MEMORANDUM & ORDER
Plaintiff’ David Blau (“Blau”), Trustee of the Zupnick Family Trust 2008 C (the “Trust”), brings this action against Defendant Allianz Life Insurance Compar ny of North America (“Allianz North America”)
I. BACKGROUND
A. Factual Background
1. Facts Alleged in the Complaint
The following facts are alleged in the Complaint, and are taken as true except where otherwise noted.
a. The Policy
Blau alleges that on or about July 5, 2007, Allianz North America issued a life insurance policy with a face value of $8,000,000 on the life of Dora Zupnick (the “Policy”). (Compl. (Not. of Removal (Dkt. 1), Ex. B (Dkt. 1-2)) ¶ 3; see also Policy (Aff. of David Blau in Opp’n to Def.’s Mot. to Dismiss (“Blau Aff.”) (Dkt. 15-2), Ex. A (Dkt. 15-3)) at 1 (showing Allianz North America as issuer of Policy).) According to Blau, the Policy was “delivered” in New York. (ComplA 5.) The Trust is the owner and beneficiary of the Policy. (Id. ¶ 6.) Blau is the trustee of the Trust. (Id. ¶ 1.) Zupnick was alive as of the filing of the Complaint, and therefore no demand on the Policy has been made. (Id. ¶ 35.)
Blau alleges that Allianz North America has claimed that the Policy has lapsed (id. ¶ 7), and seeks a contrary déclaration from this court “that the Policy is in full force and effect and has been continuously in full force and effect since the Policy was issued without any lapses in coverage” (id. ¶8). Specifically—although, as discussed below, without much in. the way of the particulars—Blau alleges that Allianz North America miscalculated the premiums due under the Policy and New York law (id. ¶¶ 9-15), transmitted. a deficient notice of cancellation (id. ¶¶ 16-19), and otherwise failed to comply with the terms of the Policy and “applicable law (id. ¶¶ 20-29). .........
Blau further alleges that Allíanz North America is estopped from canceling the Policy, and that Blau is, in fact, “prepared and has always been prepared to pay any outstanding premiums on the Policy.....” (Id. ¶¶ 30-32.)
b. Jurisdictional Allegations
Blau does not allege either his own citizenship or the citizenship of the Trust. He alleges that Zupnick (the insured) is a citizen of New York residing in Brooklyn (id. ¶ 4), and that Allianz North America is a Minnesota corporation “engaged in the business of selling insurance products insuring the lives of citizens of the State of New York” (id. ¶ 2; see also Decl. of Dawn B. Williams in Supp. of Allianz North
2. Additional Factual Materials Submitted by Parties
Both parties submitted additional factual materials in connection with the motion to dismiss.
Cynthia Rice, Senior Operations Manager for Allianz North America, declared that between 2008 and the present, Allianz North America has not maintained any offices in New York State; rather, business activities in New York State under the “Allianz” name are conducted by Allianz Life Insurance Company of New York (“Allianz New York”), a distinct corporate entity. (Decl. of Cynthia Rice in Supp. of Allianz North America’s Motion to Dismiss (“Rice Decl.”) (Dkt. 14-6) ¶ 3.) During that same time period, Allianz North America’s agents and employees were not authorized to solicit or sell life insurance policies in New York. (Id. ¶ 4; see also Allianz Compliance Guide to Successful Business (Rice Decl., Ex. 2 (Dkt. 14-8)) at 11 (“It is never acceptable for an agent'to ... [s]olicit or sell an Allianz Life Insurance Company of North America product in New York. Only Allianz Life Insurance Company of New York products may be sold in New York.”).) Indeed, Allianz North America is not licensed to do business in New York.'(Nee Apr. 24, 2014, Ltr. from N.Y. State Dep’t of Fin. Servs. (Not. of Removal, Ex. B) at ECF page 2 (“Allianz Life Insurance Company of
Both parties submitted the Policy (referenced throughout the Complaint) in connection with the pending motion. (See Policy (Rice Decl., Ex. 4 (Dkt. 14-10); Blau Aff., Ex. A (Dkt. 15-3)).) On the Policy application, Zupnick listed her place of residence as Brooklyn, New York, and listed the Trust’s address as Brooklyn, New York. (See Policy at ECF page 12.) The Policy itself also references the State of New Jersey in several ways.
