Meteoro Amusement Corp. v. Six Flags

MEMORANDUM-DECISION AND ORDER

Factual and Procedural Background

Plaintiff, Meteoro Amusement Corp. (“Meteoro”), a New Mexico Corporation with its principal place of business in Lansing, New York, filed this civil action against defendant, Six Flags, Inc. (“SFI”), a Delaware corporation, on July 31, 2002. An amended complaint was filed November 15, 2002. Meteoro claims two counts of patent infringement against SFI pursuant to 35 U.S.C. §§ 271 et seq. regarding United States Patent Numbers 6,386,115 (“the ’115 patent”) and 6,477,961 (“the ’961 patent”), seeking declaratory and injunc-tive relief as well as damages. Count I alleges infringement of the 115 patent for the period of time commencing at publication and concluding at issuance. See Am. Compl. ¶¶ 23-27. Count II alleges continuing infringement of both the 115 and ’961 patents commencing at issuance. See id. ¶¶ 28-35.

The following are the facts as set forth in the complaint.

Meteoro is the assignee of the 115 patent, entitled “Modularized Amusement Ride and Training Simulation Device”, issued on May 14, 2002. See id. ¶ 5, Ex. A. The Modularized Amusement Ride and Training Simulation Device is defined in the abstract of the 115 patent as “[a]n amusement device comprising a modular pod, in which one or more riders sit and are restrained, and which spins under power about a horizontal axis according to the passenger’s active control” and “may be used in conjunction with many different types of amusement devices, including, but not limited to roller coasters”. See id. Ex A. Between 1997 and 1998 Meteoro offered to sell SFI, as well as other companies such as Premier Rides and Arrow Dynamics, Inc., the technology embodied in the 115 patent. See id. ¶ 7. In 1998, copies of a video which illustrated this technology were distributed to and presumed viewed by Premier Rides, Arrow Dynamics and SEI, and in 1999 the video was made available for public viewing on Meteoro’s website. See id. ¶ 8.

In December 2000, defendant SFI announced the anticipated debut of a roller coaster called “X” at its theme park, Magic Mountain, located in Valencia, California. The roller coaster was being manufactured by Arrow Communications. See id. ¶ 10. Passengers of the X roller coaster are strapped into vehicles that move 360 degrees forward or backward along a central carriage. See id. ¶ 11, Ex. E.

In September 2001, plaintiff Meteoro’s CEO notified defendant SFI’s CEO that if X was built and used, an infringement of plaintiffs pending patent application, Serial Number 09/814,083 (“the ’083 application”) would occur upon its maturation into a U.S. Patent, presently, the T15 patent. See id. ¶¶ 12, 26. SFI has never responded to this notification. See id. ¶¶ 13-15, 21.

In November 2001, the United States Patent and Trademark Office published the ’083 application. The following month, X was opened to a limited audience at Magic Mountain, and was opened to the general public in January 2002. See id. ¶¶ 16-17. SFI has promoted, and contin *266 ues to promote X, utilizing, among other things, its website to do so. See id. ¶¶ 18-20.

Plaintiff is also the assignee of the ’961 patent, duly and legally issued on November 12, 2002. See id. ¶ 22.

Presently before the court is a motion by defendant to dismiss the entire action for failure to state a claim upon which relief may be granted pursuant to Fed. R.Civ.P. 12(b)(6), for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), and for improper venue pursuant to Fed.R.Civ.P. 12(b)(3). Alternatively, defendant moves this court to transfer venue pursuant to 28 U.S.C. § 1404(a). Plaintiff opposes this motion. Oral Argument was heard on March 18, 2003 in Syracuse, New York. The court denied the motion to dismiss from the bench as to the 12(b)(1) and 12(b)(6) grounds but reserved judgment regarding the 12(b)(3) ground and the § 1404(a) motion to transfer venue. The court now denies the 12(b)(3) motion to dismiss but exercises its discretion to transfer venue to the Western District of Oklahoma pursuant to 28 U.S.C. § 1404(a).

Analysis

I. Venue — Rule 12(b)(3)

When addressing a 12(b)(3) motion to dismiss, the court must accept as true all of the allegations in plaintiffs complaint and construe all reasonable inferences in plaintiffs favor. See Dolson v. New York Thruway Auth., No. 00-CV-6439, 2001 WL 363032, at *1 (S.D.N.Y. Apr.ll, 2001). However, in defending against such a motion, plaintiff bears the burden of proving that venue is proper. See id. When deciding a motion to dismiss for improper venue, courts may consider materials outside the pleadings. See Brennen v. Phyto-Riker Pharm., Ltd., 01-CV-11815, 2002 WL 1349742, *1 n. 2 (S.D.N.Y. Jun.20, 2002), (citing New Moon Shipping Co., Ltd. v. MAN B & W Diesel AG, 121 F.3d 24, 26 (2d Cir.1997)). Should the defendant prevail on its motion, the court still retains discretion to decline to dismiss the case in favor of a transfer to any district where the case could initially have been brought. See id. (citing Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir.1993)).

Here, according to plaintiff, “venue is proper in (the Northern District of New York) pursuant to 28 U.S.C. § 1391(b) and (c) and § 1400(b).” See Am. Compl. ¶ 2. Pursuant to § 1391(b), where, as here, subject matter jurisdiction in a civil action is based on federal question, the case may be

brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b).

