The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 1-8; 20-26 Answering Papers 9-10; 30 Reply 11-12 Briefs: Plaintiff’s/Petitioner’s 4 Defendant’s/Respondent’s The Legal Aid Society of Suffolk County (LAS) petitions this Court for pre-action discovery to compel the entity known as Indeed, Inc. (Indeed), an employment-related computer search engine for job listings, to produce documents revealing the identity of John Doe, an individual who posted a review of the LAS, that the LAS claims is false and defamatory (Motion Sequence 001). Indeed opposes the requested relief. Separately, John Doe, who is represented by counsel, seeks to intervene in this action and opposes the disclosure of his/her identity to the LAS, requesting that the LAS application for pre-action discovery be denied (Motion Sequence 002). The LAS does not object to John Doe’s intervention into this action, but the LAS opposes dismissal of its application for preaction discovery. Indeed has not taken a position on Motion Sequence 002. Indeed and Doe each claim that petitioner LAS has failed to acquire personal jurisdiction over Indeed, and that the review in question is protected by the First Amendment. John Doe’s Application To Intervene John Doe makes this application pursuant to CPLR §§1012 and 1013. CPLR §1012 provides three narrow grounds for intervention as a matter of right, and CPLR §1013 allows for intervention in the court’s discretion. CPLR §1012 (a) (2) provides that, “[u]pon timely motion, any person shall be permitted to intervene in any action…when the representation of the person’s interest by the parties is or may be inadequate and the person is or may be bound by the judgment.” CPLR §1013 provides in pertinent part that, “any person may be permitted to intervene in any action…when the person’s claim or defense and the main action have a common question of law or fact. In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party” (emphasis added). Here, the Court agrees with Doe’s argument that “the party with the greatest stake in the outcome of the instant action is the movant [Doe]” since the LAS seeks to sue Doe, not Indeed, for defamation. It is settled that intervention should be permitted where the intervenor has a substantial interest in the outcome of the proceedings regardless whether intervention is sought as a matter of right under CPLR §1012, or as a matter of discretion pursuant to CPLR §1013 (Matter of Sclafani Petroleum, Inc., 173 AD3d 1042 [2d Dept 2019]; Berkoski v. Board of Trustees of the Incorporated Village of Southampton, 67 AD3d 840 [2d Dept 2009]). Although intervenor Doe has not accompanied his/her application with a proposed pleading setting forth the claim or defense for which intervention is sought (CPLR §1014), this Court determines that the omission is not fatal to Doe’s application for three reasons. First, the LAS does not object to Doe’s intervention into this action. Second, the LAS did not raise Doe’s failure to comply with CPLR §1014 in its responding papers (Ironshore Indemnity, Inc. v. W & W Glass, LLC, 151 AD3d 511 [1st Dept 2017]; Ronen v. Cohen, 126 D3d 487 [1st Dept 2015]; cf. Zehnder v. State, 266 AD2d 224 [2d Dept 1999]), and third, the application in support of intervention makes clear the proposed defenses and the LAS does not allege any prejudice based upon the lack of a proposed pleading (see Ryder v. Travelers Insurance Company, 37 AD2d 797 [4th Dept 1971]). Accordingly, John Doe’s application for intervention is granted. The Petition For Pre-Action Discovery of Doe’s Identity Asserting that the posting on the Indeed.com website is defamatory, the LAS seeks the identity of the individual who posted it on July 23, 2019 in order that the LAS can sue that individual for defamation.1 It is undisputed that the LAS does not seek to commence an action against respondent Indeed (Affirmation in Reply, p. 1). The LAS has attached a copy of the posted review to its application for pre-action discovery. That posting is entitled “Inept Management and Culture of Fear,” and is attributed to “Staff Attorney (Current Employee) — Riverhead, NY — July 23, 2019.” The LAS contends that the subject review “contained false statements and recommended to prospective employees of Petitioner not to accept employment with Petitioner.” The LAS enumerates in its petition the statements contained in the review that are allegedly false, and the LAS contends that the speech is not protected, privileged, or authorized, and constitutes defamation