     17-2846
     Rosenblatt v. Coutts & Co. AG

                                       UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

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

 8          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 9   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
10   on the 6th day of September, two thousand eighteen.
11
12   PRESENT:
13              GERARD E. LYNCH,
14              SUSAN L. CARNEY,
15              CHRISTOPHER F. DRONEY,
16                          Circuit Judges.
17   _________________________________________
18
19   MARVIN ROSENBLATT,
20
21                     Plaintiff-Appellant,
22
23                               v.                                         No. 17-2846
24
25   COUTTS & CO. AG,
26
27                     Defendant-Appellee,
28
29   ROYAL BANK OF SCOTLAND PLC,
30
31              Defendant.
32   _________________________________________
33
34   FOR PLAINTIFF-APPELLANT:                           ZACHARY TAYLOR (Robert Cohen, on the
35                                                      brief), Taylor & Cohen LLP, New York,
36                                                      NY.
37
1    FOR DEFENDANT-APPELLEE:                                     ROSS ERIC MORRISON (Dana Walsh
2                                                                Kumar, on the brief), Buckley Sandler LLP,
3                                                                New York, NY.
4
5            Appeal from a judgment of the United States District Court for the Southern District
6    of New York (Hellerstein, J.).

7            UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
8    ADJUDGED, AND DECREED that the judgment entered on August 14, 2017, is
9    AFFIRMED.

10           Plaintiff-appellant borrower Marvin Rosenblatt appeals from the judgment of the
11   United States District Court for the Southern District of New York (Hellerstein, J.)
12   dismissing his breach of contract and related tort claims against defendant-appellee mortgage
13   lender Coutts & Co. AG (“Coutts”) for lack of personal jurisdiction. 1 The core inquiry in
14   this appeal is whether the District Court appropriately concluded that Coutts, a now-defunct
15   Swiss private bank, did not “transact any business” in New York within the meaning of that
16   state’s long-arm statute. We assume the parties’ familiarity with the facts and the record of
17   the prior proceedings, to which we refer here only as necessary to explain our decision to
18   affirm the District Court’s dismissal.

19           We review de novo a district court’s decision under Federal Rule of Civil
20   Procedure 12(b)(2) to dismiss a case for lack of personal jurisdiction. CutCo Indus., Inc. v.
21   Naughton, 806 F.2d 361, 365 (2d Cir. 1986). “If the [district] court chooses to rely on
22   pleadings and affidavits, the plaintiff need only make a prima facie showing of personal
23   jurisdiction over [the] defendant.” Id. at 364. Because the District Court here did not hold an
24   evidentiary hearing on jurisdictional matters, we “construe the pleadings and affidavits in
25   plaintiff’s favor.” PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997). In a
26   diversity action, whether a court has personal jurisdiction over a defendant “is determined by
27   the law of the forum in which the court sits.” CutCo Indus., 806 F.2d at 365. New York law
28   therefore controls our analysis in this case.

     1The District Court similarly dismissed for lack of personal jurisdiction Rosenblatt’s claims against defendant
     Royal Bank of Scotland PLC, but Rosenblatt does not appeal that dismissal.
                                                            2
1              Under the New York long-arm statute, “a court may exercise personal jurisdiction
2    over any non-domiciliary . . . who in person or through an agent . . . transacts any business
3    within the state.” N.Y. C.P.L.R. 302(a)(1). The relevant inquiry thus has two components:
4    “(1) whether the defendant transacts any business in New York and, if so, (2) whether this
5    cause of action arises from such a business transaction.” 2 Licci v. Lebanese Canadian Bank,
6    SAL (“Licci I”), 673 F.3d 50, 60 (2d Cir. 2012) (internal quotation marks and alteration
7    omitted); see also D&R Glob. Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 297
8    (2017).

