A plaintiff establishing a prima facie case of jurisdiction must prove personal jurisdiction by a preponderance of the evidence at a pretrial evidentiary hearing or trial.
A plaintiff sued a non-domiciliary for negligent misrepresentations made during business visits to New York. The district court dismissed the action, applying the fiduciary shield doctrine because the defendant's acts were performed in his capacity as a corporate officer. The court held that while an individual may be shielded from personal jurisdiction for acts performed as a corporate fiduciary, this doctrine is an equitable principle that does not apply mechanically. If a corporation is merely a shell for its owner, the owner may be subject to personal jurisdiction even without a showing of fraud. Because the plaintiff made a prima facie showing that the corporation was a shell, the motion to dismiss should have been denied or referred to an evidentiary hearing.
At page 904 Determining jurisdiction and procedural leeway in motions to dismiss584 citing cases“considerable procedural leeway”
- United States v. M/Y Amadea, No. 25-869 (2d Cir. June 1, 2026).published([T]he plaintiff must establish jurisdiction 8 by a preponderance of the evidence . . . at a pretrial evidentiary hearing.)
- Di Pompo v. Vill. of Brewster, No. 7:21-cv-01340 (S.D.N.Y. Apr. 7, 2022).([U]ntil such a hearing is held, a prima facie showing suffices, notwithstanding any controverting presentation by the moving party, to defeat the motion.)
- Williams v. Summit Marine, Inc., No. 5:18-cv-00216 (N.D.N.Y. Aug. 30, 2019).([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 meri…)
- Sullivan, Jr. v. Walker Constr., Inc., No. 1:18-cv-09870, 2019 WL 2008882 (S.D.N.Y. May 7, 2019). (Eventually, of course, the plaintiff must establish jurisdiction by a preponderance of the evidence, either at a pretrial evidentiary hearing or at trial. But until such a hearing is held, a prima facie showing suffice…)
- Thorsen v. Sons of Norway, 996 F. Supp. 2d 143 (E.D.N.Y. 2014).published(If the court chooses not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of [personal] jurisdiction through its own affidavits and supporting materials.)
- Barrett v. Tema Dev. (1988), Inc., 463 F. Supp. 2d 423 (S.D.N.Y. 2006).published(If the court chooses not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials.)
- Indymac Mortg. Holdings, Inc. v. Reyad, 167 F. Supp. 2d 222 (D. Conn. 2001).published(If the court chooses not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials.)
- Designs for Health, Inc. v. Miller, 201 A.3d 1125 (Conn. App. Ct. 2019).published (If the court chooses not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials. Eventually, of…)
- In re Terrorist Attacks on September 11, 2001, No. 06-0319-cv(L) (2d Cir. Aug. 14, 2008).published“the 18 fiduciary shield doctrine is not a constitutional principle, 19 but is rather a doctrine based on judicial inference as to 20 the intended scope of the long arm statute.”
- Cappuccitti v. Gulf Indus. Prods., Inc., 222 S.W.3d 468 (Tex. App.—Houston [1st Dist.] 2007).published“the fiduciary shield doctrine is not a constitutional principle, but is rather a doctrine based on judicial inference as to the intended scope of the longarm statute.”
Show 180 more citing cases
- State ex rel. Miller v. Internal Energy Mgmt. Corp., 324 N.W.2d 707 (Iowa 1982).published “the fiduciary shield doctrine is not a constitutional principle, but is rather a doctrine based on judicial inference as to the intended scope of the long-arm statute.”
- Garrett, No. 1:25-cv-01300 (E.D.N.Y. Sept. 28, 2026).If the court decides to rely solely on written materials, “‘the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials.’” Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 17…
- Worden, No. 6:25-cv-01234 (N.D.N.Y. Sept. 8, 2026).Nov. 13, 2023) (Suddaby, J.) (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)).
- Altigen Commc'ns, Inc. v. Day, No. 2025-1298-JTL (Del. Ch. Aug. 21, 2026).publishedAssocs., Inc., 557 F.2d 1280 , 1285 n.2 (9th Cir. 1977); then quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981))). 22 Matthew v. Fläkt Woods Gp.
- Xu, No. 3:25-cv-00270 (W.D. Ky. Aug. 17, 2026).In deciding a motion to dismiss under this rule, the Court has three options: 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 m…
- Gillette, No. 6:26-cv-00085 (N.D.N.Y. June 11, 2026). Nov. 13, 2023) (Suddaby, J.) (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)).
- Jean-Louis, No. 3:25-cv-01100 (D. Conn. Mar. 30, 2026).Licci, 673 F.3d at 59 ; Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999) (“Where a ‘court [has chosen] not to conduct a full- blown evidentiary hearing on the motion, the plaintiff need make only a pr…
- Todd MacLaughlan v. Ilana Einheiber, 354 A.3d 864 (Del. Ch. 2026).publishedAssocs., Inc., 557 F.2d 1280 , 1285 n.2 (9th Cir. 1977); then quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981))). 21 See Arxada Hldgs.
