# McConney v. Amtrak

> District Court, E.D. New York · January 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10303681

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10303681

## How later opinions describe it (automated extraction)

- applying the “situs-of-injury test” to determine jurisdiction under CPLR § 302(a)(3)

## Opinion text

1) =. ==
CLERK'S OFFICE =,
U.S. DISTRICT COURT E.D.N.Y. / F
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UNITED STATES DISTRICT COURT
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NATASHA MCCONNEY
Plaintiff, MEMORANDUM & ORDER □
-against- 18-CV-05290 (NGG) (RER)

AMTRAK, MICHAEL KEMPF, RANDOLL
ERCKERT and STRAWSER CONSTRUCTION
INC,
Defendants.
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NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Natasha McConney brings this action against Defendants Amtrak, Michael
Kempf, Randoll Erckert, and Strawser Construction, Inc. (collectively, “Defendants”). Plaintiff
alleges that she suffered physical pain, bodily injury, and economic damages because of
Defendants’ negligence in operating their respective vehicles. Amtrak moves to dismiss
Plaintiff's claims against it under Federal Rule of Civil Procedure 12(b)(2). (Amtrak’s Mem. in
Supp. Mot. to Dismiss (“Mem.”) (Dkt. 17).) For the following reasons, Amtrak’s motion is
GRANTED. :

I. BACKGROUND
A. Factual Background
1. Incident Giving Rise to Injury
The following facts are drawn from Plaintiff's complaint and are assumed to be true for
the purpose of Amtrak’s motion to dismiss.

On August 18, 2017, Plaintiff was a passenger on a train operated and maintained by
Amtrak.' (Compl. (Dkt. 1-1) [§ 22-23, 35.) Michael Kempf was the train’s operator. (/d. 17,
42.) While Plaintiff was aboard the train, it collided with a motor vehicle at an intersection of the
railroad track and a road. (Jd. § 36-37.) At the time of the collision, the motor vehicle was owed
by Strawser Construction Inc. and was driven by its employee, Randoll Erckert. (Jd. 12, 28-
29.)
Plaintiff alleges that the collision was caused by the careless and negligent manner in
which the Defendants operated their respective vehicles. (Jd. J 39.) Plaintiff also alleges that the
collision caused her injuries for which she required medical attention and from which she
expects to suffer “for some time.” (/d. {J 40-41.)
2. Jurisdictional Allegations
Plaintiff alleges that she is a citizen of the State of New York. Ud. J 1.) At the time of the
incident, Defendant Michael Kempf was a resident of the State of Georgia. Ud. J 2.) The
complaint alleges that corporation-Defendants Amtrak and Strawser Corporation were both
foreign corporations authorized to conduct business in the State of New York. (/d. Jf 3-6.) The
complaint fails to allege the citizenship and principle place of business of either corporation,
though papers later submitted to the court and federal statutes identify the District of Columbia
as Amtrak’s principle place of business and domicile. (See Pl. Mem. in Opp. to Mot.to Dismiss
(“Opp.”) (Dkt 20-1) at 2); see also 49 U.S.C. § 24301(b).
B. Procedural History
On August 22, 2018, Plaintiff initiated this action in the Supreme Court of New York,
County of Queens, with the index number 712988/2018. (See Compl. at 2.) On September 20,

1 The complaint does not allege the origin or destination of the train.

2018, Amtrak removed the action to this court under 28 U.S.C §§ 1349 and 1441 (a). (See Not. of
Removal (Dkt. 1).) On December 3, 2018, the court granted Plaintiff leave to file an amended
complaint by no later than December 17, 2018 (see Dec. 3, 2018 Min. Entry), but Plaintiff failed
to do so. On February 25, 2019, Amtrak moved to dismiss for lack of personal jurisdiction
pursuant to Federal Rules of Civil Procedure 12(b)(2) or, in the alternative, to transfer this action
to the District Court for the District of South Carolina. (See Mem.) Plaintiff responded on March
12, 2019 (Opp.), and Amtrak replied on March 19, 2019 (Reply (Dkt. 21)).
II. LEGAL STANDARD
A “district court has considerable procedural leeway” when “deciding a pretrial motion to
dismiss for lack of personal jurisdiction.” Dorchester Fin. Sec., Inc. v. Banco BRJ, $.A., 722
F.3d 81, 84 (2d Cir. 2013) (summary order) (quoting Marine Midland Bank, N.A. v. Miller, 664
F.2d 899, 904 (2d Cir. 1981)). “It may determine the motion on the basis of affidavits alone; or it
may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the
merits of the motion.” Jd, Where the court opts not to hold a hearing or order jurisdictional
discovery, the plaintiff need only make a prima facie showing of jurisdiction. /d. (citing Ball v.
Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). “A prima facie case
requires non-conclusory fact-specific allegations or evidence showing that activity that
constitutes the basis of jurisdiction has taken place.” Chirag v. MT Marida Marguerite
Schiffahrts, 604 F. App’x 16, 19 (2d Cir. 2015) (summary order) (citing Jazini v. Nissan Motor
Co., 148 F.3d 181, 186 (2d Cir. 1998)); see also Whitaker v. Am. Telecasting, Inc., 261 F.3d 196,
208 (2d Cir. 2001) (“A plaintiff may carry this burden by pleading in good faith legally sufficient
allegations of jurisdiction, i.e., by making a prima facie showing of jurisdiction.” (alteration
adopted) (quotation marks omitted)).

