Phillips v. Reed Group, Ltd. (955 F. Supp. 2d 201, 2013)

MEMORANDUM & ORDER

RICHARD OWEN, District Judge.

Pro se Plaintiff Kenneth F. Phillips (“Plaintiff’ or “Phillips”) brings claims for breach of contract, negligent misrepresentation, quantum meruit and unjust enrichment, promissory estoppel, and breach of fiduciary duties against Reed Group, LTD (“the LTD”), Reed Group, LLC (“the LLC”), Stacey Grace (“Grace”), Presley Reed (“Reed”), and Peter B. Nagel (“Na-gel”) as Trustee of the Presley Reed 1999 Family Trust (collectively “Defendants.”) This Court has jurisdiction in this diversity action under 28 U.S.C. § 1332.

All five Defendants move to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(3) and (6) on the basis that venue is improper and that Plaintiff fails to state a claim upon which relief can be granted. Four Defendants move to dismiss the action under Federal Rule of Civil Procedure 12(b)(2) on the basis that this Court lacks personal jurisdiction over them. All Defendants also request that if this case is not dismissed, it be transferred to the District of Colorado.

Magistrate Judge Debra Freeman issued a Report and Recommendation recommending that Defendants’ motion be granted in part in denied in part. For the reasons set forth below, this Court concurs with the Report and Recommendation and adopts it as the Order of this Court.

BACKGROUND

The factual background of this action is provided in the Report and Recommendation and will not be repeated here in full. According to the allegations provided in the Amended Complaint, Plaintiff Kenneth Phillips was a member of the Board of Directors of corporate defendants the LTD and LLC from approximately 2002 to 2006. Plaintiff asserts that the LTD, a “business process outsourcer” providing publications, software, and other materials aimed at “streamlin[ing] employee absence operations for employers” maintains an office and mailing address in New York state and that 40 percent of its revenue is generated in the state. (Amended Complaint ¶ 2.)

Defendants Reed and Grace are the sole members of the LLC. Plaintiff claims that at the request of Defendants and allegedly in reliance on promises of an equitable share of ownership in the LTD, he expended thousands of hours of work and contributed tens of thousands of dollars in capital and expenses, for which he was not compensated. Amongst Plaintiffs claims, he alleges to have either created or enhanced the value of the two products sold or distributed by the LTD, the “Utilization Management Knowledgebase” (“ACOEM UMK”) as a “joint venture” with Defendants in which Plaintiff would bear initial costs in exchange for being compensated later based on the value of the product and revenue it created, and the Medical Disability Advisor, (the “MDA”) Plaintiff alleges that Defendants Reed and Grace abused the corporate form by creating a shell corporation by which Plaintiff was induced him to provide such uncompensated work. Plaintiff alleges that Defendants Reed and Grace traveled to New York repeatedly on LTD-related business, that Reed met with Plaintiff in New York City on numerous occasions, and that Reed conducted business extensively in New York at various points from 2002 to 2006. Plaintiff claims that, based on discussions with Defendant Reed in New York, he expected to receive equity in return for his work, and Plaintiff claims that Reed gave him an unsigned LLC operating agreement reflecting this understanding.

This action was originally filed in Supreme Court of New York, County of New York, and was thereafter removed to this Court under 28 U.S.C. § 1441. [dkt. no. 1.] Because of the complete diversity of citizenship of the parties and the matter in controversy exceeding $75,000, removal was proper. Plaintiff filed his Amended Complaint on August 28, 2007. [dkt. no. 22.] Defendants then moved to dismiss or in the alternative to transfer this action to the United States District Court for the District of Colorado pursuant to 28 U.S.C. § 1404(a). [dkt. no. 28.] Magistrate Judge Freeman issued a Report and Recommendation (the “Report”) in which she recommended that Defendants’ motion to dismiss be granted in part and denied in part, [dkt. no. 43.] Defendants filed objections to the Report [dkt. no. 45], which Plaintiff opposed, [dkt. no. 46.] Plaintiff thereafter filed a motion in limine to exclude the Declarations of Peter Nagel [dkt. no. 49], to which Defendants responded by letter on December 20, 2012.

DISCUSSION

A. Standard of Review

United States Magistrate Judges hear dispositive motions and make proposed findings of fact and recommendations, generally in the form of a Report and Recommendation. In reviewing a Report and Recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

A party may file “specific written objections,” Fed R. Civ. P. 72(b), to a Magistrate Judge’s proposed findings and recommendations, and in that case, the district court has an obligation to make a de novo determination as to those portions of the Report and Recommendation to which objections were made. 28 U.S.C. § 636(b)(1); First Union Mortgage Corp. v. Smith, 229 F.3d 992, 995 (10th Cir.2000). A district court judge, in making such determination, has discretion in the weight placed on proposed findings and recommendations and may afford a degree of deference to the Report and Recommendation. See United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Objections to a Report and Recommendation are to be “specific and are to address only those portions of the proposed findings to which the party objects.” Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F.Supp. 380, 381-82 (W.D.N.Y.1992). Objections that are “merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original [papers] will not suffice to invoke de novo review.” See Vega v. Artuz, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002).

Where no timely objection has been made by either party, a district court need only find that “there is no clear error on the face of the record” in order to accept the Report and Recommendation. Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). In the event a party’s objections are conclusory or general, or simply reiterate original arguments, the district court also reviews the Report and Recommendation for clear error.

The Report and Recommendation recommended as follows: that Defendants’ motion to dismiss be granted as to portions of Plaintiffs breach of fiduciary and promissory estoppel claims; that Plaintiff be granted leave to replead his claim for negligent representation; that Defendants’ motion to dismiss be granted as to Defendant Nagel for lack of personal jurisdiction; and that Defendants’ motion be otherwise denied.

Defendants object to the Report and Recommendation on the following grounds: that Plaintiff has not alleged, and the evidence does not support, a connection between the LLC and New York at the time the complaint was served; that the Report improperly recommended piercing of the corporate veil; that the Report improperly analyzed the factors governing motions to transfer in recommending the action not be transferred to the District of Colorado; that the Report improperly provided Plaintiff leave to amend his negligent misrepresentation claim; and that the Report improperly denied Defendants’ motion to dismiss Plaintiffs breach of contract, promissory estoppel, quantum merit and unjust enrichment, and breach of fiduciary duty claims in their entirety.

B. Personal Jurisdiction

Four of the five Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(2) on the basis that this Court lacks personal jurisdiction over them. Plaintiff claims this Court can exercise personal jurisdiction over Defendants Reed and Grace on the basis of general jurisdiction, specific jurisdiction based on acts in New York giving rise to Plaintiffs claims, and piercing of the corporate veil.