- Arxada Holdings NA Inc. v. Harvey, 351 A.3d 519 (Del. Ch. 2026).publishedAssocs., Inc., 557 F.2d 1280 , 1285 n.2 (9th Cir. 1977); then quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981))), modified in rehearing in unrelated part, 836 F.2d 850 (5th Cir. 1988). 28 holding an early evide…
- MacDonald, No. 3:25-cv-00848 (D. Conn. Jan. 15, 2026).Where the issue arises very early in litigation, before discovery and without an evidentiary hearing, a plaintiff “need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials.” Bank Brussels, 17…
- Sociedad Concesionaria Metropolitana Du Salud S.A. v. Webuild S.P.A., No. 3:24-cv-02043 (D. Conn. Jan. 12, 2026).“a district court has considerable procedural leeway”
- Ribordy, No. 2:25-cv-00987 (W.D. Pa. Dec. 4, 2025).LaRose v. Sponco Mfg., Inc., 712 F. Supp. 455, 458-59 (D.N.J. 1989) (citing Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)).
- Vanicor, No. 2:25-cv-00061 (W.D. La. Nov. 14, 2025).Furniture Corp., 825 F.Supp.2d 664, 687 (M.D.N.C. 2011) (citing Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)).
- GPC3 I, LLC v. Javarone, No. 1:25-cv-24654 (S.D. Fla. Oct. 8, 2025).Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d.
- Foam Master, LLC v. Paratus Supply, Inc., No. 5:24-cv-00389 (E.D. Ky. Sept. 30, 2025).In deciding a motion to dismiss under this rule, the Court has three options: 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 m…
- Sanchez, No. 7:24-cv-06704 (S.D.N.Y. Sept. 26, 2025).(noting that, until an evidentiary hearing is held, “a prima facie showing suffices, argue that the Agreements are invalid because Plaintiffs received only the first and last pages of the agreement, but that argument is…)
- Pinnacle Holding Co. v. Allen, No. 5:24-cv-00239 (N.D.N.Y. Sept. 2, 2025).Nov. 13, 2023) (Suddaby, J.) (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)).
- April Chandler v. Mark Skipper, No. 2:25-cv-08210 (C.D. Cal. Aug. 25, 2025).“In deciding a pretrial motion to dismiss for lack of personal jurisdiction, a district court has considerable procedural leeway”
- Celsius Network Ltd. v. Tether Ltd., No. 24-04018 (Bankr. S.D.N.Y. June 30, 2025).publishedSec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)).
- Helferich v. Glymed Plus LLC, No. 4:25-cv-10194 (E.D. Mich. June 3, 2025).“If it decides that the motion can be ruled on before trial, the court ‘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 t…
- Sokka Int'l Ent Ltd v. Oregon Tools Inc, No. 1:23-cv-07088 (E.D.N.Y. Mar. 31, 2025).Dorchester Financial Securities, Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (citing Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981)).
- Cerovene, Inc. v. Fukuzyu Pharm. Co., No. 1:24-cv-00464 (S.D.N.Y. Mar. 10, 2025).Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (per curiam) (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)); see also APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) (“A district court retain…
- Maidenbaum v. Marcus, No. 2:23-cv-03039 (E.D.N.Y. Mar. 4, 2025).Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981).
- Saks v. Andreu, Palma, Lavin, & Solis, PLLC, No. 1:24-cv-02045 (E.D.N.Y. Jan. 28, 2025).Secs., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013). “[T]he showing a plaintiff must make to defeat a defendant’s claim that the court lacks personal jurisdiction over it ‘varies depending on the procedural posture of the litiga…
- Hella Corp. Ctr. USA v. BOGE Elastmetall GmbH, No. 4:23-cv-13252 (E.D. Mich. Dec. 4, 2024).Ass’n, 875 F.2d at 1214 (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2nd Cir. 1981)).
- Rogers v. Middletown, No. 3:22-cv-01545 (D. Conn. Nov. 18, 2024).“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”
- True Velocity Ammunitions, LLC v. SIG Sauer, Inc., No. 2:24-cv-00522 (D. Vt. Oct. 25, 2024).“a prima facie showing suffices, notwithstanding any controverting presentation by the moving party, to defeat the motion”
- This, LLC v. HolaBelle, Inc., No. 3:23-cv-01579 (D. Conn. June 12, 2024).“a district court has considerable procedural leeway”
- Irving H. Picard v. BNP Paribas S.A., No. 12-01576 (Bankr. S.D.N.Y. June 4, 2024).unpublishedSec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013). “‘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 m…
- In re Bernard L. Madoff Inv. Sec. LLC, No. 1:24-cv-00024 (S.D.N.Y. Mar. 25, 2024).Dorchester, 722 F.3d at 86 (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981) (emphasis added)).