Zupnick applied for the policy through a broker and an insurance agent, both of whom were located in New York. (See Blau Aff. ¶4; see also Policy Delivery Invoice at 1 (listing.New York address for Innovative Brokers Corp., and listing New York address for Abraham Friedman, Zupnick’s agent).) Allianz North America routinely mailed invoices and grace notices to the Trust’s address in New York. (See Blau Aff. ¶ 6; see also, e.g., Jan. 9, 2011, Not. of Premium Due (Blau Aff., Ex. C (Dkt. 15-5)); Mar. 10, 2011, Grace Period Not. (Blau Aff., Ex. E (Dkt. 15-7)); Apr. 9,
B. Procedural History
1. Removal from New York Supreme Court
Blau originally filed the instant action in New York Supreme Court, Kings County, Index No. 502877/2014. (See Not. of Removal.) On May 22, 2014, Allianz North America removed the action to this court on the basis of diversity jurisdiction. (See id. at 1-4.) During a pre-motion conference held on July 1, 2014, the court granted Allianz North America leave to file its motion to dismiss. (See July 1, 2014, Min. Entry.)
2. Service of Process
Allianz North'America received notice of Blau’s state court action by mail from the Minnesota Secretary of State on April 22, 2014. (See Decl. of Sandra Gudvangen in Supp. of Allianz North America’s Not. of Removal (“Gudvangen Deck”) (Dkt. 2) ¶ 8; Not. of Removal, Ex. A (Dkt. 1-1).) Allianz North America also received notice of Blau’s state court action by mail from DFS on April 28, 2014. (See Gudvangen Deck 4; Not. of Removal, Ex. B (Dkt. 1-2).) As of September. 2, 2014, the date on which the motion to dismiss-was filed, “Allianz [North America] ha[d] hot received from the plaintiff in this matter, via certified or registered mail with return receipt requested, any notice or a copy of process served upon the New York Department of Financial Services.” (Rice Deck ¶ 5.)
However, according to Blau’s counsel, as of August 8, 2014 (the day Blau served his opposition brief), “[Blau] [was] in the process of re-serving the summons and complaint upon Allianz.” (Deck of Alexander J. Sperber in Opp’n to Def.’s Mot. to Dismiss (Dkt. 15-1) ¶2.) Indeed, on August 21, 2014, Blau electronically filed a letter dated August 14, 2014, from DFS (See Aug. 14, 2014, Ltr. from DFS (Dkt. 13).) The letter references Allianz New York in the subject line and the main text, and notifies the recipients that Allianz New York was served via DFS on August 12, 2014. (Id. at 1.) The letter references the Supreme Court, State of New York, and also references the docket number “CV-3202,” which matches the docket number in this court. (Id.) Allianz North America is not mentioned anywhere in the letter;the closing notes that a duplicate was sent to “Defendant,” listed in the letter as “Allianz Life Insurance Company New York.” (Id.)
