Sidik v. Royal Sovereign International, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------X

THOMAS SIDIK as Administrator of

the Estate of Kristen A. Sidik,

deceased, THOMAS SIDIK as Parent MEMORANDUM & ORDER

and Natural Guardian of K.S., an 17-CV-7020 (JS)(ARL)

infant, and C.S., an infant and

THOMAS SIDIK, Individually,

PlainTtiffs,

-against-

ROYAL SOVEREIGN INTERNATIONAL,

INC., ROYAL CENTURIAN INC., RS

NINGBO, INC., ROYAL SOVEREIGN

QINGDAO a/k/a. RS QINGDAO, BJ’S

WHOELSALE, INC., ADT LLC and

DEFENDERS, INC. d/b/a PROTECT

YOUR HOME,

Defendants.

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ROYAL CENTURIAN INC., BJ’S

WHOLESALE CLUB, INC., ROYAL

SOVEREIGN INTERNATONAL, INC.

Third-Party Plaintiffs,

-against-

TAISHAN CITY KEXINTE MOTOR

PRODUCTS CO., LTD.,

Third-Party Defendant.

-------------------------------X

APPEARANCES:

For Third-party

Plaintiffs Michael P. Mezzacappa, Esq.,

Royal Sovereign Int’l Inc. Stephanie B. Finding Gitnik, Esq.

Royal Centurian Inc.: Kaufman Borgeest & Ryan LLP

200 Summit Lake Drive, 1st Floor

Valhalla, New York 10595

For Third-party Plaintiff

BJ’s Wholesale Club, Inc: Joseph Daniel Velez, Esq.

Goldberg Segalla LLP

200 Garden City Plaza, Suite 520

Garden City, New York 11530

For Third-party Defendant: Leodis C. Matthews, Esq.

Kerry James Kaltenbach, Esq.

Zhong Lun Law Firm LLP

Two Wall Street, 21st Floor

New York, New York 10005

SEYBERT, District Judge:

Third-party Defendant Taishan City Kexinte Motor

Products Co., Ltd. (the “Taishan” or “Third-party Defendant”)

moves under Federal Rules of Civil Procedure (“FED. R. CIV. P.”)

8(a)(1), 12(b)(2), and 12(b)(6) to dismiss the Third-party

Complaint. (3d Pty. Compl., D.E. 73; Taishan Mot., D.E. 116;

Taishan Br., D.E. 116-1; 3d Pty. Pls. Opp., D.E. 121; Taishan

Reply, D.E. 126.) The Third-party Complaint seeks to recover

money damages for personal injuries sustained from a portable

air conditioner that caught fire, with some of the Defendants in

that action, Royal Sovereign International Inc., Royal Centurian

Inc., and BJ’s Wholesale, Inc. (the “Third-party Plaintiffs”)

seeking indemnification and contribution from Taishan.

Taishan contends that the Court must dismiss the

Third-party Complaint because of the lack of personal

jurisdiction and because Third-party Plaintiffs have failed to

state an adequate claim. Third-party Plaintiffs ask the Court

to deny the motion because they have established personal

jurisdiction, and, in the alternative, they seek jurisdictional

discovery to make a showing of personal jurisdiction on the

basis of a more fully developed record.

For the reasons that follow, the Court grants the Rule

12(b)(2) motion and denies the request for jurisdictional

discovery. The Court need not reach the merits of the motion to

dismiss for failure to state a claim, because the Court may

dismiss the action on jurisdictional grounds. Accordingly, the

Court dismisses the action as to Taishan.

BACKGROUND

I. The Underlying Action

Familiarity with the prior factual and procedural

history of the case is presumed. However, by way of review,

Plaintiff Thomas Sidik (“Sidik”), as the administrator of the

estate of his wife, Kristen A. Sidik (“K. Sidik”) and the parent

and natural guardian of his children, K.S. and C.S. (and

together “Plaintiffs”), brought the underlying action in

December 2017 against Royal Sovereign International, Inc., Royal

Centurian Inc., RS Ningbo, Inc., Royal Sovereign Qingdao a/k/a/

RS Qingdao, BJ’s Wholesale Club, ADT LLC, and Defenders, Inc.

d/b/a/ Protect Your Home (together the “Defendants”), after a

portable air conditioner caught fire at his home. (Compl., D.E.

