Goldman v. Trinity School of Medicine

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JACK GOLDMAN,

MEMORANDUM AND ORDER

Plaintiff,

23-CV-2935(KAM)(JRC)

-against-

TRINITY SCHOOL OF MEDICINE, through its

Board of Trustees; DOE DEFENDANTS 1-20,

in their individual and official

capacities,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

On April 20, 2023, Plaintiff Jack Goldman (“Goldman” or the

“Plaintiff”) brought this action asserting violations of N.Y. Gen.

Bus. Law § 349 along with breach of contract and breach of express

warranty claims against Trinity School of Medicine (“Trinity” or

“Defendant”) as well as unnamed “Doe” Defendants 1-20 (the “John

Doe” Defendants). (ECF No. 1, Complaint.) Presently before the

Court is Trinity’s motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(2) for lack of personal jurisdiction, or, in the alternative,

pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

(See ECF No. 14, Defendant’s Notice of Motion to Dismiss.) For

the reasons set forth below, Defendant’s motion to dismiss for

lack of personal jurisdiction is GRANTED.

BACKGROUND

I. Factual Background

Plaintiff is a citizen of the state of New York who was

admitted to and attended Trinity to pursue a Doctor of Medicine

Degree beginning in the Fall of 2016. (See Compl. at ¶¶6, 17.)

Plaintiff was anticipated to graduate in Spring 2020. (Id. at

¶18.) The Complaint alleges that Plaintiff successfully finished

the “first half of [the] medical school semesters” but that

Trinity’s requirement that he pursue “two, then[-]optional,

examinations . . . halted1 Plaintiff from pursuing the clinical

science phase of his education.” (Id. at ¶¶19-23.)

Plaintiff alleges in the Complaint that Trinity, through an

admissions specialist, “affirmatively stated to Plaintiff in

[April] 2016, during the recruitment stage, that residency in New

York could be provided should he choose to pursue his education

with Trinity.” (Id. at ¶11, 28.) Plaintiff alleges that Trinity

students are “not eligible for residency in the State of New York

due to New York practice eligibility rules,” but does not specify

which rules, or how they bar Trinity students. (Id. at ¶29.)

Based on these allegedly false statements, Plaintiff alleges that

1 Plaintiff’s Complaint does not specify how, exactly, the testing requirement

“halted” him from pursuing the clinical phase of his education, but the

affidavit of Trinity’s President, Steven R. Wilson, states that Plaintiff “was

not successful in passing the [United States Medical Licensing Examination Step

1] exam on his first (and only) attempt . . . in September 2020.” (ECF No. 14-

2, Affidavit of Steven R. Wilson, at ¶14.) The affidavit further states that

“[i]f Plaintiff had successfully passed the Step 1 [exam] and continued the

curriculum, he would have taken clinical courses in Georgia.” (Id. at ¶34.)

he was “attracted to attend [Trinity].” (Id. at ¶31.) Plaintiff

also alleges that he was charged for tuition “while he was not

registered for classes” during the time in which he was attempting

to seek disability accommodations for a National Board of Medical

Examiners (“NBME”) exam. (Id. at ¶¶33-43.) Plaintiff alleges

that the unnamed John Doe Defendants “were employed by [Trinity],”

that they were “acting within the scope of their employment on

behalf of [Trinity],” and that therefore Trinity is vicariously

liable for their actions. (Id. at ¶¶52-53.) Plaintiff does not

allege where the John Doe Defendants worked or were domiciled.

(Id.)

II. Jurisdictional Facts

“When evaluating a motion to dismiss for lack of personal

jurisdiction, courts ‘may consider materials outside the

pleadings, including affidavits and other written materials.’”

Commodity Futures Trading Comm'n v. TFS-ICAP, LLC, 415 F. Supp. 3d

371, 380 (S.D.N.Y. 2019) (quoting Jonas v. Estate of Leven, 116 F.