II. LEGAL STANDARDS
A. Personal Jurisdiction
“In deciding a pretrial motion to dismiss for lack of personal jurisdiction a district court has considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion.” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A.,
“Personal jurisdiction of a federal court over a non-resident defendant is governed by the law of the state in which the court sits—subject, of course, to certain constitutional limitations of due process.” Henderson v. I.N.S.,
1. Potential Statutory .Bases
Section 301 of the New York Civil Practice Law and Rules (“CPLR”) confers “general” personal jurisdiction over a non-domiciliary defendant on causes of action unrelated to conduct in New York State where the defendant is “‘present’ within the State by virtue of their ‘doing business’ here.” McGowan v. Smith,
“Specific” personal jurisdiction is governed by New York’s long-arm statute, CPLR section 302(a), which confers personal jurisdiction over a non-domiciliary for certain acts by the non-domiciliary. Relevant here, section 302(a)(1) confers jurisdiction where the defendant “transacts any business within the state or contracts anywhere to' supply goods or services in the state,” and the cause of action arises out of that conduct. See A.I. Trade Fin., Inc. v. Petra Bank,
Finally, New York Insurance Law § 1213 provides an alternative basis of “subject[ing] certain insurers to the jurisdiction of the courts of this state in suits by or on behalf of insureds or beneficiaries under certain insurance contracts.” N.Y. Ins. Law § 1213(a). Specifically, section 1213 applies to insurers that are not otherwise authorized or licensed to do business in New York. Id. Section 1213(b)(1) provides that:”[a]ny of the following acts, in this state, effected by mail or otherwise, ... is equivalent to and constitutes [the unauthorized insurer’s] appointment of the superintendent [of the DFS], and his successors in office, to be its true and lawful attorney upon whom may be served all lawful process in any proceeding instituted by or on behalf of an insured or beneficiary arising out of any such contract of insurance”:
(A) the issuance or delivery of contracts of insurance to residents of this state or to corporations authorized to do business therein,
(B) the solicitation of applications for such contracts,
(C) the collection of premiums, membership fees, assessments or other considerations for such contracts, or
(D) any other transaction of business ....
Id. § 1213(b)(1).
2. Due Process Inquiry
To determine if the exercise of personal jurisdiction comports with due process, the court analyzes: (1) whether the defendant had certain minimum contacts with the forum state, and (2) whether it would be reasonable for the court to exercise jurisdiction over the defendant. See Chloe v. Queen Bee of Beverly Hills, LLC,
A defendant has sufficient “minimal contacts” with the forum state when it “purposefully avails itself of the privilege of conducting activities within the forum State,” Burger King Corp. v. Rudzewicz,
Second, the reasonableness inquiry “asks whether the assertion of personal jui’isdiction comports with ‘traditional notions of fair play and substantial justice.’ ” Metro. Life Ins. Co. v. Robertson-Ceco Corp.,
(1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiffs interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies.
U.S. Titan,
B. Service of Process
“When a defendant moves to dismiss under Rule 12(b)(5), the plaintiff bears the burden of proving adequate service.” Dickerson v. Napolitano,
Under Federal Rule of Civil Procedure 4(h)(1), service may be effected upon a corporation domestically in the following manners:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant.
Fed.R.Civ.P. 4(h)(1). Rule 4(e)(1), in turn, provides that a plaintiff may serve a defendant by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1).
C. Failure to State a Claim
Federal Rule of Civil Procedure 8(a)(2) requires a plaintiff to plead a “short and plain statement of the claim,” Fed.R.Civ.P. 8(a)(2), “in order to give the defendant fair notice of what the claim is and the grounds upon which it rests,” Keiler v. Harlequin Enters. Ltd.,
The purpose of a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to test the legal sufficiency of a plaintiffs claims' for relief. Patane v. Clark,
A complaint will survive a motion to dismiss if it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
III. DISCUSSION
As discussed further below, the court holds that Blau has made a prima facie showing that the court has personal jurisdiction over Allianz North America. Blau has not, however, made a prima facie showing of effective service, and, more significantly, has failed to state a claim in the Complaint. Accordingly, the court grants without prejudice Allianz’s motion to dismiss for failure to state a claim under Rule 12(b)(6), grants Blau leave to file an amended complaint, and should he file an amended complaint, directs Blau to serve it properly pursuant to Federal Rule of Civil Procedure 4, as if it was the initial pleading in this action.
A. Personal Jurisdiction over Allianz North América
The court has not.held an evidentiary hearing regarding Allianz North America’s personal jurisdiction defense. Accordingly, the court must determine, at this stage in the proceeding, whether Blau has made a prima facie showing that the court has personal jurisdiction over Allianz North America. The court concludes that Blau has not made such a showing under section 301 of the CPLR or section 1213 of the New York Insurance Law, but has made such a showing under section 302(a)(1) of the CPLR.