Courts considering whether to pierce the corporate veil to impose liability on individual shareholders assess 1) the extent to which the corporation is merely the “alter ego” of the shareholder, 2) whether justice requires piercing the corporate veil based on the fact that the corporate fiction was a means of perpetuating a fraud or defeating a rightful claim, and 3) whether an equitable result will be achieved by piercing the corporate veil. Connolly v. Englewood Post No. 322 Veterans of Foreign Wars of the United States, Inc., 139 P.3d 639, 643-44 (Colo.2006). An “alter ego relationship exists when the corporation is a ‘mere instrumentality’ for the transaction of the shareholders’ own affairs, and there is such unity of interest in ownership that the separate personalities of the corporation and the owners no longer exist.” Id. at 644. This unity of interest consideration requires courts to consider several factors, including whether: “(1) the corporation is operated as a distinct business entity, (2) funds and assets are commingled, (3) adequate corporate records are maintained, (4) the nature and form of the entity’s ownership and control facilitate misuse by an insider, (5) the business is thinly capitalized, (6) the corporation is used as a ‘mere shell,’ (7) shareholders disregard legal formalities, and (8) corporate funds or assets are used for noncorporate purposes.” Id.

Magistrate Judge Freeman found that Plaintiff failed to adequately plead facts indicating a basis to exercise personal jurisdiction over Nagel and that, because Plaintiff had already filed an amended complaint addressing Nagel’s arguments on this issue, there was no indication that Plaintiff could plead facts demonstrating that this Court has jurisdiction over Nagel. The Report also concluded that Plaintiff sufficiently alleged that the Court has personal jurisdiction over the LLC because the LLC was designed to operate as the LTD’s successor in interest and that the LLC did operate as Reed Group for a period of time. The Report found that the exercise of jurisdiction over Defendants under principles of general jurisdiction was not proper because these Defendants did not have a sufficient presence in New York nor was specific jurisdiction proper because Plaintiff failed to allege a connection between the causes of action and transactions executed in the state by Grace, and did not sufficiently allege that meetings between Plaintiff and Reed in New York were essential to the business relationship between the parties. The Report concluded, however, that Plaintiffs factual allegations were sufficient at this stage for this Court to pierce the corporate veil. Specifically, the Report found that Plaintiff sufficiently alleged that Reed and Grace abused the corporate form by creating a shell LLC to induce Plaintiff to provide uncompensated work for the LTD, and received a benefit in the form of the increase in value of the MDA based on this uncompensated work. Plaintiff also alleged that these Defendants commingled personal property with that of the LTD.

Defendants claim that the Report improperly evaluated the facts in light of the veil piercing factors, improperly finding thereby that Plaintiffs allegation that Defendants had personally benefited from Plaintiffs uncompensated work and commingled personal assets with the assets of the LTD was insufficient to support a finding that the LTD was an alter ego or “mere instrumentality” of individual Defendants. (Def. Obj. at 11-13.) According to Defendants, “isolated missteps in corporate formalities and the commingling of a single assert are not sufficient to pierce the corporate veil where, generally, the corporation has properly observed the formalities and has segregated all other assets” and that the commingling of the MDA with corporate assets is insufficient. (Id. at 11-12.) Defendants also urge that the capitalization of the LTD is sufficient to defeat piercing and that Plaintiff has not shown that an equitable result will result from piercing the corporate veil.

Defendants’ objections either generally repeat arguments previously made in support of dismissal or make factual arguments that are improper at this phase. This Court finds that Plaintiffs plausible allegations are sufficient to support a finding, at this stage of the litigation, that piercing the corporate veil is appropriate. Accordingly, this Court concurs with the Report’s conclusion in this regard. This Court also concurs with the Report’s recommendation that Defendants’ motion to dismiss be granted on Plaintiffs claims against Defendant Nagel because there is no basis to exercise personal jurisdiction over him. Accordingly, he is dismissed as a Defendant.

C. Venue and Defendants’ Motion to Transfer

The Report recommended that Defendants’ motion to dismiss for lack of venue under 28 U.S.C. § 1391 be denied because that section, which governs venue in diversity of citizenship cases, is inapplicable in cases that have been removed from state court. Under 28 U.S.C. § 1441(a), which governs venue in cases that have been removed to federal court, venue is proper in this district.

Defendants moved to transfer this action to district court in the District of Colorado under 28 U.S.C. § 1406 and 28 U.S.C. § 1404. Having found that venue is proper in this district under 28 U.S.C. § 1441, the Report recommended denial of Defendants’ motion to transfer this action to the District of Colorado under 28 U.S.C. § 1406, which provides for dismissal or transfer of actions that have been filed in the wrong district. The Report also recommended denial of Defendants’ motion to transfer under 28 U.S.C. § 1404, which allows transfer to a district where venue is proper in the interests of convenience and justice.

“Motions to transfer lie within the district court’s broad discretion” and as such are reviewed only for clear abuse of discretion. AIG Financial Products Corp. v. Public Utility Dist. No. 1 of Snohomish County, Wash., 675 F.Supp.2d 354, 367 (S.D.N.Y.2009); Marvel Entertainment, LLC v. Kimble, 2010 WL 5174398, at *2 (S.D.N.Y.2010) (quoting D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106 (2d Cir.2006)). Once the court determines that venue would be proper in the proposed transferee district, motions to transfer are determined based on “the convenience of the parties and witnesses, in the interests of justice” on a case-by-case basis. See 28 U.S.C. § 1404(a); see New York Marine and Gen. Ins. Co. v. Lafarge North America, Inc., 599 F.3d 102, 112-13 (2d Cir.2010).

Plaintiffs choice of forum “is entitled, to significant consideration and will not be disturbed unless other factors weigh strongly in favor of transfer.” Royal & Sunalliance v. British Airways, 167 F.Supp.2d 573, 577 (S.D.N.Y.2001) (citing Warrick v. General Elec. Co., 70 F.3d 736, 741 (2d Cir.1995). As such, the moving party “bears the burden of making a ‘clear-cut showing that [transfer] is warranted,’ and that ‘the balance of convenience weighs clearly in [its] favor.’ ” AIG Financial Products Corp., 675 F.Supp.2d at 367 (citing Elbex Video Ltd. v. Tecton, Ltd., 2000 WL 1708189, at *4 (S.D.N.Y.2000)). Courts assess several factors, including 1) how much weight to accord to Plaintiffs choice of forum, which is “presumptively entitled to substantial deference,” 2) the convenience of the witnesses, which is “typically regarded by courts as the most important factor in considering a motion to transfer pursuant to § 1404(a)”; 3) the location of relevant documents and the relative ease of access to sources of proof; 4) the relative convenience of the parties; 5) the locus of operative facts, which looks to the “site of the events from which the claim arises”; 6) the availability of process to compel the attendance of unwilling witnesses; 7) the-relative means of the parties and whether either party’s “financial situation would meaningfully impede its ability to litigate [the] case in either forum”; 8) the familiarity of the forum with the law governing the case; and 9) trial efficiency and the interests of justice AIG Financial Products Corp., 675 F.Supp.2d at 367-72; see also New York Marine & Gen. Ins. Co., 599 F.3d at 112-13.

