Overseas Media, Inc. v. Skvortsov

277 F. App'x 92
CourtCourt of Appeals for the Second Circuit
DecidedMay 8, 2008
DocketNos. 06-4095-cv (L), 07-2952-cv (CON)
StatusPublished
Cited by17 cases

This text of 277 F. App'x 92 (Overseas Media, Inc. v. Skvortsov) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Overseas Media, Inc. v. Skvortsov, 277 F. App'x 92 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Appellants appeal from a January 3, 2006 decision of the district court dismissing the action against defendant OOO Fé-nix Film (“Fénix”) for lack of personal jurisdiction, Overseas Media, Inc. v. Skvortsov, 407 F.Supp.2d 563 (S.D.N.Y. 2006), and a July 27, 2006 decision of the district court dismissing the action against defendant Sergei Skvortsov based on forum non conveniens, Overseas Media, Inc. v. Skvortsov, 441 F.Supp.2d 610 (S.D.N.Y. 2006). We assume the parties’ familiarity with the facts and procedural history of the case.

I. Personal Jurisdiction

We review the district court’s dismissal of the action against Fénix for lack of personal jurisdiction de novo. Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir.2007). Where, as here, jurisdictional discovery has taken place, plaintiffs’ “prima facie showing, necessary to defeat a jurisdiction testing motion, must include an averment of facts that, if credited by the trier, would suffice to establish jurisdiction over the defendant.” Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194,197 (2d Cir.1990). “[This] prima facie showing must be factually supported.” Id. “The amenability of an out-of-state corporation to suit in a federal district court is determined by the law of the state in which the district court sits.” Sole Resort, S.A. de C.V. v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 102-03 (2d Cir.2006). We thus apply New York law. The district court properly found that it did not have personal jurisdiction over Fénix because Fénix did not fall under either provision of the New York statute: general jurisdiction under N.Y. C.P.L.R. 301 or long-arm jurisdiction under N.Y. C.P.L.R. 302.

Section 301 codifies the “doing business” standard whereby a foreign corporation is subject to personal jurisdiction in a New York court if it does business in the state. To meet this standard, the foreign corporation must be “do[ing] business in New York not occasionally or casually, but with a fair measure of permanence and continuity.” Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir.2000) (internal quotation marks omitted). The plaintiff “must show that a defendant engaged in continuous, permanent, and substantial activity in New York.” Id. (internal quotation marks omitted). Factors considered include (1) the existence of an office in New York, (2) the solicitation of business in the state, (3) the presence of bank accounts or other property in the state, and (4) the presence of employees of the foreign de[95]*95fendant in the state. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir.1985).

The district court properly concluded that Fénix did not meet the standard set forth in section 301 because the facts did not support that Fénix had engaged in a systematic and continuous course of business in New York; rather Fenix’s activity in New York was best characterized as isolated and casual. See Overseas Media, Inc., 407 F.Supp.2d at 570. Fénix has no office, no bank accounts nor property, no mailing address, and employs no personnel in the United States. Although Fenix’s Head of Sales made phone- and email-based sales overtures to Overseas Media regarding rights to other Fénix television programs (not Nastoyashie Menty), the overtures never resulted in a sale. Skvortsov, as the president of Fénix, has engaged in limited work for Fénix while in New York. Fénix generates, however, only 1.9% of its revenue outside Russia, and only 0.022% of total revenue is attributable to New York. Based on review of these facts, we agree with the district court that Fénix has not engaged in a continuous, permanent, or substantial course of business in New York such that jurisdiction would be proper under section 301. See Wiwa, 226 F.3d at 95.

The district court also properly found that Fénix could not be subject to personal jurisdiction pursuant to the New York long-arm jurisdiction statute, N.Y. C.P.L.R. 302. Section 302(a) provides:

As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
(i) 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, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or
4. owns, uses or possesses any real property situated within the state.

Plaintiffs argue that Fénix should be subject to personal jurisdiction under either sections 302(a)(2), 302(a)(3)(i), or 302(a)(3)(ii). We consider each in turn.

We agree with the district court’s determination that Fénix did not commit a tortious act within the state to subject it to personal jurisdiction under section 302(a)(2). See Overseas Media, Inc., 407 F.Supp.2d at 571-74. First, the two alleged offers to sell rights to Nastoyashie Menty were not tortious acts committed within the state because the defendants were not physically present in New York when they committed the putative tort. See Bensusan Rest. Corp. v. King, 126 F.3d 25, 29 (2d Cir.1997). It is undisputed that the offerors were both located in Russia when they made the offers. Second, the creation and production of Nastoyashie Menty cannot constitute the tortious acts committed in New York because plaintiffs fail to make any factually sup[96]*96ported averments that would give rise to the inference that Skvortsov’s presence in New York during the time in which he conceived of Nastoyashie Menty suggests that he created it in New York. See Ball, 902 F.2d at 197.

Finally, the district court properly found that Fénix did not fall under section 302(a)(3) as having committed a tortious act without the state that caused injury to a person or property within the state. See Overseas Media, Inc., 407 F.Supp.2d at 574-78. Assuming that Fénix did commit a tortious act without the state, plaintiffs have failed to show what injury resulted to a person or property within the state.

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Bluebook (online)
277 F. App'x 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/overseas-media-inc-v-skvortsov-ca2-2008.