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FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM INDEX NO. E2019000908
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019
MONROE COUNTY CLERK'S OFFICE THIS IS NOT A BILL. THIS
Receipt # 2089474
Book Page CIVIL
Return To: No. Pages: 22
SEAN C. MCPHEE
One Ca=1side ±=ent: MISCELLANEOUS D
125 Main Street
Buffalo, NY 14203
Control #: 201905310387
Index #: E2019000908
Date: 05/31/2019
City View Towne Crossing EE:;;ig Center Fort Worth, TX. Time: 10:15:42 AM
Limited Partnership,
Aissa Medical Resources L.P., a Texas Limited Partner=Mp
Samadi, Dr. Ramin R.
Total Fees Paid: $0.00
Employee·
State of New York
MONROE COUNTY CLERK'S OFFICE
WARNING - THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH 1 ofOR22 REMOVE.
201905310387 Index #
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
_________________________________________________
CITY VIEW TOWNE CROSSING SHOPPING
CENTER FORT WORTH, TX. LIMITED
PARTNERSHIP,
Plaintiff, Index No. E2019000908
v.
Motion Sequence No. 002
AISSA MEDICAL RESOURCES L.P., a Texas Limited
Partnership, and DR. RAMIN R. SAMADI,
Defendants.
_________________________________________________
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION
TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
Respectfully submitted,
PHILLIPS LYTLE LLP
Attorneys for Defendants
Aissa Medical Resources L.P. and
Dr. Ramin R. Samadi
28 East Main Street, Suite 1400
Rochester, New York 14614-1935
Sean C. McPhee
Chad W. Flansburg
– Of Counsel –
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TABLE OF CONTENTS
TABLE OF AUTHORITIES............................................................................................ ii
PRELIMINARY STATEMENT ...................................................................................... 1
STATEMENT OF FACTS .............................................................................................. 2
A. The parties .................................................................................................. 2
B. AMR’s leases, and the claims in this action.................................................. 3
C. City View amends the Complaint ................................................................ 4
ARGUMENT .................................................................................................................. 5
POINT I THIS ACTION MUST BE DISMISSED BECAUSE “CITY VIEW” IS NOT
AUTHORIZED TO DO BUSINESS IN NEW YORK, AND
“CITYVIEW” LACKS STANDING TO BRING THESE CLAIMS ........... 5
POINT II THE DISPUTE UNDERLYING PLAINTIFF’S FIRST CAUSE OF
ACTION MUST BE ARBITRATED ......................................................... 6
POINT III PLAINTIFF’S SECOND CAUSE OF ACTION MUST BE DISMISSED
BECAUSE THE COURT LACKS PERSONAL JURISDICTION OVER
DR. SAMADI ............................................................................................ 8
POINT IV PLAINTIFF’S AMENDED COMPLAINT SHOULD ALSO BE
DISMISSED UNDER THE DOCTRINE OF FORUM NON CONVENIENS11
A. New York’s factors regarding forum non conveniens are easily met here12
1. Burden on the Court .............................................................12
2. Hardship to Defendants ........................................................13
3. Presence of an available alternative forum .............................14
4. The parties are not residents of New York .............................14
5. The underlying transactions occurred entirely in Texas ..........14
CONCLUSION ..............................................................................................................15
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TABLE OF AUTHORITIES
Page(s)
Cases
Bank Hapoalim (Switz.) Ltd. v. Banca Intesa S.p.A.,
26 A.D.3d 286 (1st Dep’t 2006) ..................................................................................12
Bank of Tokyo-Mitsubishi, Ltd. v. Kvaerner,
243 A.D.2d 1 (1st Dep’t 1998) ....................................................................................11
Brax Capital Grp., LLC v. Winwin Gaming, Inc.,
83 A.D.3d 591 (1st Dep’t 2011) ............................................................................ 10, 11
Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty.,
137 S. Ct. 1773 (2017) .............................................................................................. 8, 9
Burke v. Crosson,
85 N.Y.2d 10 (1995) .................................................................................................... 4
Carvel Corp. v. Ross Distrib., Inc.,
137 A.D.2d 578 (2d Dep’t 1988) .................................................................................14
Corines v. Dobson,
135 A.D.2d 390 (1st Dep’t 1987) ................................................................................13
Covino v. Alside Aluminum Supply Co.,
42 A.D.2d 77 (4th Dep’t 1973) .................................................................................... 6
Frontier Mfg., Inc. v. Comp-Aire Sys., Inc./Joy,
94 A.D.2d 960 (4th Dep’t 1983) ................................................................................... 8
Garmendia v. O’Neill,
46 A.D.3d 361 (1st Dep’t 2007) ..................................................................................13
Getty Prop. Corp. v. Getty Petroleum Marketing Inc.,
106 A.D.3d 429 (1st Dep’t 2013) ................................................................................10
Golf Glen Plaza Niles, Il. L.P. v. Amcoid USA, LLC,
160 A.D.3d 1375 (4th Dep’t 2018) .......................................................................... 9, 10
Hartman v. Joy,
47 A.D.2d 624 (1st Dep’t 1975) ................................................................................... 5
Ilic v. Rochester Gas & Elec. Corp.,
262 A.D.2d 1019 (4th Dep’t 1999) ............................................................................... 5
Islamic Republic of Iran v. Pahlavi,
62 N.Y.2d 474 (1984) .................................................................................................12
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Nguyen v. Indosuez,
19 A.D.3d 292 (1st Dep’t 2005) ..................................................................................14
Pal Pools, Inc. v. Billiot Bros., Inc.,
57 A.D.2d 891 (2d Dep’t 1977) ...................................................................................11
Pier 59 Studios L.P. v. Chelsea Piers L.P.,
27 A.D.3d 217 (1st Dep’t 2006) ................................................................................... 4
PricewaterhouseCoopers LLP v. Rutlen,
284 A.D.2d 200 (1st Dep’t 2001) ................................................................................. 7
Prof. Merchant Advance Capital, LLC v. Your Trading Room, LLC,
123 A.D.3d 1101 (2d Dep’t 2014) ...............................................................................10
Rainbow Hosp. Mgmt. Inc. v. Mesch Engineering, P.C.,
270 A.D.2d 906 (4th Dep’t 2000) ................................................................................. 5
Ramada Franchise Systems, Inc. v. Cusak Dev., Inc.,
No. 96 Civ. 8085 (MGC), 1997 WL 304885 (S.D.N.Y. June 6, 1997) ..........................11
Regal Knitware Co. v. M. Hoffman & Co.,
96 Misc. 2d 605 (Sup. Ct. N.Y. Cty. 1978) ..................................................................12
Rush v. Savchuk,
444 U.S. 320 (1980) ..................................................................................................... 9
Silver Lane Advisors LLC v. Bellatore LLC,
No. 600668/09, 24 Misc. 3d 1218(A), 2009 WL 2045513 (Sup. Ct. N.Y.