Defendants argue that the governing law factor, the locus of operative facts, and concepts of judicial efficiency favor Defendants whereas only the choice of forum factor supports Plaintiff, claiming that “only through selective use of the alleged facts and failure to credit Defendants’ evidence” did the Report “narrowly recommend!] against transfer.” (Def. Obj. at 15.) The Report thoroughly evaluated the factors, finding that many of them were neutral. Two of the factors favored the granting of Defendants’ transfer motion— the convenience of witnesses and the law governing the action. Three of the factors favored Plaintiff — the respective convenience of the forum to each party, each party’s relative means, and the Plaintiffs choice of forum.

Based on the totality of the circumstances, the Report found transfer would be inappropriate, especially in light of the ability for Defendants to travel to New York compared to Plaintiffs relative inability and the inconvenience Plaintiff would suffer as a result. This Court accordingly concurs with Magistrate Judge Freeman’s finding that Defendants have not overcome their burden of demonstrating that transfer is proper. Defendants’ motion to transfer this action to the District of Colorado under 28 U.S.C. §§ 1404 and 1406 is therefore dismissed.

D. Defendants’ Motion to Dismiss Plaintiff’s Claims Under Federal Rule of Civil Procedure 12(b)(6)

a. Legal Standard

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient factual allegations in the complaint that, accepted as true, “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929, 949 (2007)).

Plaintiff is not required to provide “detailed factual allegations” in the complaint, but must assert “more than labels and conclusions” and more than “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S at 555, 127 S.Ct. 1955. In addition, the facts pled in the complaint “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.” Id. A district court considering a Rule 12(b)(6) motion must accept all factual allegations in the complaint as true, while also drawing all reasonable inferences in favor of the nonmoving party. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007); Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999).

As stated above, the Report recommended that Defendants’ motion to dismiss be granted as to portions of Plaintiffs promissory estoppel claim and breach of fiduciary duty claim but otherwise be denied, and that Plaintiff be permitted to amend his claim for negligent misrepresentation.

b. Plaintiffs Claims for Breach of Contract, Negligent Misrepresentation, Quantum Meruit and Unjust Enrichment, Promissory Estoppel, and Breach of Fiduciary Duty

The Report found that to the extent Plaintiffs claims against the LTD are not dismissed, his claims against Defendants the LLC, Reed, and Grace should also survive. Defendants’ objections to the Report’s recommendation that many of Plaintiffs claims survive dismissal at this stage tend to generally repeat arguments previously made in Defendants’ motion papers.

The Report found that Plaintiff had sufficiently pled a claim for breach of contract. Specifically, the Report found that Plaintiff had plausibly alleged that the parties had a “meeting of the minds” sufficient to find they established a contractual relationship. ..The Report rejected Defendants’ argument related to the significance of the draft operating agreement’s silence as to various financial components as to other individuals involved in the agreement, because the written agreement provided terms related to Plaintiffs equity interest and capital contribution amount. Defendants argue that “there was no meeting of the minds as to the most funda- ■ mental aspect of the parties’ alleged ‘agreement’ ” and that evidence Plaintiffs amended complaint relies on indicates that the entire equity interest is held by a category of individuals exclusive of Plaintiff. (Def. Obj. at 20.) Defendants argue that Plaintiff offers the draft contract as a legally operative document rather than as evidence that the parties had a meeting of the minds, and that because that draft was not signed and formally executed, the parties cannot be bound by it. (Def. Obj. at 19-20.) Defendants argue that, even though Plaintiffs factual allegations are assumed to be true at this stage, contradictions between those facts and those in other documents, such as marketing materials allegedly prepared by Plaintiff, make dismissal proper. This Court concurs with the Report’s conclusion that Plaintiff has pleaded a breach of contact claim. Defendants’ objections do not show that Plaintiff failed to plead facts indicating that the parties entered into an agreement, and the parties’ failure to sign the agreement does not preclude contract formation because Plaintiffs allegation of a meeting of the minds is sufficient at this stage.

With regard to Plaintiffs negligent misrepresentation claim, the Report recommended Plaintiff be granted leave to amend his Amended Complaint to comply with the requirement of Federal Rule of Civil Procedure 9(b) that allegations of fraud or mistake be pled with specificity because unlike Plaintiffs other claims, Plaintiff had not been given an opportunity to cure any defects in his negligent representation claim. Federal Rule of Civil Procedure 9(b) provides that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Defendants object to Plaintiff being allowed to re-plead the negligent misrepresentation claim because, according to Defendants, he is a sophisticated businessperson and had the opportunity to review Defendants’ motion to dismiss before it was denied as moot and that as a result, he would be impermissibly be given another bite at the apple if allowed to re-plead this claim. Given that Plaintiff commenced the action pro se, this Court concludes the Report properly found that Plaintiff should be allowed to amend his negligent misrepresentation claim.

The Report recommended that Defendants’ motion to dismiss Plaintiffs quantum meruit and unjust enrichment claim be denied. The Report concluded that these claims are not barred by Plaintiffs contract claim, as Defendants argue, because the parties dispute the existence of a contract and Plaintiff is entitled to pursue these claims in the alternative to his contract claim. The Report also found that Defendants’ disagreement with the alleged value of the services Plaintiff provided was improper at this stage. Defendants claim the Report erred because there are inconsistencies with the number and substance of the hours Plaintiff claims to have worked and that Plaintiff did not demonstrate that his hourly wage was a reasonable value for his services. Defendants’ objections, which partially repeat those made in their moving papers, is without merit because at this stage, Plaintiffs allegations are sufficient to survival dismissal.

The Report recommended that Defendants’ motion to dismiss Plaintiffs promissory estoppel claim be granted on Plaintiffs claims that he was promised an interest an ownership interest in the ACOEM UMK joint venture and was promised additional compensation related to the sale of the LTD, but that the promissory estoppel claim survive to the extent that Plaintiff alleged he was promised an equity interest in the LLC. Defendants object on the basis that the parties had not settled on the percentage of equity interest in the LLC that Plaintiff was promised and that Plaintiff conceded as such. The amended complaint alleges that Plaintiff and Reed engaged in discussions in which Plaintiff expressed his expectation of a three percent equity interest, and sufficiently pleads facts indicating the existence of an LLC operating agreement reflecting the parties’ understanding that Plaintiff would receive a two percent share in the LLC. Plaintiff has sufficiently alleged, at this stage, facts related to his alleged promise of an equity interest in the LLC.