9              The New York Court of Appeals has instructed that the “overriding criterion” in
10   determining whether an entity “transacts any business” in New York within the meaning of
11   the statute is whether the entity “purposefully avails itself of the privilege of conducting
12   activities within New York.” Paterno v. Laser Spine Inst., 24 N.Y.3d 370, 377 (2014). Further,
13   that court has explained, “it is not the quantity but the quality of the contacts that matters
14   under [the] long-arm jurisdiction analysis.” Id. at 378. The “totality of the circumstances”
15   must be assessed in determining whether a defendant has “invoke[ed] the benefits and
16   protections of [New York’s] laws.” Licci I, 673 F.3d at 61–62 (internal quotation marks
17   omitted).
18             We have previously identified four non-exclusive factors that bear on our
19   determination in this regard. Those are:
20                    (i) whether the defendant has an on-going contractual
21                    relationship with a New York corporation; (ii) whether the
22                    contract was negotiated or executed in New York and whether,
23                    after executing a contract with a New York business, the
24                    defendant has visited New York for the purpose of meeting with
25                    parties to the contract regarding the relationship; (iii) what the
26                    choice-of-law clause is in any such contract; and (iv) whether the
27                    contract requires [parties to that contract] to send notices and
28                    payments into the forum state or subjects them to supervision by
29                    the corporation in the forum state.



     2 If a defendant’s alleged conduct meets this test, we then determine whether the exercise of personal
     jurisdiction over that defendant comports with constitutional due process requirements. See Licci I, 673 F.3d
     at 60.
                                                           3
1    Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 22 (2d Cir. 2004) (quoting Agency Rent A Car
2    Sys., Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir. 1996)) (considering factors in
3    context of franchisor-franchisee contract relationship). Upon consideration of these factors
4    and the totality of the circumstances here, we conclude that Coutts did not “transact any
5    business” in New York within the meaning of the statute.

6            As to the first factor, an ongoing contractual relationship: although Coutts, through
7    its loan and mortgage agreement, had a contractual relationship with Rosenblatt, the
8    agreement concerned Rosenblatt not in his capacity as a resident of New York, but rather in
9    his capacity as the owner of the mortgaged residence in Switzerland. Coutts accordingly
10   addressed its account statements and other loan-related correspondence to Rosenblatt in
11   Switzerland. It also debited mortgage payments from Rosenblatt’s Swiss account. This factor
12   therefore seems, at best, neutral. See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171
13   F.3d 779, 787 (2d Cir. 1999) (law firm in Puerto Rico that negotiated and prepared legal
14   opinion for New York bank regarding security interest in Puerto Rican oil refinery did not
15   transact business in New York).

16           Second, as to the negotiation and execution of the contract: Rosenblatt alleges that
17   Coutts negotiated the initial terms of the loan agreement with him by phone and email,
18   including while he was in New York, and argues that this factor therefore favors finding that
19   Coutts “transacts business” in New York. Although engaging in digital communications and
20   entering into agreements by phone may sometimes constitute transacting business in New
21   York, see, e.g., Deutsche Bank Sec., Inc. v. Mont. Bd. of Invs., 7 N.Y.3d 65, 71–72 (2006), long-
22   distance communication with a New York plaintiff does not require a conclusion that the
23   defendant transacted business in New York, see, e.g., Paterno, 24 N.Y.3d at 379, and here we
24   find countervailing factors: the loan agreement was negotiated and drafted by Coutts
25   employees in Switzerland and physically executed by both parties in Switzerland. Rosenblatt
26   does not allege that any Coutts employee ever visited him in New York. 3 See Int’l Customs

     3Although Rosenblatt attached to his opposition to the motion to dismiss a press release issued by the U.S.
     Department of Justice stating that, between 2008 and 2015, Coutts representatives met with clients in the
     United States eleven times, see App’x 101, Rosenblatt does not allege that he ever received such a visit or that
     any of those visits concerned his mortgage. Thus, even if the activity described in the press release were
                                                            4
1    Assocs. v. Ford Motor Co., 893 F. Supp. 1251, 1261–62 (S.D.N.Y. 1995) (no personal
2    jurisdiction in New York where contract with defendant was negotiated remotely with
3    parties in different countries, but contract executed in Taiwan and substantial part of
4    performance occurred in Taiwan), aff’d, 201 F.3d 431 (2d Cir. 1999) (summary order). Under
5    these circumstances, the place of negotiation and execution of the contract weighs against
6    concluding that Coutts transacted business in New York.

7            Third, the mortgage agreement contains an explicit choice-of-law clause identifying
8    Swiss law as controlling. App’x 30. Its forum selection clause names Zurich as the “place of
9    performance” and the “place [in which] legal proceedings” related to the contract are to be
10   conducted. Id. These clauses, too, weigh against concluding that Coutts transacted business
11   in New York. Cf. Jim Beam Brands Co. v. Tequila Cuervo La Rojeña S.A. de C.V., 63 A.D.3d 575,
12   576 (N.Y. App. Div. 1st Dep’t 2009) (choice-of-law clause identifying New York favors
13   personal jurisdiction over defendant in New York).

