17‐3470‐cv
DeLorenzo v. Viceroy Hotel Group LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
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ASUMMARY 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 21st day of November, two thousand
eighteen.
PRESENT: DENNIS JACOBS,
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
ANNETTE AMINA DELORENZO,
Plaintiff‐Appellant,
‐v.‐ 17‐3470
VICEROY HOTEL GROUP, LLC, VICEROY
ANGUILLA,
Defendants‐Cross‐Claimants‐
Appellees,
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and
RICKETTS AND ASSOCIATES, LTD.,
ANACAONA BOUTIQUE HOTEL,
Defendants‐Cross‐Defendants‐
Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
FOR APPELLANT: Christopher P. Desmond, Ven R. Johnson,
Johnson Law, PLC, Detroit, MI.
FOR APPELLEE: Nicholas Hurzeler, John Doody, Lewis
Brisbois Bisgaard & Smith LLP, New York,
NY.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Broderick, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court be
AFFIRMED.
Annette Amina DeLorenzo appeals from the judgment of the United States
District Court for the Southern District of New York (Broderick, J.) dismissing her
claims for lack of personal jurisdiction. DeLorenzo brought a diversity action
alleging that while she vacationed on the island of Anguilla at the Anacaona
Boutique Hotel, Remy Minnette, an employee of the Viceroy Anguilla, sexually
assaulted her in her hotel room. The question on appeal is whether either the
Viceroy Defendants (Viceroy Hotel Group LLC and Viceroy Anguilla) or the
Ricketts Defendants (Ricketts & Associates, Ltd. and Anacaona Boutique Hotel)
are subject to either general or specific personal jurisdiction in the Southern
District of New York. We assume the parties’ familiarity with the underlying
facts and procedural history.
2
We review de novo the dismissal of a complaint under Federal Rule of
Civil Procedure 12(b)(2) for lack of personal jurisdiction. SPV Osus Ltd. v. UBS
AG, 882 F.3d 333, 342 (2d Cir. 2018). To survive a Rule 12(b)(2) motion, a
plaintiff must make a prima facie showing of jurisdiction that includes an
averment of facts that, if credited by the trier of fact, would suffice to establish
jurisdiction over the defendant. See id. at 342‐43. “[C]onclusory
non‐fact‐specific jurisdictional allegations” or “legal conclusion[s] couched as a
factual allegation” will not establish a prima facie showing of jurisdiction. Jazini
v. Nissan Motor Co., Ltd., 148 F.3d 181, 185 (2d Cir. 1998).
On a motion to dismiss for lack of personal jurisdiction, a district court
must first “determine whether there is jurisdiction over the defendant under the
relevant forum state’s laws.” Bank Brussels Lambert v. Fiddler Gonzalez &
Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). “If the exercise of jurisdiction is
appropriate under that statute, the court then must decide whether such exercise
comports with the requisites of due process.” Bensusan Rest. Corp. v. King, 126
F.3d 25, 27 (2d Cir. 1997).
Under New York law, DeLorenzo first had to demonstrate that the Viceroy
Defendants or the Ricketts Defendants were either (1) “present” and “doing
business” within the meaning of New York Civil Practice Law and
Rules (“CPLR”) § 301, or (2) that they committed acts within the scope of New
York’s long‐arm statute, CPLR § 302. DeLorenzo then needed to show that the
Viceroy Defendants or the Ricketts Defendants had sufficient “minimum
contacts” with the forum “such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945).
1. Beginning with general personal jurisdiction, a corporation is subject to
personal jurisdiction under CPLR § 301 with respect to any cause of action,
arising or not arising out of contacts with New York, if 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) (alterations in original)
(quoting Landoil Res. Corp v. Alexander & Alexander Servs., 565 N.E.2d 488, 490
(N.Y. 1990)).
3
Due process further requires that a foreign corporation be subject to general
jurisdiction only if its contacts are so “continuous and systematic,” judged against
the corporation’s national and global activities, that it is “essentially at home” in
that state. Daimler AG v. Bauman, 571 U.S. 117, 138‐39 (2014). 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. at 139 & n. 19.
The District Court ruled that none of the defendants are at home in New
York. We agree.
Ricketts & Associates is located, incorporated, licensed, registered, and has
its principal place of business in Anguilla. App’x 1‐2, 86. The Anacaona is
similarly located in Anguilla. Id. at 2. DeLorenzo failed to show that the
Rickets Defendants have any office, employees, or bank accounts in New York.