1, ¶ 77.) Plaintiffs alleged that Sidik’s wife and children

suffered severe injuries in the fire, and K. Sidik ultimately

passed away from her injuries. (Compl. ¶¶ 78–82.) Plaintiffs

also alleged that Defendants “designed, tested, manufactured,

labeled, inspected, produced, imported, marketed, sold and/or

distributed” the portable air conditioner that had caught fire.

(Compl. ¶ 72.)

Plaintiffs raised claims for negligence, breach of

express warranty, breach of implied warranty, failure to warn,

strict liability, and wrongful death. (Compl. ¶¶ 83–166.) They

asked for damages, declaratory relief, and costs. (Compl. at

26.) That action remains pending.

II. The Third-party Complaint and Pending Motion

In February 2019, Third-party Plaintiffs moved under

FED. R. CIV. P. 14(a) for leave to file a third-party complaint

against Taishan, a Chinese manufacturer of one of the portable

air conditioner’s component parts. (3d Pty. Pls. Mot., D.E. 69,

75.) The Court, in an opinion written by the Honorable Arthur

D. Spatt, granted the motion. (Mar. 5, 2019 Order, D.E. 76.)

The Court reasoned that the movants did not unduly delay the

bringing of the motion, that the motion would not complicate any

future trial, and that it would not cause prejudice to any

party. (Mar. 5, 2019 Order at 5.)

Third-party Plaintiffs then filed the Third-party

Complaint. (3d Pty. Compl., D.E. 77.) They alleged that:

(1) Taishan manufactured, distributed, and sold micro motors for

electrical appliances, including the pole motor component part

(the “pole motor”) of the portable air conditioner believed to

be the cause of the fire that gave way to the underlying action;

(2) the Court had supplemental jurisdiction over Taishan under

28 U.S.C. § 1367(a) because it related to the Plaintiffs’

underlying claims and formed part of the same case and

controversy; (3) Taishan’s negligence solely caused any injuries

suffered by the Plaintiffs; (4) Taishan has contracted to, inter

alia, supply goods and solicit business in the United States,

and in particular, the State of New York; (5) the Third-party

Plaintiffs purchased the pole motor from Taishan and used it in

the portable air conditioner without a substantial change in its

condition; (6) Taishan was to blame for injury to Plaintiffs;

and (7) if Plaintiffs recovered damages against the Third-party

Plaintiffs, or if the Third-party Plaintiffs were found liable

to Plaintiffs in any way, then they were entitled to full or

partial indemnity or contribution from Taishan. (3d Pty. Compl.

at 6-12.)

Taishan now moves to dismiss the Third-party

Complaint. (See Taishan Mot.) That motion is presently before

the Court.

DISCUSSION

The Court grants the motion to dismiss on Rule

12(b)(2) grounds and denies the request for jurisdictional

discovery. Because the Court lacks personal jurisdiction over

Taishan, it does not rule on whether the Third-party Plaintiffs

failed to state a claim.

I. The Rule 12(b)(2) Standard

Rule 12(b)(2) authorizes a party to seek dismissal on

the ground that the Court lacks personal jurisdiction over her

or it. See, e.g., Eyeking, LLC v. JSS, LLC, 321 F. Supp. 3d

326, 329 (E.D.N.Y. 2018). “‘The plaintiff bears the burden of

demonstrating personal jurisdiction over the person or entity

being sued.’” Out of Blue Wholesale, LLC v. Pac. Am. Fish Co.

Inc., No. 19-CV-0254, 2019 WL 3997393, *3 (E.D.N.Y. Aug. 23,

2019) (quoting State of N.Y. v. Mountain Tobacco Co., No. 12-CV-

6276, 2016 WL 324970, at *4 (E.D.N.Y. Jan. 26, 2016)); see

Penguin Grp. (USA) Inc. v. Am. Buddah, 609 F.3d 30, 34 (2d Cir.

2010). The procedural posture of the case determines the scope

of the plaintiff’s burden. See Mountain Tobacco Co., 2016 WL

324970, at *4 (citing Ball v. Metallurgie Hoboken-Overpelt,

S.A., 902 F.2d 194, 197 (2d Cir. 1990)). “Where, as here, a

district court in adjudicating a [Rule 12(b)(2)] motion . . .

‘relies on the pleadings and affidavits, and chooses not to

conduct a full-blown evidentiary hearing, plaintiffs need only

make a prima facie showing of personal jurisdiction.’” S. New

England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 138 (2d Cir.

2010) (quoting Porina v. Moward Shipping Co., 521 F.3d 122, 126

(2d Cir. 2008)).