- Bur-Tex Hosiery Inc v. World Tech Toys Inc, No. 1:23-cv-03454, 2024 WL 989841 (S.D.N.Y. Mar. 7, 2024).(New York law)
- Boller v. Everything Ice, Inc., No. 4:23-cv-01997 (N.D. Ohio Jan. 31, 2024).Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989) (citing Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)); Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir. 1998) (quoting CompuServe, Inc. v. Patterson, 89 F.3d…
- Meehan v. VIPKid, No. 2:20-cv-06370 (E.D.N.Y. Jan. 25, 2024).Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981).
- Irving H. Picard v. BNP Paribas Arbitrage SNC, No. 11-02796 (Bankr. S.D.N.Y. Dec. 28, 2023).unpublishedSec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013). “‘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 m…
- Graduation Solutions, LLC v. Alexander Loukaides, No. 20-1384-cv (2d Cir. Nov. 24, 2021).unpublished
- H&H Wholesale Servs., Inc. v. Kamstra Int'l, B.V., No. 21-1533 (6th Cir. Nov. 24, 2021).unpublished
- Harris v. Harris, 289 A.3d 310 (Del. Ch. 2023).published
- Harris v. Harris, 289 A.3d 310 (Del. Ch. 2023).published
- Harris v. Harris, 289 A.3d 310 (Del. Ch. 2023).published
- In re Platinum & Palladium Antitrust Litig., 61 F.4th 242 (2d Cir. 2023).published
- Wilcox v. Fishers Island Ferry Dist., No. 3:20-cv-00678 (D. Conn. Mar. 2, 2021).
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- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Dec. 9, 2022).unpublished
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- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Dec. 2, 2022).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Aug. 3, 2022).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Dec. 15, 2022).unpublished
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- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Nov. 21, 2022).unpublished
- Irving H. Picard v. UKFP (Asia) Nominees Ltd., No. 12-01566 (Bankr. S.D.N.Y. Dec. 9, 2022).unpublished
- Irving H. Picard v. Inteligo Bank Ltd, No. 11-02763 (Bankr. S.D.N.Y. Dec. 15, 2022).unpublished
- Irving H. Picard v. Credit Agricole (Suisse) S.A., No. 12-01022 (Bankr. S.D.N.Y. Jan. 20, 2023).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Jan. 20, 2023).unpublished
- Irving H. Picard v. Grosvenor Inv. Mgmt. Ltd., No. 12-01021 (Bankr. S.D.N.Y. Nov. 21, 2022).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Jan. 27, 2023).unpublished
- Irving H. Picard v. ASB Bank Corp., No. 11-02730 (Bankr. S.D.N.Y. Nov. 18, 2022).unpublished
- Irving H. Picard v. Credit Agricole (Suisse) S.A., No. 12-01022 (Bankr. S.D.N.Y. Jan. 27, 2023).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Feb. 14, 2023).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Feb. 15, 2023).unpublished
- Irving H. Picard v. Trincastar Corp., No. 11-02731 (Bankr. S.D.N.Y. Feb. 21, 2023).unpublished
- Irving H. Picard v. BSI AG, No. 12-01209 (Bankr. S.D.N.Y. Dec. 2, 2022).unpublished
- Irving H. Picard v. Inteligo Bank Ltd, No. 11-02763 (Bankr. S.D.N.Y. Dec. 9, 2022).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Feb. 21, 2023).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Mar. 16, 2023).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Mar. 14, 2023).unpublished
- Irving H. Picard v. Merrill Lynch Int'l, No. 10-05346 (Bankr. S.D.N.Y. Mar. 16, 2023).unpublished
- Irving H. Picard v. LGT Bank (Switzerland) Ltd., No. 12-01577 (Bankr. S.D.N.Y. Mar. 29, 2023).
- Irving H. Picard v. Credit Agricole Corp. & Inv. Bank d/b, No. 12-01670 (Bankr. S.D.N.Y. Feb. 15, 2023).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Mar. 28, 2023).published
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Mar. 29, 2023).