Cty. July 6, 2009) .......................................................................................................14
Silver v. Great Am. Ins. Co.,
29 N.Y.2d 356 (1972) .................................................................................................12
Smith Barney, Harris Upham & Co., Inc. v. Luckie,
85 N.Y.2d 193 (1995) .................................................................................................. 7
Sterritt v. Heins Equip. Co., Inc.,
114 A.D.2d 616 (3d Dep’t 1985) .................................................................................. 6
Truty v. Fed.Bakers Supply Corp.,
217 A.D.2d 951 (4th Dep’t 1995) ................................................................................. 6
United Jersey Bank v. Weintraub,
240 A.D.2d 656 (2d Dep’t 1997) .................................................................................13
Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior
University,
489 U.S. 468 (1989) ..................................................................................................... 7
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Walden v. Fiore,
571 U.S. ––––, 134 S. Ct. 1115 (2014) .......................................................................... 9
Williams v. MTA Bus Co.,
44 Misc.3d 673 (Sup. Ct. N.Y. Cty. 2014), opinion vacated in part on
reargument on other grounds ............................................................................................ 5
World Point Trading PTE, Ltd. v. Credito Italiano,
225 A.D.2d 153 (1st Dep’t 1996) ................................................................................13
Statutes
CPLR 302 .......................................................................................................................11
CPLR 302(a)(1) ...............................................................................................................10
CPLR 305(c) .................................................................................................................... 4
CPLR 327(a) ......................................................................................................... 7, 11, 12
N.Y. Partnership Law §121-907(a) .................................................................................... 5
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PRELIMINARY STATEMENT
Defendants Aissa Medical Resources L.P. (“AMR”) and Dr. Ramin R.
Samadi (“Dr. Samadi”) (collectively, “Defendants”) respectfully submit this memorandum
of law in support of their motion to dismiss Plaintiff’s Amended Complaint (Doc. Nos. 32-
38).1
This action was commenced by “City View [i.e. two-words] Towne Crossing
Shopping Center Fort Worth, TX. Limited Partnership” on January 29, 2019 based on
Defendants’ alleged breach of two commercial leases and a guaranty concerning real
property located in Fort Worth, Texas. Doc. No. 1. After Defendants established that there
is no entity with that name that is authorized to do business in New York (Doc. No. 17),
City View unilaterally amended its Complaint—on the eve of oral argument of Defendants’
motion to dismiss—to identify “CityView [i.e. one word] Town Crossing Shopping Center
Fort Worth, TX Limited Partnership” as the plaintiff in this action. Doc. No. 32. In doing
so, it is alleged that “CityView” is “a/k/a City View.” Id. But Plaintiff cannot have it both
ways. The entity that is the party to the underlying agreements (i.e. “City View”) is not
authorized to transact business in New York. Therefore, it cannot maintain in this action.
And, if the claims at issue in this action are now being asserted by “CityView,” they must be
dismissed based on lack of standing, because those claims admittedly belong to “City
View.” Doc. Nos. 33, 34, 38.
Putting that issue aside, the very agreement that City View relies upon to
establish “venue” in this Court (i.e. the 2008 Lease (Doc. No. 33)) contains an arbitration
1
“Doc. Nos.” refer to the document numbers assigned by the NYSCEF electronic docket for this
action.
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provision that expressly covers the subject matter underlying the First Cause of Action. For
this additional reason, neither City View nor CityView may pursue that claim in this Court.
Finally, the 2008 Lease was entered into solely by AMR—a limited
partnership organized under the laws of the state of Texas with no connection to the State of
New York. Dr. Samadi, who is a domiciliary of the State of Texas, is not a party to that
agreement and there is no forum selection clause in the Guaranty. As a result, this Court
lacks personal jurisdiction over Dr. Samadi and, even assuming there is a basis for
jurisdiction over AMR, the claims against it should nonetheless be dismissed under the
doctrine of forum non conveniens.
STATEMENT OF FACTS
A. The parties
Plaintiff claims in the Amended Complaint that it is a limited partnership
“licensed to do business, and doing business, in the State of New York.” Doc. No. 32 ¶2.
Documentary evidence, however, establishes that there is no entity by the name of “City
View” that is authorized to do business in New York. See Affirmation of Sean C. McPhee
dated May 28, 2019 (“McPhee Aff.”) Ex. 2.
AMR is a limited partnership organized under the laws of the State of Texas
that does not transact business in New York. See Affidavit of Dr. Ramin R. Samadi sworn
to March 3, 2019 (“Samadi Aff.”) ¶4. Moreover, AMR has never contracted to supply
goods or services in New York; does not do or solicit business in New York; has no assets in
New York; and derives no revenue from goods consumed, or services rendered, in New
York. Id. ¶5.
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Finally, Dr. Samadi is a resident of Texas, who has his domicile there. Id. ¶3.
Neither he nor AMR have any employees, agents, offices, bank accounts, or property within
New York, and neither pays state income or property taxes here. Id. ¶6.
B. AMR’s leases, and the claims in this action
AMR entered into the 2008 Lease with “City View” regarding certain real
property located within a Shopping Center in Fort Worth, Texas. Doc. No. 1 ¶6. Dr.
Samadi is not a party to the 2008 Lease, but he did enter into a Lease Guaranty concerning
the 2008 Lease (the “Guaranty”). Id. ¶8. The 2008 Lease is the basis for the First Cause of
Action (Doc. No. 32 ¶¶25-30), and the Guaranty is the basis for the Second Cause of
Action. Id. ¶¶31-34.