A plaintiff must satisfy three elements to establish

personal jurisdiction over a defendant: “‘(1) procedurally

proper service of process on the defendant; (2) a statutory

basis for personal jurisdiction; and (3) the exercise of

jurisdiction must be consistent with constitutional due process

principles.’” Roxx Allison Ltd. v. Jewelers Inc., 385 F. Supp.

3d 377, 380 (S.D.N.Y 2019) (quoting Quinio v. Aala, 344 F. Supp.

3d 464, 479–80 (E.D.N.Y. 2018) (internal quotation marks

omitted)). “In a diversity action, whether a court has personal

jurisdiction over a defendant ‘is determined by the law of the

forum in which the court sits’”--in this matter, New York.

Rosenblatt v. Coutts & Co., A.G., 750 F. App’x 7, 9 (2d Cir.

2018) (summary order) (quoting Cutco Indus., Inc. v. Naughton,

806 F.2d 361, 365 (2d Cir. 1986)); Kronisch v. United States,

150 F.3d 112, 130 (2d Cir. 1998) (declaring that a federal

court’s personal jurisdiction over a non-resident defendant is

governed by the law of the forum state, subject to certain

constitutional limitations of due process).

II. Application to the Facts of this Case

Third-party Plaintiffs assert that the Court has

general jurisdiction over Taishan because Taishan does business

in New York and is therefore present in the state pursuant to

Section 301 of New York’s Civil Practice Law and Rules

(“C.P.L.R.”). (3d Pty. Pls. Opp. at 8–10.) They support this

claim by contending that: Taishan’s website alleges that the

company does business in every state in the United States; the

company sells products on online marketplaces such as Amazon and

Alibaba; and the company’s general manager admitted in a

declaration that the company transacts business with Whirlpool

Corporation. (3d Pty. Pls. Opp. at 8–10.) As to this last

point, Third-party Plaintiffs argue that “Taishan City expected

or should have expected that, by virtue of its business with

relationship with a company like Whirlpool, any defect in its

products would have consequences in New York.” (3d Pty. Pls.

Opp. at 9.)

Third-party Plaintiffs further claim that the Court

has specific jurisdiction over Taishan pursuant to Section 302

of the C.P.L.R. (3d Pty. Pls. Opp. at 10–15.) They argue that

Taishan either expected or should have reasonably expected that

its acts would have consequences in New York, in that: (1) its

website lists North America as one of its main markets; (2) a

party need not have a physical office in New York to meet this

standard; and (3) its use of third-party distributors does not

affect whether it expects or should expect that its products

would be sold in New York. (3d Pty. Pls. Opp. at 10–13.) They

also assert that Taishan derives substantial revenue--roughly

thirty-three percent--from interstate commerce. (Third-party

Pls. Opp. at 14–15.) They further argue that because the New

York long arm statute is more restrictive than federal due

process requirements, that ascribing personal jurisdiction to

Taishan here necessarily comports with due process. (3d Pty.

Pls. Opp. at 15–16.)

In the alternative, Third-party Plaintiffs contend

that even if there is insufficient evidence to establish the

Court’s personal jurisdiction over Taishan, the Court should

deny the Rule 12(b)(2) motion at this early stage of the

litigation so that the parties can conduct jurisdictional

discovery. (3d Pty. Pls. Opp. at 16–18.) The Court addresses

each of these arguments in turn.

A. General Jurisdiction under C.P.L.R. Section 301

In New York, C.P.L.R. Section 301 governs general

jurisdiction. Section 301 preserves the common law concept that

“a court may exercise general jurisdiction over a nondomiciliary

defendant if the defendant is ‘engaged in such a continuous and

systematic course of doing business here as to warrant a finding

of its presence in this jurisdiction.’” Chatwal Hotels &

Resorts LLC v. Dollywood Co., 90 F. Supp. 3d 97, 103 (S.D.N.Y.

2015) (quoting Landoil Res Corp. v. Alexander & Alexander

Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1990)). The Supreme

Court has sharpened this inquiry as to whether a foreign

corporation is subject to a state’s general jurisdiction in

questioning whether that corporation’s in-forum contacts “‘are

so continuous and systematic as to render [the corporation]

essentially at home in the forum State.’” Daimler AG v. Bauman,

571 U.S. 117, 139, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014)

(quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564

U.S. 915, 919, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011)).

Only in the “exceptional case” will “a corporation’s

operations in a forum other than its formal place of

incorporation or principal place of business . . . be so

substantial and of such a nature as to render the corporation at

home in the state.” Id. at 139 n.19, 131 S. Ct at 754. Third-

party Defendant Taishan is a Chinese corporation with its

principal place of business located in Taishan City, China.

