Yih v. Taiwan Semiconductor Mfg. Co.

• Court: Court of Appeals for the Second Circuit
• Decided: May 19, 2020
• Docket: 19-2218-cv
• Status: Unpublished

Opinion

19-2218-cv Yih v. Taiwan Semiconductor Mfg. Co.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of May, two thousand twenty.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, STEVEN J. MENASHI, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

JIHSHYR YIH, Plaintiff-Appellant,

-v- 19-2218-cv

TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY, Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT: JihShyr Yih, pro se, Yorktown Heights, New York. FOR DEFENDANT-APPELLEE: Jessica Kastin and Rajeev Muttreja, Jones Day, New York, New York.

Appeal from a judgment of the United States District Court for the

Southern District of New York (Seibel, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-appellant JihShyr Yih, pro se, appeals from the judgment of the

district court, entered June 25, 2019, dismissing his amended complaint (the

"complaint") against defendant-appellee Taiwan Semiconductor Manufacturing

Company ("TSMC") for lack of personal jurisdiction pursuant to Federal Rule of Civil

Procedure 12(b)(2). TSMC is a Taiwanese company headquartered in Taiwan. The

complaint alleged violations of the Age Discrimination in Employment Act, Title VII of

the Civil Rights Act, and the New York State Human Rights Law in connection with

TSMC's decision not to hire Yih for a position in Taiwan. The district court held that

TSMC's presence in New York was not sufficient to permit the court's exercise of

general jurisdiction over it, and that TSMC's communications with Yih during the

recruitment process were too attenuated to provide a basis for specific jurisdiction. We

assume the parties' familiarity with the underlying facts, the procedural history of the

case, and the issues on appeal.

On a motion to dismiss for lack of personal jurisdiction, "a district court

has considerable procedural leeway. It may determine the motion on the basis of 2 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." Dorchester Fin. Sec., Inc. v. Banco BRJ,

S.A., 722 F.3d 81, 84 (2d Cir. 2013). Where, as here, the district court decides the motion

based "on the pleadings and affidavits, and does not conduct a full-blown evidentiary

hearing, we review the district court's resulting legal conclusions de novo," and a

plaintiff need only make a prima facie showing that personal jurisdiction exists by

"pleading in good faith, legally sufficient allegations of jurisdiction." Id. at 84-85

(internal quotation marks omitted). The pleadings and any supporting materials are

construed in the light most favorable to the plaintiff. Licci ex rel. Licci v. Lebanese

Canadian Bank, SAL, 732 F.3d 161, 167 (2d Cir. 2013).

Personal jurisdiction over a foreign defendant involves a two-step inquiry.

Id. at 168. First, courts look to the law of the forum state to determine whether

jurisdiction exists. Id. Where the forum state's jurisdictional requirements are satisfied,

the court must then "consider whether the district court's exercise of personal

jurisdiction over a foreign defendant comports with the due process protections

established under the United States Constitution." Id. Here, the district court

determined that there was no basis for jurisdiction under New York law and did not

reach the due process question. We agree and affirm on this basis.

3 I. General Jurisdiction

Under Section 301 of New York's Civil Practice Law and Rules

("C.P.L.R."), a court sitting in New York has general personal jurisdiction over a

defendant company that 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." Landoil Res. Corp. v. Alexander & Alexander Servs., Inc., 77 N.Y.2d 28, 33

(1990) (internal quotation marks omitted). "The court must be able to say from the facts

that the corporation is present in [New York] not occasionally or casually, but with a

fair measure of permanence and continuity." Id. at 33-34 (internal quotation marks

omitted).

Here, the district court properly found that Yih failed to make a prima facie

showing of general jurisdiction over TSMC under C.P.L.R. § 301. Although Yih argues

for a "solicitation plus" theory of general jurisdiction, Appellant's Br. at 26-30, which

applies to defendants who solicit a substantial amount of business in New York and

engage in other "activities of substance in addition to solicitation," Laufer v. Ostrow, 55

N.Y.2d 305, 310 (1982), Yih's pleadings were insufficient to support the application of

this theory to TSMC. As the district court observed, TSMC did not solicit a substantial

amount of business in the state because it generated substantially less than one percent

of its total revenue from New York customers, its business activities were primarily

4 related to its listing on the New York Stock Exchange, and it did not engage in other

activities of substance in New York.

Yih also argues that TSMC solicits business in New York because TSMC's

website provides an email address as a point of contact for potential customers in the

"East region." Appellant's Br. at 26. The website contact information Yih points to,

however, refers to the "East region" generally and does not mention New York. Even

had the website mentioned New York, this evidence would still be inadequate because

passive websites, "which merely impart information without permitting a business

transaction, are generally insufficient to establish personal jurisdiction." Paterno v. Laser

Spine Inst., 24 N.Y.3d 370, 377 (2014).