As for Plaintiffs claim that Defendants are hable for breach of their fiduciary duty, the Report recommended that Defendants’ motion to dismiss be granted as to Plaintiffs status as a Director of the LTD and LLC and similarly should be granted to the extent such relationship is based upon an alleged special relationship of trust between the parties. The Report also recommended that Plaintiffs claim related to the alleged joint venture and Plaintiffs alleged equity interest in the LLC survive dismissal because the issue of Plaintiffs equity interest in the LLC cannot be decided at this stage, and if in fact Plaintiff did have an equity interest then Defendants Reed and Grace owed him a fiduciary duty as directors of the LLC. Defendants argue that Plaintiff has not established that he had an equity interest in the LLC and that on this basis the fiduciary duty claim must be dismissed. Defendants also argue that Plaintiff did not sufficiently allege a joint venture in the ACOEM UMK, therefore undermining any claim that they owe a related fiduciary duty to Plaintiff. As discussed above, Plaintiffs claim related to the joint venture survived dismissal. Defendants’ objection generally repeats arguments previously made in support of dismissal, and are without merit.

As discussed above, having found that Plaintiff sufficiently stated claims against the LTD, the Report found that those claims should also survive dismissal as against Defendants LLC, Reed, and Grace. This Court concurs with that recommendation.

CONCLUSION

For the reasons set forth above, this Court concurs with Magistrate Judge Freeman’s Report and Recommendation and hereby adopts it, in its entirety, as the Order of this Court. Accordingly, Defendants’ motion to dismiss is GRANTED in part and DENIED in part, as follows:

Defendants’ motion to dismiss is GRANTED as to Defendant Peter Na-gel’s for lack of personal jurisdiction. Defendants’ motion to dismiss Plaintiffs promissory estoppel claim is DENIED as it relates to the alleged promise of an equity interest in the LLC. Defendants’ motion to dismiss Plaintiffs promissory estoppel claim is otherwise GRANTED. Defendants’ motion to dismiss Plaintiffs breach of fiduciary duty claim is DENIED as it relates to the alleged joint ventures and Plaintiffs alleged equity interest in the LLC and otherwise GRANTED.

Plaintiff is hereby granted leave to amend his negligent representation claim to comply with Federal Rule of Civil Procedure 9(b).

Defendants’ motion to dismiss is otherwise DENIED.

This Court declines to rule on Plaintiffs motion in limine [dkt. 49] at this time.

SO ORDERED.

REPORT AND RECOMMENDATION

DEBRA FREEMAN, United States Magistrate Judge.

TO THE HONORABLE DEBORAH A. BATTS, U.S.D.J.:

INTRODUCTION

In this diversity action, Kenneth F. Phillips (“Plaintiff”) brings claims for breach of contract, negligent misrepresentation, breach of fiduciary duties, quantum meruit, promissory estoppel, and unjust enrichment. All five defendants in this matter (collectively “Defendants”) move to dismiss Plaintiffs Amended Complaint on the basis of improper venue, or, alternatively, for failure to state any claim upon which relief can be granted. Four defendants further contend that this Court lacks personal jurisdiction over them. All Defendants request that the case, if not dismissed in its entirety, be transferred to the District of Colorado.

As explained below, I recommend that Defendants’ motion (Dkt. 28) be granted to the extent it seek to dismiss Plaintiffs claims against defendant Peter B. Nagel (“Nagel”) for lack of personal jurisdiction. As to Plaintiffs claims against the other named defendants, I recommend that portions of Plaintiffs promissory estoppel claim, as well as portions of his breach of fiduciary duty claim, be dismissed, and that he be afforded an opportunity to re-plead his negligent misrepresentation claim so as to satisfy the pleading requirements of Rule 9(b) of the Federal Rules of Federal Procedure. I recommend that Defendants’ motion be denied in all other respects.

BACKGROUND

A. Procedural History

Plaintiff, proceeding pro se, commenced this suit in the Supreme Court of the State of New York, County of New York, on April 11, 2007. Defendants removed the case to this Court on April 80, 2007, pursuant to 28 U.S.C. § 1441. (Dkt. 1.) Removal to this Court was proper because there is complete diversity of citizenship between Plaintiff and Defendants and the matter in controversy exceeds $75,000. On July 25, 2007, Defendants filed a motion to dismiss the Complaint or, in the alternative, to transfer the case to the District of Colorado (Dkt. 10), which the Court denied as moot because Plaintiff filed his Amended Complaint soon after Defendants had filed their motion (Dkt. 23). Defendants then filed another motion to dismiss or, in the alternative, to transfer (Dkt. 28), raising arguments nearly identical to those raised in their first motion (see Dkts. 10, 11). The pending motion (Dkt. 28) has been referred to me for a Report and Recommendation.

B. Factual Allegations

Except where otherwise noted, the following facts are alleged in Plaintiff’s Amended Complaint, dated August 27, 2007 (“Am. Compl.”) (Dkt. 22), and are accepted as true for the purposes of this motion.

1. The Parties

a. Plaintiff

Plaintiff is a Massachusetts resident and was a member of the Boards of Directors of corporate defendants Reed Group, Ltd. (the “LTD”) and Reed Group, LLC (the “LLC”) during relevant time periods from 2002 to 2006. (Am. Compl. at ¶ 1; see also Declaration of Peter Nagel, dated Sept. 26, 2007 (“9/26/07 Nagel. Deck”) (Dkt. 28), at ¶ 12.) Plaintiff joined the Board of the LTD in 2002 after defendant Presley Reed (“Reed”), while in New York City, invited him to join. (Am. Compl. at ¶ 12(g); Plaintiffs Memorandum of Law in Opposition to Defendants’ Motion to Dismiss the Complaint, dated Oct. 26, 2007 (“PI. Mem.”) (Dkt. 32), at 22.)

b. Corporate Defendants

The LTD and the LLC (together, the “Reed Companies”) are, respectively, a Colorado corporation and a Colorado limited liability company. (See id. at ¶¶ 2 — 3.) Each maintains its principal place of business in Westminster, Colorado. (Id.) The LTD also maintains an office and mailing address in Albany, New York, where it employs approximately 80 people. (Id. at ¶ 11(a).) According to Plaintiff, 40 percent of the LTD’s revenue is generated in New York State. (Id. at ¶ 11(b).) Plaintiff alleges that the LLC, which was formed in 2004, was “designed to be the successor to [the LTD].” (Declaration of Kenneth Phillips, dated Oct. 26, 2007 (“Phillips Deck”) (Dkt. 31), at ¶ 4). Indeed, he alleges that the “only company that exist[ed] in all [of] 2005 as Reed Group [was] the LLC.” (Am. Compl. at ¶ 63.)