(See generally Taishan Br.) Third-party Plaintiffs must

therefore show exceptional circumstances to merit a finding of

general jurisdiction under Section 301.

Although Third-party Plaintiffs assert multiple

indicia of Taishan’s doing business in New York, they do not

expressly state that these indicia constitute exceptional

circumstances. See Thackurdeen v. Duke Univ., 130 F. Supp. 3d

792, 799 (S.D.N.Y. 2015) (“Neither Duke nor OTS is incorporated

or has its principal place of operation in New York and

Plaintiffs have failed to explain why this represents an

exceptional case to that general rule.”). In any event, the

proffered indicia of doing business are insufficient for the

following reasons.

First, Third-party Plaintiffs rely on an assertion

that Taishan does business in every state. Such an assertion

contradicts the notion of doing business for purposes of

establishing general jurisdiction. See Reich v. Lopez, 38 F.

Supp. 3d 436, 457 (S.D.N.Y. 2014) (“That is because a state

which properly claims general jurisdiction over an individual is

typically singular.”); see also Daimler A.G., 571 U.S. at 137,

134 S. Ct. at 760 (“Those affiliations have the virtue of being

unique--that is, [the place of incorporation and the principal

place of business] ordinarily indicates only one place.”). In

Reich, a court declined to find exceptional circumstances to

establish general jurisdiction over a nondomiciliary where the

plaintiffs had alleged general jurisdiction based on, inter

alia, the defendants’ purchase of New York office space,

retention of New York legal counsel and public relations firm,

previous use of the New York State Courts, and frequent travel

to New York. Reich, 38 F. Supp. 3d at 455.

Second, Third-party Plaintiffs rely on the presence of

Taishan’s products on online marketplaces. However, Taishan’s

online presence is insufficient to meet the “doing business”

showing for purposes of general jurisdiction. See Chatwal

Hotels & Resorts LLC, 90 F. Supp. 3d at 105 (“Nothing in the

record suggests the dreammore.com website is purposefully

directed towards New York; rather, the website is accessible to

anyone with an internet connection from anywhere in the

world.”); see also Holey Soles Holdings, Ltd. v. Foam Creations,

Inc., No. 05-CV-6939, 2006 WL 1147963, at *4 (S.D.N.Y. May 1,

2006).

Third, Third-party Plaintiffs contend, without any

support, that an admission that Taishan transacts business with

Whirlpool Corporation is, standing alone, sufficient to

establish general jurisdiction. The Court disagrees. Whirlpool

Corporation is not incorporated in New York and it does not have

its principal place of business in the state. See Famular v.

Whirlpool Corp., No. 16-CV-0944, 2017 WL 2470844, at *4

(S.D.N.Y. June 7, 2017) (“Here, none of the defendants is

incorporated in or maintains its principal place of business in

New York. Moreover, plaintiffs do not argue that this is the

‘truly exceptional case’ where each defendant is nevertheless

‘at home’ in New York.”). The Court thus refuses to look

through a corporation, over which the state has no general

jurisdiction, to bestow general jurisdiction upon Taishan. See

id.

The Court further holds that a finding of general

jurisdiction under Section 301 would not comport with due

process. The Due Process Clause is “more restrictive” than

Section 301, creating an additional barrier for establishing

jurisdiction over Taishan. See MTS Logistics, Inc. v.

Innovative Commodities Grp., LLC, 442 F. Supp. 3d 738, 755,

(S.D.N.Y. 2020) (declining to find general jurisdiction in New

York for a Texas corporation with its principal place of

business in Texas that also had no offices, permanent employees,

or bank accounts in New York); see also Great W. Ins. Co. v.

Graham, No, 18-CV-6249, 2020 WL 3415026, at *10 (S.D.N.Y.

June 22, 2020). Accordingly, Third-party Plaintiffs fail to

establish this Court’s general jurisdiction over Taishan.

B. As to Specific Jurisdiction under C.P.L.R. Section 302

Section 302(a) of New York’s long-arm statute confers

“‘specific jurisdiction over a non-domiciliary defendant arising

out of particular acts’” either in person or through an agent.

