OPINION AND ORDER
Plaintiff Matthew Bissonnette is a retired—and highly decorated—Navy SEAL who participated in the 2011 mission that killed Osama bin Laden, the leader of al Qaeda and the architect of the September 11, 2001 terrorist attacks. Under the pseudonym Mark Owen, Plaintiff published a best-selling book about the mission titled No Easy Day: The Firsthand Account -of the Mission that Killed Osama Bin Laden in 2012. The book apparently led the Department of Justice (“DOJ”) to investigate Plaintiff for violation of his contractual duties as a Navy SEAL and the Department of Defense (“DOD”) to threaten Plaintiff with a civil forfeiture. In this case, Plaintiff brings suit against his former attorney Kevin Podlaski and Podla-ski’s former firm, Carson Boxberger, LLP (“CB”) (together, “Defendants”), аlleging, inter alia, that Defendants committed legal malpractice by advising him to forego pre-públication review of his book by the DOD and other governmental agencies and by failing to properly review the' book for classified or otherwise sensitive information—actions that, he alleges, resulted in the DOJ investigation and the DOD threat of legal action.
Defendants move to dismiss Plaintiffs Second Amended Complaint (the “Complaint”), pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, for lack of personal jurisdiction. (Docket No. 36). Significantly, the motion does not call upon the Court to wade into the merits of the parties’ dispute, let alone the question of whether Plaintiff violated his contractual obligations or any laws in publishing No Easy Day. Instead, thе threshold question that faces the Court is whether Plaintiff can bring suit against Defendants, an Indiana attorney and an Indiana law firm, in this District. Applying well-established and binding precedent, the Court concludes that he cannot. Accordingly, and for the reasons stated below, Defendants’ motion is granted, and the Complaint is dismissed in its entirety.
BACKGROUND
. The following facts, taken from the Complaint, are assumed to be true for the purposes of this motion. See, e.g., LaFaro v. N.Y. Cardiothoradc Grp., PLLC,
Plaintiff participated in many high-profile missions during thirteen consecutive combat deployments as a Navy SEAL, including, as noted, the 2011 mission that resulted in the death of Osama bin Laden. (Second Am. Compl. (Docket No. 29) (“SAC”) ¶ 15). After witnessing media accounts of the missions in which he participated—descriptions that he believed to be inaccurate—Plaintiff decided to write his own account of the bin Laden raid, told from the perspective of the Navy SEALs themselves. (Id. ¶ 16). Plaintiff retained New York literary agent Elyse Cheney and her firm, Elyse Cheney Literary Associates LLC, and agreed to publish his book with Dutton, an imprint of Penguin'Publishing Group based in New York City. (Id. ¶¶ 9, 18).
Naturally, the subject matter of the proposed book created a risk that Plaintiff could inadvertently disclose confidential information—information that, if released, could pose a threat to the safety of deployed Navy SEALs and expose Plaintiff to criminal or civil liability for violation of nondisclosure agreements he signed during his time with the Navy. (Id. ¶¶ 21-22). Accordingly, Dutton required Plaintiff to ensure that the manuscript he submitted to the publisher did not contain any such information and, to that end, agreed to pay a portion of legal fees in order to enable Plaintiff to secure attorney review of his manuscript. (Id. ¶22; id., Ex. 2 át 11). Cheney then began searching for an attorney with the experience—and security clearance—to advise Plaintiff' on what ‘he could and could not publish. (Id. ¶23).
Cheney’s search led her to Podlaski, an attorney then affiliated with CB, a law practice based in Indiana, (id. 6-7, 23). Cheney reached out to Podlaski—while she was in New York and he was in Indiana—via telephone and e-mail several times; over the course ofrthose conversations, Podlaski “claimed to have a high level of security clearance, said he had vetted other books for retired military, and that he could advise Plaintiff and the support team of professionals "assisting Plaintiff—Cheney, the co-writer, and Dutton— on legal issues arising from Plaintiffs desire to tell the story of the SEALs and comply with his confidentiality obligations.” (Id. ¶24). In January 2012, Defendants drafted an engagement letter for Plaintiff, which they addressed and delivered to Cheney in New York. (Id. ¶25). To the extent relevant here, the letter provided that pefendants would assist Plaintiff with any legal issues he would encounter in
[cjontraeting with Dutton, a division of Penguin Group (USA) Inc., 375 Hudson Street, New York, New York 10014 (“Publisher”), for the publication of your manuscript about your career as a member of the U.S. Navy SEALS; and reviewing the publishable manuscript of your career to ensure your compliance with your obligations under any agreements you may have signed with the U.S. Government riot to release classified or classifiable information or otherwise compromise the national security interests of the United States, as those térms are used, intended or understood in Standard Form 312, Confidential Information Non-Disclosure Agreement (“CINA”), or any other such agreements.
