Thackurdeen, et Al. v. Duke University, et Al.

BRIEF re MOTION to Dismiss or in the Alternative for Judgment on the Pleadings .

M.D.N.C.February 24, 2017

UNITED STATE DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA Roshni D. Thackurdeen, and Raj B. Thackurdeen, individually and in their capacity as Co-Administrators of the Estate of RAVI THACKURDEEN, Plaintiffs, vs. DUKE UNIVERSITY, a North Carolina corporation; ORGANIZATION FOR TROPICAL STUDIES, INC., a North Carolina corporation; and DOES 1-20, Defendants. Case No. 1:16-CV-01108 DEFENDANT ORGANIZATION FOR TROPICAL STUDIES’ BRIEF IN SUPPORT OF MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR JUDGMENT ON THE PLEADINGS Defendant Organization for Tropical Studies, Inc. (“OTS”), through counsel and pursuant to LR 7.3, submits this Brief in support of its Motion to Dismiss or, in the Alternative, for Judgment on the Pleadings. INTRODUCTION Plaintiffs’ decedent, Ravi Thackurdeen, drowned while swimming off the coast of Costa Rica on or about April 29, 2012. At the time, he was participating in a study abroad Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 1 of 14 2 program operated by OTS and sponsored by Defendant Duke University (“Duke”). Plaintiffs assert claims for negligence, wrongful death, and intentional infliction of emotion distress. Plaintiffs filed suit in the Southern District of New York on August 8, 2014. After the trial court dismissed their claims for lack of personal jurisdiction, Plaintiffs appealed. The Second Circuit ordered the case transferred to this district, and the case was transferred on September 7, 2016. Plaintiffs had a new summons issued on January 5, 2017, and served it on Plaintiffs, through their counsel, the same day. OTS filed an answer contemporaneously with this motion in which it disputes each of Plaintiffs’ claims. While Ravi Thackurdeen’s death was tragic, Plaintiffs’ claims must be dismissed for multiple reasons. First, Plaintiffs failed to serve a valid summons on OTS within the time provided by Rule 4(m). Despite being fully aware of the need to do so, they also failed to seek additional time for such service upon transfer of this case. Second, the claims asserted by Plaintiffs were contractually waived and released by Ravi Thackurdeen and his father, Plaintiff Raj B. Thackurdeen, in advance of Ravi’s participation in the OTS study abroad program. For those reasons, this Court should dismiss Plaintiffs’ claims against OTS pursuant to Rule 4(m) or, in the alternative, enter judgment on the pleadings on Plaintiffs’ First and Second Claims for Relief in favor of OTS. STATEMENT OF FACTS OTS is a North Carolina non-profit corporation with its principal and registered offices in Durham, North Carolina. OTS conducts and oversees international scientific research projects in Costa Rica, South America, and South Africa. It also provides Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 2 of 14 3 opportunities to both graduate and undergraduate students to participate in those research projects. One such opportunity is the Global Health Undergraduate Semester Abroad program in Costa Rica (the “Global Health Program”). In late 2011, Ravi Thackurdeen applied and was accepted for participation in the Spring 2012 Global Health Program. Complaint (“Compl.”) ¶ 10. On or about October 14, 2011, Ravi and his father, Plaintiff Raj Thackurdeen, executed two agreements containing releases: (1) an “OTS Participation Agreement-Costa Rica” (the “Participation Agreement”), and (2) a “Statement of Authorization and Consent” (the “Authorization Form”). Answer of Defendant Organization for Tropical Studies (“OTS Ans.”) Exs. 1 & 2. Paragraph 5(A) of the Participation Agreement-titled “Release, Assumption of Risk, Waiver of Liability, and Hold Harmless Agreement”-reads in part as follows: I hereby RELEASE, WAIVE, DISCHARGE, AND COVENANT NOT TO SUE the Organization for Tropical Studies, Duke University, its trustees, officers, employees or agents . . . for any liability, claim, and/or cause of action arising out of or related to any loss, damage, or injury, including death, that may be sustained by me . . . that occurs as a result of my traveling to and from, and participation in this activity. OTS Ans. Ex. 1. Ravi Thackurdeen agreed that his waiver “shall bind . . . my heirs, assigns and personal representative, if I am deceased, and shall be deemed as a RELEASE, WAIVER, DISCHARGE, and COVENANT NOT TO SUE the above named RELEASEES.” Id. That waiver agreement was also signed and acknowledged by his father, Raj Thackurdeen. Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 3 of 14 4 The Authorization Form was also signed by both Ravi Thackurdeen and Raj Thackurdeen. Section 1 of the Authorization Form reads as follows: We understand that participation in the program is entirely voluntary and that any program of travel involves some element of risk. We agree that in partial consideration of Duke University’s sponsoring this activity and permitting the student to participate, we will not attempt to hold Duke University, its trustees, officers, agents and employees liable in damages for any injury or loss to person or property the student might sustain while so participating; and we hereby release Duke University, its trustees, officers, agents and employees from any liability whatsoever for any personal injury or property damage arising from participation in the program. OTS Ans. Ex. B. After signing these two documents, Ravi Thackurdeen went to Costa Rica to participate in the Spring 2012 Global Health Program. On or about April 29, 2012, he and other adult participants in the program were at a beach called Playa Tortuga, where some chose to swim in the ocean. While swimming at Playa Tortuga, Thackurdeen and a fellow participant were pulled out to sea. Compl. ¶ 16. The other participant followed the instructions she had been given and was saved, but Thackurdeen was not able to return to shore and drowned. Id. ¶¶ 16-17. PROCEDURAL HISTORY Plaintiffs filed suit on August 8, 2014, in the United States District Court for the Southern District of New York, asserting claims for negligence, wrongful death, and intentional infliction of emotion distress. Plaintiffs’ Complaint made no allegations that could support personal jurisdiction against Duke or OTS (both located in North Carolina) in New York. Defendants therefore moved to dismiss on that basis. See DE 16 (Duke Motion), DE 27 (OTS Motion). Over Defendants’ objections, the District Court allowed Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 4 of 14 5 Plaintiffs to take jurisdictional discovery. See DE 36. After jurisdictional discovery, the Plaintiffs still could not show any basis for personal jurisdiction in New York. The District Court therefore dismissed Plaintiffs’ Complaint for lack of personal jurisdiction. See DE 49. Plaintiffs appealed the District Court’s order. See DE 51. On appeal, the Plaintiffs for the first time asked that the case be transferred to this Court rather than being dismissed. They acknowledged in their Reply Brief to the Court of Appeals for the Second Circuit, attached as Exhibit A hereto, that if transfer were allowed, new summonses would need to be issued and served on each Defendant. See Combined Reply Brief of Plaintiffs- Appellants (“Reply Br.”) at 23. On September 1, 2016, the Court of Appeals entered a Summary Order, attached as Exhibit B hereto, affirming the District Court’s finding that there was no personal jurisdiction over Defendants in New York. See Summary Order at 5. The panel ordered that the case be transferred to this Court rather than dismissed, but stated that “we intimate no view as to any other issues that may arise as a result of this transfer.” Id. On September 7, 2016, the case was formally transferred to this Court. See DE 53. Upon transfer, Plaintiffs made no effort to have a summons issued, or to otherwise prosecute their case, for four months. On November 28, 2016, with Plaintiffs still not having retained counsel admitted in this Court to represent them, this Court informed Plaintiffs that they would need to do so to move forward with their case. On January 4, 2017, local counsel appeared on behalf of Plaintiffs. On January 5, 2017, Plaintiffs first sought to have summonses issued by this Court. Counsel for OTS and Duke did not agree Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 5 of 14 6 to waive service of the summonses. To avoid the expense of service of summons, they did, however, agree to accept service on behalf of Defendants effective January 5, 2017, See DE 64. The parties further agreed that the Defendants’ responsive pleadings would be due on or before February 24, 2017. See id. OTS filed its Answer simultaneously with this Motion and Brief. ARGUMENT I. Plaintiffs’ claims must be dismissed pursuant to Rule 4(m) because they failed to timely serve a valid summons. Rule 4(m) of the Federal Rules of Civil Procedure states: “If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.”1 Plaintiffs first filed suit in the Southern District of New York, where there was no personal jurisdiction over either Defendant. Because there was no personal jurisdiction over OTS in New York, the summons issued in New York was invalid. See Harding v. Williams Prop. Co., No. 96- 2713, 1998 U.S. App. LEXIS 21269, at *11 (4th Cir. Aug. 31, 1998) (unpublished) (“Service by a method provided by the law of the forum state is effective only if the courts of the forum state could acquire personal jurisdiction using that same method.”); Bolus v. Fleetwood RV, Inc., 308 F.R.D. 152, 154 (M.D.N.C. 2015) (“However, although Mr. Bolus served [Defendants] with a summons issued by the District of Pennsylvania, he did not 1 In 2014, Rule 4(m) provided that the summons and complaint must be served within 120 days, rather than 90. The deadline was shortened to 90 days effective December 1, 2015. Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 6 of 14 7 perfect service on either of those Defendants because the District of Pennsylvania lacked personal jurisdiction over them.”). The Fourth Circuit, in an unpublished decision, has held that “previously unperfected personal jurisdiction does not attach in a transferee district court until a summons issued by that court is properly served.” See Harding, 1998 U.S. App. LEXIS 21269, at *13 (citing Buggs v. Ehrnschwender, 968 F.2d 1544 (2nd Cir. 1992)); see also Wilson v. Saint Mary’s Hosp., 822 F. Supp. 1450, 1451 (D. Minn. 1993) (“A court receiving a case pursuant to a transfer under § 1406 acquires personal jurisdiction only if the plaintiff serves the defendants over whom the original court lacked jurisdiction with a proper summons and complaint.”). This Court recently followed Harding in holding that re-issuance and service of a summons from a transferee court is necessary where there was no personal jurisdiction in the transferor court. See Bolus, 308 F.R.D. at 154-55. Service of the summons in the transferee court is still subject to the time limitation in Rule 4(m), and the deadline runs from the time of the complaint’s filing, not from the time of transfer. See Harding, 1998 U.S. App. LEXIS 21269, at *14-15 (“Rule 4(m) is not ambiguous. Unless the summons is served ‘within 120 days after the filing of the complaint,’ the district court is empowered to dismiss the suit without prejudice.” (quoting Rule 4(m))); see also Bolus, 308 F.R.D. at 155; Hansan v. Fairfax Cty. Pub. Sch. Bd., No. 1:09cv558, 2010 U.S. Dist. LEXIS 42937, at *9 (E.D. Va. Apr. 30, 2010) (“Even if a plaintiff perfects service while his case is pending in a court in the forum state, Rule 4 requires a plaintiff to serve a defendant with a summons issued by the transferee court within an appropriate period after transfer of the case.”). Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 7 of 14 8 Here, Plaintiffs did not serve OTS with a summons issued by this Court until January 5, 2017-almost two and a half years after their Complaint was filed. Nor did they seek an extension, pursuant to Rule 4(m), of the time in which to serve their summons. See Bolus, 308 F.R.D. at 155 (noting that, where case was transferred for lack of personal jurisdiction, plaintiff “would have been required” to move for extension “at the time that the case was transferred” 2). Therefore, Plaintiffs’ summons was untimely served under Rule 4(m) and their claims against OTS must be dismissed. Dismissal-which will result in Plaintiffs’ claims being barred pursuant to the applicable statutes of limitation3-may seem at first to be a harsh remedy. It results directly, however, from the Plaintiffs’ own lack of diligence in filing and prosecuting their claims against Plaintiffs. In truth, Plaintiffs’ efforts since this case was initiated have been characterized by repeated neglect. Plaintiffs filed this suit in the Southern District of New York without any attempt to determine (or plead) that Duke and OTS would be subject to personal jurisdiction there. Plaintiffs then waited until after their claims had been 2 The Plaintiffs cited this exact language from Bolus in their Reply Brief to the Second Circuit. See Reply Br. at 22. 3 Because Plaintiffs failed to serve valid summonses on Defendants within the time provided by Rule 4(m), their case is deemed to have never commenced for statute of limitations purposes. See Wright v. Hill, No. 1:03CV00109, 2008 U.S. Dist. LEXIS 28923, at * 9-10 (M.D.N.C. Apr. 7, 2008) (“Where, as here, a plaintiff fails to serve a defendant within the 120-day period, the action is subject to dismissal without prejudice and the plaintiff is in the same position as if the action had never commenced and the statute of limitations was never tolled.”). The same is true under North Carolina law when a summons is not served within the time provided by Rule 4(d). See N.C. Gen. Stat. § 1A-1, Rule 4(e) (“When there is neither endorsement by the clerk nor issuance of alias or pluries summons within the time specified in Rule 4(d), the action is discontinued as to any defendant not theretofore served with summons within the time allowed. Thereafter, alias or pluries summons may issue, or an extension be endorsed by the clerk, but, as to such defendant, the action shall be deemed to have commenced on the date of such issuance or endorsement.”); see also Johnson v. Raleigh, 98 N.C. App. 147, 150, 389 S.E.2d 849, 851-52 (1990) (holding that statute of limitations is not tolled by filing of a case which is dismissed before summons was validly served). Because Plaintiffs’ claims arise out of events occurring almost five years ago, their claims will therefore be barred by the applicable statutes of limitation. See N.C. Gen. Stat. § 1-53 (4) (two-year statute of limitation for wrongful death claim based on negligence); Jones v. Asheville Radiological Grp., P.A., 129 N.C. App. 449, 457, 500 S.E.2d 740, 744 (1998) (three-year statute of limitations for emotional distress claims). Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 8 of 14 9 dismissed to argue for the first time, on appeal, that this case should have been transferred instead. After transfer, Plaintiffs waited 120 days to have a new summons issued and attempt service, despite being fully aware of prior decisions from this circuit (and this Court) that warned them that immediate action was necessary. As a result of Plaintiffs’ consistent pattern of neglect, it is now almost five years after the death of Ravi Thackurdeen. Witnesses have dispersed and their memories have undoubtedly faded. Defendants have been forced to spend significant time and expense protecting their procedural and jurisdictional rights rather than addressing the merits of this suit. Plaintiffs’ failure to timely serve their summons (or to timely move for an extension of time to do so) is inexcusable under these circumstances. Therefore, this Court should dismiss Plaintiffs’ claims against OTS pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. II. In the alternative, the Court should enter judgment on the pleadings in favor of OTS on Plaintiffs’ First and Second Claims for Relief because those claims are barred by waiver and release. In the alternative to dismissing Plaintiffs’ claims pursuant to Rule 4(m), this Court should enter judgment on the pleadings dismissing Plaintiffs’ First and Second Claims for Relief on the additional grounds that those claims were contractually waived and released by Ravi Thackurdeen (on behalf of himself and his successors, including the administrators of his estate) and Plaintiff Raj Thackurdeen. Before allowing Ravi Thackurdeen to participate in the Spring 2012 Global Health Studies program in Costa Rica, OTS required that two agreements be signed: the Participation Agreement and the Authorization Form. Pursuant to the Participation Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 9 of 14 10 Agreement, Ravi Thackurdeen-on behalf of himself and, if deceased, his personal representatives-agreed to “RELEASE, WAIVE, DISCHARGE, AND COVENANT NOT TO SUE” OTS, Duke, and their agents from all liability resulting from any injury (including death) he might suffer in the course of the Global Health Program. Similarly, pursuant to the Authorization Form, Ravi Thackurdeen and Raj Thackurdeen agreed to release Duke and its agents from any liability for injuries Ravi might suffer while participating in the Global Health Program. The relevant provisions of both the Participation Agreement and the Authorization Form-entered into in consideration for OTS providing the opportunity to participate in the Global Health Program-are exculpatory provisions, which relieve OTS and its agents from liability for any injury suffered by Ravi Thackurdeen in the course of his participation in the program. Both agreements are enforceable. The North Carolina Supreme Court has stated that “the majority rule, to which we adhere, is that, subject to certain limitations hereinafter discussed, a person may effectively bargain against liability for harm caused by his ordinary negligence in the performance of a legal duty arising out of a contractual relation.” Hall v. Sinclair Ref. Co., 242 N.C. 707, 709, 89 S.E.2d 396, 397 (1955). In North Carolina, “an exculpatory contract will be enforced unless it violates a statute, is gained through inequality of bargaining power, or is contrary to a substantial public interest.” Fortson v. McClellan, 131 N.C. App. 635, 636-37, 508 S.E.2d 549, 551 (1998). The exculpatory provisions at issue do not violate any statute or rule of law. Therefore, they must be enforced unless they were “gained through inequality of bargaining power” or are “contrary to a substantial public interest.” Exculpatory contracts Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 10 of 14 11 may be unenforceable as a result of “unequal bargaining power” where “one of the parties . . . must either accept what is offered or forego the advantages of the contractual relation in a situation where it is necessary for him to enter into the contract to obtain something of importance to him which for all practical purposes is not obtainable elsewhere.” Hall, 242 N.C. at 710, 89 S.E.2d at 398. They are unenforceable as against public policy where a party “[contracts] against liability for negligence in the performance of a duty of public service, or where a public duty is owed, or public interest is involved.” Fortson, 131 N.C. App. at 637, 508 S.E.2d at 551. Here, neither is the case. Ravi Thackurdeen and OTS both had the freedom to contract with numerous other parties. Cf. Brown v. Robbins, No. COA07-77, 2007 N.C. App. LEXIS 2271, at *9 (Ct. App. Nov. 6, 2007) (“We recognize the principle of freedom to contract arises out of the broad policy of the law which accords to contracting parties freedom to bind themselves as they see fit . . . . In this case, both parties mutually accepted what the other was offering.” (internal quotation marks and citations omitted)). It does not matter that OTS required that the waivers be signed as a condition of participation, because Ravi Thackurdeen “was free to forego participation in the voluntary program.” See Kelly v. United States, 809 F. Supp. 2d 429, 435 n.6 (E.D.N.C. 2011) (rejecting plaintiff’s argument that a waiver was unenforceable due to “inequality of bargaining power” where plaintiff’s daughter had voluntarily participated in extracurricular program). Nor is this a situation in which OTS provided a public service or owed a public duty. North Carolina courts have only found exculpatory clauses invalid for that reason where “the activity is extensively regulated to protect the public from danger, and it would violate Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 11 of 14 12 public policy to allow those engaged in such an activity to absolve themselves from the duty to use reasonable care.”4 Fortson, 131 N.C. App. at 637, 508 S.E.2d at 551 (internal quotation marks omitted). Here, Ravi Thackurdeen was participating in an overseas study abroad program offered by private educational entities. Such programs do not implicate the health or welfare of the public at large and are not extensively regulated by the state of North Carolina. Moreover, while international travel involves risks, Ravi Thackurdeen acknowledged those risks and assumed responsibility for them when he executed the Authorization Form. In sum, the Participation Agreement and the Authorization Form contain exculpatory provisions that unambiguously relieve OTS and Duke from liability for any injury suffered by Ravi Thackurdeen while participating in the Global Health Program, and unambiguously release any claims against Duke and OTS which might arise from such injuries. Therefore, Plaintiffs’ First and Second Claims for Relief for negligence and wrongful death, which arise solely from the death of Ravi Thackurdeen while participating in the Global Health Program, are released, waived, and barred, and this Court should enter judgment for Plaintiffs on those claims. CONCLUSION For the reasons stated above, Plaintiffs respectfully request that the Court dismiss Plaintiffs’ claims pursuant to Rule 4(m) of the North Carolina Rules of Civil Procedure, or in the alternative that the Court enter judgment on the pleadings dismissing Plaintiffs’ First 4 It is not enough that the activity at issue involve some element of risk; for example, an exculpatory clause in the contract of a race official at a motor speedway was held to be enforceable despite the danger inherent in auto racing. See Brown, 2007 N.C. App. LEXIS 2271, at *7-9. Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 12 of 14 13 and Second Claims for Relief because those claims are barred by contractual waivers and releases. This the 24th day of February, 2017. /s/ Andrew L. Rodenbough Reid L. Phillips N.C. Bar No. 7968 rphillips@brookspierce.com Andrew Rodenbough N.C. Bar No. 46364 arodenbough@brookspierce.com BROOKS, PIERCE, McLENDON, HUMPHREY & LEONARD, LLP P.O. Box 26000 Greensboro, NC 27420 Telephone: (336) 373-8850 Fax: (336) 378-1001 Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 13 of 14 14 The undersigned hereby certifies that the foregoing document was filed via the Court’s CM/ECF system, which will send electronic notification to the following: Tina Glandian tina@geragos.com GERAGOS & GERAGOS, APC 644 S. Figueroa St. Los Angeles, CA 90017 Attorney for Plaintiffs James P. Cooney III jcooney@wcsr.com Marcey R. Selle mselle@wcsr.com WOMBLE CARLYLE SANDRIDGE & RICE, PLLC One Wells Fargo Center, Suite 3500 301 S. College Street Charlotte, NC 28202 Attorney for Defendant Duke University James Avery Roberts, III jimroberts@lewis-roberts.com Jessica E. Bowers jeb@lewis-roberts.com LEWIS & ROBERTS, PLLC P.O. Box 17529 Raleigh, NC 27619 Attorneys for Plaintiffs This the 24th day of February, 2017. /s/ Andrew L. Rodenbough Andrew L. Rodenbough Case 1:16-cv-01108-NCT-JLW Document 72 Filed 02/24/17 Page 14 of 14 15-3082-cv (Docket Number in District Court: 1:14-cv-06311-AJN) IN THE United States Court of Appeals FOR THE SECOND CIRCUIT ___________________________________ ROSHNI D. THACKURDEEN AND RAJ B. THACKURDEEN, INDIVIDUALLY AND IN THEIR CAPACITY AS CO-ADMINISTRATORS OF THE ESTATE OF RAVI THACKURDEEN, Plaintiffs-Appellants, v. DUKE UNIVERSITY, A NORTH CAROLINA CORPORATION; ORGANIZATION FOR TROPICAL STUDIES, INC., A NORTH CAROLINA CORPORATION; AND DOES 1-20, Defendants-Appellees. ____________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ____________________________________ COMBINED REPLY BRIEF OF PLAINTIFFS-APPELLANTS ____________________________________ GERAGOS & GERAGOS, APC TINA GLANDIAN 644 South Figueroa Street Los Angeles, CA 90017-3411 Telephone: (213) 625-3900 Attorneys for Plaintiffs-Appellants Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 1 of 38 i TABLE OF CONTENTS TABLE OF AUTHORITIES...................................................................................iii INTRODUCTION.....................................................................................................1 ARGUMENT.............................................................................................................2 I. Duke and OTS Should Be Treated as a Single Entity for Purposes of Determining Jurisdiction.................................................................................2 II. Duke and OTS Have Sufficient Contacts With the State of New York to Subject Them to General Jurisdiction Pursuant to N.Y. C.P.L.R. § 301........4 III. The District Court Erred in Finding that Appellees Are Not Subject to Specific Jurisdiction in New York Pursuant to N.Y. C.P.L.R. § 302...........11 A. Appellees committed tortious acts within New York, subjecting them to personal jurisdiction here.......................................................11 B. Even if Appellees committed tortious acts without New York, they are still subject to personal jurisdiction here because they do business here......................................................................................................14 IV. The District Court Abused Its Discretion by Dismissing Rather than Transferring the Case to North Carolina.......................................................16 A. Appellees have failed to establish that the Thackurdeens were motivated by any forum shopping considerations when they filed this action in the forum most convenient to them......................................16 B. There is nothing precluding this Court from transferring this action to the Middle District of North Carolina where Appellees are subject to personal jurisdiction and where this action could have originally been brought........................................................................................19 C. Transferring this matter to the Middle District of North Carolina is in the interests of justice and will promote judicial economy.............24 CONCLUSION.......................................................................................................29 Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 2 of 38 ii CERTIFICATE OF COMPLIANCE.......................................................................30 CERTIFICATE OF SERVICE................................................................................31 Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 3 of 38 iii TABLE OF AUTHORITIES FEDERAL CASES Aikens v. Ingram, 524 F. App'x 873 (4th Cir. 2013)..................................................................27 Barriere v. Juluca, 2014 WL 652831 (S.D. Fla. Feb. 19, 2014)..................................................10 Bolus v. Fleetwood RV, Inc., 308 F.R.D. 152 (M.D.N.C. 2015)............................................................21-23 Burnett v. New York Cent. R. Co., 380 U.S. 424 (1965)......................................................................................27 Cardell Fin. Corp. v. Suchodolski Assocs., 2012 U.S. Dist. LEXIS 188295 (S.D.N.Y. July 17, 2012)..........................2-3 Concession Consultants, Inc. v. Mirisch, 355 F.2d 369 (2d Cir. 1966)..........................................................................20 Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77 (2d Cir. 1978).......................................................................24-25 Daimler AG v. Bauman, 134 S.Ct. 746 (2014)..................................................................................4-10 Flores v. Predco Servs. Corp., No. CIV. 10-1320 RMB/AMD, 2011 WL 883640 (D.N.J. Mar. 11, 2011)..28 Gaither v. Boone Cty. Bd. of Ed., 465 F. Supp. 712 (S.D.N.Y. 1979)...........................................................25-26 Goodman Piping Prods., Inc. v. NLRB, 741 F.2d 10 (2d Cir. 1984)..............................................................................3 Griggs v. Provident Consumer Disc. Co., 459 U.S. 56 (1982)...................................................................................20-21 Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 4 of 38 iv Gucci America, Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014)...........................................................4, 6-7, 9-10 Harding v. Williams Prop. Co., 163 F.3d 598 (4th Cir. 1998).........................................................................22 Hellas Telecommunications (Luxembourg) II SCA, 524 B.R. 488, 73 Collier Bankr. Cas. 2d (MB) 78 (Bankr. S.D. N.Y. 2015).9 In re Optimal U.S. Litig., 837 F. Supp. 2d 244 (S.D.N.Y. 2011)...........................................................17 Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310 (1945)........................................................................................6 Island Insteel Sys. v. Waters, 296 F.3d 200 (3d Cir. 2002)..........................................................................28 J. Lyons & Co. v. Republic of Tea, Inc., 892 F. Supp. 486 (S.D.N.Y. 1995)................................................................17 Lead Indus. Assoc., Inc. v. OSHA, 610 F.2d 70 (2d Cir. 1979)............................................................................20 Meyer v. Bd. of Regents of Univ. of Oklahoma, 597 F. App'x 27 (2d Cir. 2015).....................................................................28 Mills 2011 LLC v. Synovus Bank, 921 F. Supp. 2d 219 (S.D.N.Y. 2013)...........................................................17 Ret. Plan of Unite Here Nat. Ret. Fund v. Kombassan Holding A.S., 629 F.3d 282 (2d Cir. 2010)............................................................................3 Roberts-Gordon, LLC v Superior Radiant Products, Ltd., 85 F. Supp. 2d 202 (W.D.N.Y. 2000)...........................................................12 Schnabel v. Ramsey Quantitative Sys., Inc., 322 F. Supp. 2d 505 (S.D.N.Y. 2004)......................................................16-17 Vera v. Republic of Cuba, Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 5 of 38 v 91 F. Supp. 3d 561 (S.D.N.Y. 2015)............................................................8-9 Viropro, Inc. v. Pricewaterhousecoopers Advisory Servs. Sdn Bhd, No. 15CV6235(DLC), 2016 WL 225686 (S.D.N.Y. Jan. 19, 2016).............17 Wade v. Danek Med., Inc., 182 F.3d 281 (4th Cir. 1999).........................................................................27 Wm. Passalacqua Builders, Inc. v. Resnick Developers S., Inc., 933 F.2d 131 (2d Cir. 1991)............................................................................3 STATE CASES Bailen v. Air & Liquid Syst. Corp., No. 190318/12, 2014 WL 3885949 (N.Y. Sup. Aug. 5, 2014).......................8 Davidoff v. Davidoff, 819 N.Y.S.2d 209 (Sup. Ct. 2006)..........................................................11, 13 Feathers v. McLucas, 15 N.Y.2d 443 (1965).............................................................................12, 14 Fischbarg v. Doucet, 9 N.Y.3d 375 (2007).....................................................................................13 Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13 (1970)...............................................................................11, 14 Zucker v. Waldmann, 46 Misc. 3d 1214(A), 2015 N.Y. Misc. LEXIS 169 (N.Y. Sup. Ct. 2015).....8 FEDERAL STATUTES 28 U.S.C. § 1404(a).................................................................................................20 28 U.S.C. § 1406(a)............................................................................................19-20 Fed. R. Civ. P. Rule 4(m)...................................................................................21-22 Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 6 of 38 vi STATE STATUTES N.C. Gen. Stat. § 1-52(5).........................................................................................19 N.C. Gen. Stat. § 1-53(4).........................................................................................19 N.Y. C.P.L.R. § 301.................................................................................................4 N.Y. C.P.L.R. § 302(a)(2)..................................................................................11-14 N.Y. C.P.L.R. § 302(a)(3)..................................................................................14-15 Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 7 of 38 1 INTRODUCTION Following the tragic downing of their nineteen year-old son in Costa Rica, Plaintiffs-Appellants Roshni D. Thackurdeen and Raj B. Thackurdeen (hereafter collectively “the Thackurdeens”), in good faith, brought the instant action in the forum most convenient to them, rather than hundreds of miles away in the State of North Carolina to which they have no ties whatsoever. Appellees Duke University (“Duke”) and the Organization for Tropical Studies, Inc.'s (“OTS”) (hereafter collectively (“Appellees”) unwarranted accusations that the Thackurdeens engaged in “blatant forum-shopping . . . as their litigation strategy,” Brief of Defendant-Appellee Organization for Tropical Studies, Inc. (hereafter “OTS Brief”) at 32, “in an attempt to take advantage of New York law and to avoid the application of North Carolina law by a North Carolina jury,” Brief of Defendant-Appellee Duke University (hereafter “Duke Brief”) at 23, is not only inaccurate but highly offensive. As an initial matter, the fact that the district court granted, over Duke and OTS's objections, the Thackurdeens’ request for jurisdictional discovery shows that there was, at the very minimum, a colorable claim of jurisdiction over Appellees. See Appendix (“A”) 58. Furthermore, contrary to Appellees' arguments, the Thackurdeens pursued this matter in New York