Reich, 38 F. Supp. 3d at 457 (citing Accurate Grading Quality

Assur., Inc. v. Thorpe, 12-CV-1343, 2013 WL 1234836, at *2

(S.D.N.Y. Mar. 26, 2013). Those acts included the transaction

of any business within the state, § 302(a)(1); the commission of

a tortious act within the state, § 302(a)(2); and the commission

of a tortious act outside of the state that causes injury within

the state, § 302(a)(3). N.Y. C.P.L.R. § 302. Third-party

Plaintiffs only allege jurisdiction under Section 302(a)(3).

Pursuant to Section 302(a)(3), a court may exercise specific

jurisdiction over a non-domiciliary corporation that commits a

tortious act outside of New York State but causes harm to

someone in the state, if either of two conditions are present.

See Muraco v. Sandals Resorts Int’l, No. 14-CV-4896, 2015 WL

9462103, at *3 (E.D.N.Y. Dec. 28, 2015); Doe v. Del. State

Police, 939 F. Supp. 2d 313, 325–26 (S.D.N.Y. 2013).

A court may exercise this specific jurisdiction under

the first condition, Section 302(a)(3)(i), where the entity

“regularly does or solicits business, or engages in any other

persistent course of conduct, or derives substantial revenue

from goods or consumed or services rendered, in the state.”

N.Y. C.P.L.R. § 302(a)(3)(i). A court exercises specific

jurisdiction under the second condition, Section 302(a)(3)(ii),

if the corporation “expects or should reasonably expect the act

to have consequences in the state and derives substantial

revenue from interstate or international commerce.” N.Y.

C.P.L.R. § 302(a)(3)(ii).

Here, Third-party Plaintiffs allege jurisdiction

solely under the second condition, Section 302(a)(3)(ii).

Accordingly, they must show that:

(1) the defendant’s tortious act was committed outside

New York, (2) the cause of action arose from that act;

(3) the tortious act caused an injury to a person of

property in New York, (4) the defendant expected or

should reasonably have expected that his or her action

would have consequences in New York, and (5) the

defendant derives substantial revenue from interstate

or international commerce.

Penguin Grp. (USA) Inc, 609 F.3d at 35 (citing LaMarca v. Pak-

Mor Mfg. Co., 95 N.Y.2d 210, 214, 735 N.E.2d 883, 886, 713

N.Y.S.2d 304, 307 (2000)).

The Court agrees with Third-party Plaintiffs’

assertion that the parties do not contest the first three prongs

of the test laid out in Penguin Grp. (USA) Inc. Accordingly,

the Court considers the final two prongs: (4) whether Taishan

expected or should have reasonably expected that its actions

would have consequences in New York; and (5) whether Taishan

derives substantial revenue from interstate or international

commerce.

Third-party Plaintiffs contend that Taishan’s

activities in the state qualify under these two prongs because

in making its products available for sale in every state, and

generating substantial revenue from abroad in general, Taishan

had reason to expect that any defects in its products would have

consequences abroad, including in New York and that using third-

party distributors for its products has no bearing on the

foreseeability of any defects having consequences. (3d Pty.

Pls. Opp. at 10–15.) They further allege that the pole motor at

issue in this case is available for purchase within any district

in the United States on Amazon and Alibaba and that Taishan

generates more than eleven percent of its annual revenue from

North America. (3d Pty. Pls. Opp. at 12, 15.) To make these

revenue claims, Third-party Plaintiffs rely on images of the

pole motor on Amazon and Alibaba, as well as financial

information from the website companiess.com, defined by Third-

party Plaintiffs as Taishan’s “internet blueprint” (the “online

materials”). (3d Pty. Pls. Opp. at 8.)

Taishan asserts that it has minimal sales in the

United States that amount to only one-half of one percent of the

company’s revenue. (Br. at 12.) It also contends that New

York’s long-arm statute is meant to exclude the activities of

non-domiciliaries whose business operations are of a local

character. (Taishan Br. at 10.) Taishan likens the case to the

facts presented in Boyce v. Cycle Spectrum, Inc., 148 F. Supp.

3d 256 (E.D.N.Y. 2015), where a court ruled that it had neither

general nor specific jurisdiction over a Chinese corporation

that had minimal sales in the United States, and none in New

York. (Taishan Br. at 12.)

As to the online materials, Taishan argues in its

reply that those items are inadmissible hearsay under Federal

Rule of Evidence (“FED. R. EVID.”) 801. (Taishan Reply at 3–4.)

Further, Taishan notes that it has made no sales on either

Amazon or Alibaba and argues that the online materials contain

inaccurate information. (Taishan Reply at 4–8.) Taishan also

argues that the Third-party Plaintiffs have failed to present

grounds to allow the case to proceed to jurisdictional

discovery. (Taishan Reply at 8–9.)