According to Plaintiff, the LTD was— and is, to the extent it remains in business as an operating company — “a business process outsourcer providing publications as hardcopy and by subscription over the internet, [as well as] software and services that streamline employee absence operations for employers.” (Am. Compl. at ¶ 2.) The LTD has marketed, sold and distributed two relevant products: (1) the Medical Disability Advisor (the “MDA” or “MDA 5.0”), and (2) a database called the Utilization Management Knowledgebase (the “UMK” or the “ACOEM UMK”), which is, according to Defendants, owned by the American College of Occupational and Employment Medicine (the “ACOEM”). (See Am. Compl. at ¶ 11(d), (e)(iv); 9/26/07 Nagel Deck at ¶ 26; 11/8/07 Nagel Deck at ¶ 6.) Plaintiff describes these products as “guideline product[s]” or “guideline software.” (Am. Compl. at ¶ 11(d).)

Plaintiff alleges that he created the ACOEM UMK at his own expense. (Id. at ¶ 33.) He further alleges that the MDA has become “much more valuable and relevant to the market” as a result of being sold in combination with the ACOEM UMK. (Id.) By combining the ACOEM UMK and the MDA, Defendants purportedly “minimize[d] the position of the only competitor to the [MDA].” (Id. at ¶ 33 n. 14.)

c. Individual Defendants

Individual defendants Reed, his wife Stacey Grace (“Grace”), and Nagel are all Colorado residents. (Am. Compl. at ¶¶ 4-7.)

Nagel, an attorney who practices in Colorado, is Trustee of the Presley Reed 1999 Family Trust, a trust which owns approximately 30 percent of the LTD. (Id. at ¶ 7; 9/26/07 Nagel Deck at ¶ 1.) Nagel also serves as outside counsel to the Reed Companies. (Am. Compl. at ¶ 7.) Before this Court, Nagel has stated that he neither owns any property nor conducts business in New York. (9/26/07 Nagel Deck at ¶ 11.)

Reed and Grace are the sole members of the LLC. (Am. Compl. at ¶ 5.) Reed is also Chairman and Chief Executive Officer of the LTD, and Grace is President of the LTD. (Id. at ¶¶ 4-5.) Plaintiff alleges that Reed and Grace “exhibit dominant control of all corporate action” of the corporate defendants (id. at ¶¶ 91-95), and that they behave “in their own personal interest rather than in the best interest of [the LTD]” (id. at ¶ 16(a) (emphasis omitted); see also id. at ¶¶ 11(d), 14(b), 33, 39; PI. Mem. at 15). Plaintiff further alleges that Reed and Grace personally own the MDA product that the LTD has used in its operations. (Am. Compl. at ¶ 16.) Plaintiff also contends that Reed and Grace “travel to New York extensively to present for sales purposes” (id. at ¶ 11(e)(1); see id. (noting that Defendants have a large “number of New York City clients”)), and that these defendants have, in particular, attempted to convince the New York State Insurance Fund to use the MDA product (id. at ¶ 11(e)(2)).

Plaintiff also alleges that Reed has himself conducted a significant amount of business in New York City, including the following:

• holding meetings with Plaintiff in New York City on numerous occasions from 2002 through 2005, including a meeting in 2002, at which time Reed asked Plaintiff to join the Board of Directors, and a meeting in 2005, at which time the Reed and Plaintiff discussed a joint venture. (Id. at ¶ 12; PI. Mem. at 22.)

• “maintainftng] an ‘interactive’ website that distributes the MDA 5.0 guidelines as well as the new ACOEM UMK product ...” (Am. Compl. at ¶ 11(d).)

• running a seminar in New York City on October 10, 2006, along with Grace, as part of an effort to reach potential New York clients. (Id. at ¶ 11 (e) (iii).)

• acting as “an active participating Member and Director of the New York Claim Association,” located in New York City, which afforded Reed “a marketing opportunity directed to New York organizations i.e. the members.” (Id. at ¶ 11(f)(1).) According to Plaintiff, “Reed spoke to this group on Sept. 19, 2006 with [Plaintiff] present.” (Id.)

• planning “to develop a Masters Level Program in collaboration with NYU [New York University, located in New York City],” and being “appointed to the Board of [t]he Occupational and Industrial Orthopedic Center (OIOC) at NYU.” (Id. at 1Tll(f)(ii).)

Plaintiff does not specifically allege whether Reed performed these activities on Reed’s own behalf, or on behalf of either of the Reed Companies.

2. The Services Allegedly Rendered by Plaintiff to Defendants

Plaintiff alleges that, at Defendants’ request, he worked more than 5000 hours for the LTD, contributed $30,000 in capital to the LTD, and absorbed $50,000 in expenses incurred as an advisor and board member of the LTD and as joint venture partner of the LTD, Reed, and Grace. (Am. Compl. at ¶¶ 18, 21, 33, 49; see also 9/26/07 Nagel Decl. at ¶¶ 30-31.) Plaintiff claims that he received no compensation for these services, even though he “helped generate over $50 [m]illion in value for Defendants.” (Am. Compl. at ¶¶ 18, 22.)

Plaintiff claims to have created the ACOEM UMK product in the course of his so-called “Joint Venture” work for Defendants. (See Am. Compl. at ¶¶ 33, 38, 40(a).) Plaintiff alleges that he spent at least 1500 hours working on this project. (Id. at ¶ 40(a); see also id. at ¶ 113 (alleging that Plaintiff worked “well over 2000 hours” on the project).) He further alleges that he paid consulting fees of $30,000 and “provided hardware and support in the range of approximately $100,000” in his efforts to create the product. (Id. at ¶ 113.)

Plaintiff also claims to have engaged in “investment banking” work for Defendants, allegedly helping Defendants to develop a favorable investment strategy and to obtain favorable results for the LTD within the private equity investment community. (See id. at ¶¶ 34, 38, 40(b).) According to Plaintiff, he “prepared all of the materials that were used, arranged the meetings, presented the information and secured the offers” from investors. (Id. at ¶ 34.) Plaintiff alleges that he worked 2000 hours on this project. (Id. at ¶ 40(b).)