Supp. 3d 314, 323 (S.D.N.Y. 2015)). On September 5, 2023, the

Court granted Plaintiff the opportunity to engage in limited

jurisdictional discovery. (See Docket Order dated September 5,

2023.) That period of discovery closed on November 14, 2023.

(Minute Entry dated November 14, 2023.) Based on that discovery,

Defendant2 has provided the Court with the following facts relevant

to the determination of personal jurisdiction.

Trinity is a private Caribbean medical school located in

Kingstown, St. Vincent and the Grenadines. (ECF No. 14-2,

Affidavit of Steven R. Wilson (“Wilson Aff.”), at ¶4.) It

maintains its offices and principal place of business in St.

Vincent and the Grenadines, but also maintains an administration

office in the United States in Roswell, Georgia. (Id. at ¶5.)

Trinity recruits students from across the United States and Canada,

including New York. (Id. at ¶¶18-20.) From 2016 to 2020, 6.4% of

Trinity’s applications were submitted by individuals from New

York, and 7.19% of the students who matriculated were from New

York. (Id. at ¶22.) Trinity does not hold recruiting open houses

in New York but has sent admissions personnel to New York to

interview prospective students. (Id. at ¶¶23-24.) Specifically,

Trinity personnel conducted two visits for interviews in 2016,

four visits in 2017, and four visits in 2018. (Id. at ¶24.) Dr.

Michael Miller, the director of admissions who interviewed

Plaintiff, resides in and works in Georgia. (Id. at ¶26.)

Trinity has no offices, stores, or campus in New York, and it

also does not own any real property in the state. (Id. at ¶6.)

2 Plaintiff neither disputes the facts proffered by Defendant with its motion

to dismiss, nor does Plaintiff offer a competing statement of facts with his

memorandum in opposition.

Trinity is not registered to do business, offer continuing

education programs, or receive process in New York. (Id. at ¶¶6-

7.) Trinity does not derive any income or revenue from services

rendered in New York. (Id. at ¶8.) Trinity is also not affiliated

with any New York hospitals and has not had any clinical rotations

for students in any New York hospital since 2015. (Id. at ¶¶27,

32.) Prior to October 2015, Trinity was party to a contract with

an Illinois corporation to facilitate the placement of students in

clinical clerkships, including at hospitals in New York, but that

contract terminated on October 5, 2015. (Id. at ¶¶28-31.)

Currently, and since 2016, Trinity runs its clinical program at a

network of affiliated hospitals and medical facilities located in

Warner Robins, Georgia, and Baltimore, Maryland. (Id. at ¶¶9,

32.)

III. Procedural History

Plaintiff commenced the instant case on April 20, 2023. (See

generally Complaint.) After being granted an extension of time to

respond, Defendant moved on August 4, 2023, for a pre-motion

conference in anticipation of filing a motion to dismiss. (ECF

No. 7.) The Court held a pre-motion conference to discuss the

anticipated motion on August 22, 2023, at which Plaintiff’s counsel

failed to appear, and a separate attorney from Plaintiff’s

counsel’s law firm who was not admitted to practice in the State

of New York or the Eastern District of New York appeared. (Minute

Entry dated August 22, 2023.) Plaintiff’s counsel was ordered to

show cause regarding his failure to appear, and the Court noted

that “a variety of possible issues” were apparent on the face of

the complaint, “including but not limited to: forum non conveniens

and venue issues . . . [and] that Plaintiff's GBL § 349 claim may

be stale.” (Id.) Plaintiff’s counsel responded to the Order to

Show Cause on August 29, 2023, apologizing for his absence, and

requesting preliminary discovery regarding personal jurisdiction.

(ECF No. 9.) The Court granted the request for jurisdictional

discovery, which was supervised by Magistrate Judge James Cho.

(Docket Order dated September 5, 2023.)