“Personal jurisdiction of a federal court over a non-resident defendant is governed by the
law of the state in which the court sits—subject, of course, to certain constitutional limitations of
due process.” Henderson v. IN.S., 157 F.3d 106, 123 (2d Cir. 1998) (quoting Robinson v.
Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994)). Therefore, “a district court
must first ‘determine whether there is jurisdiction over the defendant under the relevant forum
state’s laws.’” DeLorenzo v. Viceroy Hotel Grp., LLC, 757 F. App'x 6, 8 (2d Cir. 2018)
(summary order) (quoting Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d
779, 784 (2d Cir. 1999)). If the forum state statute provides jurisdiction, “the court then must
decide whether [the] exercise [of jurisdiction] comports with the requisites of due process.” Jd.
(quoting Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997)). However, “[i]f
jurisdiction is statutorily impermissible,” a court “need not reach the question of its
constitutionality.” Best Van Lines, Inc. v. Walker, 490 F.3d 239, 244 (2d Cir. 2007).
Il. DISCUSSION
To establish that the court has personal jurisdiction over Amtrak, Plaintiff has to
demonstrate to demonstrate Amtrak was “either present and doing business within the meaning
of [CPLR] § 301,” i.e., that Amtrak is subject to general personal jurisdiction, or that Amtrak
“committed acts within the scope of New York’s long-arm statute, CPLR § 302,” i.e., that
Amtrak is subject to specific personal jurisdiction. DeLorenzo, 757 F. App'x at 8 (quotation
marks omitted). Each is addressed in turn.
A. General Personal Jurisdiction
A party “is subject to general jurisdiction in New York pursuant to [New York Civil
Practice Law and Rules (“CPLR”)] § 301, which confers jurisdiction where a company ‘has
engaged in such a continuous and systematic course of doing business in New York that a
finding of its presence in New York is warranted.’” Sonera Holding B.V. v. Cukurova Holding

A.S., 750 F.3d 221, 224 (2d Cir. 2014) (alterations adopted) (quoting Landoil Res. Corp. v.
Alexander & Alexander Servs., 565 N.E.2d 488, 490 (N.Y. 1990). In Daimler AG v. Bauman,
571 U.S. 117 (2014), however, the Supreme Court held that a state may only exercise general
jurisdiction over a corporation where that corporation's affiliations with the [s]tate are so
continuous and systematic as to render it essentially at home in the forum [s]tate.” Jd. at 139
(alteration adopted) (quotations omitted). Daimler made clear that, except for an exceptional
case, “a corporation is at home (and thus subject to general jurisdiction, consistent with due
process) only in a state that is the company’s formal place of incorporation or its principal place
of business.” DeLorenzo, 757 F. App'x at 8 (citing Daimler, 571 U.S. at 139 & n.19); see also
Brown v. Lockheed Martin Corp., 814 F.3d 619, 629 (2d Cir. 2016).
Here, the court does not have general personal jurisdiction over Amtrak under Rule
12(b)(2) because New York is neither the location of Amtrak’s principal place of business nor
the state where it is incorporated. See Daimler AG, 571 U.S. at 138-39; Brown, 814 F.3d at 629.
Even conceding Plaintiff's argument that Amtrak does significant business in New York (Opp. at
5-6), Plaintiff has not alleged sufficient facts in her complaint to surmount the high bar set by
Daimler and Brown for the “exceptional case” to the “essentially at home” standard. Brown 814
F.3d at 629.
B. Specific Personal Jurisdiction
Specific personal jurisdiction is governed by New York’s long-arm statute, CPLR §
302(a), which confers personal jurisdiction over a non-domiciliary for certain acts by the non-

domiciliary. CPLR § 302(a)(1)’ confers personal jurisdiction over any non-domiciliary who
“transacts any business within the state or contracts anywhere to supply goods or services in the
state.” “To establish personal jurisdiction under section 302(a)(1), two requirements must be
met: (1) The defendant must have transacted business within the state; and (2) the claim asserted
must arise from that business activity.” Eyeking, LLC v. JSS, LLC, 321 F. Supp. 3d 326, 331
(E.D.N.Y. 2018) (quoting Sole Resorts, S.A. de C.V. v. Allure Resorts Mgmt., LLC, 450 F.3d 100,
103 (2d Cir. 2006)). “A suit will be deemed to have arisen out of a party’s activities in New
York if there is an articulable nexus, or a substantial relationship between the claim asserted and
the actions that occurred in New York.’” Jd. (quoting Best Van Lines, Inc, 490 F.3d at 246).
To reiterate, to prevail on a pre-discovery motion to dismiss for lack of personal
jurisdiction, a Plaintiff only must make “non-conclusory fact-specific allegations or evidence
showing that activity that constitutes the basis of jurisdiction has taken place.” Chirag, 604 F.
App’x at 19. Here, however, Plaintiff fails to meet that minimal burden. The complaint merely
alleges that Amtrak “was and still is a company authorized to do business under and by virtue of
the laws of the State of New York,” and that Amtrak “was and still is a foreign corporation doing
business under and by virtue of the laws of New York.” (Compl. ff 4-5.) The complaint fails to
allege either that Amtrak conducted business in New York or that Plaintiff's claim arises from
that business activity. However, Plaintiff makes several new factual allegations in her
memorandum of law in opposition to Amtrak’s motion. There, Plaintiff asserts that: (1) she
purchased her train ticket in New York (Opp. at 3); (2) the final destination of the train on which