As relevant to this motion, Section 22.03 of the 2008 Lease includes a forum
selection clause designating the courts where City View’s principal office is located as the
forum for resolution of certain disputes. Doc. No. 33 p. 10 of 33. Notably, there is no such
provision in the Guaranty. Doc. No. 34. In fact, the Guaranty does not include any
provisions concerning choice of law, jurisdiction, or venue. Id.
Also notable is the fact that the 2008 Lease includes a dispute resolution
provision in Section 22.08, which provides:
Except in connection with the non-payment of rent, percentage
rent, additional rent or any other charges due by Tenant
without a claim of set-off or abatement provided for herein, in
the event of an unresolved dispute between Owner and Tenant
regarding the performance by either party of an obligation or
condition of this Lease, the non-performance of which
constitutes a default under this Lease, then Owner or Tenant
may, at its sole option, have the matter referred to an arbitrator
for final determination in accordance with the rules of the
American Arbitration Association or any successor and both
parties agree that the final determination of such arbitrator shall
be binding. Pending submission of the matter to arbitration and
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the arbitrator’s final determination, no default shall be deemed
to have occurred, and any time limit relative to such default
shall commence from the date of the final determination of the
arbitrator. This Section shall not, however, prevent Owner
form seeking preliminary injunctive relief pending the outcome
of such arbitration. Any arbitration shall be venued in the state
and county of Owner’s principal place of business and Tenant
irrevocably waives the right to challenge said venue.
Doc. No. 33 pg. 10 of 33 to pg. 11 of 33 (emphasis added).
City View and AMR are also parties to a lease dated December 18, 2002, as
amended (the “2002 Lease”), which is the basis of the Third Cause of Action. Doc. No. 32
¶¶35-39. Dr. Samadi is not a party to the 2002 Lease and did not personally guaranty its
performance.
Finally, Plaintiff’s Fourth Cause of Action is a stand-alone claim for
attorneys’ fees. Id. ¶¶40-42. This, however, is not a recognized cause of action under New
York law. See, e.g., Pier 59 Studios L.P. v. Chelsea Piers L.P., 27 A.D.3d 217, 217 (1st Dep’t
2006) (“Plaintiff may not maintain a separate cause of action for attorneys’ fees, which are
only recoverable as an element of contract damages if a breach of the sublease is proven”)
(citing Burke v. Crosson, 85 N.Y.2d 10, 17-18 (1995)).
C. City View amends the Complaint
After Defendants established that there is no entity by the name of “City
View” that is authorized to transact business in New York—requiring dismissal of the
Complaint—it unilaterally amended its Complaint to reflect that the plaintiff here should be
“CityView.” Doc. No. 32. Notably, however, there was no corresponding amendment to
the Summons, which requires leave of Court. See N.Y. CPLR 305(c). Thus, the purported
amendment is procedurally improper. Id.
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ARGUMENT
POINT I
THIS ACTION MUST BE DISMISSED BECAUSE “CITY VIEW” IS
NOT AUTHORIZED TO DO BUSINESS IN NEW YORK AND
“CITYVIEW” LACKS STANDING TO BRING THESE CLAIMS
As Defendants pointed out in their motion to dismiss the initial Complaint
(Doc. No. 13), under New York’s Revised Limited Partnership Act:
“[a] foreign limited partnership doing business in this state
without having received a certificate of authority to do business
in this state may not maintain any action, suit or special
proceeding in any court of this state unless and until such
partnership shall have received a certificate of authority in this
state.”
N.Y. Partnership Law §121-907(a). Here, the records of the New York Secretary of State
confirm that there is no entity by the name of “City View Towne Crossing Shopping Center
Fort Worth” that is authorized to do business in New York. McPhee Aff. Ex. 2.2
Finding itself between a rock and hard place, Plaintiff amended the
Complaint to reflect the name “CityView,” which apparently is authorized to do business
here, but its knee-jerk reaction leaves it in no better position. Indeed, the party identified in
the underlying agreements is “City View.” Doc. No. 33, 34, 38. As such, “CityView” lacks
standing to sue under those agreements. See Rainbow Hosp. Mgmt. Inc. v. Mesch Engineering,
P.C., 270 A.D.2d 906 (4th Dep’t 2000) (affirming dismissal of amended complaint because
plaintiff possessed no interest sufficient to maintain the action); Ilic v. Rochester Gas & Elec.
2
This Court can take judicial notice of the New York Secretary of State’s records because they are
matters of public record and would help to speed resolution of this dispute. See Hartman v. Joy, 47 A.D.2d 624,
625 (1st Dep’t 1975) (taking judicial notice of prior action because it is accurate information from a public
record and would speed resolution of the litigation); Williams v. MTA Bus Co., 44 Misc.3d 673, 688 (Sup. Ct.
N.Y. Cty. 2014), opinion vacated in part on reargument on other grounds (taking judicial notice of the records of the
Secretary of State and noting that such records did not include a corporation with a particular name).
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Corp., 262 A.D.2d 1019 (4th Dep’t 1999) (affirming dismissal of claims brought by
individual who had no interest in the property and was not a party to the contract sued
upon); Truty v. Fed.Bakers Supply Corp., 217 A.D.2d 951 (4th Dep’t 1995) (reversing denial of
motion to dismiss because the subject matter of the action was a contract to which the
individual plaintiffs were not parties, leaving them without standing to bring the action);
Sterritt v. Heins Equip. Co., Inc., 114 A.D.2d 616 (3d Dep’t 1985) (affirming dismissal of
complaint because there was nothing in the record indicating that plaintiff had any interest
in the underlying property or any rights under the contract at issue).
While Plaintiff may claim that the discrepancy between “City View” and
“CityView” is simply a misnomer that can be cured in the absence of prejudice, that
argument fails. Indeed, in Covino v. Alside Aluminum Supply Co., 42 A.D.2d 77 (4th Dep’t
1973), the Fourth Department allowed the plaintiff to amend the summons and complaint
in order to correct an irregularity in the title to the action. It did so, however, because “the
right party plaintiff is in court but under a defective name.” Id. at 80. Here, however, “the
right party plaintiff” is City View—the entity identified in the underlying agreements (Doc.
