Unjust Enrichment Not Predicate Tort for CPLR 302 Jurisdiction Over Co-Conspirator

On August 25, 2015, Justice Bransten of the New York County Commercial Division issued a decision in Norex Petroleum Limted v. Blavatnik, 2015 NY Slip Op. 51280(U), holding that unjust enrichment cannot serve as a predicate tort to establish jurisdiction over a co-conspirator under CPLR 302.

In Norex Petroleum, the defendants moved to dismiss on multiple grounds. This post addresses the court's decision on the question of whether personal jurisdiction existed over an alleged co-conspirator under CPLR 302 based on a claim of unjust enrichment.

CPLR 302(a) provides, in relevant part, that

a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: . . . 2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or 3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce . . .

The Norex Petroleum court held that the plaintiff's unjust enrichment claim was an insufficient basis to establish Section 302(a)(2) or (3) jurisdiction over a co-conspirator, explaining:

In addition, to the extent that [the plaintiff] asserts conspiracy jurisdiction based upon unjust enrichment, [the plaintiff's] arguments fail. The cause of action for unjust enrichment cannot be asserted as the predicate tort for jurisdiction under CPLR 302 §(a)(2) or (3). As the Court of Appeals held in Corsello v. Verizon New York, Inc., 18 NY3d 777, 790 (2012), typical cases of unjust enrichment are those in which the defendant, though guilty of no wrongdoing, has received money to which he or she is not entitled. The Court of Appeals found that an unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim. The definition of unjust enrichment, as outlined in Corsello, conflicts with the theory of exercising jurisdiction over a co-conspirator. To be a co-conspirator, some level of participation in a wrongful act is required. A party cannot be simultaneously be guilty of no wrongdoing, while participating in a wrongful act.

(Internal quotations and citations omitted).