraltar’s Florida headquarters. Moreover, Plaintiff’s residence in this District is an insufficient basis upon which to support venue. Blauschild, 31 F. Supp. 3d at 533; see New Son Yeng Produce, LLC v. A & S Produce, Inc., No. 07-CV-4292 (KAM) (RML), 2009 WL 2568566, at *4 (E.D.N.Y. Aug. 19, 2009) (venue improper where New York had practically no Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 20 of 27 PageID #: 174 16 connection to the case apart from “the fact that the plaintiff [was] located there”). Similarly, the fact that Plaintiff claims to have been injured in this District from the way Gibraltar reported his Loan to the CRAs is insufficient to establish proper venue. See Fisher v. Int’l Student Exch., Inc., 38 F. Supp. 3d 276, 285 (E.D.N.Y. 2014) (venue in Eastern District improper where “significant events pertinent to Plaintiff’s claims” took place elsewhere); Blauschild, 31 F. Supp. 3d at 532-33 (E.D.N.Y. 2014) (relevant venue inquiry must focus on place of defendant’s acts or omissions, and finding that plaintiff’s residency was insufficient basis on which to support venue). Conclusion For the reasons set forth above, the Complaint should be dismissed. Dated: March 2, 2017 New York, New York Respectfully submitted, BUCKLEY SANDLER LLP Attorneys for Defendant Gibraltar Private Bank & Trust Company /s/ Ross E. Morrison Ross E. Morrison Dana W. Kumar 1133 Avenue of the Americas, Suite 3100 New York, New York 10036-6710 Tel: 212-600-2315 Fax: 212-600-2405 rmorrison@buckleysandler.com dkumar@buckleysandler.com Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 21 of 27 PageID #: 175 EXHIBIT 1 Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 22 of 27 PageID #: 176 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK _______________________________________________x GIBRALTAR PRIVATE BANK AND TRUST COMPANY, Index no. Plaintiff, v. SUMMONS JOHN HECKER, Defendant. _______________________________________________x TO THE ABOVE NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on Plaintiff's Attorney within twenty (20) days after the service of this summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to answer or appear, judgment will be taken against you by default for the relief demanded in the notice set forth below and in the complaint. New York County is designated the venue for trial. The basis of venue is that Plaintiff’s place of business is located within New York County. Dated: New York, New York April 13, 2012 Zegen & Fellenbaum Attorneys for Plaintiff Gibraltar Private Bank and Trust Company By:/s/_______________________________ Neal Fellenbaum 261 Madison Avenue, 18th Floor New York, New York 10016 (212) 986-4848 Defendant’s address: FILED: NEW YORK COUNTY CLERK 04/13/2012 INDEX NO. 651213/2012 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/13/2012Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 23 of 27 PageID #: 177 2 2 400 East 57th Street Apartment 9C New York, New York 10022 Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 24 of 27 PageID #: 178 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK _______________________________________________x GIBRALTAR PRIVATE BANK AND TRUST COMPANY, Index no. Plaintiff, v. COMPLAINT JOHN HECKER, Defendant. _______________________________________________x Plaintiff, Gibraltar Private Bank and Trust Company (“Gibraltar”), by its attorneys, Zegen & Fellenbaum, as and for its complaint, alleges as follows: 1. Gibraltar is a Federal Savings Bank organized and chartered under the laws of the United States of America, with its principal place of business located at 220 Alhambra Circle, Suite 500, Coral Gables, Florida 33134-5101. Gibraltar maintains a branch office at 280 Park Avenue, 29th Floor East, New York, New York 10017. 2. Upon information and belief, defendant John Hecker (“Hecker”) is a domiciliary of the State of New York, residing at 400 East 57th Street, Apartment 9C, New York, New York 10022. 3. Heretofore, to evidence a loan (the “Construction Loan”) made by Gibraltar to Hecker to enable the latter to construct a single family residence located at 604 North Lake Boulevard, Mahopac, New York, New York 10541 (the “Property”), Hecker, for value, duly made, executed and delivered to Gibraltar his Consolidated Adjustable Rate Note (the “Note”) in writing dated August 17, 2010, in the maximum principal amount of Three Million Six Hundred Four Thousand Seven Hundred and Fifty ($3,604,750.00) Dollars. A copy of the Note is annexed hereto as Exhibit “A.” FILED: NEW YORK COUNTY CLERK 04/13/2012 INDEX NO. 651213/2012 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/13/2012Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 25 of 27 PageID #: 179 2 4. In conjunction with said loan, Hecker also simultaneously executed and delivered to Gibraltar a Construction Loan Agreement (the “Agreement”), which, inter alia, set forth the rights and duties of the parties thereto with respect to use of the Construction Loan proceeds to construct the Property. A copy of the Agreement is annexed hereto as Exhibit “B.” 5. Paragraph “4” of the addendum to the Note, titled “Addendum to Note Construction/Permanent Loan” (the “Addendum”) provides, inter alia, that any default under the Agreement will constitute a default under the Note. 6. Paragraph “7.1” of the Agreement requires that representatives of the Lender shall have the right to enter the Property at all times. Hecker is in default of this covenant by failing to cooperate with Gibraltar when Gibraltar sought to send out an inspector to inspect the Property. 