Defendants, for their part, contend that the “vast majority of services upon which Plaintiff bases his claims were performed in Colorado or Massachusetts and allegedly accepted by Defendants in Colorado.” (Defendants’ Memorandum of Law in Support of Motion to Dismiss or in the Alternative Transfer to the District of Colorado, dated Sept. 27, 2007 (“Def. Mem.”) (Dkt. 29), at 20 (citing 9/26/07 Nagel Decl. at ¶ 12).) Plaintiff largely disputes this assertion, stating that he was in New York more often than he was in Colorado during the relevant time period. (See Phillips Decl. at ¶ 2(c)(iii).)

3. Defendants’ Alleged Promises

As described further below, Plaintiff alleges that he worked for Defendants in “reliance on Defendants’ promise of an equitable share of the growth he created,” which was apparently to be comprised of (a) a percentage of ownership of the LLC (the supposed successor company to the LTD), (b) a share of the business’s revenue, and (c) a share in the proceeds of the sale of the LTD, if such a sale could be accomplished. (Am. Compl. at ¶ 18, 46.) Plaintiff alleges that Reed and Grace agreed to provide him with equity in order to obtain his services “without paying any current compensation.” (Id. at ¶¶ 23, 45; see also id. at ¶ 20 (alleging that this promise was made “in lieu of direct current payment for these services”).)

a. Ownership Agreement

Plaintiff specifically alleges that, during a February 2004 discussion in New York, he and Reed discussed a plan to have Plaintiff work in exchange for equity. (Id. at ¶ 12(i).) This discussion allegedly occurred after Reed had traveled to New York to meet with a job candidate for the position of Chief Executive Officer. (Id.) During his discussion with Reed, Plaintiff “shared his over[ ]all expectation that under normal circumstances [Plaintiff] expected 1% of the enterprise for Board service (which was uncompensated); 1% for providing direction in Outsourcing ... which would include some Information Technology leadership and strategy; and 1% of the enterprise for product development.” (Id.) In response to Plaintiffs expressed “expectation” of a three percent total equity interest, Reed allegedly “agreed that these amounts were reasonable and suggested [that he and Plaintiff] proceed.” (Id.)

Later that year, Reed allegedly gave Plaintiff an unsigned LLC operating agreement which, according to Plaintiff, reflected Reed’s understanding of his promise to Plaintiff that Plaintiff would receive an equity interest in the business. (See Am. Compl. at ¶ 69.) According to this unsigned agreement, Plaintiff would receive a two percent (rather than a three percent) ownership interest in the LLC. (Id.; id. at 48, ¶4; PI. Mem. at 5.) This unsigned agreement was subsequently presented to the Board of Directors and was “accepted” by Plaintiff, in his capacity as an outside director, in March 2005. (Am. Compl. at ¶ 25.) Plaintiff alleges that he considered his “Agreement” with Reed “to be in force[,] based on the assurances [he] had received from Defendants as well as the actions and the silence of the Defendants.” (Id. at ¶ 80.) In addition, Plaintiff generally alleges that Reed “held the fact out that [Plaintiff] was an ‘owner’ to potential investors to instill confidence in the company by said investors.” (Id. at ¶ 86.)

b. Joint Venture

Plaintiff further alleges that, at various meetings he had with Reed (including a May 2005 meeting in New York City), Plaintiff presented a joint venture plan regarding the creation, marketing and distribution of the ACOEM UMK product. (See Am. Compl. at ¶ 12(j)(k); PI. Mem. at 22.) Under this purported joint venture plan, Plaintiff would bear the initial costs and thereafter would receive “15% of the value of the product as a joint [v]enture owner and ... an appropriate portion of the revenue.” (Am. Compl. at ¶ 12(j)(k).) Reed allegedly stated that this plan “ ‘seemed fair’ ” and told Plaintiff to continue working on the product. (Id.) In June 2005, Reed asked Plaintiff for clarification of their business arrangement and Plaintiff responded that, on the ACOEM UMK project, “I am a [j]oint venture[r] with you and Stacey [Grace].” (Id. at ¶ 110.) Plaintiff generally alleges that the conduct and representations of Reed and Grace caused him to believe that he was in a joint venture with them. (See id. at ¶ 110.) Plaintiff states, however, that “no call or meeting with [the LTD] has ever taken place concerning the [joint venture] profit sharing arrangement.” (Id. at ¶ 113.)

Defendants contend that there was never a joint venture agreement or any agreement that Plaintiff would have an ownership interest in the ACOEM UMK — a product that, in any event, Defendants claim they do not own. (9/26/07 Nagel Decl. at ¶ 29; see id. at ¶ 26 (stating that the ACOEM UMK is owned by the ACOEM trade association).) According to Defendants, while Plaintiff took an active role in negotiating the contract between the LTD and ACOEM, this contract did not include an ownership interest or profit share for Plaintiff. Id. at ¶ 29.

c. Compensation for Successful Sale of the LTD

According to Plaintiff, Reed promised Plaintiff additional compensation, if Plaintiff were able to structure a favorable sale of the LTD. (See Am. Compl. at ¶¶ 132-138.) Reed allegedly told Plaintiff that “the ‘more he (REED) could get (as an offer) the more he ([Plaintiff]) would receive.’ ” (Id. at ¶ 132.) Plaintiff allegedly helped secure an offer to purchase the LTD in September 2006, although he does not allege that the transaction was ever completed. (See id. at ¶ 137.)

4. Alleged Abuse of the Corporate Form

Plaintiff alleges that Reed and Grace “created, dissolved, reinstated, renamed and maintained” the Reed Companies in a manner that “often ma[de] it difficult to see just what activities ha[d] occurred, done by what entity and to what purpose.” (Id. at ¶ 163.) For example, according to Plaintiff, in 2005, the Reed Group, Ltd. (i.e., the LTD) “did not exist by that name but [that name] was used on TENS of thousands of pieces of correspondence, advertising, cheeks and even in legal and regulatory contexts such as filings and copyright notice[s].” (Id. at ¶ 164 (emphasis in original).)

Plaintiff claims that, even while making confusing or misleading use of the “Reed Group” name, Reed and Grace held out the LLC as “the successor to the very valuable [LTD]” and offered equity in the LLC to various individuals, including Plaintiff. (Am. Compl. at ¶¶ 167-68.) It was Plaintiffs understanding that, at least during 2005, the LLC proceeded to conduct business operations and informed the public of its activities. {See id. at ¶ 26; see also Phillips Decl. at ¶ 14.) More specifically, according to Plaintiff, the LLC “held Board meetings ..., published Board minutes ..., exhibited ownership of the MDA ..., entered into contracts, solicited business, [and] held and disposed of assets.” (Am. Compl. at ¶ 26.) Beyond his pleading, Plaintiff has submitted at least three press releases from the LLC suggesting that the LLC engaged in business. {See Phillips Decl., Exs. K, L, R.) One of these press releases states that the LLC “publishes the ... [MDA],” in both textbook and software form, and that the LLC “maintains four key lines of business: Guidelines, Service, Data Analytics, and Education.” {Id., Ex. K.) It further states that the LLC “provides integrated disability case management service for non-occupational and occupational leave[ ],” and has exclusive business relationships with Aetna, Standard Insurance Company, and others. {Id.)

