Attorney for Petitioner : Ross Carmel, Esq., Carmel, Milazzo & Pichiara, LLP, 261 Madison Avenue, 9th Floor, New York, NY 10018, (212) 658-0458 Attorney for Respondent: Jeffrey Vanacone, Esq., Perkins Coie, LLP, 30 Rockefeller Plaza, 22nd Floor, New York, NY 10112, (212) 262-6900
Attorney for Petitioner : Ross Carmel, Esq., Carmel, Milazzo & Pichiara, LLP, 261 Madison Avenue, 9th Floor, New York, NY 10018, (212) 658-0458
Attorney for Respondent: Jeffrey Vanacone, Esq., Perkins Coie, LLP, 30 Rockefeller Plaza, 22nd Floor, New York, NY 10112, (212) 262-6900
Kathryn E. Freed, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35
were read on this motion to/for DISCOVERY - PRE-ACTION
Upon the foregoing documents, it is ordered that the petition is denied and the proceeding is dismissed.
In this special proceeding, petitioner Torin Kline moves, pursuant to CPLR 3102 (c), for pre-action discovery from respondents Facebook, Inc. (Facebook) and Google, LLC (Google). Specifically, petitioner demands that Facebook provide the identity(ies) of the person(s) who posted and/or sent false and defamatory posts about him on the Facebook website and/or mobile application under the names "Jack Mack" and "Dewa Agung". He also demands that Google provide the identity of the person who maintains and uses the email address firstname.lastname@example.org, which address, petitioner maintains, has been used to send false and defamatory statements about him. Respondents oppose the petition. After oral argument, and after a review of the motion papers and the relevant statutes and case law, the petition is denied and the proceeding dismissed.
This proceeding was commenced by the filing of a petition and order to show cause seeking the relief set forth above. Docs. 1, 12.In the petition, petitioner claimed, inter alia, that Facebook was a Delaware Corporation with its principal place of business in Menlo Park, California and offices in New York, New York (Doc. 1, at par. 3); Google was a Delaware corporation with its principal place of business in Mountain View, California and an office in New York, New York (Doc. 1, at par. 4); and that this Court had jurisdiction over both respondents since they maintained offices in New York and "continuously and systematically conduct[ed] business" in New York. Doc. 1, at par. 5. Respondents oppose the petition on the ground that there is no personal jurisdiction over them in New York.
Pursuant to CPLR 301, a court may exercise general jurisdiction over a foreign corporation. In Daimler AG v Bauman , the United States Supreme Court determined that a court has general jurisdiction over a foreign corporation when the corporation's "affiliations ... are so continuous and systematic as to render it essentially home [in a particular state]," i.e., the state "where [it] is incorporated or has its principal place of business." ( 571 U.S. 117  ; AlbaniaBEG Ambient Sh.p.k v Enel S.p.A. , 160 AD3d 93 [1st Dept 2018] ). In Daimler , the Court held that the California courts did not have general jurisdiction over Daimler where its principal place of business was [not located in California] and notwithstanding [the fact that it had] multiple California-based facilities, including a regional office. ( Id. at 123 ). A corporation's registration to do business with New York state has also been held as insufficient to confer general jurisdiction. ( Famular v. Whirlpool Corp. , 2017 U.S. Dist. LEXIS 8265, 2017 WL 2470844 [SD NY 2017] ; Kyowa Seni, Co., Ltd. v. ANA Aircraft Technics, Co., Ltd. , 2018 WL 3321410, 2018 NY Slip Op 28211 [Sup Ct, New York County] ; Amelius v Grand Imperial LLC , 57 Misc 3d 835, 64 N.Y.S.3d 855 [Sup Ct, New York County 2017] ).
Fekah v Baker Hughes Inc. , 2018 NY Slip Op 32174[U], *3-4 (Sup Ct, NY County 2018).
Daimler thus "casts significant doubt on the notion that a corporation could ever be subject to general jurisdiction in a state that is neither its state of incorporation nor its principal place of business." Amelius , 57 Misc 3d at 849. Petitioner admits that respondents are not incorporated in New York and do not have their principal places of business here. Doc. 1, at pars. 3 and 4. He thus fails to establish that respondents are "essentially at home" in New York. Daimler , 571 U.S. at 139. Although respondents do not deny that they have offices in New York City, petitioner fails to establish that the presence of those offices signifies that respondents had the required "continuous and systematic" affiliations with the State of New York. Rather, petitioner merely asserts that respondents are "at home" in New York because they have such large offices, and employ so many people, in New York.
In B & M Kingstone, LLC v Mega Intern. Commercial Bank Co., Ltd. , 131 AD3d 259 (1st Dept 2015), lv dismissed 26 NY3d 995 (2015), the Appellate Division, First Department determined that New York state courts exercise general jurisdiction over a bank which had only one branch in this state. However, that case is distinguishable insofar as the rationale for that holding was that, by operating in New York, the bank had consented to be subject to the complex regulations governing financial institutions in this state.
Given the absence of jurisdiction, the petition must be dismissed and it is thus unnecessary for this Court to address the parties' remaining arguments.
Therefore, in light of the foregoing, it is hereby:
ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed; and it is further
ORDERED that, within 20 days of entry of this order, respondents are directed to serve a copy of this order, with notice of entry, upon petitioner, as well as on the Clerk of the Court, who is directed to enter judgment accordingly; and it is further
ORDERED that this constitutes the decision, order, and judgment of the court.