The following e-filed documents, listed by NYSCEF document number (Motion 005) 83, 84, 85, 86, 87, 88, 89, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 140, 141, 142, 143 were read on this motion to/for DISMISSAL. The following e-filed documents, listed by NYSCEF document number (Motion 006) 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 133, 136, 145, 146, 147 were read on this motion to/for ENFORCE/EXEC JUDGMENT OR ORDER. The following e-filed documents, listed by NYSCEF document number (Motion 007) 120, 121, 122, 123, 124, 125, 126, 128, 129, 130, 131, 132, 134, 137, 138, 144 were read on this motion to/for ORDER OF PROTECTION. The following e-filed documents, listed by NYSCEF document number (Motion 008) 148, 149, 150, 151, 152, 153, 154, 155, 156 were read on this motion to/for DISCOVERY. DECISION ORDER ON MOTION Upon the foregoing documents and for the reasons set forth below (i) Stephen McCleskey and SM Consulting’s (SMC, and together with Mr. McCleskey, the SM Parties) motion (Mtn. Seq. No. 005) to dismiss RP Business Marketing, Inc.’s (RP) first amended complaint (the FAC) as filed against them pursuant to CPLR §3211 (a) (8) is denied, (ii) RP’s cross-motion for an order pursuant to CPLR §§305 (c), 2001, and 5019 (a) amending the caption, nunc pro tunc, to correct the names of the defendants is granted as unopposed, (iii) RP’s motion (Mtn. Seq. No. 006) for sanctions against Timlin Industries, Inc. (Timlin) pursuant to CPLR §3126 for violating the court’s order dated October 9, 2019 compelling Timlin to produce certain documents is granted in part as set forth below, (iv) Timlin’s motion (Mtn. Seq. No. 007) for a protective order pursuant to CPLR §3120 suppressing the use of bank records obtained from non-party US Bank, N.A (US Bank) is denied, and (v) Timlin’s motion (Mtn. Seq. No. 008) to compel RP to produce certain documents and to produce Tiana Wilson and Kaye Washington for depositions is granted in part. I. THE RELEVANT FACTS AND CIRCUMSTANCES Timlin is a telemarketing services company that makes cold calls to businesses from call lists to promote the services of its clients. One of its clients was RP. RP provides services to merchants including debit and credit card processing services, point of sale systems, electronic payment systems, cash advances, and business loans and lines of credit. Timlin alleges that it worked with another company, SMC, which is owned and operated by Mr. McCleskey. SMC hires and trains incarcerated individuals to work for Timlin’s telesales business. In this action, RP seeks an injunction and money damages against Timlin for breach of a certain Exclusive Telemarketing Services Agreement (the ETSA), dated October 20, 2017, by and between RP and Timlin (NYSCEF Doc. No. 100). Pursuant to the ETSA, Timlin agreed to “provide certain telemarketing services…to [RP] on a strictly exclusive basis” (ETSA, 1 [a]). In addition, pursuant to Paragraph 2 of the ETSA, RP was required to provide Timlin with a database of leads and telemarketing scripts for each product (id.,
2 [a], [c]). Paragraph 5 (a) of the ETSA provides: Exclusivity. Timlin’s provision of Services to Client is exclusive to Client. Timlin may not, directly or indirectly, provide the Services or any variation thereof to any other third party who would be in direct competition of Client. Timlin will have 90 days from the signing of this contract to finish up any currently existing businesses that fall into that category. “Direct competition” shall mean any third party that markets merchant services and electronic payments as well as alternative loans and business financing” (id., 5 [a]). The ETSA further provides: Injunctive Relief. If the provisions of Section 5 are violated in whole or in part, Client shall be entitled upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction to restrain and enjoin Timlin and its affiliates, officers, directors, agents and principals from such violation without prejudice as to any other remedies Client may have at law or in equity without the necessity of posting a bond. In addition, in the event of a breach of this Section 5, Timlin shall be deemed to be in default under this Agreement (id., 5 [d]). In addition, Paragraph 5 (c) of the ETSA contains a non-solicitation and non-compete provision, which provides: Non-Solicitation; Non-Competition. During the term of this Agreement and for a period of One (1) year thereafter (regardless of the reason for termination), Timlin covenants and agrees that it will not, directly or indirectly, either for itself or for any party, including its directors, officers and principals:…(iii) provide Services or engage in any telemarketing campaigns or other such marketing efforts to any other third party that competes with or is the same or similar business of Client in the United States or in Canada which shall include, but not be limited