per se. The LAS further asserts that it has suffered injury due to this review, specifically that there is a “loss of qualified candidates for employment: potential employees who will not submit applications for consideration…and potential employees offered employment with Petitioner will decline these offers.”2 Because the allegedly false statements are claimed to have injured petitioner in its trade, business or profession, the LAS maintains that the statements are defamation per se. In opposition thereto, Indeed and John Doe each argue that Indeed is not subject to personal jurisdiction in this action. Indeed and John Doe each also contend that Doe’s anonymous review is protected by the First Amendment to the Constitution of the United States, and that petitioner, as a public figure, has failed to meet the heightened pleading standard that the alleged defamatory statements were made with actual malice and with reckless disregard for the truth. Personal Jurisdiction The Court takes judicial notice of New York State’s (NYS) Department of State records reflecting that Indeed, Inc. is listed as a foreign business corporation, incorporated in Delaware, with a principal executive office located in Texas, and an address for service of process at 28 Liberty Street, New York, New York.3 According to the affirmation of service annexed to the LAS petition, counsel mailed what he has denominated as a “Notice of Motion for Disclosure Prior to Commencement of Action” to Indeed, Inc., at 28 Liberty Street, New York, NY, on August 22, 2019. Within the moving papers, the LAS refers to itself as the petitioner and to Indeed as the respondent. “A motion is an application for incidental relief in the course of litigation…some motions, like the one under CPLR 3102 (c) for pre-action disclosure, are made even before commencement of the action through the vehicle of a special proceeding. See Practice Commentary CPLR 3102, C3102:6…” (Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 2211:3; see also Bumpus v. New York City Transit Authority, 66 AD3d 26, 33 [2d Dept 2009] [request for pre-action disclosure should be sought by means of a special proceeding pursuant to CPLR Article 4]). “In an ordinary action, motion papers need only be served on the adverse party’s attorney because jurisdiction of the plaintiff’s and defendant’s person has already been secured…When disclosure is sought before commencement of an action and no jurisdiction has been secured against any party, procedural problems arise…A request for pre-action disclosure is best sought by a special proceeding [but] [a]n ordinary notice of motion has been used to bring on the application for pre-action disclosure. If proceeding in this fashion, it is best to see to it that the motion papers are served on the respondent from whom disclosure is sought and all potential parties by the same means and within the same territorial areas as would govern service of a summons. See CPLR 308, 313…If a party has made a motion for pre-action disclosure and desires to convert it to a special proceeding, it can seek such relief from the court. See CPLR 103 (c)…The party must, however, be able to establish that jurisdiction over the respondent was secured” (emphasis added) (Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3102:6). The LAS’s “enclosing [the motion papers] in a sealed wrapper, properly addressed, postage prepaid and deposit[ing] it in a U.S. Postal Service receptacle” (Affirmation of Service of Leo Cuomo, Esq.) does not comport with any statutorily provided procedure to acquire jurisdiction over the respondent, Indeed, Inc. The moving papers in this action were not served in the same manner as a summons (CPLR §403 [c]). Furthermore, the LAS has not requested that this Court convert this motion to a special proceeding, nor could it, since the LAS cannot establish that jurisdiction over respondent Indeed was ever obtained by the mere mailing of the papers. As noted by Indeed in opposition, the LAS “asserts no facts to support jurisdiction over Indeed in this matter, and the motion should be denied on that basis alone” (Affirmation in Opposition, p. 2). Furthermore, Indeed is a foreign corporation (Delaware) with its principal place of business in Texas. Accordingly, it is not subject to general personal jurisdiction in New York merely by virtue of the fact that it has registered itself with NYS’s Secretary of State (BNSF Railway Co., v. Tyrrell, 137 S. Ct. 1549, 1559 [2017]). While a court can