because it is the forum most convenient for them, Duke and OTS were engaged in such a continuous and systematic course of "doing Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 8 of 38 2 business" in New York as to warrant a finding of its "presence" in this jurisdiction, and because the Thackurdeens' claims arise from transactions that took place in New York. As explained below, the district court erred in dismissing the action for lack of personal jurisdiction over Duke and OTS. The district court also erred in dismissing rather than transferring the case to the Middle District of North Carolina sua sponte, where Duke and OTS concede the court has jurisdiction over them and where the case could have originally been brought, because transfer was so clearly warranted by the facts at hand. Therefore, this Court should reverse the district court’s Order dismissing this case and remand with directions to transfer the action to the Middle District of North Carolina. In the alternative, the Court should remand the matter so the district court can determine whether to transfer the matter to North Carolina. ARGUMENT I. Duke and OTS Should Be Treated as a Single Entity for Purposes of Determining Jurisdiction. Appellees take issue with the fact that they are treated as a single entity for purposes of determining whether personal jurisdiction exists over them in New York. As Appellees themselves concede, “[a]lter egos are treated as a single entity for purposes of personal jurisdiction.” OTS Brief at 9 (citing Cardell Fin. Corp. v. Suchodolski Assocs., 2012 U.S. Dist. LEXIS 188295, at *47 (S.D.N.Y. July 17, Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 9 of 38 3 2012)). Appellees are incorrect, however, in asserting that there is a rigid, factor- dependent test for determining both Duke and OTS should be treated as a single entity for jurisdictional purposes. On the contrary, "the test of alter ego status is flexible, allowing courts to weigh the circumstances of the individual case, while recognizing that the following factors are important: whether the two enterprises have substantially identical management, business purpose, operation, equipment, customers, supervision, and ownership." Ret. Plan of Unite Here Nat. Ret. Fund v. Kombassan Holding A.S., 629 F.3d 282, 288 (2d Cir. 2010) (quoting Goodman Piping Prods., Inc. v. NLRB, 741 F.2d 10, 11 (2d Cir.1984)) (internal quotation marks omitted). Courts also consider “whether the related corporations deal with the dominated corporation at arm’s length,” and “whether the corporation in question had property that was used by other of the corporations as if it were its own.” Wm. Passalacqua Builders, Inc. v. Resnick Developers S., Inc., 933 F.2d 131, 139 (2d Cir. 1991) (citations omitted). Here, Duke and OTS should be treated as a single entity for purposes of jurisdiction because their marketing, organizational operations, and student participants are so inextricably intertwined as to be substantially identical. A17- 19, 77-79. Far from interacting at arm’s length, Duke provides OTS with the real estate for its headquarters and even pays the salaries of the vast majority of OTS employees and executives. A197, 199; see also OTS Brief at 11 n.5 (OTS Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 10 of 38 4 attempting to diminish this fact by noting that “‘not everyone’ at OTS receives a salary from Duke”). Students participating in OTS’s study abroad programs pay tuition directly to Duke and all scholarships to participate in OTS’s trips are paid directly by Duke. A214-22. Moreover, Duke and OTS affirmatively hold themselves out to be a single entity. A199. For example, the entirety of OTS’s promotional materials jointly list the Duke and OTS logos, and OTS email addresses end in “@duke.edu,” as they are directly provided by Duke. Id. Because their operations are so inextricably intertwined and because OTS is nothing more than an alter ego of Duke, Duke and OTS should be treated as a single entity for purposes of determining personal jurisdiction in New York. II. Duke and OTS Have Sufficient Contacts With the State of New York to Subject Them to General Jurisdiction Pursuant to N.Y. C.P.L.R. § 301. Appellees argue that the Thackurdeens' briefing has ignored the leading precedents on general jurisdiction from both the Supreme Court and the Second Circuit, namely Daimler AG v. Bauman, 134 S.Ct. 746 (2014) and Gucci America, Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014). But as explained below, Daimler Gucci, which dealt with general jurisdiction over foreign corporations and involved international comity concerns, are distinguishable and irrelevant to the analysis here. Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 11 of 38 5 In Daimler, Argentinian residents brought suit against a German corporation, DaimlerChrysler Aktiengesellschaft (Daimler), in California alleging that its wholly-owned Argentinian subsidiary, Mercedes-Benz Argentina (MB Argentina) collaborated with state security forces during Argentina's “Dirty War” to kidnap, detain, torture, and kill certain MB Argentina workers, among them, plaintiffs or persons closely related to plaintiffs. 134 S.Ct. at 751. Personal jurisdiction over Daimler was predicated on the California contacts of Mercedes- Benz USA, LLC (MBUSA), an indirect subsidiary of Daimler, which was incorporated in Delaware and had its principal place of business in New Jersey. MBUSA distributes Daimler-manufactured vehicles to independent dealerships throughout the United States, including California. Plaintiffs sought to hold Daimler vicariously liable for MB Argentina's alleged malfeasance. Id. at 752. In sustaining the exercise of general jurisdiction over Daimler, "the Ninth Circuit relied on an agency theory, determining that MBUSA acted as Daimler's agent for jurisdictional purposes and then attributing MBUSA's California contacts to Daimler." Id. at 758-59. Thus, at issue in Daimler was the jurisdictional test for an "agency" relationship and whether a subsidiary of a foreign car corporation was subject to general jurisdiction based on the contacts of its in-state subsidiary. Id. at 759. The Supreme Court ultimately held that in sustaining personal jurisdiction, the Ninth Circuit had not adopted a rigorous enough test of an "agency" Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 12 of 38 6 relationship and that its agency finding incorrectly rested on its observation that MBUSA's services were “important” to Daimler. Id. In reversing the Ninth Circuit's determination that general jurisdiction was appropriately exercised the Court expressly warned against the “risks to international comity” of an overly expansive view of general jurisdiction inconsistent with “the ‘fair play and substantial justice’ due process demands.” Id. at 763 (quoting Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945)). In Gucci America, Inc. v. Weixing Li, supra, 768 F.3d 122, 125, manufacturers of luxury goods brought an action in New York alleging that defendants manufactured and sold counterfeit versions of their products worldwide. The jurisdictional challenge was by nonparty appellant, Bank of China (BOC), who was not incorporated or headquartered anywhere in the United States and maintained its principal place of business in China. Id. at 126. Because the BOC has only four branch offices in the United States and only a small portion of its worldwide business is conducted in New York, the Court held that the Bank's contacts were not “so continuous and systematic as to render [it] essentially at home in the forum.” Id. at 135 (quoting Daimler, 134 S.Ct. at 761 & n. 19). The Court noted that "in the event that the district court concludes that the exercise of personal jurisdiction over BOC is appropriate . . . , the district court should Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 13 of 38 7 undertake a comity analysis before ordering the Bank to comply with the Asset Freeze Injunction." Id. at 138. Here, unlike in Daimler and Gucci, neither Duke nor OTS is a foreign corporation with its place of incorporation and principal place of business overseas and jurisdiction over them would not implicate risks to international comity. Nor are the Thackurdeens seeking to confer general jurisdiction over Duke or OTS under “agency principles.” Indeed, the Thackurdeens do not allege that Duke or OTS's New York contacts belong to or derive from its subsidiary or affiliate. Rather, the Thackurdeens allege that Duke and OTS's own “substantial and continuous” solicitation activities in New York coupled with “other activities of substance in the state” support a finding that Appellees were “doing business” in New York. Daimler is also distinguishable because the conduct in that case took place entirely outside the United States. See 134 S.Ct. at 752 ("no part of MB Argentina's alleged collaboration with Argentinian authorities took place in California or anywhere else in the United States"). In contrast here, as noted above and explained further below in the discussion regarding specific jurisdiction, the Thackurdeens' claims arise from and relate to conduct in the forum state. OTS's assertion that "the 'solicitation plus' cases cited by the Thackurdeens are no longer good law" is unavailing, as Daimler and Gucci's holding is not as all- Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 14 of 38 8 encompassing as Appellees suggest. OTS Brief at 15. Indeed, even after the holdings in these cases, New York courts have continued to exercise jurisdiction over foreign corporations which are not "at home" in New York, if such corporations have implicitly consented to general jurisdiction in the state. For example, in Bailen v. Air & Liquid Syst. Corp., No. 190318/12, 2014 WL 3885949 (N.Y. Sup. Aug. 5, 2014), a New York trial court found that it could "exercise general personal jurisdiction over a corporation, regardless of whether it is 'at home' in New York, so long as it is registered to do business here as a foreign corporation and designates a local agent for service of process." The defendant in Bailen, a railroad company incorporated in Delaware with its principal place of business in Nebraska, never conducted business in New York but had registered to do business there under New York Business Corporation Law Section 1304. Accordingly, Bailen suggests that foreign corporations registered to do business under Section 1304 are subject to personal jurisdiction in New York for any and all actions against them, no matter how minimal their in-state contacts may be. See also Zucker v. Waldmann, 46 Misc. 3d 1214(A), 2015 N.Y. Misc. LEXIS 169, at *7 (N.Y. Sup. Ct. 2015) (recognizing that although a defendant may not be "at home" in New York under Daimler, it may nonetheless be found to have "consent[ed] to jurisdiction … statutorily, by registering to do business" in the state). See also Vera v. Republic of Cuba, 91 F. Supp. 3d 561, 570 (S.D.N.Y. Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 15 of 38 9 2015), appeal dismissed, 802 F.3d 242 (2d Cir. 2015) (holding that foreign bank was subject to general personal jurisdiction in New York court and noting that "[c]ontrary to BBVA's suggestions, Daimler and Gucci should not be read so broadly as to eliminate the necessary regulatory oversight into foreign entities that operate within the boundaries of the United States"). After the holding in Daimler, New York courts have also continued to consider the amount of a defendant's contacts with the forum in deciding whether general jurisdiction can be exercised over a corporate defendant who is incorporated and has its principal place of business elsewhere. For instance, in In re Hellas Telecommunications (Luxembourg) II SCA, 524 B.R. 488, 508, 73 Collier Bankr. Cas. 2d (MB) 78 (Bankr. S.D. N.Y. 2015), the New York bankruptcy court held that it could exercise general jurisdiction over Deutsche Bank despite the fact that it was not incorporated or had its principal place of business in the United States. The court reasoned that Plaintiffs' allegations established that Deutsche Bank maintains a substantial, long-term presence in the U.S. and in New York and that the Bank's contacts with the U.S. are not limited to the in-state operations of its affiliate as in Daimler. Id. Thus, the court held that the Plaintiffs had adequately alleged that Deutsche Bank is subject to general jurisdiction in New York. Id. Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 16 of 38 10 Daimler has also not prevented courts from exercising general jurisdiction over foreign corporations with a principal place of business overseas where there has been a sales office in the forum state as well as some connection between the injury and the forum. For instance, in Barriere v. Juluca, 2014 WL 652831, *1 (S.D. Fla. Feb. 19, 2014), a Texas resident brought suit against Cap Juluca, an Anguillan corporation with its principal place of business in Anguilla, alleging that she was seriously injured after she slipped and fell on wet tiles while staying at a resort in Anguilla. The Florida court found that Cap Juluca was subject to general jurisdiction because it maintained a sales office in Florida and conducted other business in Florida. Id. at *8. The court contended that the case was both factually and procedurally distinguishable from Daimler because Cap Juluca’s sales office and alleged agent provided a Florida connection to the “injury, perpetrator, or victim.” Id. at *9. The court declared that it did not interpret Daimler as casting off previous Florida case law because “doing so would effectively deprive American citizens from litigating in the United States for virtually all injuries that occur at foreign resorts maintained by foreign defendants even where, as here, the corporations themselves maintain an American sales office in Florida and heavily market in the jurisdiction.” Id. Accordingly, neither Daimler nor Gucci precludes the exercise of general jurisdiction over Duke and OTS. Because the Thackurdeens alleged sufficient Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 17 of 38 11 facts establishing that Duke and OTS were engaged in such a continuous and systematic course of "doing business" in New York as to warrant a finding of its "presence" in this jurisdiction, the Court erred in finding that it could not exercise general jurisdiction over Appellees. III. The District Court Erred in Finding that Appellees Are Not Subject to Specific Jurisdiction in New York Pursuant to N.Y. C.P.L.R. § 302. A. Appellees Committed Tortious Acts Within New York, Subjecting Them to Personal Jurisdiction Here. The district court erred in finding that it did not have specific jurisdiction over Appellees because Appellees’ business in New York, in conjunction with their calls to Appellants’ home, created a nexus between Appellants’ claims and Appellees’ New York contacts. Under New York’s long-arm statute, personal jurisdiction over non- domiciliaries may be exercised where a plaintiff asserts claims that arise out of a tortious act committed within the state. C.P.L.R. § 302(a)(2). The Court of Appeals of New York has held that “one need not be physically present in order to be subject to the jurisdiction of our courts under CPLR 302.” Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 17 (1970); accord Davidoff v. Davidoff, 12 Misc. 3d 1162(A) (Sup. Ct. 2006) (“This Court adopts the view that physical presence of the defendant in New York is not a prerequisite to CPLR 302(a)(2), but Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 18 of 38 12 instead, requires that the tortious act committed by defendant be one deemed to have been committed in New York.”). In reliance on Feathers v. McLucas, 15 N.Y.2d 443 (1965), Appellees argue that binding precedent dictates that a tortfeasor must have been physically present in New York for personal jurisdiction to exist under § 302(a)(2). OTS Brief at 25- 26. In Feathers, 15 N.Y.2d at 458, plaintiff was injured as a result of an explosion in New York of a propane tank which had been manufactured outside of New York by a non-domiciliary corporation. The court held that it did not have personal jurisdiction over the defendant because § 302(a)(2) does not authorize jurisdiction over a non-resident who causes tortious consequences in New York as a result of a negligent act or omission committed outside New York. Id. at 464. The majority in Feathers stated that the plain meaning of the phrase “commits a tortious act within the state” requires that defendant's negligent act or omission occur within the state. Id. Subsequent cases sometimes interpreted this “within the state” requirement to mean that the defendant had to be physically present for § 302(a)(2) to apply. See, e.g., Roberts-Gordon, LLC v Superior Radiant Products, Ltd., 85 F. Supp. 2d 202, 213 (W.D.N.Y. 2000). However, the physical presence of the alleged tortfeasor has never been considered an immutable requirement of § 302(a)(2). In fact, numerous cases subsequent to Feathers have found that physical presence is not required in Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 19 of 38 13 situations where the alleged tortfeasor was, for example, present by phone. See Fischbarg v Doucet, 9 N.Y.3d 375, 382 (2007) (“It is well settled that ‘one need not be physically present [here] . . . to be subject to the jurisdiction of our courts under CPLR 302.’”) (internal quotations omitted). As explained in Davidoff v. Davidoff, 12 Misc. 3d 1162(A), 8 (Sup. Ct. 2006): Examination of CPLR § 302(a)(2) and study of the caselaw cited by commentary and defendants reveal that defendants' actual presence within New York is not necessarily a prerequisite to jurisdiction under CPLR § 302(a)(2), provided the tortious act itself, committed by defendant, occurs within New York State. While some torts, by their nature, such as assault and battery, would ordinarily occur while the defendant is physically present in the State, not all tortious acts that occur within the State of New York need be committed while the defendant is physically present within New York boundaries for purposes of CPLR § 302(a)(2). In other words, depending on the nature of the tort, the tortious act of defendant could occur in New York while defendant is physically present outside the boundaries of New York, and jurisdiction under 302(a)(2) may lie. Accordingly, Appellees’ argument that § 302(a)(2) does not apply to them because they were never physically present in the state is misplaced. Here, Appellants’ intentional infliction of emotional distress claim is based, in part, on communications made over the phone by Duke employees to the Thackurdeens in New York. Specifically, several hours after Ravi had drowned, Margaret Riley, the Director of OTS Duke’s Global Education Office, called the Thackurdeens at their home in New York and informed them that their son was “missing.” A62. Later that night, another OTS Duke Representative phoned Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 20 of 38 14 Roshni in New York to inform her that OTS Duke had “called off the search.” A63. Ms. Riley again spoke with Roshni on the phone the following morning, at which time she told her that Roshni need not travel to Costa Rica because there were no longer any problems, and that “everything was fine.” A14-15, 63. Ms. Riley’s misrepresentations to the Thackurdeens regarding their son, when she knew that Ravi was not merely “missing” and that everything was far from fine, constituted extreme and outrageous conduct. A26, 27. That Ms. Riley may have been physically located outside of New York at the time she made these communications is irrelevant. Instead, Feathers and its progeny makes clear that the question is where the communication itself took place. See Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 18 (1970) (finding that the defendant had “purposefully availed himself” of the forum state by transacting business over the phone in an auction house). Thus, for purposes of § 302(a)(2), Ms. Riley’s statements to the Thackurdeens took place in New York. B. Even if Appellees Committed Tortious Acts Without New York, They Are Still Subject to Personal Jurisdiction Here Because They Do Business Here. Even if Appellees’ tortious conduct is not considered to have occurred within New York, the district court still had personal jurisdiction over them pursuant to § 302(a)(3) because (1) the damages were felt in New York; and (2) Appellees regularly solicit business in New York. Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 21 of 38 15 The damages from Appellees’ actions were felt in New York in a number of ways. First, as explained above, Appellees’ communications occurred within New York regardless of where Ms. Riley was physically at the time. Second, Appellees sent marketing materials to Appellants touting the value and safety of the OTS program. A117-28. Third, Appellees’ negligence caused Appellants an immediate loss of consortium and severe emotional distress in New York. A26. It is also undisputed that Appellees regularly conduct business in New York. As Appellants explained in detail in their opening brief, Duke undertakes significant recruitment activities in New York, a large amount of Duke students come from New York, Duke offers education programs and volunteer programs in New York, Duke sends its athletic teams to compete in New York, and Duke raises a substantial amount of money from alumni located in New York. This conduct constitutes purposeful business solicitation in New York, satisfying subsection (1) of § 302(a)(3). Additionally, Duke and OTS specifically marketed their study abroad program to Ravi and the Thackurdeens in New York, and the contract by Ravi and his parents allowing him to take part in the study abroad program was signed in New York. A275; see A77-79. Accordingly, even if the Court finds that Appellees’ tortious conduct occurred outside of New York the district court still erred in finding it did not have Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 22 of 38 16 personal jurisdiction because (1) the damages from Appellees’ actions were felt in New York; and (2) Appellees purposefully and regularly conduct business in New York. IV. The District Court Abused Its Discretion by Dismissing Rather than Transferring the Case to North Carolina. A. Appellees Have Failed to Establish that the Thackurdeens Were Motivated by Any Forum Shopping Considerations When They Filed This Action in the Forum Most Convenient to Them. Appellees argue that since the Thackurdeens deliberately chose to "forum- shop" by filing their complaint in New York and failed to request transfer before the district court, this Court should not ex mero motu remand the complaint for purposes of transfer because a transfer under these circumstances would encourage frivolous forum shopping. Duke Brief at 57. But what Appellees deem to be a strategic decision by the Thackurdeens and their counsel was, in fact, a good faith belief that