Fisher v. International Student Exchange, Inc.

38 F. Supp. 3d 276, 2014 WL 3921364, 2014 U.S. Dist. LEXIS 110616
District Court, E.D. New York·Decided August 7, 2014·No. No. CV 13-6519·Published·Cited by 14 cases

Opinion

MEMORANDUM AND ORDER

WEXLER, District Judge.

This case involves a German exchange student who alleges that the father in the [280] host family with which he was placed sexually abused him. After returning to Germany, Plaintiff commenced the within diversity action, asserting causes of action for battery, negligence and breach of contract. Now before the Court are the Defendants’ motions to dismiss Plaintiffs Complaint for failure to state a’ claim, improper venue and lack of personal jurisdiction. In the alternative, Defendants seek to have this action transferred to the District of Montana where the alleged sexual abuse occurred. For the following reasons, Defendants’ motions are granted in part and denied in part and the Clerk of the Court is directed to transfer this action to the District of Montana.

BACKGROUND

Plaintiff, Robin Simon Fisher (“Fisher”), is a German citizen who, while a minor in 2011, enrolled in a foreign student exchange program here in the United States, which was run by Defendant International Student Exchange, Inc. (“ISE”). (Compl. ¶¶ 3, 5, 7-9.) Defendant Theodore R. Preiss (“Preiss”) and his family were approved by ISE to servte as Plaintiffs host family in Belgade, Montana. (Compl. ¶ 9-10.) Plaintiff moved into the Preiss’s home on September 2, 2011. (Compl. IF 10.)

Plaintiff alleges that on December 23, 2011, when he was sixteen years old and residing in the Preiss home as part of the exchange student program, Preiss subjected Plaintiff to unwanted sexual contact. (Compl. ¶ 14.) That evening, Plaintiff contacted Ashley Pulsipher (“Pulsipher”), the Area Representative assigned by ISE to supervise and monitor Plaintiffs placement with the Preiss family. (Compl. ¶¶ 29, 31.) Plaintiff advised Pulsipher that there were private issues that he urgently needed to discuss with her, in person, as soon as possible. (Compl. ¶ 31.)

Plaintiff met with Pulsipher on December 26, 2011 and reported Preiss’s sexual abuse. (Compl. ¶ 32.) Pulsipher immediately contacted her supervisor, Area Manager Carol Toews (“Toews”), who in turn called ISE’s corporate headquarters in New York. (Compl. ¶ 32.) On December 27, 2011, Toews, following instructions from ISE’s New York office, contacted the Child and Family Services Division of the Montana Department of Public Health and Human Services and notified them of Plaintiffs report of sexual abuse. (Compl. ¶ 33.) That same day, ISE’s corporate office in New York notified the United States Department of State of Plaintiffs report of sexual abuse. (Compl. ¶ 35.)

Plaintiff left Montana to return to Germany on December 27, 2011. (Compl. ¶ 34.) The District Attorney’s Office for Gallatin County, Montana declined to prosecute Preiss. (Compl. ¶ 40.)

Plaintiff commenced the within diversity action on November 22, 2013. Defendant Preiss, a citizen of Montana, now moves to dismiss Plaintiffs Complaint as alleged against him for lack of personal jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2). Defendants ISE and Student Management Group, Inc. (“SMG”), who is alleged in the Complaint to be the “alter ego” of ISE, move to dismiss Plaintiffs Complaint pursuant to Federal Rule of Civil Procedure 12(b)(3) for improper venue, as well as pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted. In the alternative, all Defendants seek to have this action transferred to the District of Montana, pursuant to 28 U.S.C. § 1404.

DISCUSSION

I. Personal Jurisdiction Over Defendant Preiss

A. Legal Standard

On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears [281] the burden of demonstrating that the court has jurisdiction over the defendant. See Villanova v. Harbilas, No. 08 Civ. 10448, 2010 WL 1640187, at *2, 2010 U.S. Dist. LEXIS 37797, at *6 (S.D.N.Y. Apr. 12, 2010) (citing In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir.2003) (per curiam)). Where, as here, the Court is only considering the pleadings and affidavits on the motion to dismiss, “the plaintiff need only make a prima facie showing” that jurisdiction exists. Villanova, 2010 WL 1640187, at *2, 2010 U.S. Dist. LEXIS 37797, at *6 (quoting CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir.1986)); see also O’Keefe v. Blue & Gold Fleet L.P., 634 F.Supp.2d 284, 285 (E.D.N.Y.2009). In addition, the Court “must construe all of the allegations in the light most favorable to the plaintiff, and the plaintiff need only plead good faith allegations of fact that, if credited, would support jurisdiction over the defendant.” O’Keefe, 634 F.Supp.2d at 285 (citing Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir.2001)). In deciding a motion to dismiss for lack of personal jurisdiction, a court may rely upon materials outside of the pleadings. See Villanova, 2010 WL 1640187, at *2-3, 2010 U.S. Dist. LEXIS 37797, at *6-7.

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Fisher v. International Student Exchange, Inc., 38 F. Supp. 3d 276, 2014 WL 3921364, 2014 U.S. Dist. LEXIS 110616 (E.D.N.Y. 2014).

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