DeLorenzo contends that the Ricketts Defendants have a significant and
systematic presence in New York because (1) 13 percent of the Anacaona’s
business comes from New York, (2) the Ricketts Defendants employ a PR firm in
New York, (3) the Ricketts Defendants’ alleged former director of sales and
marketing, Frank Pierce, is purportedly a New York resident who worked from a
home office or otherwise made trips to New York to promote the Anacaona, (4)
the Anacaona was featured in New York‐based publications, and (5) she booked
her stay while in New York through the Anacaona’s highly interactive website.
These allegations, accepted as true, would not establish that the principal
place of business or place of incorporation for the Ricketts Defendants is
anywhere but Anguilla. Website accessibility does not establish a corporation’s
“home.” See In re Ski Train Fire in Kaprun, Austria on Nov 11, 2000, 230 F.
Supp. 2d 376, 383 (S.D.N.Y. 2002) (noting that an interactive website that allows
users to interact with a foreign corporation does not itself subject a defendant to
general jurisdiction in New York absent proof that the website is purposefully
directed toward New York). DeLorenzo’s use of the Anacaona’s website,
accessible from any state, to book her room does not show that the Ricketts
Defendants directed their business or advertising toward New York.
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DeLorenzo’s argument for personal jurisdiction over the Viceroy
Defendants similarly rests on their use of a New York‐based company to create
and maintain publicly accessible websites and online booking programs. But the
Viceroy Anguilla is a private business principally located in Anguilla with an
office in Connecticut. The corporate owner of the Viceroy Anguilla,
incorporated in Delaware, is registered to do business in Florida. Supp. App’x
33, 47, 81. The Viceroy Hotel Group has its principal place of business in
California. Id. The accessibility of the Viceroy website from New York does
not, without more, establish continuous solicitation sufficient to confer general
jurisdiction.
DeLorenzo complains further discovery would unearth the Viceroy
Defendants’ additional connections to New York; but DeLorenzo registered no
discovery complaint with the district court. DeLorenzo v. Ricketts & Assocs.,
Ltd., 2017 WL 4277177, at *7 n.12 (S.D.N.Y. Sept. 25, 2017). The district court
acted well within its discretion in declining to permit additional discovery.
See Best Van Lines, Inc. v. Walker, 490 F.3d 239, 255 (2d Cir. 2007) (declining
jurisdictional discovery where the plaintiff failed to demonstrate a prima facie
case supporting jurisdiction).
2. Under CPLR § 302(a)(1), a court may exercise personal jurisdiction over
a defendant if (1) the defendant “transacts any business” in New York and (2) the
plaintiff’s cause of action arises from such a transaction. See Best Van Lines, 490
F.3d at 246. A defendant must purposefully avail itself of the privilege of
conducting activities within New York, and there must be “some articulable
nexus between the business transacted [in New York] and the cause of action
sued upon.” Id. at 249. A “merely coincidental” connection is insufficient to
support jurisdiction. Johnson v. Ward, 829 N.E.2d 1201, 1203 (N.Y. 2005).
As to both the Ricketts Defendants and the Viceroy Defendants,
DeLorenzo argues that her cause of action arises from the booking of her trip in
New York through the Anacaona website. But DeLorenzo’s claims arise not out
of her hotel contract with the Ricketts Defendants but rather out of an alleged
sexual assault in Anguilla. And “[c]ourts have consistently held that the in‐state
activity of booking a hotel room is too remote from negligence alleged to have
taken place at a foreign hotel to satisfy [New York’s long arm statute].” Hinsch
5
v. Outrigger Hotels Hawaii, 153 F. Supp. 2d 209, 213 (E.D.N.Y. 2001); see
Cummings v. Jai Ambe, Inc., 2013 WL 620186, at *3 (S.D.N.Y. Feb. 13, 2013).
DeLorenzo offers no more than this tangential connection between the alleged
assault and New York.
Moreover, DeLorenzo engaged in no transaction with the Viceroy
Defendants. She was not a guest at the Viceroy Anguilla nor did she travel to
Anguilla based on a Viceroy marketing campaign. Neither the Ricketts
Defendants nor the Viceroy Defendants are subject to personal jurisdiction in the
Southern District of New York.
Because the Ricketts Defendants and the Viceroy Defendants are not
subject to general or specific personal jurisdiction in New York, the district court
did not err in granting their respective motions to dismiss under Rule 12(b)(2).
We have considered DeLorenzo’s remaining arguments and find them to
be without merit. For the foregoing reasons, we AFFIRM the judgment of the
district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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