1. General Personal Jurisdiction
As an initial matter, although Blau entitled a section of his opposition brief “general jurisdiction,” he actually only argues that the court has specific personal jurisdiction over Allianz North America. (See Blau’s Mem. of Law in Opp’n to Def.’s Mot. to Dismiss the Compl. (“Blau Mem.”) (Dkt. 15) at 10-12 (discussing only section 302(a) of the CPLR (the long-arm
2. Specific Personal Jurisdiction
a. New York Insurance Law § 1213(b)
Blau argues that section 1213(b) of the New York Insurance Law confers personal jurisdiction over Allianz North America in the precise scenario at issue here—an insurance company not' authorized to do business in New York insured the life of a New York resident, and collected by mail premiums from a payor located in New York. (See Blau’s Mem. at 8-9 (citing N.Y. Ins. Law § 1213(b)(1)(C)).) Allianz North America counters that section 1213(b) only confers jurisdiction (under any of its provisions, subsection (b)(1)(C) included) where the relevant insurance policy was delivered in or mailed to New York. (See Allianz North America’s Mem. of Law in Supp. of Mot. to Dismiss the Compl. (“Allianz N. Am. Mem.”) (Dkt. 14-1) at 5-7.)
Although • the language of the statute could be clearer, Blau reads it too broadly, and ignores several decisions by New York State courts and federal district courts discussing section 1213. Cf Danaher Corp. v. Travelers Indent. Co., No, 10-CV-121 (JPO),
be read in conjunction with the legislative intent of the statute, which is codified in section 1213(a):
The purpose of this'section is to subject certain insurers to the jurisdiction of the courts of this state in suits by or on behalf of insureds or beneficiaries under certain insurance contracts. The legislature declares that it is a subject of concern that many residents of this state hold policies of insurance issued or delivered in this state by insurers while not authorized to do business in this state, thus presenting to such residents the often insuperable obstacle of resorting to distant forums for the purpose of asserting legal rights under such' policies.
N.Y. Ins. Law § 1213(a) (emphasis added). “[T]he intended beneficiaries of this section are New York residents who ‘hold policies of insurance issued or delivered in this state____’” Am. Indep. Ins. v. Heights Chiropractic Care, P.C.,
Blau is correct that section 1213(b)’s purpose is to subject unauthorized foreign and alien insurers tó jurisdiction in New York (see Blau Mem. at 9), but section 1213(b) does not confer personal jurisdiction oyer a life insurance company simply by virtue of it insuring the life of a New York resident via a policy delivered in another state.
Blau further argues that jurisdiction is proper under the terms of section 1213(b)(1)(C), since Allianz North America has mailed premium invoices to a New York address, thereby “collecting” premiums in New York. See N.Y. Ins. Law § 1213(b)(1) (“Any of the following acts in this state, effected by mail or otherwise, by an unauthorized foreign or alien insurer ... (C) the collection of premiums, membership fees, assessments or other considerations for such contracts, ... is equivalent to and constitutes its appointment of the superintendent, and his successors in
If read broadly, certain of the cases cited by Blau do support his argument, although none are directly on point. See, e.g., Constantine v. Stella Maris Ins. Co.,
Finally, section 1213(b)(1)(D) of the Insurance Law also does not confer jurisdiction over Allianz North America. That provision confers jurisdiction for “any other transaction of business,” but again must be considered in light of section 1213(b)(1)’s introductory language making clear that it applies to “[a]ny of the following acts in this state, effected by mail or otherwise, by an unauthorized foreign or alien insurer.” (emphasis added). Courts that have construed this provision have concluded that it is duplicative of the “transacting business” provision of the long-arm statute, CPLR section 302(a)(1). See, e.g., Danaher II,
b. Long-arm Jurisdiction Under CPLR Section 302(a)(1)
Blau next argues that CPLR section 302(a)(1) confers personal jurisdiction over Allianz North America for purposes of this case (see Blau Mem. at 10-12), and that such jurisdiction would comport with due process requirements (see id. at 12-14). Allianz North America responds that CPLR section 302(a)(1) does not confer personal jurisdiction, since the company has not transacted any business in New York State, and that even if the language of CPLR section 302(a)(1) purported to confer jurisdiction, the extension of jurisdiction given the facts at issue would violate the Due Process Clause of the Fourteenth Amendment. (See Allianz N. Am. Mem. at 7; Allianz N. Am. Reply at 3-7.)