- Irving H. Picard v. NOMURA Int'l PLC, No. 10-05348 (Bankr. S.D.N.Y. Apr. 19, 2023).unpublished
- Irving H. Picard v. Nomura Int'l PLC, No. 11-02759 (Bankr. S.D.N.Y. Apr. 26, 2023).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Apr. 26, 2023).unpublished
- Irving H. Picard v. KBC Investments Ltd., No. 11-02761 (Bankr. S.D.N.Y. Apr. 26, 2023).unpublished
- Irving H. Picard v. Merrill Lynch Bank (Suisse) SA, No. 11-02910 (Bankr. S.D.N.Y. Apr. 26, 2023).unpublished
- Irving H. Picard v. EFG BANK S.A., No. 12-01690 (Bankr. S.D.N.Y. Apr. 26, 2023).unpublished
- Irving H. Picard v. LGT Bank (Switzerland) Ltd., No. 12-01577 (Bankr. S.D.N.Y. Feb. 28, 2023).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Apr. 18, 2023).unpublished
- Irving H. Picard v. LGT Bank in Liechtenstein Ltd., No. 11-02929 (Bankr. S.D.N.Y. Feb. 14, 2023).unpublished
- Irving H. Picard v. SNS Bank N.V., No. 12-01046 (Bankr. S.D.N.Y. Mar. 7, 2023).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Feb. 28, 2023).unpublished
- Irving H. Picard v. Platinum All Weather Fund Ltd., No. 12-01697 (Bankr. S.D.N.Y. May 17, 2023).unpublished
- PICARD v. BANQUE INTERNATIONALE A LUXEMBOURG S.A. (f/k/a Dex, No. 12-01698 (Bankr. S.D.N.Y. Mar. 14, 2023).unpublished
- PICARD v. Hebrew Univ. of Jerusalem, No. 21-01190 (Bankr. S.D.N.Y. Mar. 28, 2023).published
- Irving H. Picard v. Six Sis AG, No. 12-01195 (Bankr. S.D.N.Y. Apr. 18, 2023).unpublished
- Irving H. Picard v. Platinum All Weather Fund Ltd., No. 12-01697 (Bankr. S.D.N.Y. June 12, 2023).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Oct. 10, 2023).unpublished
- Irving H. Picard v. Tensyr Ltd., No. 10-05353 (Bankr. S.D.N.Y. Nov. 3, 2023).published
- Irving H. Picard v. Tensyr Ltd., No. 10-05353 (Bankr. S.D.N.Y. Nov. 2, 2023).unpublished
- Irving H. Picard v. UBS AG, No. 10-05311 (Bankr. S.D.N.Y. Oct. 10, 2023).unpublished
- PICARD v. ROYAL BANK OF CANADA, No. 12-01699 (Bankr. S.D.N.Y. Mar. 31, 2023).
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Aug. 17, 2022).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Mar. 7, 2023).unpublished
- Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC., No. 08-01789 (Bankr. S.D.N.Y. Dec. 27, 2022).unpublished
- Irving H. Picard v. Bank Vontobel AG, No. 12-01202 (Bankr. S.D.N.Y. Nov. 18, 2022).unpublished
- Li v. Peck, No. 3:21-cv-00996 (D. Conn. Aug. 11, 2022).
- Edmar Fin. Co. v. Currenex, Inc., No. 1:21-cv-06598 (S.D.N.Y. June 17, 2024).
- Chaney v. Vermont Bread Co., No. 2:21-cv-00120 (D. Vt. Mar. 14, 2022).
At page 902 Applying the fiduciary shield doctrine to personal jurisdiction70 citing casesthe doctrine should be applied where the tort alleged is negligent misrepresentation and the statement attributed to the corporate agent consisted of no more than confirmations and reiterations of the corporation’s own statements.
- Hanline v. Sinclair Global Brokerage Corp., 652 F. Supp. 1457 (W.D. Mo. 1987).published (doctrine applicable when tort alleged is negligent misrepresentation)
- Phoenix Home Life Mut. Ins. v. Brown, 857 F. Supp. 7 (W.D.N.Y. 1994).published Cf. Marine Midland Bank, N.A. v. Miller, 664 F.2d at 903 (“As an equitable principle, the fiduciary shield doctrine is not applied mechanically * * *.
- Salvador v. Meese, 641 F. Supp. 1409 (D. Mass. 1986).published(the doctrine should be applied where the tort alleged is negligent misrepresentation and the statement attributed to the corporate agent consisted of no more than confirmations and reiterations of the corporation’s own…)
- State ex rel. Miller v. Internal Energy Mgmt. Corp., 324 N.W.2d 707 (Iowa 1982).published See Marine Midland Bank, N. A. v. Miller, 664 F.2d 899 , 902 n.3 (2nd Cir. 1981) (“The fiduciary shield doctrine is not a constitutional principle, but is rather a doctrine based on judicial inference as to the intended scope of the long-a…
- CH Assocs. XI, LLC v. 1102 West Street, LP, No. N24C-09-260 FWW (Del. Super. Ct. Mar. 3, 2025).publishedIn only one – Marketing Products Management, LLC v. HealthandBeautyDirect.com, Inc.39 – did the Court identify it as a rationale for granting a motion to dismiss, and then, 36 Id. (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899,…
- Bulk Oil (USA) Inc. v. Sun Oil Trading Co., 584 F. Supp. 36 (S.D.N.Y. 1983).published
- Abeloff v. Barth, 119 F.R.D. 315 (D. Mass. 1988).published
- Columbia Briargate Co. v. First Nat'l Bank in Dallas Vaughn Pearson & A.S. Kyzer, Jr., 713 F.2d 1052 (1st Cir. 1983).published