Nos. 33, 34, 38)—not “CityView.” The former is not permitted to maintain this action, and
the latter lacks standing to prosecute these claims. As a result, the Amended Complaint
should be dismissed.
POINT II
THE DISPUTE UNDERLYING PLAINTIFF’S FIRST CAUSE OF ACTION
MUST BE ARBITRATED
The 2008 Lease contains a provision requiring arbitration of certain disputes.
Among those are any unresolved disputes between Plaintiff and AMR “regarding the
performance by either party of an obligation or condition of this Lease.” Doc. No. 33 p. 10 of
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33 (emphasis added). Despite this express provision, Plaintiff asserted its First Cause of
Action in this Court. It then argued in its opposition to Defendants’ motion to dismiss the
initial Complaint that it should not be compelled to arbitrate because the parties’ dispute
falls within an exception for disputes concerning “charges due” by AMR. Plaintiff is wrong
because there are no charges “due” by AMR unless and until it is established that AMR
failed to fulfill an obligation under the Lease. In fact, Plaintiff itself repeatedly refers to
AMR’s alleged failure to comply with the “obligation” underlying this cause of action
throughout the Amended Complaint. See, e.g., Doc. No. 32 at ¶14 (“City View detailed for
Tenant its surrender obligations under the 2008 Lease”) (emphasis added); id. at ¶15 (“Tenant
failed to satisfy its surrender obligations under the 2008 Lease”) (emphasis added).
In any event, under well-settled law, any doubt as to whether this dispute falls
within the scope of the arbitration provision must be resolved in favor of arbitration. Volt
Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468,
476 (1989) (ambiguities as to the scope of an arbitration clause must be resolved in favor of
arbitration); Smith Barney, Harris Upham & Co., Inc. v. Luckie, 85 N.Y.2d 193, 200-01 (1995)
(policy favoring arbitration is to be advanced by “rigorous judicial enforcement of
arbitration agreements and by resolution of any ambiguities as to the scope of the arbitration
clause itself in favor of arbitration”); PricewaterhouseCoopers LLP v. Rutlen, 284 A.D.2d 200,
200 (1st Dep’t 2001) (“any ambiguities as to the scope of the [arbitration] provision would
be properly resolved in favor of arbitration”).
Finally, while the 2008 Lease provides that the arbitration will take place in
the state and county of City View’s principal place of business, this Court can—and
should—compel arbitration of this dispute in Texas under CPLR 327(a) and Fourth
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Department precedent. See, e.g., Frontier Mfg., Inc. v. Comp-Aire Sys., Inc./Joy, 94 A.D.2d 960,
960 (4th Dep’t 1983) (reversing order granting application to compel arbitration under
CPLR 327 because New York courts are under no compulsion to accept jurisdiction of a
cause of action having no substantial nexus with this State, and holding that “New York is
an unsuitable forum to determine the issue of arbitrability”).
POINT III
PLAINTIFF’S SECOND CAUSE OF ACTION MUST BE DISMISSED BECAUSE
THE COURT LACKS PERSONAL JURISDICTION OVER DR. SAMADI
Plaintiff confirmed in its opposition to Defendants’ motion to dismiss the
initial Complaint that the basis of jurisdiction upon which it relies is “defendants’ consent to
jurisdiction in New York by virtue of the forum selection clauses in the Lease(s).” Doc. No.
29 p. 2 n. 2. It then recognized that there is no forum selection clause in Dr. Samadi’s
Guaranty, but argued that the forum selection provision in the 2008 Lease should be
imputed into the Guaranty. Id. p. 6. Once again, Plaintiff is wrong, and the authorities it
relies upon to support this argument are distinguishable.
As the United States Supreme Court has recently reiterated, because “[a] state
court’s assertion of jurisdiction exposes defendants to the State’s coercive power, it is subject
to review for compatibility with the Fourteenth Amendment’s Due Process Clause, which
limits the power of the state court to render a valid personal judgment against a nonresident
defendant.” Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S.
Ct. 1773, 1779 (2017) (internal quotation marks and citations omitted).
In determining whether personal jurisdiction is present, “the primary concern
is the burden on the defendant,” and “even if the forum State is the most convenient
location for litigation, the Due Process Clause, acting as an instrument of interstate
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federalism, may sometimes act to divest the State of its power to render a valid
judgment.” Id. at 1780–81 (internal quotation marks and citation omitted).
In light of this, the United States Supreme Court has repeatedly explained
that “a defendant’s relationship with a . . . third party, standing alone, is an insufficient basis
for jurisdiction.” Id. at 1781 (quoting Walden v. Fiore, 571 U.S. ––––, 134 S. Ct. 1115, 1123
(2014)) (ellipses in original). Accordingly, “[t]he requirements of International Shoe . . . must
be met as to each defendant over whom a state court exercises jurisdiction.” Id. (quoting
Rush v. Savchuk, 444 U.S. 320, 332 (1980)) (ellipses in original).
When applying the foregoing principles, it is clear that Plaintiff’s attempt to
foist the 2008 Lease’s forum selection clause onto Dr. Samadi violates the Due Process
Clause of the United States Constitution. Indeed, as Dr. Samadi explained in his affidavit,
he is a domiciliary of the State of Texas who does not transact business in New York. Doc.
No. 14 ¶3. He has no employees, agents, offices, bank accounts, or real property within
New York, and does not pay state income or property taxes here. Id. ¶6. Finally, the
Guaranty—which admittedly does not contain a forum selection clause—was negotiated
and executed in Texas, and Dr. Samadi never travelled to New York regarding the
Guaranty or the 2008 Lease. Id. ¶7. Thus, because Dr. Samadi has no contacts with New
York, the requirement for “minimum contacts” under International Shoe obviously has not
been met, and this Court cannot exercise jurisdiction over him. Bristol-Myers Squibb Co., 137