exercise general jurisdiction over a foreign corporation pursuant to CPLR §301, it can only do so “when the corporation’s affiliations with the State in which suit is brought are so constant and pervasive” such that the corporation is at home in the forum State (Daimler AG v. Bauman, 571 US 117, 122 [2014]). Since Daimler, the mere act of registering to do business in New York has been held insufficient to confer general jurisdiction over a foreign corporation where, as here, New York is neither Indeed’s state of incorporation nor its principal place of business (Famular v. Whirlpool Corporation, 2017 US Dist LEXIS 8265 [SDNY 2017]; Bonkowski v. HP Hood, LLC, 2016 US Dist LEXIS 116492 [EDNY 2016]; Chatwal Hotels & Resorts LLC v. The Dollywood Company, 90 F Supp3d 97, 103 [SDNY 2015]; see also Kline v. Facebook, Inc., 62 Misc 3d 1207 [A] [Sup Ct New York County 2019]; Amelius v. Grand Imperial LLC, 57 Misc 3d 835, 849 [Sup Ct New York County 2017]). As were the circumstances in the matter of Brown v. Lockheed Martin Corp. (814 F3d 619 [2d Cir 2016), New York's business registration statutes (Business Corporation Law §§1301, 1304 [a]), like Connecticut’s, do not specifically require the foreign corporation to execute a form in which it explicitly consents to subject itself to general jurisdiction in the courts of New York (Amelius, supra at 852), thereby implicating due process considerations (Wilderness USA, Inc. v. Deangelo Bros. LLC, 265 FSupp3d 301, 313-314 [WDNY 2017]). Indeed is also not subject to specific personal jurisdiction in this action because New York’s long-arm statute (CPLR §302) does not apply under the present circumstances. In pertinent part, the statute provides as follows: (a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary…(emphasis added). Generally, when a respondent in a special proceeding seeking pre-action discovery is not also a defendant or prospective defendant against whom the party seeking disclosure brings, or will bring, a cause of action, the long-arm statute does not serve to confer jurisdiction over the non-party respondent (see Amelius, supra [no specific jurisdiction over Yelp, Inc., a nonparty foreign corporation, objecting to complying with subpoena on First Amendment grounds]; Matter of Fidelity National Title Insurance Co., 34 Misc 3d 508 [Sup Ct New York County 2011] [application for pre-action discovery denied where respondent was not a defendant in a cause of action; therefore, long-arm statute inapplicable]; cf. Doe v. Roman Catholic Archdiocese of New York, 2019 NY Misc LEXIS 4152 [Sup Ct Westchester County 2019] [pre-action discovery application granted and long-arm statute applicable because petitioner alleges that respondent in the special proceeding is also the person who is alleged to have molested petitioner, thereby asserting a cause of action against respondent]). Here, as noted, the LAS’s moving papers are devoid of any stated basis for jurisdiction over Indeed, and in response to Indeed’s and Doe’s argument concerning lack of jurisdiction, the LAS merely states that it is not seeking to commence an action against Indeed; therefore, and without relying upon any legal authority, the LAS maintains that “jurisdiction is not relevant to this motion for pre-action discovery.” Contrary to the LAS’s unsupported claim that “jurisdiction is not relevant” in this action are the provisions of the CPLR discussed above, namely CPLR §§308, 313, 403, 2211 and 3102, the interpretation of these statutes as set forth in the Practice Commentaries, and the relevant case law as discussed. The ultimate burden of proving a basis for personal jurisdiction rests with the party asserting jurisdiction, herein the LAS (Leuthner v. Homewood Suites by Hilton, 151 AD3d 1042, 1043, [2d Dept 2017]). Based upon the complete lack of legal precedent for its statement that “jurisdiction is not relevant,” its failure to allege any facts supporting jurisdiction over Indeed, and the undisputed evidence that its application was merely mailed to Indeed, the LAS has failed to establish that it has obtained jurisdiction over Indeed, thereby warranting dismissal of this action. Since this Court has found that it lacks jurisdiction over Indeed, it does not reach the issue of whether the pre-action discovery sought is permissible or protected by the First Amendment. The petition for pre-action disclosure is hereby dismissed, without costs. The foregoing constitutes the Order of this Court. Dated: January 22, 2020 Riverhead, NY