Jurisdictional discovery closed on November 14, 2023, and

Defendant again moved for a pre-motion conference on November 17,

2023. (ECF No. 11.) The Court denied the motion for a pre-motion

conference as unnecessary on November 22, 2023, in light of the

previously held conference, and directed the parties to brief the

motion to dismiss in accordance with the Defendant’s proposed

briefing schedule. (Docket Order dated November 22, 2023.) The

motion to dismiss was fully briefed on January 23, 2024. (See ECF

No. 14, Defendant’s Notice of Motion to Dismiss; ECF No. 14-1,

Defendant’s Memorandum of Law in Support of its Motion to Dismiss

(“Def. Mem.”); Wilson Aff.; ECF No. 14-3, Voronov Certification in

Support of Defendant’s Motion to Dismiss (“Voronov Cert.”); ECF

No. 15, Plaintiff’s Memorandum of Law in Opposition (“Pl. Opp.”);

ECF No. 16, Defendant’s Reply Memorandum of Law in Further Support

of its Motion to Dismiss (“Def. Reply”); ECF No. 16-1, Supplemental

Affidavit of Steven R. Wilson (“Supp. Wilson Aff.”).)

LEGAL STANDARD

I. Motion to Dismiss under Rule 12(b)(2)

On a motion to dismiss for lack of personal jurisdiction

pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure,

“the plaintiff bears the burden of establishing that the court has

jurisdiction over the defendant.” DiStefano v. Carozzi North

America, Inc., 286 F.3d 81, 84 (2d Cir. 2001) (citation omitted).

“[T]he showing a plaintiff must make to defeat a defendant's claim

that the court lacks personal jurisdiction over it ‘varies

depending on the procedural posture of the litigation.’”

Dorchester Financial Securities, Inc. v. Banco BRJ, S.A., 722 F.3d

81, 84 (2d Cir. 2013) (quoting Ball v. Metallurgie Hoboken-

Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). Before

jurisdictional discovery, a plaintiff's prima facie showing of

jurisdiction “may be established solely by allegations.” Ball,

902 F.2d at 197. However, where jurisdictional discovery has been

conducted, a plaintiff's prima facie showing must be factually

supported; that is, it must “include an averment of facts that, if

credited by [the ultimate trier of fact], would suffice to

establish jurisdiction over the defendant.” Metropolitan Life

Insurance Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.

1996) (quoting Ball, 902 F.2d at 197). In assessing the

plaintiff's showing, the court applies a “standard . . . akin to

that on a motion for summary judgment,” construing the “pleadings

documents, and other evidentiary materials . . . in the light most

favorable to the plaintiff and all doubts are resolved in [his or

her] favor.” Melnick v. Adelson-Melnick, 346 F. Supp. 2d 499, 503

(S.D.N.Y. 2004) (citations and internal quotation marks omitted).

Because “a district court sitting in a diversity action such

as this may exercise personal jurisdiction to the same extent as

the courts of general jurisdiction of the state in which it sits

. . . resolution of a motion to dismiss for lack of personal

jurisdiction in the [Eastern] District of New York requires a two-

step analysis.” Bank Brussels Lambert v. Fiddler Gonzalez &

Rodriguez, 305 F.3d 120, 124 (2d Cir. 2002). “First, the court

must determine if New York law would confer upon its courts the

jurisdiction to reach the defendant,” such as under the New York

general jurisdiction statute (i.e., N.Y. Civil Practice Law and

Rules (“CPLR”) § 301) and the long-arm statute (i.e., CPLR § 302).

See id. Second, “[i]f there is a statutory basis for jurisdiction,

the court must then determine whether New York's extension of

jurisdiction in such a case would be permissible under the Due

Process Clause of the Fourteenth Amendment.” Id.; see also Reich

v. Lopez, 858 F.3d 55, 62 (2d Cir. 2017) (“For a court to exercise

general jurisdiction over a defendant, 1) state law must authorize

general jurisdiction; and 2) jurisdiction must comport with

constitutional due process principles.” (internal quotation marks

and citation omitted)).