CPLR section 302(a)(1) provides that a court has personal jurisdiction over a non-domiciliary where the non-domiciliary “transacts any business within the state or contracts anywhere to supply goods or services in the state,” and the cause of action arises out of such action. CPLR. section 302(a)(1) thus contains two separate bases for jurisdiction—(i) transacting business within the state, or (ii) contracting anywhere to supply goods or services in the state.
Although his briefing could be clearer, Blau asserts that Allianz North America’s aggregate conduct rendered its activities a “transaction of business within the state,” and further. argues that Allianz North America has contracted to provide a service within the state. Specifically, Blau asserts that Allianz North America (1) used-unaffiliated insurance brokers and insurance agents who were located in New York State (Blau Aff. ¶ 4); (2) knowingly issued a policy to a New York resident (see Policy at ECF page 12 (indicating that Zupnick resided in Brooklyn, New York at the time she completed the Policy application)); (3) mailed invoices and notices related to the Policy to the Trust’s address in New York (Blau Aff. ¶ 6); (4) communicated with Blau’s agents when they telephoned the company from within New York (id. ¶ 7); (5) received checks drawing on New York banks sent to its out-of-state offices from- within New York (id. 8); (6) received correspondence related to . the Policy sent from within New York (id. ¶ 9); and (7) sent investigators to New York on one occasion to determine whether the Policy was issued upon a fraudulent application (id. ¶ 10). Although Blau admits that certain of these activities did not physically occur within New York, he emphasizes that “[a] defendant need not physically enter New York State in order to transact business, ‘so long as the defendant’s activities here were purposeful.’ ” Licci v. Lebanese Canadian Bank, SAL,
As a starting point, the existence of a contract between an out-of-state defendant and a citizen of the forum state, on its own, generally does not establish per
However, where an insurer located elsewhere contracts to insure a risk within New York State, courts have held that the insurer has contracted to perform a service in New York, and therefore Blau has made a prima facie showing that personal jurisdiction is proper in this case under section 302(a)(1). For example, in Armada Supply Inc. v. Wright, the Second Circuit held that jurisdiction was proper over a Brazilian insurer who insured cargo en route to New York by ship.
Allianz North America does not contest that Blau has satisfied the second prong of the section 302(a)(1) analysis—that this action “arises from” Allianz North America’s contract with Zupnick. Finally, because the court concludes, at this stage, that Blau has made a prima facie showing of personal jurisdiction under the “contracts anywhere” provision of CPLR section 302(a)(1), the court need not determine whether he has made a sufficient showing under the “transacts business” provision of the same statute.
c. Due Process Analysis
Allianz North. America argues that -if there is a statutory basis for personal jurisdiction over it, litigation of this case in New York would violate its due process rights., (See Allianz N. Am. Mem. at 5 n. 2; Allianz N. Am. Reply at 6-7.) The court disagrees.