S. Ct. at 1781.
The cases Plaintiff previously relied upon (and likely will rely upon again) do
not require a different result, because each is distinguishable. Indeed, in Golf Glen Plaza
Niles, Il. L.P. v. Amcoid USA, LLC, 160 A.D.3d 1375 (4th Dep’t 2018), the Fourth
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FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM INDEX NO. E2019000908 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 MONROE COUNTY CLERK'S OFFICE THIS IS NOT A BILL. THIS Receipt # 2089474 Book Page CIVIL Return To: No. Pages: 22 SEAN C. MCPHEE One Ca=1side ±=ent: MISCELLANEOUS D 125 Main Street Buffalo, NY 14203 Control #: 201905310387 Index #: E2019000908 Date: 05/31/2019 City View Towne Crossing EE:;;ig Center Fort Worth, TX. Time: 10:15:42 AM Limited Partnership, Aissa Medical Resources L.P., a Texas Limited Partner=Mp Samadi, Dr. Ramin R. Total Fees Paid: $0.00 Employee· State of New York MONROE COUNTY CLERK'S OFFICE WARNING - THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH 1 ofOR22 REMOVE. 201905310387 Index # INDEX : E2019000908 NO. E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE _________________________________________________ CITY VIEW TOWNE CROSSING SHOPPING CENTER FORT WORTH, TX. LIMITED PARTNERSHIP, Plaintiff, Index No. E2019000908 v. Motion Sequence No. 002 AISSA MEDICAL RESOURCES L.P., a Texas Limited Partnership, and DR. RAMIN R. SAMADI, Defendants. _________________________________________________ MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Respectfully submitted, PHILLIPS LYTLE LLP Attorneys for Defendants Aissa Medical Resources L.P. and Dr. Ramin R. Samadi 28 East Main Street, Suite 1400 Rochester, New York 14614-1935 Sean C. McPhee Chad W. Flansburg – Of Counsel – 2 of 22 201905310387 IndexNO. INDEX #: E2019000908 E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 TABLE OF CONTENTS TABLE OF AUTHORITIES............................................................................................ ii PRELIMINARY STATEMENT ...................................................................................... 1 STATEMENT OF FACTS .............................................................................................. 2 A. The parties .................................................................................................. 2 B. AMR’s leases, and the claims in this action.................................................. 3 C. City View amends the Complaint ................................................................ 4 ARGUMENT .................................................................................................................. 5 POINT I THIS ACTION MUST BE DISMISSED BECAUSE “CITY VIEW” IS NOT AUTHORIZED TO DO BUSINESS IN NEW YORK, AND “CITYVIEW” LACKS STANDING TO BRING THESE CLAIMS ........... 5 POINT II THE DISPUTE UNDERLYING PLAINTIFF’S FIRST CAUSE OF ACTION MUST BE ARBITRATED ......................................................... 6 POINT III PLAINTIFF’S SECOND CAUSE OF ACTION MUST BE DISMISSED BECAUSE THE COURT LACKS PERSONAL JURISDICTION OVER DR. SAMADI ............................................................................................ 8 POINT IV PLAINTIFF’S AMENDED COMPLAINT SHOULD ALSO BE DISMISSED UNDER THE DOCTRINE OF FORUM NON CONVENIENS11 A. New York’s factors regarding forum non conveniens are easily met here12 1. Burden on the Court .............................................................12 2. Hardship to Defendants ........................................................13 3. Presence of an available alternative forum .............................14 4. The parties are not residents of New York .............................14 5. The underlying transactions occurred entirely in Texas ..........14 CONCLUSION ..............................................................................................................15 -i- 3 of 22 201905310387 IndexNO. INDEX #: E2019000908 E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 TABLE OF AUTHORITIES Page(s) Cases Bank Hapoalim (Switz.) Ltd. v. Banca Intesa S.p.A., 26 A.D.3d 286 (1st Dep’t 2006) ..................................................................................12 Bank of Tokyo-Mitsubishi, Ltd. v. Kvaerner, 243 A.D.2d 1 (1st Dep’t 1998) ....................................................................................11 Brax Capital Grp., LLC v. Winwin Gaming, Inc., 83 A.D.3d 591 (1st Dep’t 2011) ............................................................................ 10, 11 Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773 (2017) .............................................................................................. 8, 9 Burke v. Crosson, 85 N.Y.2d 10 (1995) .................................................................................................... 4 Carvel Corp. v. Ross Distrib., Inc., 137 A.D.2d 578 (2d Dep’t 1988) .................................................................................14 Corines v. Dobson, 135 A.D.2d 390 (1st Dep’t 1987) ................................................................................13 Covino v. Alside Aluminum Supply Co., 42 A.D.2d 77 (4th Dep’t 1973) .................................................................................... 6 Frontier Mfg., Inc. v. Comp-Aire Sys., Inc./Joy, 94 A.D.2d 960 (4th Dep’t 1983) ................................................................................... 8 Garmendia v. O’Neill, 46 A.D.3d 361 (1st Dep’t 2007) ..................................................................................13 Getty Prop. Corp. v. Getty Petroleum Marketing Inc., 106 A.D.3d 429 (1st Dep’t 2013) ................................................................................10 Golf Glen Plaza Niles, Il. L.P. v. Amcoid USA, LLC, 160 A.D.3d 1375 (4th Dep’t 2018) .......................................................................... 9, 10 Hartman v. Joy, 47 A.D.2d 624 (1st Dep’t 1975) ................................................................................... 5 Ilic v. Rochester Gas & Elec. Corp., 262 A.D.2d 1019 (4th Dep’t 1999) ............................................................................... 5 Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474 (1984) .................................................................................................12 - ii - 4 of 22 201905310387 IndexNO. INDEX #: E2019000908 E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 Nguyen v. Indosuez, 19 A.D.3d 292 (1st Dep’t 2005) ..................................................................................14 Pal Pools, Inc. v. Billiot Bros., Inc., 57 A.D.2d 891 (2d Dep’t 1977) ...................................................................................11 Pier 59 Studios L.P. v. Chelsea Piers L.P., 27 A.D.3d 217 (1st Dep’t 2006) ................................................................................... 4 PricewaterhouseCoopers LLP v. Rutlen, 284 A.D.2d 200 (1st Dep’t 2001) ................................................................................. 