to, any third party that provides products or services similar to the services provided by Client and its affiliates. And, as relevant to the instant motion, Paragraph 8 provides: (i) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to any conflict of laws principles. (j) Venue. In the event of any dispute between the parties regarding the terms and conditions of this Agreement or the performance of any transaction between the parties contemplated herein, any legal action, suit, or proceeding resulting therefrom may only be instituted in a state or federal court in the State of New York and each party agrees not to assert, by way of motion, as a defense, or otherwise, in any such action, suit, or proceeding, any claim that it is not subject personally to the jurisdiction of such court, that the action, suit, or proceeding is brought in an inconvenient forum, that the venue of the action, suit, or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. Each party further irrevocably submits to the jurisdiction of any such court in any such action, suit, or proceeding. RP initially commenced this action by filing a summons and complaint, dated June 26, 2018 (NYSCEF Doc. No. 1), alleging that Timlin breached the exclusivity and non-compete clauses of the ETSA by working with RP’s competitors. Timlin filed an answer and counterclaims seeking damages for breach of the ETSA, alleging that RP provided leads that were already three or four years old or were “duplicate leads,” i.e., leads that RP provided to other call centers, and that such leads were therefore “useless,” and that RP interfered with Timlin’s ability to perform its obligations under the ETSA and caused it to incur monetary damages. It is undisputed that the court has personal jurisdiction over Timlin pursuant to Paragraph 8 (j) of the ETSA and because Timlin has appeared in this action without challenging jurisdiction. The issue on this motion, as further discussed below, is whether the court has jurisdiction over the SM Parties. At the outset of discovery, RP took the position that Mr. McCleskey was the Timlin employee primarily responsible for breaching the ETSA. As discovery progressed, Timlin took the position that Mr. McCleskey was not actually an employee but a subcontractor with his own company, SMC. RP then moved for leave to amend the complaint to add the SM Parties as defendants and to allege that they were the alter egos of Timlin (NYSCEF Doc. No. 30). By decision and order dated August 14, 2019, the court granted RP’s motion (NYSCEF Doc. No. 51). RP served the FAC on the SM Parties on August 21, 2019, and the SM Parties now move to dismiss the FAC. II. DISCUSSION Pursuant to CPLR §3211 (a) (8), a party may move for judgment dismissing the complaint on the ground that the court lacks personal jurisdiction. To survive a motion to dismiss pursuant to CPLR §3211 (a) (8), “the plaintiff need only make a prima facie showing that the defendant is subject to the personal jurisdiction of the court” (Whitcraft v. Runyon, 123 AD3d 811, 812 [2014]). A. The SM Parties’ Motion to Dismiss is Denied a. General Jurisdiction A court may exercise general jurisdiction over a defendant pursuant to CPLR §301 on all causes of action where the defendant’s ties to New York “are so ‘continuous and systematic’ as to render them essentially at home in the forum state” (Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 US 915, 919 [2011], quoting International Shoe Co. v. Washington, 326 U.S. 310, 317 [1945]). “For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile” (Goodyear, 654 US at 924). And for a corporation, the paradigm forums are “the place of incorporation and [its] principal place of business” (Daimler AG v. Bauman, 571 US 117, 137 [2014]). Only in an “exceptional case” will a corporation be subject to general jurisdiction in any other forum (id., at 138 n 19). Here, RP argues that the SM Parties are subject to general jurisdiction pursuant to CPLR §301 because they have had continuous and systematic business dealings with a company based in New York. Specifically, RP alleges that the SM Parties did significant business with Federated, a New York-based company and one of RP’s competitors, for at least one year, and that they sent invoices to Federated in New York and derived at least $140,000 in revenue from Federated for their services (Pl. Mem. in Opp., at 10). RP argues that based on these contacts with New York, the SM Parties are essentially “at home” here. The court disagrees. SMC is an Idaho corporation with its principal place of business in Idaho and Mr. McCleskey is a domiciliary of Idaho. In his affidavit in support of the SM Parties’ motion to dismiss, Mr. McCleskey states that SMC has never maintained offices in New York or had employees based in New York, and has never advertised in New York or solicited business in New York (McCleskey Aff.,