Defendants, however, have maintained in this litigation that they “decided not to go forward” with the LLC {see 9/26/07 Nagel Decl. at ¶ 46; see also Declaration of Peter Nagel, dated July 25, 2007 (Dkt. 13), at ¶ 15 (cited by Plaintiff in the Am. Compl. at ¶ 28)) and that the LLC “ ‘never operated as a business’ ” {id. at ¶ 7 (cited by Plaintiff in the Am. Compl. at ¶ 28); see also 9/26/07 Nagel Decl. at ¶ 6 (stating that, although the LLC was formed in 2004, it never operated as a business and did not have employees, assets, an operating agreement, or members).) Defendants also assert that use of the LLC name was limited to press releases and board meeting minutes, that the use of the name ceased six months after the LLC was formed and that, at the time the Complaint was filed, the LLC had been inactive for more than two years. (9/26/07 Nagel Decl. at ¶ 6.)

Plaintiff, as set out above, does not concede that this is true, but he pleads in the alternative that, if the LLC did not actually operate, then Reed and Grace created it as a “shell company,” and “proceeded to use this shell, [the] LLC[,] as if it were becoming the primary company used by [them] to announce the launch of the firm’s premier and most profitable product, [the] MDA.” (Am. Compl. at ¶ 176-77.) Plaintiff alleges that Reed and Grace certainly caused him to believe that he had an equity interest in the LLC and that the LLC was “operating as ... intended.” {Id. at ¶ 178.) Plaintiff claims that he was never informed of any decision to abandon the LLC, and that, based on his belief that the LLC was going forward, he performed services for Defendants for 18 additional months, accepting the purported equity interest in lieu of additional compensation. {Id. at ¶¶ 29-30, 56(a), 178.)

To the extent that Reed and Grace created an “LLC shell” in order to induce Plaintiff to create the ACOEM UMK product, Plaintiff appears to alleges that Reed and Grace abused the corporate form. {See Am. Compl. at ¶¶ 39, 176-79.) In addition, Plaintiff alleges that these defendants combined the ACOEM UMK with the MDA (the former of which Plaintiff allegedly developed, and the latter of which was allegedly Reed and Grace’s “personal property”) for their own personal gain. (Am. Compl. at ¶ 39.) Plaintiff further alleges that Reed and Grace violated their fiduciary responsibilities to the LTD and the LLC because they never informed Plaintiff, an outside director of both corporations, of their conflict of interest arising from their ownership of the MDA. (Id.)

Plaintiff also alleges that Reed and Grace not only personally own the MDA product, but that they hid this ownership from Plaintiff, other board members, partners, and clients. (See Am. Compl. at ¶ 92.) To support his allegations regarding the ownership of the MDA, Plaintiff submits an August 27, 2004 memorandum from consultant Jim Casart (“Casart”) to the LTD, Reed, and Grace, which discusses the possibility of forming an LLC. (See PI. Mem., Ex. A.) In this memorandum, Casart explains that “[i]n the summer of 2003, the Reeds [ie., Reed and Grace] were given ... the intellectual property associated with the disability guidelines business,” and further notes that, as of the date of the memorandum, “the intellectual property rights to the guidelines remain the property of the Reeds, personally.” (Id.) Defendants do not directly address the portion of Casart’s memorandum regarding Reed and Grace’s ownership of this intellectual property. Defendants contend, however, that documents from the United States Copyright Office demonstrate that the LTD owns the MDA. (9/26/07 Nagel Decl. at ¶ 45; id. at Ex. G.)

Plaintiff also alleges that the LTD has failed to comply with certain corporate administration requirements. He alleges that the LTD never formally elected directors and never published or approved formal board minutes. (Am. Compl. at ¶ 172-73.) He further alleges that the LTD never registered to do business in New York State (and does not maintain an agent for service of process there), even though it does business in New York State and employs over 50 people there (id. at ¶ 170). Defendants generally maintain that the LTD does not abuse the corporate form because it is a “small closely held corporation ]” that “holds boarding meetings, has outside board members and does not intermingle personal and corporate assets.” (9/26/07 Nagel Decl. at ¶ 46.)

DISCUSSION

I. APPLICABLE LEGAL STANDARDS

Where the grounds for a motion to dismiss include lack of personal jurisdiction, improper venue, and failure to state a claim upon which relief can be granted, the Court must first consider the jurisdictional claims before considering the merits of the case. See Arrowsmith v. United Press Int’l, 320 F.2d 219, 221 (2d Cir.1963) (“A court without such jurisdiction [over the defendant] lacks power to dismiss a complaint for failure to state a claim.”).

A. Rule 12(b)(2)

Rule 12(b)(2) of the Federal Rules of Civil Procedure provides that an action may be dismissed for lack of personal jurisdiction. To overcome such a motion, the “plaintiff need only make a prima facie showing of [personal] jurisdiction” over the defendants. Marine Midland Bank N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). The plaintiff bears the burden of establishing that the Court has jurisdiction over the defendant, but, at this stage, his burden can be satisfied by good-faith, legally sufficient allegations of jurisdiction. Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir.1999); Jazini v. Nissan Motor Co., 148 F.3d 181, 184 (2d Cir.1998). In ruling on a Rule 12(b)(2) motion, the Court may provisionally accept disputed factual allegations as true. Credit Lyonnais Securities (USA), Inc. v. Alcantara, 188 F.3d 151, 153 (2d Cir.1999). In addition, when considering the pleadings of a pro se litigant such as Plaintiff, the Court must read those pleadings liberally and interpret them so as to “raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999).

Nonetheless, a decision on a motion to dismiss under Rule 12(b)(2), for lack of personal jurisdiction, need not be based solely on the “four corners of the complaint.” Rather, on such a motion, the Court may also rely on submitted affidavits and other supporting materials submitted in relation to the motion. Andy Stroud, Inc. v. Brown, 08 Civ. 8246(HB), 2009 WL 539863, at *1, n. 2, 2009 U.S. Dist. LEXIS 18725, at *2, n. 2 (S.D.N.Y. Mar. 4, 2009). The court need not hold an evidentiary hearing to decide the motion. See Credit Lyonnais Securities (USA), Inc., 183 F.3d at 153; see also CutCo Industries, Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir.1986) (the district court is “free to decide the best way to deal with [the] question” of determining personal jurisdiction on a motion to dismiss, and may decide the motion on the basis of affidavits alone or it may permit discovery and/or an evidentiary hearing in aid of the motion). In the absence of an evidentiary hearing or a trial on the merits, all pleadings and affidavits are “construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiffs favor, notwithstanding a controverting presentation by the moving party.” A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993); see also CutCo Industries, 806 F.2d at 365; Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985).