7 Prof. Merchant Advance Capital, LLC v. Your Trading Room, LLC, 123 A.D.3d 1101 (2d Dep’t 2014) ...............................................................................10 Rainbow Hosp. Mgmt. Inc. v. Mesch Engineering, P.C., 270 A.D.2d 906 (4th Dep’t 2000) ................................................................................. 5 Ramada Franchise Systems, Inc. v. Cusak Dev., Inc., No. 96 Civ. 8085 (MGC), 1997 WL 304885 (S.D.N.Y. June 6, 1997) ..........................11 Regal Knitware Co. v. M. Hoffman & Co., 96 Misc. 2d 605 (Sup. Ct. N.Y. Cty. 1978) ..................................................................12 Rush v. Savchuk, 444 U.S. 320 (1980) ..................................................................................................... 9 Silver Lane Advisors LLC v. Bellatore LLC, No. 600668/09, 24 Misc. 3d 1218(A), 2009 WL 2045513 (Sup. Ct. N.Y. Cty. July 6, 2009) .......................................................................................................14 Silver v. Great Am. Ins. Co., 29 N.Y.2d 356 (1972) .................................................................................................12 Smith Barney, Harris Upham & Co., Inc. v. Luckie, 85 N.Y.2d 193 (1995) .................................................................................................. 7 Sterritt v. Heins Equip. Co., Inc., 114 A.D.2d 616 (3d Dep’t 1985) .................................................................................. 6 Truty v. Fed.Bakers Supply Corp., 217 A.D.2d 951 (4th Dep’t 1995) ................................................................................. 6 United Jersey Bank v. Weintraub, 240 A.D.2d 656 (2d Dep’t 1997) .................................................................................13 Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468 (1989) ..................................................................................................... 7 - iii - 5 of 22 201905310387 IndexNO. INDEX #: E2019000908 E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 Walden v. Fiore, 571 U.S. ––––, 134 S. Ct. 1115 (2014) .......................................................................... 9 Williams v. MTA Bus Co., 44 Misc.3d 673 (Sup. Ct. N.Y. Cty. 2014), opinion vacated in part on reargument on other grounds ............................................................................................ 5 World Point Trading PTE, Ltd. v. Credito Italiano, 225 A.D.2d 153 (1st Dep’t 1996) ................................................................................13 Statutes CPLR 302 .......................................................................................................................11 CPLR 302(a)(1) ...............................................................................................................10 CPLR 305(c) .................................................................................................................... 4 CPLR 327(a) ......................................................................................................... 7, 11, 12 N.Y. Partnership Law §121-907(a) .................................................................................... 5 - iv - 6 of 22 201905310387 IndexNO. INDEX #: E2019000908 E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 PRELIMINARY STATEMENT Defendants Aissa Medical Resources L.P. (“AMR”) and Dr. Ramin R. Samadi (“Dr. Samadi”) (collectively, “Defendants”) respectfully submit this memorandum of law in support of their motion to dismiss Plaintiff’s Amended Complaint (Doc. Nos. 32- 38).1 This action was commenced by “City View [i.e. two-words] Towne Crossing Shopping Center Fort Worth, TX. Limited Partnership” on January 29, 2019 based on Defendants’ alleged breach of two commercial leases and a guaranty concerning real property located in Fort Worth, Texas. Doc. No. 1. After Defendants established that there is no entity with that name that is authorized to do business in New York (Doc. No. 17), City View unilaterally amended its Complaint—on the eve of oral argument of Defendants’ motion to dismiss—to identify “CityView [i.e. one word] Town Crossing Shopping Center Fort Worth, TX Limited Partnership” as the plaintiff in this action. Doc. No. 32. In doing so, it is alleged that “CityView” is “a/k/a City View.” Id. But Plaintiff cannot have it both ways. The entity that is the party to the underlying agreements (i.e. “City View”) is not authorized to transact business in New York. Therefore, it cannot maintain in this action. And, if the claims at issue in this action are now being asserted by “CityView,” they must be dismissed based on lack of standing, because those claims admittedly belong to “City View.” Doc. Nos. 33, 34, 38. Putting that issue aside, the very agreement that City View relies upon to establish “venue” in this Court (i.e. the 2008 Lease (Doc. No. 33)) contains an arbitration 1 “Doc. Nos.” refer to the document numbers assigned by the NYSCEF electronic docket for this action. 7 of 22 201905310387 IndexNO. INDEX #: E2019000908 E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 provision that expressly covers the subject matter underlying the First Cause of Action. For this additional reason, neither City View nor CityView may pursue that claim in this Court. Finally, the 2008 Lease was entered into solely by AMR—a limited partnership organized under the laws of the state of Texas with no connection to the State of New York. Dr. Samadi, who is a domiciliary of the State of Texas, is not a party to that agreement and there is no forum selection clause in the Guaranty. As a result, this Court lacks personal jurisdiction over Dr. Samadi and, even assuming there is a basis for jurisdiction over AMR, the claims against it should nonetheless be dismissed under the doctrine of forum non conveniens. STATEMENT OF FACTS A. The parties Plaintiff claims in the Amended Complaint that it is a limited partnership “licensed to do business, and doing business, in the State of New York.” Doc. No. 32 ¶2. Documentary evidence, however, establishes that there is no entity by the name of “City View” that is authorized to do business in New York. See Affirmation of Sean C. McPhee dated May 28, 2019 (“McPhee Aff.”) Ex. 2. AMR is a limited partnership organized under the laws of the State of Texas that does not transact business in New York. See Affidavit of Dr. Ramin R. Samadi sworn to March 3, 2019 (“Samadi Aff.”) ¶4. Moreover, AMR has never contracted to supply goods or services in New York; does not do or solicit business in New York; has no assets in New York; and derives no revenue from goods consumed, or services rendered, in New York. Id. ¶5. -2- 8 of 22 201905310387 IndexNO. INDEX #: E2019000908 E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 Finally, Dr. Samadi is a resident of Texas, who has his domicile there. Id. ¶3. Neither he nor AMR have any employees, agents, offices, bank