First, the court finds that Allianz North America has had minimum contacts with the forum state to render jurisdiction proper—namely, it apparently knowingly contracted to provide continuing life insurance coverage to a person residing in New York State. See Danaher II,
Walden v. Fiore, — U.S. -,
While Walden may affect the jurisdictional analysis for jurisdiction predicated on CPLR section 302(a)(3)—where a defendant is alleged to have committed “a tortious act without the state causing injury to person or property within the state”—it is less relevant here, for jurisdiction predicated on CPLR section 302(a)(1)—where an action arises out of Allianz North America contracting to provide a service in New York State to a New York State resident. Of course, Walden’s warnings that “it is the defendant’s conduct that must form the necessary connection with the forum State,” and “a defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction,” apply in all cases. Id. at 1122-23. Here,' Allianz North America’s minimum contacts with the forum include more than merely entering into a contract with a New York resident. Rather, Allianz North America entered into a contract with a New York resident under which it agreed to provide a service in New York State; this fact satisfies the minimum contacts inquiry. See, e.g., Allianz Glob. Corp. & Specialty v. Adran
Second, the court must weigh •whether it would be reasonable, to exercise jurisdiction over Allianz North America— in other words, whether the exercise of jurisdiction- would offend traditional notions of fair play and substantial justice. Litigating this case in New. York will impose no more burden on Allianz North America than litigating in another forum (for example, New Jersey) away from its home office; on the other hand, litigating in New York is likely convenient for Blau. See McGee v. Int’l Life Ins. Co.,
Finally, the court notes that “a contrary conclusion regarding due process is foreclosed by the Court’s determination that jurisdiction is proper under CPLR § 302(a), which has- narrower boundaries
B. Service of Process
Even where personal jurisdiction over a defendant is proper, the defendant must be properly served with notice of the action. Cf. Flick v. Stewart-Warner Corp.,
1. Inadequate Service
Where an action is removed to federal court before the plaintiff accomplishes service of the initial complaint, Federal Rule of Civil Procedure 4 governs service of process. See Fed.R.Civ.P. 81(c) (providing that Federal Rules of Civil Procedure apply upon removal);. see also 28 U.S.C. § 1448 (“In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.”). Regarding the method of service, Rule 4, in turn, incorporates state law methods, but also provides for alternative methods available in federal court. Rule 4(h) governs serving a corporation, such as Allianz North America. It provides that a corporation may be served by following the law of the state where the district court is located or where service is made, see Fed.R.Civ.P. 4(h)(1)(A) (referencing state law rules for serving an individual contained in Rule 4(e)(1)), or “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant,” Fed.R.Civ.P. 4(h)(1)(B).
To date, Blau has attempted to serve Allianz North America on three occasions. Two attempts were attempted through DFS under section 1213 of the New York Insurance law. But the court has already determined that jurisdiction under section 1213 does not apply to this action. See supra Part III.A.2.a. Accordingly, the method of service delineated in section 1213(b)(2) is not applicable here, even if Blau had complied with the statutory terms. (See also Allianz N. Am. Reply at 7-8 (arguing that Bláu in fact failed to comply with section 1213(b)(2)’s terms on two separate occasions).)
Blau’s attempt to serve Allianz North America through the Minnesota Secretary of State was also deficient. As discussed above, the Federal Rules of Civil Procedure incorporate state law methods of service of process, see Fed.R.Civ.P. 4(h)(1)(A), and also provide an alternative
Finally, Blau has failed to make a prima facie showing that he complied with Rule 4(h)(1)(B), as he fails to show that he delivered a copy of the summons and of the Complaint to an officer or agent of Allianz North America. (See also Rice Deck ¶ 6.)
2. Consequences of Inadequate Service
Allianz North America argues that Blau’s failure to serve the Complaint within 120 days of filing it in state court— or, more accurately, within 120 days of Allianz North America’s notice of removal, see G.G.G. Pizza, Inc. v. Domino’s Pizza, Inc.,
If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time'. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed.R.Civ.P. 4(m). While Allianz North America characterizes the rule as requiring dismissal if service is not completed within 120 days of removal, the Second Circuit has interpreted Rule 4(m) “to give wide latitude to courts in deciding when to grant extensions on time to serve, including permitting courts to grant extensions even absent good cause.” Gerena v. Korb,
Although the Complaint was originally filed in New York State court; upon removal, it must comply with the Federal Rules of Civil Procedure. See Fed. R.Civ.P. 81(c). (Cf. Allianz N. Am. Reply at 9 (“Notably, not a single case cited in [Blau’s] opposition addresses federal pleading standards.”).) Here, the Complaint lacks sufficient factual allegations to put Allianz North America on notice of the claim against it, and to allow the court to adjudicate Blau’s request for a declaratory judgment. Accordingly, the motion to dismiss for failure to state a claim is granted without prejudice.