II. Motion to Dismiss under Rule 12(b)(6)

To survive a motion to dismiss under Rule 12(b)(6),

“a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has

facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (citation

omitted). Although “detailed factual allegations” are not

required, “[a] pleading that offers labels or conclusions or a

formulaic recitation of the elements of a cause of action will not

do.” Id. (internal quotation marks and citation omitted).

DISCUSSION

Personal jurisdiction is a “threshold question” that “must

precede merits.” In re Rationis Enterprises, Inc. of Panama, 261

F.3d 264, 268 (2d Cir. 2001) (citation omitted). Accordingly, the

Court first addresses the Defendant’s Rule 12(b)(2) arguments,

followed by the Defendant’s Rule 12(b)(6) arguments.

I. Personal Jurisdiction

Plaintiff does not specify the basis for this Court to

exercise personal jurisdiction over the Defendant, so the Court

will first analyze whether Defendant is subject to general personal

jurisdiction in New York before evaluating whether Defendant is

subject to specific personal jurisdiction in the state. See Arzu

v. American Airlines, Inc., No. 1:23-CV-2116 (SDA), 2023 WL

5614586, at *4 (S.D.N.Y. Aug. 31, 2023) (examining whether

defendant is subject to general personal jurisdiction prior to

considering whether the court could exercise specific personal

jurisdiction over defendant).

A. General Jurisdiction

General personal jurisdiction subjects a defendant to suit on

all claims. See Daimler AG v. Bauman, 571 U.S. 117, 127 (2014);

see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.

915, 919 (2011). In New York, pursuant to CPLR § 301, general

jurisdiction exists when 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) (quoting Landoil Resources Corp. v. Alexander &

Alexander Servs., Inc., 565 N.E.2d 488, 490 (N.Y. 1990)). However,

as discussed above, “even if general jurisdiction under N.Y. CPLR

§ 301 is satisfied, a court independently must ensure that due

process is satisfied.” Arzu, 2023 WL 5614586, at *3 (citation

omitted). Under the Due Process Clause, a corporation can “be

subject to general jurisdiction in a state only where its contacts

are so ‘continuous and systematic,’ . . . that it is ‘essentially

at home’ in that state.” Gucci America, Inc. v. Weixing Li, 768

F.3d 122, 135 (2d Cir. 2014) (quoting Daimler, 571 U.S. at 139).

“Aside from ‘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.” Id. (quoting

Daimler, 571 U.S. at 139 n.19).

Plaintiff’s complaint is silent as to the basis for exercising

personal jurisdiction over Defendant, but Plaintiff argues in his

opposition to the motion to dismiss that Defendant had

“intentional, systematic and ongoing contacts with the State of

New York,” (Pl. Opp. at 4), which the Court construes as an

argument that Defendant is subject to general personal

jurisdiction in New York. Even charitably construed, however,

Plaintiff’s argument is unavailing.

Plaintiff has failed to meet his burden to establish that

asserting general jurisdiction over Trinity in this case would

comport with due process. Defendant is neither incorporated in

New York, nor does it have its principal place of business in New

York. (See Wilson Aff. at ¶¶4-6). Thus, the Court cannot assert

general personal jurisdiction over Defendant in this case. See

Gleissner v. Turk Hava Yollari Anonim Ortakligi, No. 16-CV-8287

(JPO), 2018 WL 456296, at *3 (S.D.N.Y. Jan. 17, 2018) (no personal

jurisdiction under Daimler where neither defendant's state of

incorporation nor its principal place of business was in New York);

see also Thackurdeen v. Duke Univ., 130 F. Supp. 3d 792, 799–800

(S.D.N.Y. 2015), aff'd, 660 F. App'x 43 (2d Cir. 2016) (“a

university or college cannot be deemed ‘at home’ in a forum merely

because it engages in the sort of minimal and sporadic contact

with the state that is common to all national universities”).