14           Rosenblatt argues that the third Sunward Electronics factor weighs in favor of finding
15   personal jurisdiction because Coutts invoked the protections of New York’s laws in the
16   mortgage agreement when it reserved the right to sue Rosenblatt “in any competent court at
17   his domicile or in any other court of competent jurisdiction.” App’x 30. Rosenblatt
18   analogizes this clause to a choice-of-law clause, but, as discussed above, the contract
19   contains an explicit choice-of-law clause that selects Swiss law. Moreover, the provision
20   relating to forum conspicuously fails to grant Rosenblatt the right to sue in the jurisdiction of
21   his domicile, and gives Coutts the right to sue Rosenblatt wherever his domicile might be at
22   the time of suit—not specifically in New York. In any event, to whatever extent the
23   provision may have permitted Coutts to have recourse to the New York courts, it never
24   invoked that provision by filing any action in New York. Accordingly, reading the contract
25   as whole, Coutts did not seek to invoke the benefits and protections of New York law in the
26   agreement sufficiently to affect our analysis under the long-arm statute. See McKee Elec. Co. v.


     sufficient to show that Coutts transacted some business in New York, we have no reason to believe that
     Rosenblatt’s claims here arose out of that activity, as required by the second prong of the test. See Licci I, 673
     F.3d at 60.
                                                              5
1    Rauland-Borg Corp., 20 N.Y.2d 377, 382 (1967) (defendant must “purposefully avail[ ] itself of
2    the privilege of conducting activities within [New York], thus invoking the benefits and
3    protections of its laws”).

4            Finally, the contract did not require either party to “send notices and payments into
5    the forum state,” Sunward Elecs., Inc., 362 F.3d at 22. As mentioned above, Coutts addressed
6    and directed statements regarding the loan’s status to Rosenblatt at his address in
7    Switzerland, although it also sent copies to Rosenblatt’s New York address. 4 Further, as
8    noted above, Coutts debited Rosenblatt’s Swiss account to receive his payments. The fourth
9    factor therefore weighs, although not as strongly as the second and third factors, against
10   exercising personal jurisdiction over Coutts.

11           Although the Sunward Electronics factors are non-exclusive, the parties do not
12   meaningfully raise additional factors that in their view should bear on the analysis.
13   Rosenblatt references his long tenure as a banking client of Coutts’s and the transfer of some
14   securities from his Coutts bank account to a New York account in 2014, but he fails to relate
15   these transactions to the purportedly breached mortgage loan agreement or to explain how
16   these facts might influence our assessment of the court’s jurisdiction over Coutts. As to the
17   loan proceeds, they were paid to Rosenblatt’s Coutts account, so any subsequent transfer to
18   another bank account is only incidental to the loan agreement. The New York Court of
19   Appeals has explained that a plaintiff must provide “an articulable nexus or substantial
20   relationship between defendant’s New York activities and the parties’ contract, defendant’s
21   alleged breach thereof, and [plaintiff’s] potential damages,” D&R Glob. Selections, 29 N.Y.3d
22   at 299, and Rosenblatt has failed to meet that requirement. 5

23                                                       * * *


     4The loan agreement does not identify a designated address for the purpose of receiving communications
     about the mortgage.
     5 The analysis with respect to Rosenblatt’s separate promissory estoppel claim is not materially different. The
     charity that Coutts allegedly promised to support was to have been based at Rosenblatt’s Swiss property, and
     there is no allegation that the alleged promise was made in New York. That the trustees of the charity resided
     in New York has no more persuasive power than the fact, considered above with respect to the breach of
     contract claim, that Rosenblatt did so.
                                                            6
1          We have considered Rosenblatt’s remaining arguments and find them to be without
2   merit. Considering the totality of the circumstances and the factors discussed above, we
3   conclude that Coutts did not “transact[ ] any business” in New York within the meaning of
4   N.Y. C.P.L.R. 302(a)(1). The District Court was therefore correct to conclude that it lacked
5   personal jurisdiction over Coutts. Accordingly, we AFFIRM the judgment of the District
6   Court dismissing the complaint.

7                                                     FOR THE COURT:
8                                                     Catherine O’Hagan Wolfe, Clerk of Court




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