(Id. ¶25; id., Ex. 3 at 1). The engagement letter further indicated that all legal bills were to be sent to Chenеy’s office in New York City. (Id. ¶ 25; id., Ex. 3 at 2). Defendants knew that the contract “on which Defendants were advising Plaintiff[ ] was performable in New York, was governed by the laws of New York, and fixed
In January and February 2012, Defendants reviewed Plaintiffs contract with Dutton and suggested several revisions during conferences with Cheney, including one change that added Podlaski by name in the section concerning attorney review of the manuscript. (Id. ¶¶ 27, 29; id., Ex. 2 at 11). The contract, as executed, specified that courts in the Southern District of New York “shall have sole and exclusive jurisdiction to hear and determine any suit, action, proceeding, claim, controversy or dispute arising under or concerning this Agreement еxclusively between” Dutton and Plaintiff. (Id., Ex. 2 at 13).
In June 2012, after the Dutton contract was finalized, Defendants turned to their second obligation under the engagement letter with Plaintiff: reviewing Plaintiffs manuscript to ensure it was free of confidential information. (Id. ¶¶ 31, 41). Significantly, despite his representations to the contrary, Podlaski did not have the security clearance to read and edit Plaintiffs manuscript; indeed, according to Plaintiff, “there is no level of security clearance that would have permitted [Pod-laski] to read the unedited Book without the authorization of the Department of Defense—which he lacked.” (Id. II40). Accordingly, “[b]y requesting that Plaintiff send him a copy of the raw manuscript, Podlaski exposed [Plaintiff] to criminal prosecution because Plaintiff gave Podlaski confidential information he was not authorized to receive or possess.” (Id. ¶ 40).
In addition, Defendants repeatedly advised Plaintiff and Cheney that Plaintiff did not, and in fact should not, submit his manuscript to the Government for pre-publication review, but rather should rely on Defendants to remove sensitive information. (Id. ¶¶ 35-36). Defendants’ advice on this score was based largely on Podlaski’s belief that, because Plaintiff was not on active duty when hе wrote the book, he had no contractual obligation to submit it for prepublication review—even, though, Plaintiff alleges, Podlaski did not know the exact date that the manuscript was written, the exact date that Plaintiff left active service, or even the agreements that someone in Plaintiff’s position would have signed. (Id. ¶¶ 35, 47; id., Ex. 10 at 1). Further, Defendants repeatedly downplayed the risks of not submitting Plaintiff’s manuscript for pre-publication review, as Podlaski argued that any advice rendered by the DOD office charged with reviewing official DOD information for release to the public was only “advisory in nature” with respect to information revealed by former Government employees, which, as noted, Podlaski understood Plaintiff to be. (Id., Ex. 9 at 1).
In the weeks leading up to the release of No Easy Day, publicity—and controversy—surrounding the book began to build. (Id. ¶ 45). Members of the media, including the New York Times, contacted Cheney and Dutton several times asking for comment on information reporters had received from government sources that the Government was considering filing civil and criminal charges against Plaintiff because of his intended disclosure of confidential information. (Id.). Plaintiffs publishing team forwarded these inquiries to Podlaski, who repeatedly assured the Cheney and Dutton that pre-publication review
On August 30, 2012—one business day prior to the book’s planned release—Jeh Johnson, then general counsel of the DOD (and now Secretary of Homeland Security), wrote to Plaintiff through Dutton, confirming what the recent press inquiries had suggested: that the Government viewed the planned release to be in violation of Plaintiff s obligations to the Government. (Id. ¶48). When Cheney forwarded Johnson’s letter to Podlaski, he again maintained that Plaintiff was not in violation of any duties he had to the Government, and “suggested that everyone embrace the accusations against. Plaintiff because it would rеsult in greater book sales.” (Id. ¶ 49). Plaintiff alleges that he and Dutton “had no choice” but to rely on Podlaski’s advice and to proceed with the book’s release, as tens of thousands of copies had already been published and distributed across the country, and Plaintiff would be in material breach of his contract with Dutton if he attempted to block the book’s publication. (Id. ¶ 50). Dutton released No Easy Day, as planned, on September 4, 2012. (Id. ¶ 51).