Plaintiff fails to make any factual allegations that might

distinguish this case from “the myriad of cases holding that

national universities are not subject to general jurisdiction

outside of their state of incorporation or operation.”

Thackurdeen, 130 F. Supp. 3d at 800 (collecting cases).

Furthermore, there is nothing in the record to suggest that this

is “an exceptional case” warranting the assertion of general

jurisdiction over Trinity. See Daimler, 571 U.S. at 139 n.19.

Because Plaintiff cannot establish that it would comport with due

process to exercise general jurisdiction over Trinity, the Court

need not consider whether general jurisdiction would be consistent

with New York state law. See, e.g., Hood v. Ascent Medical Corp.,

691 F. App’x 8, 10 (2d Cir. 2017) (declining to address the scope

of general jurisdiction under New York law where exercising general

jurisdiction was clearly inconsistent with due process).

B. Specific Jurisdiction

Lacking general personal jurisdiction over Defendant, the

Court next looks to whether an exercise of specific personal

jurisdiction would be appropriate in the instant case. Specific

personal jurisdiction subjects a defendant to suit only on claims

that “arise out of or relate to the defendant's contacts with the

forum.” Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S.

351, 362 (2021) (quoting Bristol-Myers Squibb Co. v. Superior Ct.

of California, San Francisco County, 582 U.S. 255, 262 (2017)).

New York’s long-arm statute permits a court to exercise personal

jurisdiction in cases where a non-domiciliary: (1) “transacts any

business within the state or contracts anywhere to supply goods or

services in the state;” (2) “commits a tortious act within the

state;” (3) “commits a tortious act” outside the state that

“caus[es] injury to [a] person or property within the state;” or

(4) “owns, uses or possesses any real property situated within the

state.” CPLR § 302(a). “To establish personal jurisdiction under

[CPLR §] 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.” Sole Resort,

S.A. de C.V. v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d

Cir. 2006) (citing McGowan v. Smith, 419 N.E.2d 321, 323 (N.Y.

1981)).

“Though many state statutes extend personal jurisdiction to

the full extent permitted by the Constitution—thereby merging the

statutory and constitutional inquiries—New York's long-arm statute

does not reach so far.” National Union Fire Insurance Co. of

Pittsburgh, Pa. v. UPS Supply Chain Solutions, Inc., 74 F.4th 66,

72 (2d Cir. 2023), cert. denied sub nom. UPS Supply Chain

Solutions, Inc. v. EVA Airways Corp., 144 S. Ct. 559 (2024)

(citation omitted). As a result, if “New York’s long-arm statute

does not authorize personal jurisdiction over [the defendant] . .

. [the Court] need not decide whether exercising such jurisdiction

would comport with constitutional due process.” Id. at 73 (citing

Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir. 2007)).

Plaintiff’s argument for the exercise of specific personal

jurisdiction over Trinity appears to be based on several facts:

(1) visits by Trinity employees in 2016, 2017, and 2018, to conduct

interviews with New York students; (2) Trinity’s pre-2016 contract

with an Illinois-based company to place students in clinical

clerkships in New York; (3) Trinity’s conduct of outreach and

marketing efforts to prospective students “on a nationwide basis,

including within the State of New York”; and (4) the fact that

students from New York make up a “significant percentage” of

Trinity’s student body and applicant pool. (Pl. Opp. at 5-6.)

Plaintiff does not specify which section of New York’s long-arm

statute provides jurisdiction, but the facts he offers are

consistent with an argument that Trinity is subject to specific

jurisdiction under CPLR § 302(a)(1) because it transacts business

within the state of New York. (See Pl. Opp. at 5 (“Defendant

Trinity . . . availed themselves to litigation within the district

as they operated business [sic] within the State of New York”).)