1. As to Whether the Court May Consider the Online

Materials

Before deciding on the last two prongs of Section

302(a)(3)(ii), the Court turns to whether it may consider the

online materials. In a Rule 12(b)(2) motion, while the

plaintiff seeks to carry its burden of pleading facts sufficient

for a prima facie showing of jurisdiction, courts construe all

of the plaintiff’s allegations as true and resolve all doubts in

the plaintiff’s favor. Whitaker v. Am. Telecasting, Inc., 261

F.3d 196, 208 (2d Cir. 2001); Casville Invs., Ltd. v. Kates, No.

12-CV-6968, 2013 WL 3465816, at *3 (S.D.N.Y. July 8, 2013)

(citing Porina, 521 F.3d 122, at 126). Even with this

advantageous construction of its arguments, a plaintiff “may not

rely on conclusory statements without any supporting facts, as

such allegations would ‘lack the factual specificity necessary

to confer jurisdiction.’” Art Assure Ltd., LLC v. Artmentum

GmbH, No. 14-CV-3756, 2014 WL 5757545, at *2 (S.D.N.Y. Nov. 4,

2014) (quoting Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181,

185 (2d Cir. 1998)).

Courts may rely on additional materials outside the

pleadings when ruling on Rule 12(b)(2) motions. Minnie Rose LLC

v. Yu, 169 F. Supp. 3d 504, 510 (S.D.N.Y. 2016). This is

because, in contrast to a Rule 12(b)(6) motion, “deciding a rule

12(b)(2) motion necessarily requires resolution of factual

matters outside the pleadings.” Zibiz Corp. v. FCN Tech. Sols.,

777 F. Supp. 2d 408, 416 (E.D.N.Y. 2011) (internal quotation

marks and citation omitted). Thus, when ruling on a Rule

12(b)(2) motion, while the Court may consider materials outside

the pleadings, “it must still credit [the] plaintiffs’ averments

of jurisdictional fact (but not their conclusions) as true, and

must construe all allegations in the light most favorable to the

plaintiff, and notwithstanding a controverting presentation by

the moving party.” Brown v. City of N.Y., No. 10-CV-5229, 2013

WL 3245214, at *3 (E.D.N.Y. June 26, 2013) (parenthetical in

original).

Based on the foregoing, the Court may consider the

online materials proffered by Third-party Plaintiffs. The Court

now proceeds to the merits of the Section 302(a)(3)(ii) issue.

2. As to the Merits of the Specific Jurisdiction

The Court finds that the Third-party Plaintiffs have

not established Section 302(a)(3)(ii) jurisdiction, even with

the online materials, based on the fourth prong of the Penguin

Grp. (USA) Inc. test. Courts apply an objective test to

determine whether a defendant expects or should have expected an

act to have in-state consequences. Kernan v. Kurz-Hastings,

Inc., 175 F.3d 236, 241 (2d Cir. 1999); Chatwal Hotels &

Resorts, LLC, 90 F. Supp. 3d at 106. In addition, “New York

courts require some discernible effort by the defendant to

directly or indirectly serve the New York market.” Chatwal, 90

F. Supp. 3d at 107 (internal quotation marks and citation

omitted); see also Aaron Consulting Co., LLC v. Snap Sols. LLC,

No 16-CV-6775, 2018 WL 4568800, at *7 (E.D.N.Y. Sept. 24, 2018);

Touro Coll. v. Fondazione Touro Univ. Rome Onlus, No. 16-CV-

3136, 2017 WL 4082481, at *12 (S.D.N.Y. Aug. 31, 2017).

The online materials are insufficient to show that

Taishan should have expected injury to a person in New York.

The holding in Chatwal Hotels & Resorts LLC is particularly

demonstrative. There, the defendants’ website advertised a

future resort that did “not yet allow customers to make

reservations, and no goods or services [were] offered for sale,”

although it did allow customers to sign up for a members’ club,

the “Founders Club,” that provided information about the resort,

with one percent of all subscribers being from New York.

Charwal Hotels & Resorts, LLC, 90 F. Supp. 3d at 101–02. The

court there ruled that the defendants should have expected their

actions to have consequences in New York, not only because they

used “the website to attract customers around the country and

the world,” but also because the “very purpose of the Founder’s

Club and the emails that were sent to members was to spread news

and awareness” to future customers in, among other places, New

York. Id. at 106, 107.