Following the book’s release, the Government took swift action to investigate Plaintiff. The DOJ launched an investigation to determine if Plaintiff had violated any criminal laws by publishing the book, and the DOD threatened a civil forfeiture action to recover all profits obtained from book sales. (Id. ¶ 52). In response to the DOJ investigation, Plaintiff told the Government that he had relied on Podlaski’s advice in foregoing pre-publication review, informed Defendants that he was waiving his attorney-client privilege, and requested that Defendants produce his client file to thé Government. Although, upon Plaintiffs' request, Podlaski met with Government officials in connection with the investigation, Defendants waited several months to hand over Plaintiffs file, and to this day have not produced his entire file. (Id. ¶¶ 54-57).
Plaintiff alleges that,' but for Defendants’ deficient legal advice, he would have submitted a draft of No Easy Day to the Government for pre-publication review, and—citing several books that have successfully undergone such а process and were released to the public—that review would not have prevented him from publishing and marketing the book. (Id. ¶ 59). Instead, and as a direct result of Defendants’ conduct, Plaintiff has had to defend against the DOJ investigation and the threatened DOD civil forfeiture action, which has required him to obtain new counsel at significant cost; has lost his security clearance; and has lost future employment opportunities. (Id. ¶¶ 60-64). Because .of these losses, Plaintiff brings this action for legal malpractice and breach of Defendants’ fiduciary duty to Plaintiff.
LEGAL STANDARDS
It is well established that a plaintiff bears the burden of establishing a court’s personal jurisdiction over a particular defеndant. See, e.g., Penguin Grp. (USA) Inc. v. Am. Buddha,
DISCUSSION
Where, as in this case, subject-matter jurisdiction is premised on diversity of citizenship, a court must generally “conduct a two-part inquiry when considering a motion to dismiss for lack of personal jurisdiction. First, it must determine whether the plaintiff has shown that the defendant is amenable to service of process under the forum state’s laws; and second, it must assess whether the court’s assertion of jurisdiction under these laws comports with the requirements of due process.” Reman v. Kurz-Hastings, Inc.,
A. Section 302(a)(1)
Plaintiff relies first on Section 302(a)(1), which confers jurisdiction over a non-domiciliary who “in person or through an agent ... transacts any business within the state or contracts anywhere to supply goods or services in the state.” N.Y.C.P.L.R. 302(a)(1). (Mem. Law Kevin Podlaski & Carson Boxberger LLP Supp. Mot. To Dismiss Second Am. Compl. Pursuant Rs. 12(b)(2), 12(b)(3) Alternatively, R. 12(b)(6) (Docket No. 37) (“Defs.’ Mem.”) 9-14). “[T]he overriding criterion necessary to establish a transaction of business is some act by which the defendant purposefully avails itsеlf of the privilege of conducting activities within New York.” Lied ex rel. Lied v. Lebanese Canadian Bank, SAL,
As the Second Circuit has observed, “lawyers and other professionals today transact business with their pens, their fax machines and their conference calls—not with their feet.” Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez,
.The Second Circuit’s decision in Bank Brussels Lambert is particularly instructive here. In that case, the New York-based plaintiff had recruited the defendant, a Puerto-Rico based law firm, to provide an opinion for a revolving credit agreement (“RCA”). A draft RCA provided to the defendant firm indicated that the agreement would be governed by New York law and contained a New York choice-of-forum provision; additionally, while drafting its opinion, the defendant firm communicated with the clients or their counsel in New York to discuss the opinion, аnd also responded to inquiries from those parties before transmitting its final opinion to .the banks in , New York. See
Applying those standards here, the Court is compelled to conclude that Defendants’ activities do not suffice to confer jurisdiction under Section 302(a)(1). Defendants did not solicit the business of Plaintiff, his New York-based publisher, or his New York-based agent; instead, Cheney reached out to Podlaski while he was in Indiana. Additionally, Defendants never traveled to New York, even for a day; instead, all communications between Defendants and Plaintiff, Plaintiffs agent, and Plaintiffs publisher took place from Indiana. At bottom, here, as in Bank Brussels Lambert, the conduct at issue is the provision of legal services—specifically, the performance of legal research and the rendering of legal advice—from outside of New York. See Bank Brussels Lambert,