Plaintiff makes no argument regarding tortious acts committed by

Trinity or real property owned by Trinity within New York, as would

be applicable to CPLR §§ 302(a)(2)-(4). Thus, the Court will

examine whether Trinity’s conduct meets the requirements of CPLR

§ 302(a)(1).

The New York Court of Appeals has explained that “the

overriding criterion necessary to establish a transaction of

business is some act by which the defendant purposefully avails

itself of the privilege of conducting activities within New York,”

Ehrenfeld v. Bin Mahfouz, 881 N.E.2d 830, 834 (N.Y. 2007) (brackets

and internal quotation marks omitted), thereby “invoking the

benefits and protections of its laws,” Fischbarg v. Doucet, 880

N.E.2d 22, 26 (N.Y. 2007). “A defendant need not physically enter

New York State in order to transact business, ‘so long as the

defendant's activities here were purposeful.’” Licci ex rel. Licci

v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 61 (2d Cir. 2012)

(quoting Fischbarg, 880 N.E.2d at 26). “Not all purposeful

activity, however, constitutes a ‘transaction of business’ within

the meaning of CPLR 302(a)(1),” and the New York Court of Appeals

has held that “the transitory presence of a corporate official [in

New York] . . . [does] not support CPLR 302(a)(1) jurisdiction.”

Fischbarg, 880 N.E.2d at 26. “Although it is impossible to

precisely fix those acts that constitute a transaction of business,

[New York Court of Appeals] precedents establish that it is the

quality of the defendants’ New York contacts that is the primary

consideration.” Id.

The Court does not find Trinity’s contacts with the state of

New York sufficient for the exercise of personal jurisdiction

pursuant to CPLR § 302(a)(1). First, the presence of a Trinity

employee to conduct interviews of prospective students on a handful

of occasions is insufficient to satisfy New York’s long-arm

statute. Cf. Yih v. Taiwan Semiconductor Mfg. Co., 815 F. App'x

571, 574–75 (2d Cir. 2020) (“Absent any allegation of recruiting

targeted at New York, the sole communications tying [defendant] to

New York were those it had with [Plaintiff]. These communications

-- two Skype interviews and emails through a third-party agent

regarding a position in Taiwan for which [Plaintiff] was not hired

-- were too limited to amount to a purposeful transaction of

business in New York.”). Trinity did not hold open houses in New

York for prospective students, does not partner with any New York

colleges and universities for recruiting, and did not specifically

target any recruiting emails at New York residents. (Wilson Aff.

at ¶¶18, 20-21.) Furthermore, although Trinity employees may have

contacted individuals in New York, it was in furtherance of the

individuals attending Trinity for an education entirely outside

the state of New York. See Berkshire Capital Group, LLC v. Palmet

Ventures, LLC, 307 F. App'x 479, 481 (2d Cir. 2008) (“the contract

here was to be performed entirely outside of New York . . . [t]he

mere fact that [Defendant] engaged in some contact with a New York

purchaser does not mean that [Defendant] transacted business in

New York”).

Second, even if Trinity’s contract with an Illinois company

to place students in New York clinical clerkships, which had

expired prior to Plaintiff’s interview, was a sufficient contact

with New York to provide jurisdiction, Plaintiff points to no

“relatedness between the transaction and the legal claim such that

the latter is not completely unmoored from the former.” Licci ex

rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 168–69

(2d Cir. 2013). The aforementioned contract, which had been

terminated before Plaintiff was even interviewed for admission by

Trinity and is not mentioned in the complaint, clearly has no

bearing on Plaintiff’s allegations against Trinity in April 2016

and thereafter. (See generally Compl.) Therefore, Trinity’s pre-

2016 contract cannot serve as a basis for specific personal

jurisdiction under CPLR § 302(a)(1).