7. Paragraph “8.1(f)” of the Agreement provides that it is an event of default if “Work is discontinued on the Improvements for a period of thirty (30) days and Lender has not excused such discontinuance...”. An event of default pursuant to this provision occurred inasmuch as construction work on the Property has been discontinued for more than thirty (30) days and Gibraltar has not excused said discontinuance. 8. Hecker is also in default of the Agreement inasmuch as the Property is not secure and is not adequately protected from the elements. 9. As a result of the foregoing defaults, on October 25, 2011, Gibraltar’s counsel, Zegen & Fellenbaum, sent a letter to Hecker advising him of his defaults and demanding immediate payment of the sum of $2,981,307.12, plus interest. A copy of said letter is annexed hereto as Exhibit “C.” Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 26 of 27 PageID #: 180 3 10. Notwithstanding said demand for payment, Hecker has failed to make said payment to Gibraltar. 11. By virtue of the foregoing, Hecker is liable to Gibraltar for the payment of $3,102,374.35, inclusive of principal, interest through April 12, 2012, late charges and other charges and fees as set forth in the Note, plus accruing interest at the rate of $1,981.21 per day after April 12, 2012, costs, disbursements, and reasonable attorneys fees. WHEREFORE, Gibraltar demands judgment against Hecker in the amount of $3,102,374.35, inclusive of principal, interest through April 12, 2012, late charges and other charges and fees as set forth in the Note, plus accruing interest at the rate of $1,981.21 per day after April 12, 2012, costs, disbursements, and reasonable attorneys fees. Dated: New York, New York April 13, 2012 Zegen & Fellenbaum Attorneys for Plaintiff By/s/________________ Neal Fellenbaum 261 Madison Avenue, 18th Floor New York, New York 10016 (212) 986-4848 Case 2:16-cv-05452-LDW-AKT Document 27-1 Filed 03/31/17 Page 27 of 27 PageID #: 181 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK Edward R. Henkin, Plaintiff, v. Gibraltar Private Bank & Trust Company, Defendant. I, Michael C. Sontag, declare as follows: Case No. 16-cv-5452 (LDW) (AKT) DECLARATION OF MICHAEL C. SONTAG IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS 1. I am an Executive Vice President and General Counsel and Secretary for defendant Gibraltar Private Bank & Trust Company ("Gibraltar"). I make this Declaration in support of Gibraltar's motion to dismiss in this matter. My statements herein are based on personal knowledge or on a review of Gibraltar's relevant business records. 2. Gibraltar is a federal savings association chartered by the Office of the Comptroller of the Currency. 3. Gibraltar's headquarters is located in Coral Gables, Florida. 4. Gibraltar has seven branches in Florida, including its Coral Gables headquarters. Gibraltar has approximately 276 employees in total at its seven Florida branches, and derives nearly all of its gross revenue (i.e., approximately 95% ), from these Florida branches. Case 2:16-cv-05452-LDW-AKT Document 27-2 Filed 03/31/17 Page 1 of 3 PageID #: 182 5. Gibraltar has a single non-Florida branch, which is located at 280 Park Avenue, New York, New York. The New York branch has eight employees, and Gibraltar correspondingly derives a very small amount of its gross revenue (i.e., approximately 5%), from this branch. 6. Plaintiff Edward R. Henkin ("Plaintiff'), a real estate developer, obtained a second lien home equity line of credit loan (the "Loan"), from Gibraltar on December 6, 2007, for property located in Miami-Dade County, Florida (the "Property"). The Loan was originated and underwritten out of Gibraltar's Florida headquarters by Gibraltar employees located there. 7. JP Morgan Chase held the primary mortgage loan on the Property. After Plaintiff defaulted on that mortgage loan, and JP Morgan Chase commenced foreclosure proceedings against the Property, Plaintiff defaulted on his Loan with Gibraltar. 8. Gibraltar employees located in Gibraltar's Florida headquarters conducted all investigations concerning any inquiries, complaints or disputes by Plaintiff concerning his Loan and how Gibraltar was reporting the Loan or the history of the Loan to the three major Credit Reporting Agencies (i.e., Experian, Equifax and TransUnion). Similarly, Gibraltar employees located in Gibraltar's Florida headquarters prepared and made all responses to any such inquiries, complaints or disputes. No employees at Gibraltar's New York branch had any involvement in any way with any such inquiries, complaints or disputes. Case 2:16-cv-05452-LDW-AKT Document 27-2 Filed 03/31/17 Page 2 of 3 PageID #: 183 I declare under penalty of perjury that the foregoing is true and correct. Executed on March 2, 2017, in Coral Gables, Florida. Case 2:16-cv-05452-LDW-AKT Document 27-2 Filed 03/31/17 Page 3 of 3 PageID #: 184