At first glance, the facts alleged by the Third-party

Plaintiffs are facially similar to those in Chatwal Hotels &

Resorts LLC, in that Taishan has a listing for the pole motor on

both Amazon and Alibaba. Those listings are likely available to

anyone in New York who seeks them. However, the similarities

end there. Third-party Plaintiffs do not, either with the

product listings or the internet blueprint, tie to them any sort

of effort by Taishan to seek New York business, or further, any

direct solicitation of individual customers in New York. See

Aaron Consulting Co. LLC, 2018 WL 4568800, at *7 (“Similar to

that case, the only connection between Snap’s websites and New

York is that the websites can be viewed by users in New York

with an internet connection.”); Boyce v. Cycle Spectrum, Inc.,

148 F. Supp. 3d 256, 270 (E.D.N.Y. 2015) (“HL Corp. at best had

a general awareness that its products might end up in New York,

a large market for [its product].”). The company’s connection

with Whirlpool is unavailing because Taishan noted its primary

efforts in the United States are in Michigan. DH Servs., LLC v.

Positive Impact, Inc., No 12-CV-6153, 2014 WL 496875, at *14

(S.D.N.Y. Feb. 5, 2014) (declining to conclude that the

defendant made a discernible effort to serve the New York market

where the plaintiff had “not offered any evidence showing that

[the d]efendant actively solicited individuals from New York to

make online donations or attend its fundraiser events, all of

which were hosted in Atlanta”).

The online materials also do not reach the requisite

level of specificity required for this Court’s jurisdiction

under Section 302(a)(3)(ii). The internet blueprint provides

only the company’s revenue for North America as a whole and

offers no data for any particular state. (See Online Materials,

D.E. 121-5, at 10.) The business between Taishan and Whirlpool

similarly does not shed any light on Third-party Defendant’s

activities in New York. (See Online Materials at 10.) And,

while the Court credits these assertions by Third-party

Plaintiffs, it need not, and will not, accept their conclusions

by implication that Taishan should have expected the pole motor

to cause consequences in New York. Aaron Consulting Co., LLC,

2018 WL 4568800, at *7 (“Such conclusory allegations cannot

support personal jurisdiction under Section 302(a)(3)(ii).”);

cf. Mt. Whitney Invs., LLP v. Goldman Morgenstern & Partners

Consulting, LLC, No, 15-CV-4479, 2017 WL 1102669, at *5

(S.D.N.Y. Mar. 23, 2017) (rejecting as conclusory a party’s

broad allegations under a different section of Section 302(a)).

The Court observes that the internet blueprint is

sufficient for showing that Taishan derives substantial revenue

from interstate commerce. See, e.g., Gucci Am., Inc. v.

Frontline Processing Corp., 721 F. Supp. 2d 228, 242 (S.D.N.Y.

2010) (finding this prong met where the plaintiff “generally

allege[d] that Durango, Woodforest, and Nationwide hold

themselves out as national, if not international companies”).

But, as noted above, Third-party Plaintiffs’ efforts fail on the

fourth prong. In addition, because Third-party Plaintiffs have

not carried their Section 302(a)(3)(ii) burden, the Court need

not determine whether personal jurisdiction comports with due

process. See Chatwal Hotels & Resorts LLC, 90 F. Supp. 3d at

106 (“If the long-arm statute provides a basis for personal

jurisdiction, the court the considers whether personal

jurisdiction comports with due process.”) (citing Chloe v. Queen

Bee of Beverly Hills, LLC, 616 F.3d 158, 164 (2d Cir. 2010)).

C. As to the Third-party Plaintiff’s Request for

Jurisdictional Discovery

Third-party Plaintiffs also ask the Court to deny the

Rule 12(b)(2) motion for the parties to exchange jurisdictional

discovery. (3d Pty. Pls. Opp. at 16.) Where, as here, a

plaintiff has failed to make a prima facie showing of personal

jurisdiction, “it is ‘well within’ a court’s discretion to deny

jurisdictional discovery.” Wego Chem. & Min. Corp. v.