Third, any “digital marketing” materials which Plaintiff

received, and which were not specifically targeted at New York

residents, do not provide a basis for specific personal

jurisdiction. See, e.g., Fanelli v. Latman, 162 N.Y.S.3d 140, 145

(2d Dep’t 2022) (no basis for long-arm jurisdiction when defendant

“advertises its services nationwide through a website that is not

specifically directed toward New York residents or businesses”);

see also Maranga v. Vira, 386 F. Supp. 2d 299, 309 (S.D.N.Y. 2005)

(“At bottom, the placement of the ads, even in conjunction with

the telephonic negotiations that followed, implies only that

Defendants invited residents of New York, and quite possibly others

as well, to transact business in Louisiana. That is not the same

thing as the Defendants themselves having transacted business in

New York.”) Even if such contacts were sufficient, Plaintiff has

not pleaded facts suggesting that the marketing materials are at

all related to his claims. Instead, his claims focus on allegedly

misleading statements made during his interview and a subsequent

breach of contract when he was charged tuition while not attending

school. Therefore, nationwide marketing by Trinity also cannot

support a finding of specific personal jurisdiction in New York

with regards to Plaintiff’s claims.

Finally, the mere fact that approximately 7% of Trinity’s

students hail from New York is not sufficient to justify a finding

of specific personal jurisdiction. See, e.g., Apicella v. Valley

Forge Military Academy & Junior College, 478 N.Y.S.2d 663, 665 (2d

Dep’t 1984) (no general or specific personal jurisdiction over

school when, among other things, “New York State students made up

only 10% of the school's total enrollment and the school did not

maintain any physical plant in New York”). Trinity’s President

has stated, under penalty of perjury, that the school’s email and

recruiting activities “do[] not target New York over other states

where it recruits students.” (Wilson Aff. at ¶¶18, 20.) In the

absence of any facts to the contrary, the mere presence of New

Yorkers among Trinity’s student body does not suffice to grant

this Court specific personal jurisdiction over the school.

In conclusion, there is no statutory basis for the exercise

of personal jurisdiction over Defendant Trinity pursuant to CPLR

§ 302(a)(1). Because Plaintiff has failed to establish a statutory

basis for personal jurisdiction, the Court need not further analyze

whether Trinity lacks the necessary “minimum contacts” with New

York. See National Union Fire Insurance Co. of Pittsburgh, Pa.,

74 F.4th at 72 (“Though many state statutes extend personal

jurisdiction to the full extent permitted by the Constitution—

thereby merging the statutory and constitutional inquiries—New

York's long-arm statute does not reach so far.”)

C. John Doe Defendants

The Court’s conclusion that it lacks jurisdiction over

Trinity leaves open the question of what should be done with the

John Doe Defendants. The only facts alleged in the complaint

regarding the John Doe defendants are as follows: “Doe Defendants

1-20 (“Doe Defendants”) are employees or agents of Defendant

TRINITY that caused the harms to the Plaintiff subject of this

lawsuit. At this time, their names and whereabouts are unknown.”

(Compl. at ¶8.) Plaintiff has not pleaded any facts suggesting

that the John Doe defendants conducted any relevant acts in, or

are domiciled in New York, and therefore “at home” in New York for

the purposes of general jurisdiction.3 Reich v. Lopez, 858 F.3d

55, 63 (2d Cir. 2017) (“General jurisdiction over an individual

comports with due process in the forum where he is ‘at home,’

meaning the place of ‘domicile.’”) (citation omitted). Plaintiff

has also not offered any basis for this Court retaining

jurisdiction over “employees or agents” of Trinity in the absence

of jurisdiction over Trinity itself, given that he appears to argue

Trinity is vicariously liable for its employees conduct. (See

Compl. at ¶¶51-54); see also Covington Industries, Inc. v. Resintex

A. G., 629 F.2d 730, 732 (2d Cir. 1980) (“A judgment entered

against parties not subject to the personal jurisdiction of the

rendering court is a nullity.”) Because Plaintiff has proffered

no separate basis for this Court’s jurisdiction over the John Doe

defendants other than their employment by Trinity, the Court

accordingly finds that it lacks a sufficient basis to exercise

3 The Court notes that the Affidavit of Trinity’s President states that the two

individuals who conducted interviews on behalf of Trinity in New York, Drs.