Plaintiffs' home state of New York, where they reside and which was the most convenient forum for them, had jurisdiction over Appellees. Indeed, contrary to Appellees' argument, the filing of a complaint in the district where a plaintiff is located does not constitute forum shopping, even if it is in a court that ultimately is found not to have jurisdiction over defendants. See, e.g., Schnabel v. Ramsey Quantitative Sys., Inc., 322 F. Supp. 2d 505, 513-14 (S.D.N.Y. 2004) (“A party who appropriately files a declaratory judgment action in Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 23 of 38 17 the forum most convenient to him to resolve a ripe legal dispute is not engaged in forum shopping. . . . Schnabel resides in New York, developed his computer program in New York, and met with Ramsey in New York to discuss his employment contract. Schnabel's choice of this forum does not suggest forum shopping.”); J. Lyons & Co. v. Republic of Tea, Inc., 892 F. Supp. 486, 491 (S.D.N.Y. 1995) (rejecting plaintiff's argument that defendants were forum shopping where "defendants appropriately filed their actions in the forum most convenient to them"); see also In re Optimal U.S. Litig., 837 F. Supp. 2d 244, 253 (S.D.N.Y. 2011) ("Although foreign plaintiffs are generally accorded less deference in their selection of a forum, even foreign plaintiffs are accorded deference where their choice of forum is based on 'valid reasons, such as convenience.'") (internal citations omitted). And the fact that the district court granted, over Duke and OTS's objections, the Thackurdeens’ request for jurisdictional discovery, see A58, shows that there was, at the very minimum, a colorable claim of jurisdiction over Appellees. See Mills 2011 LLC v. Synovus Bank, 921 F. Supp. 2d 219, 228 (S.D.N.Y. 2013) ("Courts have allowed jurisdictional discovery where there has been a threshold showing for some basis to assert jurisdiction, such as facts that would support a colorable claim of jurisdiction."); see, e.g., Viropro, Inc. v. Pricewaterhousecoopers Advisory Servs. Sdn Bhd, No. 15CV6235(DLC), 2016 WL 225686, at *3 (S.D.N.Y. Jan. 19, 2016) Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 24 of 38 18 (denying request for jurisdictional discovery where plaintiff had not made a threshold showing that would entitle it to jurisdictional discovery). Aside from the obvious convenience that their home court of New York provided, the Thackurdeens also reasonably believed, and still believe, that New York is an appropriate forum for this action. In addition to the fact that Ravi's death arose from transactions that took place in New York, several key communications and misrepresentations immediately following Ravi's disappearance and death were also directed at the Thackurdeens in New York. Despite Appellee's unsubstantiated claims that the filing of the complaint in New York was "part of a deliberate tactical decision by the Plaintiffs . . . to take advantage of New York law and to avoid the application of North Carolina law by a North Carolina jury, Duke Brief at 23, this assertion is belied by the law in the relevant jurisdictions. For instance, this is not a case in which it could be said that the Thackurdeens filed in New York over North Carolina in order to take advantage of the jurisdiction's liberal statute of limitations. Indeed, the Thackurdeens’ complaint, which included a survival claim based on negligence, a wrongful death claim based on negligence, and an intentional infliction of emotional distress claim, would still have been timely if filed in North Carolina Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 25 of 38 19 rather than New York.1 Thus, Appellees have failed to establish that the Thackurdeens' decision to file in New York was motivated by any forum shopping considerations whatsoever; on the contrary, it is clear that while grieving the tragic and untimely death of their nineteen year-old son, the Thackurdeens brought this action in New York based on valid reasons including convenience and expense. B. There Is Nothing Precluding this Court from Transferring This Action to the Middle District of North Carolina Where Appellees Are Subject to Personal Jurisdiction and Where This Action Could Have Originally Been Brought. Appellees incorrectly suggest that Appellants' failure to move for a transfer in the district court somehow precludes this Court from transferring the matter at this time, or remanding the matter for the district court to determine whether transfer would be in the interests of justice. As an initial matter, Duke is incorrect in stating that "[n]o party moved for or sought transfer during the extensive proceedings before the District Court." 1 Ravi Thackurdeen died on April 29, 2012, and Appellants filed their complaint on August 8, 2014. A10. The statute of limitations in North Carolina for negligence claims is three years. N.C. Gen. Stat. § 1-52(5); Harrold v. Dowd, 149 N.C. App. 777, 781 (2002). The statute of limitations in North Carolina for intentional infliction of emotional distress is also three years. N.C. Gen. Stat. § 1-52(5); Ruff v. Reeves Bros., 122 N.C. App. 221, 226 (1996). Thus, Appellants’ claims for negligence and intentional infliction of emotional distress were filed within the three-year statute of limitations in North Carolina. Like in New York, the statute of limitations for wrongful death in North Carolina is two years. N.C. Gen. Stat. § 1-53(4). Appellants' claim for wrongful death would have nonetheless been timely if filed in North Carolina, because the parties entered into a tolling agreement which extended the limitations period. Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 26 of 38 20 Duke Brief at 22. On the contrary, as noted in Appellants' Opening Brief and as OTS itself concedes, OTS raised the possibility of transfer in its memorandum of law submitted to the district court. OTS Brief at 31; see A5 [Doc. # 29 at 19 n.9] (OTS requesting transfer of the action pursuant to 28 U.S.C. § 1406(a) as an alternative to dismissal). Thus, the possibility of transfer was, in fact, before the district court. Furthermore, contrary to Appellees' arguments, courts are empowered to transfer cases sua sponte even in the absence of any request to transfer by the parties. See Lead Indus. Assoc., Inc. v. OSHA, 610 F.2d 70, 79-80 n.17 (2d Cir. 1979) (“The broad language of 28 U.S.C. § 1404(a) would seem to permit a court to order transfer sua sponte.”); Concession Consultants, Inc. v. Mirisch, 355 F.2d 369, 371-72 n.3 (2d Cir. 1966) (“[Section] 1406(a) allows the district judge to ‘dismiss, or if it be in the interest of justice, transfer such case’ to a proper venue. And where the motion asks only that the suit be dismissed, the court may properly, sua sponte, order it transferred.”). Here, in light of Appellees’ own admission that North Carolina courts have jurisdiction over them and that the Thackurdeens’ injury occurred there, the court abused its discretion in failing to transfer the action to North Carolina sua sponte. Appellee Duke also takes issue with the fact that Appellants have raised this issue in the context of this appeal, noting that "even more surprising in light of this Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 27 of 38 21 argument is the fact that the Plaintiffs still have not filed a Motion to Transfer, even with this Court." Duke Brief at 58-59. It is unclear what motion to transfer Duke is suggesting that the Thackurdeens should have filed in this Court. And as Appellees should know, Appellants cannot presently file a motion to transfer in the district court, as the lower court is divested of jurisdiction during the pendency of this appeal. See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S. Ct. 400, 402, 74 L. Ed. 2d 225 (1982) ("The filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal."). Finally, Appellee Duke argues that North Carolina is a “jurisdiction on service” state in which the operative jurisdictional document is a validly issued and served summons and that because New York does not have personal jurisdiction over Duke and OTS, the summons served in this matter are not valid. Not only does the authority cited by Duke fail to support its argument that this action would be time-barred in North Carolina, it actually supports the contrary position. For instance, Rule 4(m) of the Federal Rules of Civil Procedure, cited by Duke, provides: If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 28 of 38 22 if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Fed. Rules Civ. Proc. R. 4(m) (emphases added). In Bolus v. Fleetwood RV, Inc., 308 F.R.D. 152, 154 (M.D.N.C. 2015), aff'd, No. 15-1922, 2016 WL 1622055 (4th Cir. Apr. 25, 2016), also cited by Duke, the plaintiff had not served either defendant with a summons issued by the United States District Court for the Middle District of North Carolina, or moved for an extension of the deadline in which to do so, until 178 days after the case was transferred to this District. Despite the expiration of the time period within which to serve defendants, the court nonetheless considered whether plaintiff had established good cause to excuse its failure and allow the court to extend the time for service. Id. at 155. Because "Plaintiff readily acknowledges that no new efforts to serve process on any of the defendants were made after the case was transferred to this district,” the court held that plaintiff had not presented evidence to support a finding of good cause. Id. (emphasis added). The court noted that "[h]ad Mr. Bolus moved for an extension at the time that the case was transferred, which he would have been required to do due to the expiration of the 120 days within which to serve Defendants, it would 'generally [be] expect[ed] [that] the transferee court [would] find ‘good cause’ to extend the period for service for an ‘appropriate period.’” Id. (quoting Harding, 163 F.3d 598, 1998 WL 637414 *5). Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 29 of 38 23 The court further noted that Rule 4(m) now gives district courts the discretion to grant extensions of time for service of process even in the absence of a showing of good cause. Id. at 156. Thus, although Mr. Bolus has not shown good cause for his failure to timely serve the defendants, the court had discretion to extend the time for service. Id. Although the court found that Mr. Bolus's arguments in support of such a finding fell short, the facts nonetheless supported a finding of excusable neglect. Id. at 157. The court recognized that unlike cases where a party has outright failed to take any action within the prescribed period of time, Mr. Bolus did serve defendants with the complaint and summons issued by the transferor court, albeit the summons was issued by a court lacking personal jurisdiction over them. Id. at 157-58. Thus, the court exercised its discretion to permit Mr. Bolus an extension of time within which to re-serve the defendants. Id. at 158. Thus, contrary to Duke's argument, the fact that the Thackurdeens may not have perfected service on Appellees in New York due to the court's finding that it lacked personal jurisdiction over them would not time-bar their claims against Appellees in North Carolina. Rather, they would be afforded 120 days after the matter was transferred within which to re-serve the defendants under North Carolina law. Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 30 of 38 24 When the instant action was brought in August 2014, both Duke and OTS were amenable to service of process in the Middle District of North Carolina, the proposed transferee district, and both Duke and OTS were subject to personal jurisdiction there. Thus, there is nothing precluding this Court from transferring this action to the Middle District of North Carolina where Appellees are subject to personal jurisdiction and where this action could have originally been brought. // // C. Transferring This Matter to the Middle District of North Carolina Is in the Interests of Justice and Will Promote Judicial Economy. The district court abused its discretion in dismissing this case, instead of transferring it to the United States District Court for the Middle District of North Carolina, because doing so would have served the interests of justice. In Corke v. Sameiet M. S. Song of Norway, 572 F.2d 77, 78 (2d Cir. 1978), a New York resident commenced a diversity action against a foreign corporation for injuries sustained by him as alleged result of a shipboard accident and subsequent medical treatment by the ship's doctor. The district court dismissed the action for lack of personal jurisdiction over the defendant. Id. On appeal, this Court considered whether the transfer of the case was in the interest of justice. Id. at 80. The Court recognized that "refusal to transfer would severely prejudice appellant, whereas transfer would work no hardship on appellees." Id. Specifically, the Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 31 of 38 25 Court noted that the relevant statutes of limitations would clearly bar institution of a new action, transfer would permit the appellant to benefit from whatever tolling of those statutes had taken place, and transfer would enable the appellant to obtain personal jurisdiction over some or all of the defendants. Id. Thus, because "the transfer in no way prejudices appellees while it prevents a substantial injustice to appellant," the Court concluded that transfer was warranted. Id. at 81. The Court further held that "[b]ecause transfer is so clearly warranted by the facts at hand, it is unnecessary to waste the district court's valuable time by requiring a hearing on transferability. We therefore reverse and remand with directions to transfer the action to the district court for the Southern District of Florida." Id. Gaither v. Boone Cty. Bd. of Ed., 465 F. Supp. 712 (S.D.N.Y. 1979) is also instructive. There, residents of New York brought an action in the Southern District of New York against the Boone County Board of Education and various individual residents of Kentucky seeking to recover damages for negligence arising out of a truck-school bus collision which occurred in Kentucky. Id. at 713. Although the court found that there was no basis for the exercise of personal jurisdiction over defendants in New York, the court held that the interest of justice required transfer rather than dismissal. Id. at 714. The court explained: As in Goldlawr, supra, and Corke, supra, dismissal would prejudice plaintiffs. The Kentucky limitations period governing actions for personal injury is one year. 15 Ky.Rev.Stat.Annot. § 413.140(1) (a) (1972). Insofar as the accident at issue occurred on August 25, Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 32 of 38 26 1977, the institution of suit in Kentucky subsequent to dismissal here would likely meet with a viable statute of limitations defense. Transfer rather than dismissal, on the other hand, would give plaintiffs the benefit of their timely filing here in May, 1978. Transfer to Kentucky would also enable the Court to exercise in personam jurisdiction over the defendants, a factor of critical relevance in both Goldlawr and Corke. Defendants have proved amenable to service in Kentucky, and no difficulty in again effecting personal service need be anticipated should the transferee court find the original service on defendants defective. Finally, transfer would work no prejudice to defendants' position on the merits of this case. Id. at 715. Thus, like in Gaither, it was clearly in the interest of justice that this action be transferred to the Middle District of North Carolina where both Appellees are subject to personal jurisdiction and where the action could have originally been brought. Whereas dismissal would significantly prejudice the Thackurdeens, since the institution of suit in North Carolina would almost certainly be met with a statute of limitations defense and may ultimately be time-barred, transfer would have given them the benefit of their timely filing in August 2014. At the same time, transfer would have worked no prejudice to Duke or OTS's position on the merits of this case, as they have been on notice of the Thackurdeens' claims since during the limitations period. This Court should also reverse the District Court’s order dismissing this case, or at least remand the matter so the district court can decide whether to transfer the matter to North Carolina, because doing so would be judicially Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 33 of 38 27 efficient. If the Court affirms the lower court’s Order dismissing this matter, Appellants will be forced to file a new complaint in North Carolina alleging the same claims as those alleged here. In response to the inevitable motion to dismiss Appellees would file based on statute of limitations grounds, Appellants would advance an argument that the limitations period should be equitably tolled. North Carolina2 is among the jurisdictions that embrace the maintstream view that equitable tolling may serve to extend a statute of limitations. Aikens v. Ingram, 524 F. App'x 873, 882 (4th Cir. 2013). Where the plaintiff files a complaint in the wrong court, equitable tolling of the statute of limitations is justified so long as (1) the defendant received timely notice of the plaintiffs’ claims; (2) the defendant has not been prejudiced by delay of the litigation; and (3) the plaintiff has acted with diligence. Id. at 883 (citing Burnett v. New York Cent. R. Co., 380 U.S. 424, 429-30 (1965)). Here, the Thackurdeens can make a prima facie showing that equitable tolling is justified. As explained above, Appellees received timely notice of the Thackurdeens' claims within the limitations period and Appellees would not be prejudiced by the delay of the litigation. As further explained above, the Thackurdeens diligently pursued their claims in the forum most convenient to 2 The Fourth Circuit has held that in diversity actions the equitable tolling doctrine of the forum state applies. Wade v. Danek Med., Inc., 182 F.3d 281, 290 (4th Cir. 1999). Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 34 of 38 28 them, believing in good faith that the Southern District of New York could exercise personal jurisdiction over Duke and OTS. Although one could argue that the Thackurdeens could have filed another action simultaneously in North Carolina in an abundance of caution, their failure to do so was reasonable, especially given the time and expense that litigating in a distant jurisdiction would entail. See Flores v. Predco Servs. Corp., No. CIV. 10-1320 RMB/AMD, 2011 WL 883640, at *6 (D.N.J. Mar. 11, 2011) (finding that a plaintiff had acted reasonably diligently and was entitled to equitable tolling even though he had not simultaneously pursued two different actions to preserve his claims). Thus, it is highly probable that equitable tolling would apply to Appellants' claims if the action were to be re-filed in North Carolina. See, e.g., Island Insteel Sys. v. Waters, 296 F.3d 200 (3d Cir. 2002) (holding equitable tolling proper when the plaintiffs filed their claim in the wrong forum resulting in dismissal for lack of personal jurisdiction). In order to prevent this chain of inevitable events and the corresponding waste of judicial resources, the Court should instead reverse the district court's Order dismissing this action and remand the matter so that the propriety of a transfer can be determined by the district court. See, e.g., Meyer v. Bd. of Regents of Univ. of Oklahoma, 597 F. App'x 27, 28 (2d Cir. 2015) (remanding matter for the district court to decide whether transfer to the United States District Court for Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 35 of 38 29 the Western District of Oklahoma would serve the interest of justice where the district court has not had an opportunity to consider Meyer's transfer request, since the case was dismissed before the question of transfer could be argued). CONCLUSION For the reasons stated above, this Court should reverse the district court’s judgment. In the alternative, the Court should remand the matter with directions to transfer the action to the Middle District of North Carolina, or at least with directions that the district court determine whether transfer to the Middle District of North Carolina would serve the interest of justice. Dated: May 10, 2016 Respectfully submitted, _______/s/ Tina Glandian_______ Tina Glandian, Esq. GERAGOS & GERAGOS, APC 644 South Figueroa Street Los Angeles, California 90017 Telephone: (213) 625-3900 Fax: (213) 232-3255 Counsel for Appellants Roshni D. Thackurdeen, Raj B. Thackurdeen, and the Estate of Ravi Thackurdeen Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 36 of 38 30 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)(ii) because this brief contains 6,999 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally-spaced typeface using Microsoft Word 2010 in Times New Roman 14-point font. Dated: May 10, 2016 _______/s/ Tina Glandian_______ Tina Glandian, Esq. GERAGOS & GERAGOS, APC Counsel for Appellants Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 37 of 38 31 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Second Circuit by using the appellate CM/ECF system on May 10, 2016. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Dated: May 10, 2016 _______/s/ Tina Glandian______ Tina Glandian, Esq. GERAGOS & GERAGOS, APC Counsel for Appellants Case 1:16-cv-01108-NCT-JLW Document 72-1 Filed 02/24/17 Page 38 of 38 1 15-3082-cv Thackurdeen v. Duke Univ. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of September, two thousand sixteen. PRESENT: JOHN M. WALKER, JR., JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR., Circuit Judges. ROSHNI D. THACKURDEEN AND RAJ B. THACKURDEEN, INDIVIDUALLY AND IN THEIR CAPACITY AS CO-ADMINISTRATORS OF THE ESTATE OF RAVI THACKURDEEN, Plaintiffs-Appellants, 15-3082-cv v. DUKE UNIVERSITY, a North Carolina Corporation, ORGANIZATION FOR TROPICAL STUDIES, INC., a North Carolina Corporation, DOES, 1-20, Defendants-Appellees. FOR PLAINTIFFS-APPELLANTS: TINA GLANDIAN, Geragos & Geragos, APC, Los Angeles, CA. FOR DEFENDANT-APPELLEE DUKE UNIVERSITY: JAMES P. COONEY III (Marcey R. Selle, on the brief), Womble Carlyle Sandridge & Rice LLP, Charlotte, NC; Paul F. Clark, Wade Clark Mulcahy, New York, NY. CERTIFIED COPY ISSUED ON 09/01/2016 Case 15-3082, Document 91, 09/01/2016, 1854383, Page1 of 5 USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: ______________ N.Y.S.D. Case # 14-cv-6311(AJN) Sept. 1, 2016 Case 1:16-cv-01108-NCT-JLW Document 52 Filed 09/01/16 Page 1 of 5Case 1:16-cv-01 08-NCT-JLW Document 72-2 Filed 02/24/17 Page 1 of 5 2 FOR DEFENDANT-APPELLEE ORGANIZATION FOR TROPICAL STUDIES, INC.: REID L. PHILLIPS, Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, Greensboro, NC. Appeal from a judgment of the United States District Court for the Southern District of New York (Alison J. Nathan, Judge). UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court be and hereby is AFFIRMED IN PART and TRANSFERRED to the United States District Court for the Middle District of North Carolina. Plaintiffs-appellants Roshni D. Thackurdeen and Raj B. Thackurdeen (“plaintiffs”) appeal a September 2, 2015 District Court judgment dismissing their suit for lack of personal jurisdiction over defendants-appellants Duke University (“Duke”) and the Organization for Tropical Studies, Inc. (“OTS”). Plaintiffs assert various claims for negligence and for the intentional infliction of emotional distress based on the drowning death of their son, Ravi Thackurdeen, while he was participating in a study-abroad program in Costa Rica sponsored by defendants. On appeal, plaintiffs argue that the District Court erred in finding that defendants are not subject to personal jurisdiction in New York and in dismissing the action rather than transferring it to the United States District Court for the Middle District of North Carolina. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. “We review de novo a district court’s decision to dismiss a complaint for lack of personal jurisdiction.” Porina v. Marward Shipping Co., 521 F.3d 122, 126 (2d Cir. 2008). “In opposing a motion to dismiss for lack of personal jurisdiction, [plaintiffs] bear[ ] the burden of establishing that the court has jurisdiction over [defendants].” Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005) (internal quotation marks omitted). Where, as here, the parties have conducted discovery regarding defendants’ contacts with the forum state, plaintiffs’ “prima facie showing . . . must include an averment of facts that, if credited[,] . . . would suffice to establish jurisdiction.” Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). A. General Jurisdiction We first address plaintiffs’ argument that the District Court erred in finding that defendants were not subject to general jurisdiction in New York.1 Federal district courts sitting in New York 1 We treat Duke and OTS as separate entities. Although plaintiffs refer to OTS as Duke’s “alter ego,” Pl. Br. 4, 5, describe defendants as “interrelated,” id. at 9, and discuss “OTS Duke” as a single party, plaintiffs do not actually argue in their principal brief that the District Court erred in treating defendants as two separate entities. See Thackurdeen v. Duke Univ., 130 F. Supp. 3d 792, 796 n.2 Case 15-3082, Document 91, 09/01/2016, 1854383, Page2 of 5 Case 1:16-cv-01108-NCT-JLW Document 52 Filed 09/01/16 Page 2 of 5Case 1:16-cv-01 08-NCT-JLW Document 72-2 Filed 02/24/17 Page 2 of 5 3 must answer two questions when determining whether there is personal jurisdiction over a defendant: (1) whether there is jurisdiction under New York law; and (2) whether the exercise of jurisdiction would be consistent with federal due process requirements. See Grand River Enters., 425 F.3d at 165. Plaintiffs argue that the District Court had general jurisdiction over defendants pursuant to N.Y. Civil Practice Law and Rules (“CPLR”) § 301. Whatever application § 301 might have, however, it is apparent that the exercise of general jurisdiction over defendants would be inconsistent with constitutional due process. General jurisdiction over a corporate defendant satisfies due process only if the defendant is headquartered or incorporated in the forum state or is otherwise “at home” in that state. See Daimler AG v. Bauman, 134 S. Ct. 746, 761 & n.19 (2014) (internal quotation marks omitted); Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135 (2d Cir. 2014). Plaintiffs have not alleged that either defendant satisfies this requirement.2 B. Specific Jurisdiction Plaintiffs argue that the District Court erred in holding that defendants are not subject to specific jurisdiction in New York. Plaintiffs point to CPLR § 302(a), which provides for jurisdiction over non-domiciliaries “[a]s to a cause of action arising from” four kinds of contact with New York, three of which are relevant here. We consider each in turn. 1. CPLR § 302(a)(1). To establish personal jurisdiction under CPLR § 302(a)(1), a plaintiff must show (1) that the defendant “transacted business within the state” and (2) that the asserted claim “arise[s] from that business activity.” Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 168 (2d Cir. 2015) (internal quotation marks omitted). Plaintiffs argue that defendants “transacted business in New York” by sending plaintiffs and their son, who were living in New York, various documents (S.D.N.Y. 2015) (observing that “Plaintiffs put forward no legal support for their argument” that Duke and OTS should be treated as one entity; that “Plaintiffs referred to both Defendants as distinct entities in their pleadings”; and that “each Defendant is represented by separate counsel and has put forward separate motions to dismiss premised on similar, but not identical, legal theories”). Nor do plaintiffs suggest in their statement of issues presented that they are seeking review of the District Court’s judgment in this respect. Although plaintiffs argue in their reply brief that “Duke and OTS should be treated as a single entity,” Pl. Reply Br. 3, we generally do not address arguments raised for the first time in a reply brief. See EDP Med. Comput. Sys., Inc. v. United States, 480 F.3d 621, 625 n.1 (2d Cir. 2007). 2 Plaintiffs argue that Daimler and Gucci are distinguishable because, unlike the defendants in those cases, “neither Duke nor OTS is a foreign corporation with its place of incorporation and principal place of business overseas.” Pl. Reply Br. 7. But Daimler itself treats “sister-state or foreign- country” corporations as equally “foreign.” 134 S. Ct. at 754 (internal quotation marks omitted). Although international comity concerns “reinforce[d]” Daimler’s reasoning, the decision rested primarily on the demands of constitutional due process, which apply to both U.S. and non-U.S. defendants. See id. at 763. Case 15-3082, Document 91, 09/01/2016, 1854383, Page3 of 5 Case 1:16-cv-01108-NCT-JLW Document 52 Filed 09/01/16 Page 3 of 5Case 1:16-cv-01 08-NCT-JLW Document 72-2 Filed 02/24/17 Page 3 of 5 4 related to the study-abroad program. Assuming arguendo that this satisfies the first prong of § 302(a)(1), jurisdiction would still be lacking because plaintiffs’ claims do not “arise from” that business activity. New York courts have consistently held that out-of-state injuries do not suffice for jurisdiction under § 302(a)(1) when their only connection to New York is that they were sustained in the course of an activity that was advertised and contracted for within the state. See, e.g., Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317, 321-22 (2d Cir. 1964); Diskin v. Starck, 538 F. Supp. 877, 880 (E.D.N.Y. 1982) (collecting cases); Arroyo v. Mountain Sch., 892 N.Y.S.2d 74, 76 (1st Dep’t 2009).3 2. CPLR § 302(a)(2). Plaintiffs argue that jurisdiction is proper under CPLR § 302(a)(2), which provides for jurisdiction over a non-domiciliary who “commits a tortious act within the state,” because defendants’ tortious infliction of emotional distress occurred “within” New York. This argument relies on phone calls that defendants allegedly placed from Costa Rica or North Carolina to plaintiffs at their home in New York. But we have “held that a defendant’s physical presence in New York is a prerequisite to jurisdiction under § 302(a)(2).” Bank Brussels Lambert, 171 F.3d at 790. Because physical presence is lacking here, so is jurisdiction under § 302(a)(2).4 3. CPLR § 302(a)(3). Finally, we consider § 302(a)(3), which provides for jurisdiction over a defendant who “commits a tortious act without the state causing injury to person or property within the state,” if the defendant “(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” 3 We note that the judgment of an intermediate state court, “although not authoritative, . . . ‘is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.’” New York v. Nat’l Serv. Indus., Inc., 460 F.3d 201, 210 (2d Cir. 2006) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940)). 4 As plaintiffs point out, some New York Supreme Court cases have held that § 302(a)(2) does not require physical presence. Our contrary interpretation of that statute, however, relied on several decisions of the New York Court of Appeals, which expressly held that physical presence was required. See Bensusan Rest. Corp. v. King, 126 F.3d 25, 28 (2d Cir. 1997) (citing cases). “In the absence of some indication by the New York Court of Appeals that [those] decisions . . . no longer represent the law of New York,” we will not overrule our own longstanding interpretation of § 302(a)(2). See id. at 29; see also Fabozzi v. Lexington Ins. Co., 601 F.3d 88, 92 (2d Cir. 2010) (“Where lower state courts appear to have misconstrued or ignored binding precedent, we are obliged to follow the [New York] Court of Appeals.”); cf. ante note 3. Case 15-3082, Document 91, 09/01/2016, 1854383, Page4 of 5 Case 1:16-cv-01108-NCT-JLW Document 52 Filed 09/01/16 Page 4 of 5Case 1:16-cv-01 08-NCT-JLW Document 72-2 Filed 02/24/17 Page 4 of 5 5 For jurisdiction to be proper under § 302(a)(3), the injury must have occurred in New York. DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84-85 (2d Cir. 2001). Whether the injury occurred “in” New York for purposes of § 302(a)(3) generally depends on “a situs-of-injury test, which asks [courts] to locate the original event which caused the injury.” Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 209 (2d Cir. 2001) (internal quotation marks omitted). “The situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are felt by the plaintiff.” Id. (brackets and internal quotation marks omitted). Here, the “original events” all occurred outside of New York; jurisdiction is therefore improper under § 302(a)(3). See also Porcello v. Brackett, 446 N.Y.S.2d 780, 781-82 (4th Dep’t 1981) (holding that § 302(a)(3) did not provide for jurisdiction over a wrongful-death action concerning a New York resident who died in Ohio), aff’d, 443 N.E.2d 491 (N.Y. 1982). C. Transfer Plaintiffs ask that, if jurisdiction is lacking, we transfer this action to the United States District Court for the Middle District of North Carolina. Plaintiffs did not seek this relief from the District Court. Nonetheless, we have “statutory and inherent authority to transfer this case” directly to an appropriate district court if doing so would be in the interest of justice. Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993); see Bolar v. Frank, 938 F.2d 377, 379-80 (2d Cir. 1991). Because it would be in the interest of justice to do so, we therefore transfer this case to the United States District Court for the Middle District of North Carolina. Although we note that defendants have conceded that jurisdiction is proper in that district, we intimate no view as to any other issues that may arise as a result of this transfer. CONCLUSION We have reviewed all of the remaining arguments raised by the parties on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the September 2, 2015 judgment of the District Court insofar as it found that it lacked personal jurisdiction over defendants and TRANSFER this action for further proceedings in the United States District Court for the Middle District of North Carolina. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk Case 15-3082, Document 91, 09/01/2016, 1854383, Page5 of 5 Case 1:16-cv-01108-NCT-JLW Document 52 Filed 09/01/16 Page 5 of 5Case 1:16-cv-01 08-NCT-JLW Document 72-2 Filed 02/24/17 Page 5 of 5