Magnablend Inc., 945 F. Supp. 2d 377, 386 (E.D.N.Y. 2013)

(citations omitted). A court will permit jurisdictional

discovery where a plaintiff has made a “sufficient start” toward

establishing personal jurisdiction. See Hollins v. U.S. Tennis

Ass’n, 469 F. Supp. 2d 67, 70–71 (E.D.N.Y. 2006); see also Leon

v. Shmuckler, 992 F. Supp. 2d 179, 194 (E.D.N.Y. 2014) (“It is

well-settled under Second Circuit law that, even where plaintiff

has not made a prima facie showing of personal jurisdiction, a

court may still order discovery, in its discretion, when it

concludes that the plaintiff may be able to establish personal

jurisdiction if given the opportunity to develop a full factual

record.”) (citing In re Magnetic Audiotape Antitrust Litig., 334

F.3d 204, 208 (2d Cir. 2003) (per curiam)). A court will not

permit such discovery on the basis of a generalized request more

akin to a “fishing expedition.” See Wego Chem., 945 F. Supp. 2d

at 386 (citations omitted).

A district court has “wide latitude to determine the

scope of discovery.” In re Agent Orange Prod. Liab. Litig., 517

F.3d 76, 103 (2d Cir. 2008); Ehrenfeld v. Mahfouz, 489 F.3d 542,

550 n.6 (2d Cir. 2007) (“A District Court’s denial of

jurisdictional discovery is reviewed for abuse of discretion.”).

A district court is “typically within its discretion to deny

jurisdictional discovery” where “‘the plaintiff has not made out

a prima facie case for jurisdiction.’” Funk b. Belneftekhim,

861 F. 3d 354, 366 (2d Cir. 2017); (citing Best Van Lines, Inc.

v. Walker, 490 F.3d 239, 255 (2d Cir. 2007) (collecting cases));

Leviton Mfg. Co., Inc. v. Reeve, 942 F. Supp. 2d 244, 262–63

(E.D.N.Y. 2013).

The Court declines to order jurisdictional discovery.

Third-party Plaintiffs have failed to make out a prima facie

showing of personal jurisdiction, in that their allegations

concerning the online materials do not approach meeting the

fourth prong of the Penguin Grp. (USA) Inc. test. See Leviton

Mfg. Co., 942 F. Supp. 2d at 263 (“Here, however, no such

factual allegation with respect to the requirements of

subparagraph (a)(3) is even asserted in the Complaint, much less

supported by the [p]laintiff in its submissions before the Court

in Connection with the instant motion. Rather, the [p]laintff

makes a generalized request to conduct discovery that is more

akin to a ‘fishing expedition.’”) (quoting Maldonado v. Rogers,

99 F. Supp. 2d 235, 240 (N.D.N.Y. 2000)). The Court also holds

that Third-party Plaintiffs’ conclusory allegations in

opposition do not make a sufficient start toward establishing

jurisdiction, which further counsels against ordering

jurisdictional discovery. See Hollins, 459 F. Supp. 2d at 71;

Aerotel, Ltd. v. Sprint Corp., 100 F. Supp. 2d 189, 194

(S.D.N.Y. 2000).

D. As to the Rule 8(a)(1) and 12(b)(6) Motions

Taishan additionally argues that the Court should

dismiss the action as to them under Rules 8(a)(1) and 12(b)(6).

When a court faces a motion raising multiple Rule 12(b)

defenses, it will first consider the jurisdictional issues

before considering whether the plaintiff states a claim. See

Prospect Funding Holdings, LLC v. Vinson, 256 F. Supp. 3d 318,

323 (S.D.N.Y. 2017) (collecting cases); Darby Trading Inc. v.

Shell Int’l Trading and Shipping Co. Ltd., 568 F. Supp. 2d 329,

334 (S.D.N.Y. 2008).

The Court need not reach the Rule 12(b)(6) issue. The

decision on the Rule 12(b)(2) motion is dispositive in this

case. See, e.g., Prospect Funding Holdings, LLC, 256 F. Supp.

2d at 232 (“As the jurisdictional issue is decisive here, the

Court does not reach Pilgrim’s Rule 12(b)(6) argument.”).

CONCLUSION

For the foregoing reasons, Third-party Defendant

Taishan’s Rule 12(b)(2) motion to dismiss the case for lack of

personal jurisdiction (D.E. 116) is GRANTED and the case is

DISMISSED as to Third-party Defendant Taishan. The Court does

not reach Taishan’s motion to dismiss under Rules 8(a)(1) and

12(b)(6). In addition, the Court, in its discretion, declines

Third-party Plaintiffs’ request for jurisdictional discovery.

Accordingly, the Clerk of the Court is directed to

CLOSE the case as to Third-party Defendant Taishan and to amend

the caption to reflect the closing of the Third-party Complaint.

SO ORDERED.

/s/ JOANNA SEYBERT __

Joanna Seybert, U.S.D.J.

Dated: September 10 , 2020

Central Islip, New York