accounts, or property within New York, and neither pays state income or property taxes here. Id. ¶6. B. AMR’s leases, and the claims in this action AMR entered into the 2008 Lease with “City View” regarding certain real property located within a Shopping Center in Fort Worth, Texas. Doc. No. 1 ¶6. Dr. Samadi is not a party to the 2008 Lease, but he did enter into a Lease Guaranty concerning the 2008 Lease (the “Guaranty”). Id. ¶8. The 2008 Lease is the basis for the First Cause of Action (Doc. No. 32 ¶¶25-30), and the Guaranty is the basis for the Second Cause of Action. Id. ¶¶31-34. As relevant to this motion, Section 22.03 of the 2008 Lease includes a forum selection clause designating the courts where City View’s principal office is located as the forum for resolution of certain disputes. Doc. No. 33 p. 10 of 33. Notably, there is no such provision in the Guaranty. Doc. No. 34. In fact, the Guaranty does not include any provisions concerning choice of law, jurisdiction, or venue. Id. Also notable is the fact that the 2008 Lease includes a dispute resolution provision in Section 22.08, which provides: Except in connection with the non-payment of rent, percentage rent, additional rent or any other charges due by Tenant without a claim of set-off or abatement provided for herein, in the event of an unresolved dispute between Owner and Tenant regarding the performance by either party of an obligation or condition of this Lease, the non-performance of which constitutes a default under this Lease, then Owner or Tenant may, at its sole option, have the matter referred to an arbitrator for final determination in accordance with the rules of the American Arbitration Association or any successor and both parties agree that the final determination of such arbitrator shall be binding. Pending submission of the matter to arbitration and -3- 9 of 22 201905310387 IndexNO. INDEX #: E2019000908 E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 the arbitrator’s final determination, no default shall be deemed to have occurred, and any time limit relative to such default shall commence from the date of the final determination of the arbitrator. This Section shall not, however, prevent Owner form seeking preliminary injunctive relief pending the outcome of such arbitration. Any arbitration shall be venued in the state and county of Owner’s principal place of business and Tenant irrevocably waives the right to challenge said venue. Doc. No. 33 pg. 10 of 33 to pg. 11 of 33 (emphasis added). City View and AMR are also parties to a lease dated December 18, 2002, as amended (the “2002 Lease”), which is the basis of the Third Cause of Action. Doc. No. 32 ¶¶35-39. Dr. Samadi is not a party to the 2002 Lease and did not personally guaranty its performance. Finally, Plaintiff’s Fourth Cause of Action is a stand-alone claim for attorneys’ fees. Id. ¶¶40-42. This, however, is not a recognized cause of action under New York law. See, e.g., Pier 59 Studios L.P. v. Chelsea Piers L.P., 27 A.D.3d 217, 217 (1st Dep’t 2006) (“Plaintiff may not maintain a separate cause of action for attorneys’ fees, which are only recoverable as an element of contract damages if a breach of the sublease is proven”) (citing Burke v. Crosson, 85 N.Y.2d 10, 17-18 (1995)). C. City View amends the Complaint After Defendants established that there is no entity by the name of “City View” that is authorized to transact business in New York—requiring dismissal of the Complaint—it unilaterally amended its Complaint to reflect that the plaintiff here should be “CityView.” Doc. No. 32. Notably, however, there was no corresponding amendment to the Summons, which requires leave of Court. See N.Y. CPLR 305(c). Thus, the purported amendment is procedurally improper. Id. -4- 10 of 22 201905310387 IndexNO. INDEX #: E2019000908 E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 ARGUMENT POINT I THIS ACTION MUST BE DISMISSED BECAUSE “CITY VIEW” IS NOT AUTHORIZED TO DO BUSINESS IN NEW YORK AND “CITYVIEW” LACKS STANDING TO BRING THESE CLAIMS As Defendants pointed out in their motion to dismiss the initial Complaint (Doc. No. 13), under New York’s Revised Limited Partnership Act: “[a] foreign limited partnership doing business in this state without having received a certificate of authority to do business in this state may not maintain any action, suit or special proceeding in any court of this state unless and until such partnership shall have received a certificate of authority in this state.” N.Y. Partnership Law §121-907(a). Here, the records of the New York Secretary of State confirm that there is no entity by the name of “City View Towne Crossing Shopping Center Fort Worth” that is authorized to do business in New York. McPhee Aff. Ex. 2.2 Finding itself between a rock and hard place, Plaintiff amended the Complaint to reflect the name “CityView,” which apparently is authorized to do business here, but its knee-jerk reaction leaves it in no better position. Indeed, the party identified in the underlying agreements is “City View.” Doc. No. 33, 34, 38. As such, “CityView” lacks standing to sue under those agreements. See Rainbow Hosp. Mgmt. Inc. v. Mesch Engineering, P.C., 270 A.D.2d 906 (4th Dep’t 2000) (affirming dismissal of amended complaint because plaintiff possessed no interest sufficient to maintain the action); Ilic v. Rochester Gas & Elec. 2 This Court can take judicial notice of the New York Secretary of State’s records because they are matters of public record and would help to speed resolution of this dispute. See Hartman v. Joy, 47 A.D.2d 624, 625 (1st Dep’t 1975) (taking judicial notice of prior action because it is accurate information from a public record and would speed resolution of the litigation); Williams v. MTA Bus Co., 44 Misc.3d 673, 688 (Sup. Ct. N.Y. Cty. 2014), opinion vacated in part on reargument on other grounds (taking judicial notice of the records of the Secretary of State and noting that such records did not include a corporation with a particular name). -5- 11 of 22 201905310387 IndexNO. INDEX #: E2019000908 E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 Corp., 262 A.D.2d 1019 (4th Dep’t 1999) (affirming dismissal of claims brought by individual who had no interest in the property and was not a party to the contract sued upon); Truty v. Fed.Bakers Supply Corp., 217 A.D.2d 951 (4th Dep’t 1995) (reversing denial of motion to dismiss because the subject matter of the action was a contract to which the individual plaintiffs were not parties, leaving them without standing to bring the action); Sterritt v. Heins Equip. Co., Inc., 114 A.D.2d 616 (3d Dep’t 1985) (affirming dismissal of complaint because there was nothing in the record indicating that plaintiff had any interest in the underlying property or any rights under the contract at issue). While Plaintiff may claim that the discrepancy between “City View” and “CityView” is simply a misnomer that can be cured in the absence of prejudice, that argument fails. Indeed, in