A plaintiff must provide a “statement of circumstances, occurrences, and events in support of the claim presented,” and cannot make a “bare averment that he wants relief and is entitled to it.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n. 3,
Here, in addition to being quite vague, the bulk of the allegations in the Complaint are conclusory rather than factual. (See, e.g., Compl. ¶22 (“Allianz did not comply with statutory notice requirements.”), ¶30 (“Allianz is estopped from canceling the Policy.”), ¶ 33 (“Under case law and applicable statute [Allianz’s] attempt to cancel the Policy is unlawful.”).) The only specific factual allegations contained in the Complaint are that Blau is the trustee of the Trust (id. ¶ 1); on July 5, 2007, Allianz North America issued a life insurance policy on the life of Zupnick (a New York resident) in the amount of $8,000,000 (id. ¶¶2-4); said Policy was delivered in New York (id. ¶ 5); and the Trust is the owner and beneficiary of the Policy (id. ¶6). Blau further alleges, in conclusory fashion, that “Allianz has alleged that the Policy lapsed” (id. ¶ 7), but does not provide any additional detail concerning this contention. The remaining allegations relate to purported premium payments, notices, and miscalculations, but lack any specifics concerning dates, timing, amounts, or the contractual provisions at issue. (See, e.g., id. ¶ 10 (“Allianz miscalculated premiums due under the Policy.”), ¶ 18 (“Allianz’s purported notice of cancellation failed to provide the correct grace period provided by the Policy.”).)
Such conclusory allegations fail to put Allianz North America on notice of the claim, made against it, and prohibit the court from inferring at this stage that Blau is entitled to declaratory relief concerning the viability of the Policy. See Danaher Corp. v. Travelers Indem. Corp., No. 10-GV-121 (JPO),
Citing to coverage disputes decided in New York State courts,- Blau prematurely jumps to a substantive discussion of potentially governing statutes and regulations. (See Blau Mem. at 14-19.) But, as Allianz North America correctly points out, it “and this [c]ourt cannot address the merits of [Blau’s] claims because there is no way of knowing what they are” based on the limited, non-conclusory facts alleged in the Complaint. (Allianz N. Am. Reply at 9.) It is not enough to describe the potentially governing 'law (see, e.g., Blau Mem. at 16 (describing statutory grace .period and arguing that Allianz North America failed to comply with governing law));, rather,. Blau must allege actual facts concerning this particular Policy, Allianz North America’s servicing of the Policy, and Allianz North America’s purported claim that the Policy has lapsed. Blau “cannot ignore the pleading requirements simply because the parties may be familiar with the underlying facts.” Danaher I,
Accordingly, Allianz North America’s motion to dismiss for failure to state a claim is granted without prejudice. Given the nature of the factual gaps in the Complaint, Blau may be able to cure the issues by amendment. As discussed further below, the court grants Blau leave to file (and then properly serve) an amended complaint by September 18, 2015. See Fed.R.Civ.P. 81(c)(2) (“After removal, re-pleading is unnecessary unless the court orders it.”).
IV. CONCLUSION
For the reasons set forth above, Allianz North America’s motion to dismiss the Complaint is GRANTED WITHOUT PREJUDICE for failure to state a claim. The court DIRECTS Blau to take the following actions, if he chooses:
• By September 18, 2015, (1) electronically file an amended complaint addressing the deficiencies in the original Complaint, and (2) request a signed summons from the Clerk of Court by submitting with the amended complaint a proposed Summons in a Civil Action, see Fed.R.Civ.P. 4(a)(1), (b).
• Within fourteen (14) days of receiving the signed summons from the Clerk of Court, serve, the signed summons and amended complaint on Allianz North America in compliance with Federal Rule of Civil Procedure 4(h)(1)(A) or (B). Alternatively, should Blau seek to, request a waiver of service from Allianz North America pursuant to Federal Rule of Civil Procedure 4(d)(1), he must request the waiver from Allianz North America within fourteen (14) days of receiving the signed summons from the Clerk of Court.
• Within forty-five (45) days of receiving the signed summons from the Clerk of'
Notes
. The court refers to Defendant as "Allianz North America"- in order to distinguish it from non-party affiliate Allianz Life Insurance Company of New York. See infra Part I.A.2.