- Dale C. Davis v. Metro Prods., Inc. Ralph Smith, & Michael L. Miller, Dale C. Davis v. Metro Prods., Inc. Michael L. Miller, & Ralph Smith, 885 F.2d 515 (9th Cir. 1989).published
- Lester v. ARB, 658 So. 2d 583 (Fla. 3d DCA 1995).published
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- Obee v. Teleshare, Inc., 725 F. Supp. 913 (E.D. Mich. 1989).published
- Cantor v. Life Alert, Inc., 655 F. Supp. 673 (S.D.N.Y. 1987).published
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- Deutsch v. Integrated Barter Int'l, Inc., 700 F. Supp. 194 (S.D.N.Y. 1988).published
- Thomson McKinnon Sec., Inc. v. Hamiltonian Indus., Inc., 610 F. Supp. 5 (S.D.N.Y. 1985).published
- Peabody Holding Co. v. Costain Grp. PLC, 808 F. Supp. 1425 (E.D. Mo. 1992).published
- McClelland v. Watling Ladder Co., 729 F. Supp. 1316 (W.D. Okla. 1990).published
- Ius v. Butcher, 680 F. Supp. 343 (D. Or. 1987).published
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- Barrett v. United States, 646 F. Supp. 1345 (S.D.N.Y. 1986).published
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- Doe v. Thompson, 620 So. 2d 1004 (Fla. 1993).published
- Bickerton v. Bozel S.A. (In Re Bozel S.A.), 434 B.R. 86 (Bankr. S.D.N.Y. 2010).published
- E.J. McGowan & Assocs., Inc. v. Biotechnologies, Inc., 736 F. Supp. 808 (N.D. Ill. 1990).published
- Allen v. Toshiba Corp., 599 F. Supp. 381 (D.N.M. 1984).published
- Club Assistance Prog., Inc. v. Zukerman, 594 F. Supp. 341 (N.D. Ill. 1984).published
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- Oakridge Holdings, Inc. v. Brukman, 528 N.W.2d 274 (Minn. Ct. App. 1995).published
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- Davis v. Metro Prods., Inc., 885 F.2d 515 (9th Cir. 1989).published
- Am. Directory Serv. Agency v. Beam, 131 F.R.D. 635 (D.D.C. 1990).published
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- WCR, Inc. v. W. Canada Plate Exch., LTD, No. 3:18-cv-00278 (S.D. Ohio June 8, 2021).
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At page 903 Evaluating fiduciary shield doctrine application to personal jurisdiction27 citing casesThe fiduciary shield doctrine … is not concerned with liability. It is concerned with … the fairness of asserting jurisdiction over a person who is acting solely in the interests of another.
- Greene v. Karpeles, No. 1:14-cv-01437, 2019 WL 1125796 (N.D. Ill. Mar. 12, 2019).(The fiduciary shield doctrine … is not concerned with liability. It is concerned with … the fairness of asserting jurisdiction over a person who is acting solely in the interests of another.)
- Phoenix Home Life Mut. Ins. v. Brown, 857 F. Supp. 7 (W.D.N.Y. 1994).published (As an equitable principle, the fiduciary shield doctrine is not applied mechanically * * *. In each instance, fairness is the ultimate test.)
- State ex rel. Miller v. Internal Energy Mgmt. Corp., 324 N.W.2d 707 (Iowa 1982).published See Marine Midland Bank, N. A. v. Miller, 664 F.2d 899 , 902 n.3 (2nd Cir. 1981) (“The fiduciary shield doctrine is not a constitutional principle, but is rather a doctrine based on judicial inference as to the intended scope of the long-a…
- Barrett v. United States, 646 F. Supp. 1345 (S.D.N.Y. 1986).published
- Johns v. Rozet, 770 F. Supp. 11 (D.D.C. 1991).published
- Am. Directory Serv. Agency v. Beam, 131 F.R.D. 635 (D.D.C. 1990).published
- Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640 (5th Cir. 2002).published
- Patin v. Thoroughbred Power, No. 00-31283 (5th Cir. July 15, 2002).published
- LA Banque Societe v. Sheikh Abdillah, No. 01-20561 (5th Cir. July 17, 2002).unpublished
- LA Banque Societe v. Sheikh Abdillah, No. 01-20562 (5th Cir. July 17, 2002).unpublished
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At page 901 Allegations of gross negligence and personal jurisdiction9 citing casesapproximately $6 million. This amount was subsequently increased to more than $9 million. In March 1979, Keplinger informed Marine Midland that the Miller…
- Lee N. Koehler v. Bank of Bermuda Ltd., 101 F.3d 863 (2d Cir. 1996).published
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- Abeloff v. Barth, 119 F.R.D. 315 (D. Mass. 1988).published
The fiduciary shield doctrine is not a constitutional principle, but is rather a doctrine based on judicial inference as to the intended scope of the longarm statute.
- Cappuccitti v. Gulf Indus. Prods., Inc., 222 S.W.3d 468 (Tex. App.—Houston [1st Dist.] 2007).published(The fiduciary shield doctrine is not a constitutional principle, but is rather a doctrine based on judicial inference as to the intended scope of the longarm statute.)