2 Plaintiff also argues that the court has personal jurisdiction under CPLR § 302(a)(3), which confers personal
jurisdiction over a foreign entity that “commits a tortious act without the state causing injury to person or property
within the state.” This argument fails because the injury did not occur in New York. See DiStefano v. Carozzi N. □
Am., 286 F.3d 81, 84-85 (2d Cir. 2001) (applying the “situs-of-injury test” to determine jurisdiction under CPLR §
302(a)(3)).
«6

Plaintiff sustained an injury was New York (Jd. at 5); (3) Amtrak “operates over 900 trains in
and out... of New York on a weekly basis” (Id. at 6); (4) and Amtrak accepted service of
process at its office located at 400 West 31st Street, New York, NY 10001 (/d.). If Plaintiff had
availed herself of the opportunity to amend her complaint to add these factual allegations, they
may well establish a prima facie case of jurisdiction under Sole.
However, the court may not exercise jurisdiction over Amtrak based on facts alleged only
in Plaintiff's memorandum of law. It is well established that the court may consider factual
allegations made in pleadings as well as those submitted to the court in an affidavit. See, e.g.,
SPV Osus, Lid. V. UBS AG, 882 F.3d 333, 342 (2d Cir. 2018) (referring to “pleadings and
affidavits” as the sources under court’s review in consideration of a 12(b)(2) motion); Penguin
Group (USA) Inc. v. American Buddha, 609 F.3d 30, 34 (2d Cir. 2010) (same); see also
MacDermid, Inc. v. Deiter, 702 F.3d 725, 728 (2d Cir. 2012) (“Because Deiter's motion to
dismiss was decided without a hearing and because Deiter submitted no affidavit testimony with
the motion, the facts asserted in MacDermid's complaint and affidavit in opposition to Deiter's
motion are assumed to be true.”). However, a plaintiff “cannot supplement his [cJomplaint with
facts asserted for the first time in his memorandum of law.” Taormin v. Thrifty Car Rental, No.
16-CV-3255 (VEC), 2016 WL 7392214 at *2 (S.D.N.Y 2016.)); see also Langenberg v. Sofair,
No. 03-CV-8339 (KMK), 2006 WL 2628348 (S.D.N.Y. 2006) (“Plaintiff waited until filing her

3 Amtrak’s reliance on Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317 (2d Cir. 1964) and Cordice v. LIAT
Airlines, No. 14-CV-2924 RRM LP, 2015 WL 5579868 (E.D.N.Y. Sept. 22, 2015) is misplaced. In Gelfand, there
was no personal jurisdiction because the plaintiff purchased their tickets from a third-party intermediary, not the bus
company itself. Gelfand, 339 F.2d at 321. In Cordice, the ticket was purchased in New York, but the injury alleged
was a spilled cup of coffee during the flight. Cordice, 2015 WL 5579868 at *4. A train crash, unlike a spilled cup of
coffee, directly implicates Amtrak’s “duty to exercise reasonable care for the safety of its passengers.” Voccia v.
United States, No. 12-CV-5909 (KAM), 2017 WL 1194652, at *6 (E.D.N.Y. Mar. 31, 2017).

Memorandum of Law in response to this [12(b)(2)] Motion to allege for the first time that
[defendant participated in a fraudulent scheme]. This will not do.”).
Because the complaint does not include factual allegations sufficient to meet either prong
of the Sole test, the court does not have specific personal jurisdiction over Amtrak under CPLR $
302(a)(1). Additionally, because there is no statutory basis for exercising personal jurisdiction
over Amtrak, the court need not determine whether the exercise of jurisdiction would comport
with due process. Best Van Lines, 490 F.3d at 242 (“If jurisdiction is statutorily impermissible, of
course, we need not reach the question of its constitutionality.”).
IV. CONCLUSION
For the reasons set forth above, Amtrak’s motion to dismiss the Complaint for lack of
personal jurisdiction is GRANTED. The Clerk of Court is respectfully DIRECTED to terminate
Defendant Amtrak from the case. Plaintiff is ORDERED to show cause by no later than February
21, 2020 why this case should not be remanded to state court for lack of jurisdiction.

SO ORDERED.
s/Nicholas G. Garaufis
Dated: Brooklyn, New York “NICHOLAS G. GARAUFIS)
January 47] , 2020 United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303681. Public record. Not legal advice.