. In the alternative to its Rule 12(b)(6) motion to dismiss for failure to state a claim, Allianz North America requests that the court order Blau to provide a more definite statement pursuant to,Rule 12(e). (See Allianz North America’s Mem. of Law in Supp. of Mot. to Dismiss the Compl. (Dkt, 14-1) at 14 n. 6.) Because the court grants the motion to dismiss for failure to state a claim, it does not
. In deciding a motion to dismiss for lack of personal jurisdiction, the court may consider factual issues beyond the pleadings. See Marine Midland Bank, N.A. v. Miller,
Similarly, in deciding a motion to dismiss for insufficient service of process, the court may consider materials outside of the pleadings without converting the motion into one for summary judgment. See, e.g., Darden v. DaimlerChrysler N. Am. Holding Corp.,
Finally, even where the defendant only moves to dismiss pursuant to Rule 12(b)(6) (and not on jurisdictional or other grounds that allow for consideration of materials outside of the pleadings), a court is permitted to consider “documents attached to the complaint as an exhibit or incorporated in it by reference,” such as the life insurance policy itself. See, e.g., Strom v. Goldman, Sachs & Co.,
. Based on the court's review of the Policy, it does not appear to contain a choice-of-law provision or a forum selection clause.
. “Delivery” is a term-of-art in the insurance context, and the place in which an insurance contract is delivered may affect which substantive law and regulations govern the policy. See, e.g., N.Y. Ins. Law § 3211(a) ("No policy of life insurance ... delivered or issued for delivery in this state ... shall terminate or lapse by reason of default in payment of any premium, installment, or interest on any policy loan in less than one year after such default, unless, for scheduled premium policies, a notice shall have been duly mailed at least fifteen and not more than forty-five days prior to the day when such payment becomes due----” (emphasis added)). Ultimately, a plaintiff seeking to take advantage of insurance regulations such as section 3211 must prove "that the policy was physically delivered in New York before she [is] entitled to the benefit of the statute's provisions.” Bretschger v. Home Life Ins. Co.,
. A defendant waives its personal jurisdiction defense by failing to raise it in its responsive pleading. See Fed.R.Civ.P. 12(h)(1). However, the initial removal of an action to federal court from state court does not constitute a waiver of a defendant’s personal jurisdiction defense. See Cantor Fitzgerald, L.P. v. Peaslee,
. Although Blau alleged in the Complaint that the Policy was delivered in New York (see Compl. ¶ 5), his affidavit opposing the motion, to dismiss does not aver that the Policy was delivered in New York—instead, Blau asserts only that Zupnick's broker and agent were located in New York (Blau Aff. ¶ 4). Indeed, in the affidavit, Blau references Zupnick’s Policy application, which as discussed above, is appended to the Policy itself. (Id. ¶ 3.) And, significantly, Blau attached as an exhibit to the affidavit the Policy and application, which were signed by Zupnick, and which expressly provide that Zupnick signed in Hackensack, New Jersey. (Policy at ECF page 20.) Although Blau’s memorandum in opposition to the motion to dismiss is not entirely clear, it appears that he now admits (albeit only in characterizing Allianz North America's own argument) that the Policy wás delivered in New Jersey, and not New York. (See Blau Mem at 4 (“Allianz now feigns disbelief that it has been ‘dragged’ into a New York court to litigate the policy and asks this Court to dismiss the action because the policy was delivered in New Jersey.”).) Here; where "the allegations of a complaint are contradicted by documents made a part thereof, the document controls and the court need not accept as true the allegations of the complaint.” Barnum v. Millbrook Care Ltd. P’ship,
The court recognizes that in Dorchester Financial Securities, Inc. v. Banco BRJ, S.A., the Second Circuit rejected a line of decisions from the Southern District of New York that permitted a defendant moving to dismiss under Rule 12(b)(2) to gain dismissal by rebutting a plaintiff's - "unsupported allegations” with “direct, highly specific testimonial evidence regarding a fact essential to jurisdiction.”
. The court also addressed the insurer’s due process argument under World-Wide Volkswagen v. Woodson,
. In holding that Blau has made a prima facie showing that jurisdiction is proper under section 302(a)(1), the court does not determine, at this stage of the litigation, whether New York law, or the law of some other state, applies to the Policy and to the parties' dispute over coverage.
. Also relevant to the due .process analysis (but not cited by the parties) is McGee v. International Life Insurance Co.,