- State ex rel. Miller v. Internal Energy Mgmt. Corp., 324 N.W.2d 707 (Iowa 1982).published (The fiduciary shield doctrine is not a constitutional principle, but is rather a doctrine based on judicial inference as to the intended scope of the long-arm statute.)
At page 920 cited at this page1 citing case
- CANDY H. v. Redemption Ranch, Inc., 563 F. Supp. 505 (M.D. Ala. 1983).published But see, Marine Midland Bank v. Miller, 664 F.2d 899, 920 (3d Cir.1981); Weller v. Cromwell Oil Co., 504 F.2d 927 (6th Cir. 1974); Thames v. Gunter-Dunn, Inc., 373 So.2d 640 (Ala.1974). 8 In Alabama, as in most states, the general rule is…
v.
James W. MILLER, Defendant-Appellee
This is an appeal from a final judgment of the United States District Court for the Southern District of New York dismissing this diversity action for lack of personal jurisdiction over the defendant. Plaintiff Marine Midland Bank, N.A. (“Marine Midland”) sued defendant James W. Miller, a nondomiciliary of New York, to recover damages resulting from Miller’s alleged grossly negligent misrepresentations. The district court ruled that because Miller’s acts in New York were performed solely in his capacity as Chief Executive Officer of J.W. Miller & Associates (“Miller & Associates”), his actions were insufficient to permit the court to exercise jurisdiction over Miller in his individual capacity under New York’s long-arm statute, N.Y. Civ.Prac. Law & R. (“CPLR”) § 302(a) (McKinney 1972 & Supp. 1980). For the reasons below, we reverse and remand.
Background
In 1977, a group of investors, subsequently known as Atlas-Dirty Devil Mining (“ADDM”), sought to borrow approximately $6 million from Marine Midland in order to finance a planned coal mining project. ADDM submitted to Marine Midland a feasibility report prepared by Miller & Associates, a coal consulting firm incorporated under the laws of West Virginia (the “Miller Report”). The Miller Report stated that the proposed mine would yield nearly twenty-seven million tons of coal of commercially acceptable quality. Thereafter, Miller, the president of Miller & Associates and a resident of West Virginia, made at least two visits to Marine Midland’s offices in New York, where he presented and confirmed orally the findings and conclusions of the Miller Report. Marine Midland retained a second coal consulting firm, Keplinger & Associates, Inc. (“Keplinger”) to evaluate the Miller Report. Keplinger confirmed the conclusions of Miller & Associates. After receiving all of this information, Marine Midland agreed to lend ADDM[*901] approximately $6 million. This amount was subsequently increased to more than $9 million.
In March 1979, Keplinger informed Marine Midland that the Miller Report and the Keplinger confirmation had overstated both the quality and the quantity of ADDM’s coal resources. In fact, almost no coal could economically be mined by ADDM. Consequently, ADDM was unable to repay the funds it borrowed from Marine Midland and it has filed a petition under Chapter XI of the Bankruptcy Act.
In May 1980, Marine Midland filed the present suit against Miller, [1] alleging that Miller had been grossly negligent in making false statements to the bank while at its offices in New York. In addition, it alleged that Miller was responsible for the false statements contained in the Miller Report because he had participated in its preparation, because he had presented the report to the bank, and because Miller & Associates was merely a shell that was in actuality Miller’s “alter ego.”
Miller moved, pursuant to Fed.R.Civ.P. 12(b)(2), to dismiss the complaint for lack of personal jurisdiction. In opposition to Miller’s motion Marine Midland presented deposition testimony by Miller and several affidavits to support, inter alia, its contention that Miller & Associates was merely a shell for Miller personally. The affidavits described a certain fluidity of the lines of demarcation between Miller & Associates and other business entities wholly owned by Miller, with respect to contract formation and performance, services and billing, and so forth. In addition, one affidavit cited Miller’s counsel as having stated, in his position as counsel for Miller & Associates in Marine Midland’s suit against that entity (see note 1 supra), that Miller & Associates had a net worth of just $30,000 and was in effect nothing more than a telephone number and stationery.
The District Court’s Decision
The district court granted Miller’s motion to dismiss the action for lack of jurisdiction. [2] Recognizing that the law of the forum state governs the exercise of personal jurisdiction in a diversity case in federal court, Braman v. Mary Hitchcock Hospital, 631 F.2d 6 (2d Cir. 1980); Arrowsmith v. UPI, 320 F.2d 219 (2d Cir. 1963) (en banc), the court, in an opinion reported at 512 F.Supp. 602, sought to resolve the jurisdictional issue by looking to New York’s long-arm statute, CPLR § 302(a). Section 302(a) provides in relevant part 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 . . . who in person or through an agent:
1. transacts any business within the state; or
2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; . . .
