     09-1671-cv
     Schultz v. Safra Nat’l Bank of N.Y.


                          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 .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 17 th day of May, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                JOSEPH M. McLAUGHLIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Stanton Sterling Schultz,
14                Plaintiff-Appellant,
15
16                    -v.-                                         09-1671-cv
17
18       Safra National Bank of New York, Banco
19       Safra, S.A.,
20                Defendants-Appellees.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:                  Stanton Sterling Schultz, pro se,
24                                       Denver, CO.
25
26       FOR APPELLEE:                   Barry R. Fischer, Fischer & Mandell,
27                                       LLP, New York, NY.
28

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1         Appeal from a judgment of the United States District Court
2    for the Southern District of New York (Berman, J.; Mass, Mag.).

3         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4    DECREED that the judgment of the district court be AFFIRMED.

 5        Appellant Stanton Sterling Schultz, pro se, appeals the
 6   district court’s grant of the Defendants’ Fed. R. Civ. P.
 7   12(b)(2) motion, dismissing his complaint for lack of personal
 8   jurisdiction. We assume the parties’ familiarity with the
 9   underlying facts, the procedural history of the case, and the
10   issues on appeal.

11        Schultz raises no challenge on appeal to the district
12   court’s denial of his cross-motion to join Joseph Safra as a
13   defendant; the denial of his application for discovery; and the
14   dismissal of his claims against Safra National Bank of New York.
15   We decline to review those issues. See LoSacco v. City of
16   Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (when a litigant,
17   pro se or not, raises an issue before the district court but does
18   not raise it on appeal, it is abandoned). The only issue raised
19   by Schultz on appeal is whether the district court had personal
20   jurisdiction over Banco Safra, S.A. (“Banco Safra”), a Brazilian
21   bank.

22        We review de novo a district court’s dismissal of a
23   complaint under Fed. R. Civ. P. 12(b)(2) for lack of personal
24   jurisdiction. See Metro. Life Ins. Co. v. Roberson-Ceco Corp.,
25   84 F.3d 560, 567 (2d Cir. 1996). To survive a Rule 12(b)(2)
26   motion, a plaintiff has the burden of demonstrating that
27   jurisdiction exists, see Robinson v. Overseas Military Sales
28   Corp., 21 F.3d 502, 507 (2d Cir. 1994), and where, as here, the
29   district court did not conduct “a full-blown evidentiary hearing
30   on the motion, the plaintiff need only make a prima facie showing
31   of jurisdiction,” Marine Midland Bank, N.A. v. Miller, 664 F.2d
32   899, 904 (2d Cir. 1981). In order to resolve a motion to dismiss
33   for lack of personal jurisdiction, a district court must
34   “determine whether there is jurisdiction over the defendant under
35   the relevant forum state’s laws.” Bank Brussels Lambert v.
36   Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999).
37   Therefore, under New York law, Schultz had to demonstrate either
38   that Banco Safra was “present” and “doing business” within the
39   meaning of New York Civil Procedure Law and Rules (“CPLR”) § 301,
40   or that it committed acts within the scope of New York’s long-arm
41   statute, CPLR § 302.

42        Under CPLR § 301, “[a] corporation is ‘doing business’ and
43   is therefore ‘present’ in New York and subject to personal
44   jurisdiction with respect to any cause of action, related or
45   unrelated to the New York contacts, if it does business in New


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 1   York not occasionally or casually, but with a fair measure of
 2   permanence and continuity.” Wiwa v. Royal Dutch Petroleum Co.,
 3   226 F.3d 88, 95 (2d Cir. 2000) (internal quotation marks omitted)
 4   (defining the circumstances pursuant to which a defendant can be
 5   subject to general personal jurisdiction under CPLR § 301). New
 6   York courts have focused on several factors to support a finding
 7   that a defendant was “doing business,” including “the existence
 8   of an office in New York; the solicitation of business in New
 9   York; the presence of bank accounts or other property in New
10   York; and the presence of employees or agents in New York.”
11   Landoil Res. Corp. v. Alexander & Alexander Serv. Inc., 918 F.2d
12   1039, 1043 (2d Cir. 1990). Solicitation alone will not
13   ordinarily show that a defendant is “doing business” in New York,
14   but where combined with evidence that the defendant “engages in
15   other activities of substance in the state, then personal
16   jurisdiction may properly be found to exist.” Id. at 1043-44.

17        As the district court determined, Schultz had at best
18   alleged only that certain banking institutions owned by a non-
19   bank holding company--which, through a subsidiary, may also have
20   owned Banco Safra--solicited business in the United States.
21   Schultz readily admitted that Banco Safra had no office,
22   employees, accounts, or property in the State of New York, and,
23   given this absence of other substantial activities in New York,
24   Schultz’s speculative assertion that Banco Safra engaged in
25   solicitation in that state through various other companies was
26   insufficient to vest the district court with personal
27   jurisdiction under CPLR § 301.

28        Additionally, under CPLR § 302(a)(1), a court may exercise
29   personal jurisdiction over a defendant if it (1) “transacts any
30   business” in New York and (2) the plaintiff’s cause of action
31   arises from the business transaction. See Best Van Lines, Inc.
32   v. Walker, 490 F.3d 239, 246 (2d Cir. 2007). Under CPLR
33   § 302(a)(3), a district court may also exercise personal
34   jurisdiction over a defendant if it commits a tortious act
35   outside the state that causes injury to a person within the
36   state, provided that the defendant “regularly does or solicits
37   business, or engages in any other persistent course of conduct,
38   or derives substantial revenue from goods used or consumed or
39   services rendered, in the state.”

40        As the district court determined, neither of these sections
41   afforded personal jurisdiction over Banco Safra. Because Schultz
42   conceded that his claims arose from alleged transaction by Banco
43   Safra in Brazil, jurisdiction was not available under
44   § 302(a)(1). Moreover, given our discussion above, Schultz could
45   not show that Banco Safra regularly and consistently engaged in
46   any business in the State of New York so as to create
47   jurisdiction pursuant to § 302(a)(3). Accordingly, Schultz’s


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1    complaint was properly dismissed for lack of personal
2    jurisdiction.

3         We have considered all of Schultz’s remaining claims of
4    error and determined them to be without merit. For the foregoing
5    reasons, the judgment of the district court is hereby AFFIRMED.

 6
 7
 8                                 FOR THE COURT:
 9                                 CATHERINE O’HAGAN WOLFE, CLERK
10




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