Next, Yih argues that TSMC engages in investor relations through

Citibank in New York. New York law "accords foreign corporations substantial latitude

to list their securities on New York-based stock exchanges and to take the steps

necessary to facilitate those listings (such as making SEC filings and designating a

depository for their shares) without thereby subjecting themselves to New York

jurisdiction for unrelated occurrences." Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88,

97 (2d Cir. 2000). Further, "[a] business relationship with a New York entity does not

provide a sufficient basis for [general] jurisdiction at least in the absence of a showing

that that company has become an agent or division of the company over which the

plaintiff seeks to exercise personal jurisdiction." Landoil Res. Corp. v. Alexander &

5 Alexander Servs., Inc., 918 F.2d 1039, 1046 (2d Cir. 1990). Thus, TSMC's relationship with

Citibank -- used solely to facilitate a listing on the New York Stock Exchange -- was not

a basis for general jurisdiction.

Finally, Yih asserts that he was "recruited twice" in New York, that his

former colleagues, who now work for TSMC, do not "deny that they were actively

recruited by TSMC" in New York, and that these facts show that TSMC recruits

employees from New York. Appellant's Br. at 27-28. But Yih failed to allege in his

pleadings that any of his former colleagues were recruited in New York. Furthermore,

Yih was not in fact recruited on two separate occasions; rather, he had two Skype

interviews with TSMC in August and September of 2017 during the same recruitment

process after being initially contacted by a third-party Singapore-based recruiting

company, Lighthouse Global Resources ("LGR"). These assertions are insufficient to

establish general jurisdiction.

II. Specific Jurisdiction

New York law provides for specific jurisdiction when an out-of-state

individual or corporation "transacts any business within the state or contracts anywhere

to supply goods or services in the state" and the cause of action is based on this activity.

N.Y. C.P.L.R. § 302(a)(1). Here, the district court correctly held that TSMC's recruitment

of Yih did not amount to transacting business within the state, and thus the recruitment

efforts were not a basis for the exercise of personal jurisdiction under the statute.

6 Yih first contends that TSMC transacted business in New York when it

contracted with LGR to recruit him. Under New York law, however, "[m]ore than

limited contacts are required for purposeful activities sufficient to establish that the

non-domiciliary transacted business." Coast to Coast Energy, Inc. v. Gasarch, 53 N.Y.S.3d

16, 18 (1st Dep't 2017) (quoting Paterno, 24 N.Y.3d at 376). In Fischbarg v. Doucet, 9

N.Y.3d 375 (2007), the New York Court of Appeals ruled that C.P.L.R. § 302(a)(1)

applied to California-based defendants based on their contractual relationship with a

New York lawyer who represented them in federal court in Oregon. Id. at 377. In that

case, however, the defendants not only reached out to the plaintiff, but also established

an ongoing attorney-client relationship and communicated extensively with the plaintiff

over the course of several months. Id. at 380-81. The Court of Appeals acknowledged

that more limited contacts regarding services to be performed outside New York would

not satisfy C.P.L.R. § 302(a)(1). Id. at 380.

TSMC's recruiting practices in New York were plainly insufficient to

satisfy C.P.L.R. § 302(a)(1) as that statute has been interpreted by New York's highest

court. As an initial matter, the record demonstrated that although TSMC asked LGR to

recruit candidates for a position based in Taiwan, it never specifically instructed LGR to

reach out to potential candidates in New York or even the United States. Absent any

allegation of recruiting targeted at New York, the sole communications tying TSMC to

New York were those it had with Yih. These communications -- two Skype interviews

7 and emails through a third-party agent regarding a position in Taiwan for which Yih

was not hired -- were too limited to amount to a purposeful transaction of business in

New York. See, e.g., Am./Int'l 1994 Venture v. Mau, 42 N.Y.S.3d 188, 198 (2d Dep't 2016)

(no specific jurisdiction where "it is undisputed that the defendant's only personal

contacts with New York consisted of sending one letter and making one phone call to

the representatives of the joint venture").

Yih also contends that specific jurisdiction was established because he

sought employment with TSMC in New York. There was no allegation, however, that

TSMC intended for Yih to work from New York, or that TSMC would have permitted

him to do so if hired. To the contrary, LGR's first email to Yih, supplied by Yih in

opposition to TSMC's motion to dismiss, asked him if he was ready to "get back to

Taiwan for work." D. Ct. Dkt. No. 19 at 15. And there is no evidence in the record that

any TSMC staff considered Yih's desire to work remotely from New York; instead, the

questions they asked, including the family and marital questions to which Yih objected,

related to his ability and willingness to relocate to Taiwan. As the district court

observed, Yih's subjective belief about the locus of the job does not confer personal

jurisdiction because it does not show that TSMC intended to employ him in New York.

Finally, we decline to consider Yih's arguments that the district court has

jurisdiction under C.P.L.R. § 302(a)(2) because TSMC committed a tort against him, or

that the "sham affidavit" doctrine should apply to a declaration by one of TSMC's

8 managers, because Yih did not raise these issues in district court. See Bogle-Assegai v.

Connecticut, 470 F.3d 498, 504 (2d Cir. 2006) ("[I]t is a well-established general rule that

an appellate court will not consider an issue raised for the first time on appeal.").

* * *

We have considered Yih's remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk of Court