In construing these provisions, the district court distinguished between activities undertaken by a person in his individual capacity and those undertaken in his role as a corporate employee, and applied what has come to be known as the “fiduciary shield” doctrine, see, e. g., United States v. Montreal Trust Co., 358 F.2d 239, 243 (2d Cir.), cert. denied, 384 U.S. 919, 86 S.Ct. 1366, 16 L.Ed.2d 440 (1966), which holds that acts performed by a person in his capacity as a corporate fiduciary may not form the predicate for the exercise of jurisdiction over him in his individual capacity. 512 F.Supp. at 604. On the basis of the affidavits and[*902] other documentary evidence presented on the motion, the court concluded that Miller’s acts in New York had been performed only in his capacity as president of Miller & Associates. It found that Miller had prepared the Miller Report not alone, but rather with five associates; that, in his oral presentation to Marine Midland, Miller merely repeated what was already contained in the report; that the payments for the report had been made not to Miller personally but to Miller & Associates; and that Miller had received no benefits other than his salary as a member of the corporation. The court thus ruled that Miller was protected by the fiduciary shield. The court rejected Marine Midland’s argument that Miller was personally subject to the court’s jurisdiction because Miller & Associates was merely a shell and Miller’s acts had in fact been performed in his own behalf and thus in his individual capacity. Treating this contention as a request to disregard the corporate entity, the court found that Marine Midland had not made a showing sufficient to meet New York’s demanding standard for piercing the corporate veil. Id.
Because we conclude that the court applied too stringent a test in its treatment of the corporate shell issue, we reverse and remand for further proceedings.
Discussion
It is undisputed that an individual who commits a tort while acting in his capacity as a corporate officer or employee may be held personally liable. See, e. g., Miller v. Giant Swedish Metal Corp., 72 A.D.2d 520, 420 N.Y.S.2d 900 (1979); LaLumia v. Schwartz, 23 A.D.2d 668, 257 N.Y.S.2d 348 (1965); Lutz Feed Co. v. Audet & Co., 72 Misc.2d 28, 337 N.Y.S.2d 852 (1972). At issue in this case is not whether such a person may be liable, but rather whether and when a person acting in New York in his capacity as a corporate employee may be subject to jurisdiction as an individual under the relevant provisions of the New York long-arm statute.
The teaching of the courts of this Circuit and of New York is that there is a dichotomy between the principles governing the personal liability of corporate agents for torts committed in their corporate roles and the principles governing the amenability of such agents to personal jurisdiction solely on the basis of those acts. See, e. g., Lehigh Valley Industries v. Birenbaum, 527 F.2d 87, 92-93 (2d Cir. 1975) (dictum); United States v. Montreal Trust Co., supra; Bulova Watch Co. v. K. Hattori & Co., 508 F.Supp. 1322, 1347 (E.D.N.Y.1981); Grove Press, Inc. v. CIA, 483 F.Supp. 132, 135 (S.D.N.Y.1980), rev’d on other grounds, sub nom. Grove Press, Inc. v. Angleton, 649 F.2d 121 (2d Cir. 1981); Yardis Corp. v. Cirami, 76 Misc.2d 793, 351 N.Y.S.2d 586 (1974). See also Wilshire Oil Co. v. Riffe, 409 F.2d 1277 (10th Cir. 1969). These cases have recognized that if an individual has contact with a particular state only by virtue of his acts as a fiduciary of the corporation, he may be shielded from the exercise, by that state, of jurisdiction over him personally on the basis of that conduct. Thus, his conduct, although it may subject him to personal liability, may not form the predicate for the exercise of jurisdiction over him as an individual. The underpinning of this fiduciary shield doctrine is the notion that it is unfair to force an individual to defend a suit brought against him personally in a forum with which his only relevant contacts are acts performed not for his own benefit but for the benefit of his employer. [3] Although the district court in Merkel Associates, Inc. v. Bellofram Corp., 437 F.Supp. 612, 619 (W.D.N.Y.1977), has opined that the fiduciary shield should never be made available where the actions of the corporate agent are tortious, this stance, except as tempered by the principles discussed below, is not the prevailing view. In any event, given the rationale for the fiduciary shield doctrine, we think it obvious that the doctrine should be applied where the tort al[*903] leged is negligent misrepresentation and the statements attributed to the corporate agent consisted of no more than confirmations and reiterations of the corporation’s own statements.
As an equitable principle, the fiduciary shield doctrine is not applied mechanically; the determination of the appropriateness of its application requires an analysis of the particular facts of the ease. In each instance, fairness is the ultimate test. Its applicability depends generally on the employee’s faithful pursuit of the corporation’s interests rather than his own interests. Thus, when a corporate employee acts in his own personal interest rather than in the best interest of his corporation, he is not protected by the fiduciary shield since it is equitable that his self-interested actions be considered his own and be treated as a predicate for the exercise of jurisdiction over him personally. Accordingly, in United States v. Montreal Trust Co., supra, 358 F.2d at 243, we held that jurisdiction could be asserted under CPLR § 302(a)(1) with regard to a corporate officer’s diversion of funds for personal use, since that diversion could not be considered action in the interests of the corporation but rather was the officer’s personal act. In Lehigh Valley Industries v. Birenbaum, supra, we intimated that in similar circumstances we would reach the same result under § 302(a)(2). There we stated in dictum that if the defendant had performed acts in New York solely in his corporate role, he would not be subject to personal jurisdiction. Although we did not make a detailed analysis of the jurisdiction questions because of our conclusion that the acts alleged would not give rise to any liability, our discussion implied that the fiduciary shield would not protect a corporate agent if his actions were not in the best interests of the corporation and those actions were therefore properly attributable not to the corporation but to himself.