Miller and Bell, both work and reside outside of New York, in Georgia and

Maryland, respectively. (See Wilson Aff. at ¶26.)

personal jurisdiction over the John Doe defendants, and the claims

against them are dismissed.

II. Failure to State a Claim

In light of the Court’s conclusion that it lacks a statutory

basis for jurisdiction over Defendant Trinity, the Court declines

to consider Defendant’s arguments regarding Plaintiff’s failure to

state a claim pursuant to Fed. R. Civ. P. 12(b)(6). See Arrowsmith

v. United Press Int'l, 320 F.2d 219, 221 (2d Cir. 1963) (“a court

without such jurisdiction [over the defendant] lacks power to

dismiss a complaint for failure to state a claim”).

III. Leave to Amend

Rule 15 of the Federal Rules of Civil Procedure provides that

a court “should freely give leave [to amend a pleading] when

justice so requires.” Fed. R. Civ. P. 15(a)(2). “A district court

has discretion to deny leave for good reason, including futility,

bad faith, undue delay, or undue prejudice to the opposing party.”

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.

2007) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). “Futility

is a determination, as a matter of law, that proposed amendments

would fail to cure prior deficiencies or to state a claim under

Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Panther

Partners Inc. v. Ikanos Communications, Inc., 681 F.3d 114, 119

(2d Cir. 2012) (citing Cortec Industries, Inc. v. Sum Holding L.P.,

949 F.2d 42, 50 (2d Cir. 1991)).

Plaintiff has not moved for leave to amend the Complaint, but

closes his opposition to Defendant’s motion to dismiss by stating

“[s]hould this honorable court determine that [the] complaint is

lacking in material facts, Plaintiff[] respectfully request[s]

leave to amend [his] complaint.” (Pl. Opp. at 16.) It is not

clear whether Plaintiff is requesting leave to amend only in the

event that the Court were to dismiss the complaint for failure to

state a claim, or also in the event that the Court were to dismiss

the complaint for failure to establish personal jurisdiction over

the Defendant.

There is no basis for the Plaintiff to be granted leave to

amend the complaint in the instant case. “It is well settled under

Second Circuit law that, even where [the] 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 jurisdiction if given the

opportunity to develop a full factual record.” Leon v. Shmukler,

992 F. Supp. 2d 179, 194 (E.D.N.Y. 2014) (citing In re Magnetic

Audiotape Antitrust Litigation, 334 F.3d 204, 208 (2d Cir. 2003));

see also APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) (“[A]

court should take care to give the plaintiff ample opportunity to

secure and present evidence relevant to the existence of

jurisdiction.” (internal quotation marks omitted)). Plaintiff has

been afforded the opportunity to engage in jurisdictional

discovery in the instant case and proffered no additional facts

supporting an exercise of jurisdiction in his opposition papers.

(See generally Pl. Opp.) Because the parties have already engaged

in jurisdictional discovery, and the Court has found that

Defendants are not subject to this Court’s jurisdiction, an

amendment to the complaint would be futile. See Arzu, 2023 WL

5614586, at *6 (“Because [defendant] is not subject to specific

jurisdiction, an amendment to the Complaint to plead that

jurisdictional basis would be futile.”) Therefore, Plaintiff will

not be granted leave to amend.

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss is

GRANTED. This Court lacks jurisdiction over Defendant, and

Plaintiff’s complaint is accordingly dismissed without prejudice.

The Clerk of Court is directed to close this case.

SO ORDERED

Dated: June 4, 2024 b “7 YY, □□

Brooklyn, New York °

“Vy □□ et te

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

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