The fact that aspects of the underlying transaction in this ease took plaсe in New York or involved New York law does not call for a different conclusion. Defendants’ engagement letter expressly limited their representation of Plaintiff to “assisting him] with the legal issues [he] may encounter in [ ][c]ontraeting with Dutton” arid “[Reviewing the publishable manuscript of [his] career to ensure [his] compliance” with nondisclosure obligations. (SAC, Ex. 3 at 1). Although Defendants provided Plaintiff, through Cheney, with suggested revisions to Plaintiffs contract with Dutton, and that contract was governed by New York law, Defendants’ own engagement letter was not governed by New York law, nor (more importantly) did Defendants agree to provide, or actually provide, representation in New York related to the contract. Accordingly, Defendants, like the defendant in Bank Brussels Lambert, never “projected themselves” into the underlying New York transaction by, for example, actively and extensively negotiating the Dutton contract on behalf of Plaintiff in New York in the first instance. (See SAC 22-24 (describing Cheney as seeking out and making initial contact with Defendants in conjunction with Dutton’s agreement to pay for legal fees)). Cf. Liberatore v. Calvino,
In short, Defendants did what they were hired to do: provide advice to Plaintiff on a contract with a New York-based publisher for a book set for national publication, and communicate with Plaintiffs team in New York regarding Plaintiffs nondisclosure obligations. What they did not do is solicit the relationship, use communications into New York to insert themselves into localized business transactions, or “engage in .extensive purposeful activity here without ever, actually setting foot in the State.” Parke-Bernet Galleries,
Next, Plaintiff relies on Section 302(a)(2), which confers jurisdiction over defendants who “commit[ ] a tortious act within the state.” (PL’s Mem. 7-8). Although Plaintiff asserts that jurisdiction over Defendants under Section 302(a)(2) is “uncontested,” his argument can be swiftly-rejected. With possible exceptions not relevant here, see Int’l Diamоnd Importers, Inc. v. Oriental Gemco (N.Y.), Inc.,
C. Section 302(a)(3)
Finally, the Court turns to Plaintiffs argument for personal jurisdiction under Section 302(a)(3)(ii), which confers jurisdiction over a defendant who “commits a tortious act without the state causing injury to person or property within the state” and “expects or should -reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” N.Y. C.P.L.R. § 302(a)(3)(h). As the. New York Court of Appeals has explained, “conferral of jurisdiction under this provision rests on five elements: First,- that defendant committed a tortious act outside the State; second, that the cause of action arises from that act; third, that the act caused injury to a person or property within the State; fourth, that defendant expected or should reasonably have expected the act to have consequences in the State; and fifth, that defendant derived substantial revenue from interstate or international commerce.” • LaMarca v. Pak-Mor Mfg. Co.,
With respect to the fourth element, courts have emphasized that “ ‘[t]he test of whether a defendant expects or should reasonably expect.his act to have consequences within the State is an objective rather than a subjective one.’ Cortlandt Racquet Club, Inc. v. Oy Saunatec, Ltd.,
Additionally, Plaintiff “point[s] to no actions or meetings that took place in New York” other than the correspondence from Defendants to Plaintiffs publishing team in New York—correspondence that, as the Court already has held, did not constitute purposeful business activity aimed at New York. Lipson v. Birch,
Plaintiffs repeatedly assert that Defendants “knew” their - activities could have consequences in New York. (Pl’s Mem. 8, 15-16). But for an exercise of jurisdiction to comport with Section 302(a)(3)(ii)—and, significantly, with due process more generally—mere knowledge is not enough. See, e.g., Walden v. Fiore, — U.S.-,
For the foregoing reasons, the Complaint is dismissed for lack of personal jurisdiction. Although Plaintiff, in passing, requests leave to amend his Complaint (Pl.’s Mem. 25), the Court denies the request. It is “within the sound discretion of the district court to grant or deny leave to amend,” McCarthy v. Dun & Bradstreet Corp.,
The Clerk of Court is directed to terminate Docket No. 36 and to close the case.
SO ORDERED.
Notes
. The copy of the contract attached to the Complaint is not signed by Plaintiff, but there appears to be no dispute that it was a valid and binding contract.
. There is some uncertainty regarding whether the foreseeability element of Section