In evaluating the fairness of subjecting an individual to personal jurisdiction for acts done in his role as a corporate employee, it is appropriate to focus not only on the fealty of the employee to the corporation in the performance of those acts, but also on the nature of the corporation and the individual’s relationship to it. If the corporation is a mere shell for its owner, the employee-owner’s actions may be viewed as having been taken simply in his own interest. In such circumstances it will not advance notions of fairness to allow the owner of the corporation to invoke the protections of the fiduciary shield. As Judge Weinstein observed, obiter, in Bulova Watch Co. v. K. Hattori & Co., supra,
As the term “fiduciary shield” suggests, this is an equitable doctrine. It should be followed not [] mechanically but with a sound exercise of discretion. If, for example, the [corporation] lacked sufficient assets to respond or if it were a shell utilized by an individual defendant for his own benefit, the balance of fairness might be tipped and jurisdiction over the individual might lie.
In deciding whether the corporation is a real or a shell entity, the appropriate standard should not be the very stringent test, normally applied in other contexts, for piercing the corporate veil. That test requires a showing not only that the corporation is a shell, but that it was used to commit a fraud. Walkovszky v. Carlton, 18 N.Y.2d 414, 276 N.Y.S.2d 585, 223 N.E.2d 6 (1966). When both of these showings are made the corporate entity is disregarded, and the individuals behind the corporate shell are held responsible for its liabilities. The fiduciary shield doctrine, however, is not concerned with liability. It is concerned with jurisdiction, and specifically with the fairness of asserting jurisdiction over a person who is acting solely in the interests of another. In determining whether a corporation for which an owner-employee acts is really “another,” it is sufficient to inquire whether the corporation is a real or shell entity. If the corporation is merely a shell, it is equitable, even if the shell may not have been used to perpetrate a fraud, to subject its owner personally to the court’s jurisdiction to defend the acts he has done on behalf of his shell.
[*904] In the present case, in assessing Marine Midland’s assertion that Miller & Associates was a mere shell for Miller, and that Miller’s actions, while ostensibly taken in his corporate role, were in fact his own, the district court erred in applying the strict test used by New York in determining whether or not to pierce the corporate veil for purposes of liability. In deciding the limited question of whether it had jurisdiction the court should have looked only to the question whether Miller & Associates was a shell for Miller; it should not have required a showing that the shell was used to commit a fraud.
Given this less onerous standard, Miller’s motion should not have been granted on the basis of the record as it stood before the district court. 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. Visual Sciences, Inc. v. Integrated Communications Inc., 660 F.2d 56 (2d Cir. 1981); Welsh v. Gibbs, 631 F.2d 436, 438-39 (6th Cir. 1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981); Data Disc, Inc. v. Systems Technology Associates, 557 F.2d 1280, 1285 (9th Cir. 1977). If the court chooses not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials. Eventually, of course, the plaintiff must establish jurisdiction by a preponderance of the evidence, either at a pretrial evidentiary hearing or at trial. But until such a hearing is held, a prima facie showing suffices, notwithstanding any controverting presentation by the moving party, to defeat the motion. Visual Sciences Inc. v. Integrated Communications, Inc., supra; Data Disc, Inc. v. Systems Technology Associates, supra; United States v. Montreal Trust Co., supra, 358 F.2d at 242.
In the present case, Marine Midland presented deposition testimony and affidavits concerning the ownership, capitalization, and use by Miller of Miller & Associates, and it quoted Miller’s attorney as having stated that Miller & Associates was no more than a telephone number and stationery. Marine Midland thus made a prima facie showing that Miller & Associates was a shell corporation for Miller. The motion to dismiss should not have been granted without an evidentiary hearing.
Conclusion
The judgment is reversed and the cause is remanded to the district court for further proceedings in accordance with this opinion.
. In a separate action commenced in August 1979, Marine Midland sued Keplinger and Miller & Associates in the Southern District of New York. Keplinger moved to dismiss for lack of jurisdiction or, in the alternative, to have either the entire action transferred to the Southern District of Texas or the action against himself severed and transferred to that district. The district court denied these motions. Marine Midland Bank v. Keplinger & Associates, Inc., 488 F.Supp. 699 (S.D.N.Y.1980).
. The district court rejected Miller’s additional contention that the complaint failed to state a cause of action in tort.
. The fiduciary shield doctrine is not a constitutional principle, but is rather a doctrine based on judicial inference as to the intended scope of the long arm statute. See United States v. Montreal Trust Co., supra, 358 F.2d at 242.