Personal jurisdiction over a defendant in a “diversity action is determined by the law of the forum in which the court sits.” Arrowsmith, 320 F.2d at 223; see also Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 124 (2d Cir.2002). Thus, this Court’s determination in this case must be based on New York’s law of personal jurisdiction. Under New York law, this Court is required to engage in a two-step analysis to determine if it has personal jurisdiction over the defendants. Bank Brussels Lambert, 305 F.3d at 124. First, the court must determine whether New York law confers jurisdiction over Defendants to New York State courts of general jurisdiction. Id. If there is a state statutory basis for jurisdiction, the court must then determine whether New York may permissibly exercise personal jurisdiction over Defendants pursuant to the Due Process Clause of the 14th Amendment. Id.

1. General Jurisdiction Under N.Y.C.P.L.R. § 301

Pursuant to Section 301 of the C.P.L.R., New York has general jurisdietion over a foreign corporation if the defendant “does business” in the state in the “traditional sense.” Ball, 902 F.2d at 198; Frummer v. Hilton Hotels International, Inc., 19 N.Y.2d 533, 536, 281 N.Y.S.2d 41, 227 N.E.2d 851 (1967); N.Y.C.P.L.R. § 301. New York courts have consistently interpreted this standard to mean that New York courts have general jurisdiction over a defendant where the defendant is “engaged in such a continuous and systematic course” of doing business in the state as to warrant a finding of its presence in the jurisdiction. Frummer, 19 N.Y.2d at 536, 281 N.Y.S.2d 41, 227 N.E.2d 851. Occasional or casual business in New York does not confer general jurisdiction in New York such that a foreign corporation may be sued in New York on causes of action that are wholly unrelated to its activities in New York. Ball, 902 F.2d at 198; see also Cohen v. Vaughan Bassett Furniture Co., Inc., 495 F.Supp. 849, 850 (S.D.N.Y.1980).

The New York Court of Appeals has set forth several factors to determine if a foreign corporation is present in New York and therefore subject to general jurisdiction in New York. These factors include the presence of an office, employees, and bank account within New York, and the solicitation of business in New York. Bryant v. Finnish Nat’l Airline, 15 N.Y.2d 426, 432, 260 N.Y.S.2d 625, 208 N.E.2d 439 (1965) (finding that New York had general jurisdiction over a foreign corporation that, in New York, directly maintained an office where it employed several people, had a bank account, and engaged in public relations and publicity work for the defendant); Hoffritz, 763 F.2d at 58.

In addition to the “doing business” standard under Section 301, general jurisdiction can also be found where a defendant’s solicitation of business in New York is “substantial and continuous, and defendant engages in other activities of substance in the state.” Landoil Resources Corp. v. Alexander & Alexander Services, Inc., 918 F.2d 1039, 1043-44 (2d Cir.1990). Under this so-called “solicitation-plus” standard for personal jurisdiction, “once solicitation is found in any substantial degree very little more is necessary to a conclusion of ‘doing business.’” Id.

In general, an employee or agent who acts on behalf of a corporation “does not subject himself, individually,” to jurisdiction under Section 301. Laufer v. Ostrow, 55 N.Y.2d 305, 449 N.Y.S.2d 456, 460, 434 N.E.2d 692 (1982). Nevertheless, under New York law, a corporation’s owner whose activities “ ‘show a disregard for the separate corporate existence of the [corporation]’ ” may be subject to personal jurisdiction based upon piercing of the corporate veil. M. Prusman, Ltd. v. Ariel Maritime Group, Inc., 719 F.Supp. 214, 221 (S.D.N.Y.1989) (quoting Volkswagenwerk Aktiengesellschaft v. Beech Aircraft, 751 F.2d 117, 120 (2d Cir.1984)). The question of whether a Colorado corporation’s veil should be pierced, however, is a question of Colorado law. (See Discussion infra, at Point 1(B).)

2. Speciñc Jurisdiction Under N.Y.C.P.L.R. § 302(a)

Where a defendant does not fall under the “doing business” requirement of Section 301, the plaintiff may look to New York’s long-arm statute, Section 302, which requires a lesser showing than that required under Section 301. Hoffritz, 763 F.2d at 58. Section 302(a)(1) confers specific jurisdiction over a non-domiciliary defendant if 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 these contacts. N.Y.C.P.L.R. § 302(a)(1). Thus, a plaintiff must demonstrate “the existence of some articulable nexus between the business transacted and the cause of action sued upon.” McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 419 N.E.2d 321 (1981). In “transacting business,” the party must have “purposefully avail[ed] itself of the privilege of conducting activities within New York.” Ehrenfeld v. Bin Mahfouz, 9 N.Y.3d 501, 851 N.Y.S.2d 381, 386, 881 N.E.2d 830 (2007). Where a party engages in purposeful activity, through volitional acts, in New York, personal jurisdiction is proper because that party has “invok[ed] the benefits and protections of New York’s laws.” Fischbarg v. Doucet, 9 N.Y.3d 375, 380, 849 N.Y.S.2d 501, 880 N.E.2d 22 (2007) (internal quotation marks and citation omitted).

As New York courts have explained, Section 302(a) is a “single act statute,” and “proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.” Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 527 N.Y.S.2d 195, 198-99, 522 N.E.2d 40 (1988); see also Bank Brussels Lambert, 171 F.3d at 787.

3. Due Process Requirements

To the extent that jurisdiction over Defendants is proper under New York’s jurisdictional statutes, constitutional due process considerations must be considered separately. A court may exercise jurisdiction over only those defendants that have “minimum contacts” with the forum state “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). “In judging minimum contacts, a court properly focuses on ‘the relationship among the defendant, the forum, and the litigation.’” Colder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)). “To establish the minimum contacts necessary to justify ‘specific’ jurisdiction, the [plaintiff] first must show that [the plaintiffs] claim arises out of or relates to [the defendant’s] contacts with [New York].” Chaiken v. W Publ’g Corp., 119 F.3d 1018, 1027 (2d Cir.1997) (citation omitted). In addition, the plaintiff must show that the defendant “purposefully avails itself of the privilege of conducting activities” in New York such that it “should reasonably anticipate being haled into Court [here].” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citation omitted).

B. Piercing the Corporate Veil

Under New York choice-of-law ru