” Here, Positive Impact does not own, use or possess any such real property, Plate Decl. ¶ 12, nor has DH alleged to the contrary. Accordingly, there is no jurisdiction under Section 302(a)(4). Case 1:12-cv-06153-RA Document 11

See generally In re Vitamin C, 2011 U.S. Dist. LEXIS 153453. Nor can it be Section 302(a)(l) or Section 12 of the Clayton Act, since there no facts to demonstrate- and plaintiffs do not contend- that NCPC Limited transacted business in New York. Although plaintiffs assert, in conclusory fashion, that NCPC Limited "own[ s] and control[s]" Welcome, there is nothing in the record to contradict NCPC Limited's assertions that 20 Case 1:06-md-01738-BMC-JO Document 496 Filed 08/08/12 Page 20 of 25 PageID #: 14095 it "simply relates to Hebei Welcome as any majority owner would do, as a legal entity separate and apart from Hebei Welcome."

NY CPLR § 302(a)(3)(i) cannot be the basis for jurisdiction because there is no allegation that Mr. McBride “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.” And NY CPLR § 302(a)(3)(ii) cannot be the basis for jurisdiction because there are no allegations that Pelican Equity LLC, AIP or Mark Robbins has anything whatsoever to do with the State of New York, and it is therefore patently unreasonable to expect or foresee material consequences of any “conspiracy” in the State of New York. Finally, Mr. McBride has no financial or business connection whatsoever to Talos or the other defendants, and has no agreement or expectation of sharing of profit.

To establish contributory, or “aiding and abetting” liability under New York law, plaintiffs must demonstrate that “the defendant (1) knew that another's conduct constituted a breach of duty and (2) gave substantial assistance or encouragement to the other.” Miele v. Am. Tobacco Co., 770 N.Y.S.2d 386, 392 (App. Div. 2003) (quoted in Am. Bldg. Maint. Co. v. ACME Prop. Servs., 515 F. Supp. 2d 298, 321 (N.D.N.Y 2007). Plaintiffs have alleged no facts demonstrating that the Individual Defendants knew that the other defendants’ actions constituted a breach of duty; nor have they alleged facts demonstrating that any of the Individual Defendants provided “substantial assistance to encouragement” to those who actually committed the tortious acts. Plaintiffs have therefore failed to establish jurisdiction with respect to the Individual Defendants under either § 302(a)(1) or § 302(a)(3)(ii). Accordingly, the claims against them must be dismissed.

Therefore, Section 302(a)(2) cannot confer jurisdiction over the Company. c. Section 302(a)(3) The final potentially applicable New York long-arm provision deals with tortious acts committed outside the state. It extends specific jurisdiction over anyone who “commits a tortious act without t

d. CPLR § 302(a)(4) does not apply to Defendants. Finally, as Defendants do not use, possess or own any real property in the State of New York, Defendants are not subject to personal jurisdiction under CPLR § 302(a)(4). This paragraph of the long-arm statute provides in rem jurisdiction based on the use of land within State boundaries.

Id. at 324; see also, Team Obsolete Ltd. v. A.H.R.M.A. Ltd., 2002 U.S. Dist. LEXIS 10737 (E.D.N.Y. 2002), Finally, there can be no jurisdiction under CPLR § 302 (a)(3) as the sites of the Case 7:10-cv-09037-CS-LMS Document 57 Filed 07/14/11 Page 12 of 29 9 injury was outside New York - the jurisdiction the parties (Plaintiff and PORTER) choose under their Agreement (Sullivan Decl., Ex. A to Ex A at 5.13) was Florida - not New York where the resultant damages were allegedly subsequently felt by the Plaintiff under the Escrow Agreement (Sullivan Decl., Ex. E to Ex. A ) and notably under which neither POF, REM nor DGB are a party. Thus, the Complaint and the exhibits attached thereto demonstrate that Plaintiff cannot satisfy any of the prongs of long-arm jurisdiction over neither POF, REM nor DGB, and the Complaint should be dismissed as a matter of law.

Id. at § 302(d). Thus, once Ritchie I and II exhausted their Expected Capital, the alleged scheme would have ended.

. Although the Court cannot characterize any potential agreements that Nine Eighteen may have with Marketlab and/or GE without additional information, it is worth noting that some “distributorship” agreements have been held sufficient to confer personal jurisdiction under Section 302(a)(3) while others have been considered insufficient. Compare Kernan, 175 F.3d at 242 with Stephan, 499 F. Supp. 2d at 290.

See Lebron, 2017 WL 2352856, at *7 (granting motion to dismiss for lack of personal jurisdiction under both § 301 and § 302 and explaining that defendant professional baseball player’s regular Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 13 of 28 8 trips to New York each baseball season and his sports agents and representatives’ promotion of his interests in New York fail to establish a “continuous and systematic” presence in the state). Here, Plaintiff has not made a single allegation in her Complaint that addresses the availability of personal jurisdiction, either generally or through the long-arm statute, over Defendants. Further, she has provided no factual allegations whatsoever that support finding continuous, permanent, and substantial activity in New York. Simply put, there is no basis to find that Defendants are “at home” in New York or are “doing business” there so as to confer general personal jurisdiction. Dismissal is thus appropriate.