Covino v. Alside Aluminum Supply Co., 42 A.D.2d 77 (4th Dep’t 1973), the Fourth Department allowed the plaintiff to amend the summons and complaint in order to correct an irregularity in the title to the action. It did so, however, because “the right party plaintiff is in court but under a defective name.” Id. at 80. Here, however, “the right party plaintiff” is City View—the entity identified in the underlying agreements (Doc. Nos. 33, 34, 38)—not “CityView.” The former is not permitted to maintain this action, and the latter lacks standing to prosecute these claims. As a result, the Amended Complaint should be dismissed. POINT II THE DISPUTE UNDERLYING PLAINTIFF’S FIRST CAUSE OF ACTION MUST BE ARBITRATED The 2008 Lease contains a provision requiring arbitration of certain disputes. Among those are any unresolved disputes between Plaintiff and AMR “regarding the performance by either party of an obligation or condition of this Lease.” Doc. No. 33 p. 10 of -6- 12 of 22 201905310387 IndexNO. INDEX #: E2019000908 E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 33 (emphasis added). Despite this express provision, Plaintiff asserted its First Cause of Action in this Court. It then argued in its opposition to Defendants’ motion to dismiss the initial Complaint that it should not be compelled to arbitrate because the parties’ dispute falls within an exception for disputes concerning “charges due” by AMR. Plaintiff is wrong because there are no charges “due” by AMR unless and until it is established that AMR failed to fulfill an obligation under the Lease. In fact, Plaintiff itself repeatedly refers to AMR’s alleged failure to comply with the “obligation” underlying this cause of action throughout the Amended Complaint. See, e.g., Doc. No. 32 at ¶14 (“City View detailed for Tenant its surrender obligations under the 2008 Lease”) (emphasis added); id. at ¶15 (“Tenant failed to satisfy its surrender obligations under the 2008 Lease”) (emphasis added). In any event, under well-settled law, any doubt as to whether this dispute falls within the scope of the arbitration provision must be resolved in favor of arbitration. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 476 (1989) (ambiguities as to the scope of an arbitration clause must be resolved in favor of arbitration); Smith Barney, Harris Upham & Co., Inc. v. Luckie, 85 N.Y.2d 193, 200-01 (1995) (policy favoring arbitration is to be advanced by “rigorous judicial enforcement of arbitration agreements and by resolution of any ambiguities as to the scope of the arbitration clause itself in favor of arbitration”); PricewaterhouseCoopers LLP v. Rutlen, 284 A.D.2d 200, 200 (1st Dep’t 2001) (“any ambiguities as to the scope of the [arbitration] provision would be properly resolved in favor of arbitration”). Finally, while the 2008 Lease provides that the arbitration will take place in the state and county of City View’s principal place of business, this Court can—and should—compel arbitration of this dispute in Texas under CPLR 327(a) and Fourth -7- 13 of 22 201905310387 IndexNO. INDEX #: E2019000908 E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 Department precedent. See, e.g., Frontier Mfg., Inc. v. Comp-Aire Sys., Inc./Joy, 94 A.D.2d 960, 960 (4th Dep’t 1983) (reversing order granting application to compel arbitration under CPLR 327 because New York courts are under no compulsion to accept jurisdiction of a cause of action having no substantial nexus with this State, and holding that “New York is an unsuitable forum to determine the issue of arbitrability”). POINT III PLAINTIFF’S SECOND CAUSE OF ACTION MUST BE DISMISSED BECAUSE THE COURT LACKS PERSONAL JURISDICTION OVER DR. SAMADI Plaintiff confirmed in its opposition to Defendants’ motion to dismiss the initial Complaint that the basis of jurisdiction upon which it relies is “defendants’ consent to jurisdiction in New York by virtue of the forum selection clauses in the Lease(s).” Doc. No. 29 p. 2 n. 2. It then recognized that there is no forum selection clause in Dr. Samadi’s Guaranty, but argued that the forum selection provision in the 2008 Lease should be imputed into the Guaranty. Id. p. 6. Once again, Plaintiff is wrong, and the authorities it relies upon to support this argument are distinguishable. As the United States Supreme Court has recently reiterated, because “[a] state court’s assertion of jurisdiction exposes defendants to the State’s coercive power, it is subject to review for compatibility with the Fourteenth Amendment’s Due Process Clause, which limits the power of the state court to render a valid personal judgment against a nonresident defendant.” Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773, 1779 (2017) (internal quotation marks and citations omitted). In determining whether personal jurisdiction is present, “the primary concern is the burden on the defendant,” and “even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate -8- 14 of 22 201905310387 IndexNO. INDEX #: E2019000908 E2019000908 FILED: MONROE COUNTY CLERK 05/28/2019 03:12 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/28/2019 federalism, may sometimes act to divest the State of its power to render a valid judgment.” Id. at 1780–81 (internal quotation marks and citation omitted). In light of this, the United States Supreme Court has repeatedly explained that “a defendant’s relationship with a . . . third party, standing alone, is an insufficient basis for jurisdiction.” Id. at 1781 (quoting Walden v. Fiore, 571 U.S. ––––, 134 S. Ct. 1115, 1123 (2014)) (ellipses in original). Accordingly, “[t]he requirements of International Shoe . . . must be met as to each defendant over whom a state court exercises jurisdiction.” Id. (quoting Rush v. Savchuk, 444 U.S. 320, 332 (1980)) (ellipses in original). When applying the foregoing principles, it is clear that Plaintiff’s attempt to foist the 2008 Lease’s forum selection clause onto Dr. Samadi violates the Due Process Clause of the United States Constitution. Indeed, as Dr. Samadi explained in his affidavit, he is a domiciliary of the State of Texas who does not transact business in New York. Doc. No. 14 ¶3. He has no employees, agents, offices, bank accounts, or real property within New York, and does not pay state income or property taxes here. Id. ¶6. Finally, the Guaranty—which admittedly does not contain a forum selection clause—was negotiated and executed in Texas, and Dr. Samadi never travelled to New York regarding the Guaranty or the 2008 Lease. Id. ¶7. Thus, because Dr. Samadi has no contacts with New York, the requirement for “minimum contacts” under International Shoe obviously has not been met, and this Court cannot exercise jurisdiction over him. Bristol-Myers Squibb Co., 137 S. Ct. at 1781. The cases Plaintiff previously relied upon (and likely will rely upon again) do not require a different result, because each is distinguishable. Indeed, in Golf Glen Plaza Niles, Il. L.P. v. Amcoid USA, LLC, 160 A.D.3d 1375 (4th Dep’t 2018), the Fourth -