Where, as here, a defendant is a corporation, it

shall be deemed to reside in any judicial , district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed *267 to reside in the district within which it has the most significant contacts. 28 U.S.C. § 1391(c).

Finally, where, as here, the complaint alleges a claim of patent infringement, such an action “may be brought in the judicial district where the defendant resides, or where the defendant has' committed acts of infringement and has a regular and established place of business.” 28 U.S.C. § 1400(b).

As an initial matter, it is important to note that §§ 1391(c) and 1400(b) should be read coextensively instead of the latter being the exclusive authority for determination of venue in patent infringement cases. See VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1583 (Fed.Cir.1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991); Rocket Jewelry Box, Inc. v. Noble Gift Packaging, Inc., 869 F.Supp. 152, 155 (S.D.N.Y.1994). Cf. Aerotel v. Sprint, 100 F.Supp.2d 189, 194 (S.D.N.Y.2000). Thus, the question the court should answer when addressing a 12(b)(3) motion to dismiss in a patent infringement case with respect to a defendant who is a corporation is “whether the defendant was subject to personal jurisdiction in the district of suit at the time the action was commenced.” VE Holding, 917 F.2d at 1584, (citing 28 U.S.C. §§ 1391(c) and 1400(b)). 1 In accordance with § 1391(c), therefore, the Northern District of New York (“Northern District”) will be deemed a proper venue if it is determined that SFI is subject to personal jurisdiction there as if it were a separate state. In other words, venue in the Northern District is proper if SFI’s contacts with the District render it amenable to suit there. See 28 U.S.C. § 1391(c).

The court may exercise personal jurisdiction over a defendant “who could be subjected to the jurisdiction óf a court of general jurisdiction in the state in which the district court is located.” See Fed. R.Civ.P. 4(k)(l)(A). See also Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 94 (2d Cir.2000). When determining whether it has personal jurisdiction over a defendant in a patent case, the district court must apply the law of the state in which it sits and must defer to that state’s highest court when interpreting said law. See Aerotel v. Sprint, 100 F.Supp.2d 189, 191 (S.D.N.Y.2000); Rocket Jewelry Box, 869 F.Supp. at 154-155 (S.D.N.Y.1994); HollyAnne v. TFT, 199 F.3d 1304, 1307 (Fed.Cir.1999). In New York, a defendant that is a foreign corporation may be subject to the general jurisdiction of its courts pursuant to section 301 of the New York Civil Practice Law and Rules where it is “doing business” in the state. See Wiwa; 226 F.3d at 95, citing N.Y. C.P.L.R. § 301 (McKinney 2003). Alternatively, a defendant who is a foreign corporation may be subject to the specific jurisdiction of New York courts pursuant to its long arm statute, section 302 of the New York Civil Practice Law and Rules. See N.Y. C.P.L.R. § 302 (McKinney 2003). When determining whether it has personal jurisdiction over a foreign defendant, this court must assess whether New York’s long arm statute confers jurisdiction in light of the defendant’s contacts with the forum state, *268 and if so then whether such exercise of jurisdiction comports with constitutional due process. See LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 214, 713 N.Y.S.2d 304, 307, 735 N.E.2d 883 (Ct.App.2000). See also Rocket Jewelry Box, 869 F.Supp. at 155-156.

A. General Jurisdiction:

C.P.L.R. § 301

Corporate Presence

A corporation is subject to the jurisdiction of New York courts when it is found to be “doing business” in New York in such a continuous and systematic manner that it is deemed present in the state. See Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (N.Y.1917) 2 ; Landoil Resources Corp. v. Alexander & Alexander Serv., 77 N.Y.2d 28, 33, 563 N.Y.S.2d 739, 740, 565 N.E.2d 488 (N.Y.1990). The test for courts to apply in determining whether a foreign corporation is doing business in New York is “a ‘simple [and] pragmatic one,’ which varies in its application depending on the particular facts of each case.” Landoil, 77 N.Y.2d at 33, 563 N.Y.S.2d at 740, 565 N.E.2d 488, (citing Bryant v. Finnish Natl. Airline, 15 N.Y.2d 426, 432, 260 N.Y.S.2d 625, 208 N.E.2d 439 (N.Y.1965)). Courts have looked for more than mere solicitation to find that jurisdiction exists under section 301, and have found that activities of substance such as having office space, employees, and completing financial transactions in the forum, in addition to solicitation will render a corporate defendant amenable to suit in New York. See Laufer v. Ostrow, 55 N.Y.2d 305, 310, 449 N.Y.S.2d 456, 459, 434 N.E.2d 692 (N.Y.1982).

In its moving papers, SFI argues that it has not engaged in any “continuous and systematic course of doing business” in the Northern District because “[t]he mere indirect, stock ownership in a corporation that owns and operates one theme park in the District does not constitute the type of systematic, regular conducting of business that would subject [it] to jurisdiction in this District under CPLR § 301”. 3 See Mem. in Supp. of Def.’s Mot. to Dismiss or Transfer Venue at 15.

Meteoro argues in its opposition papers that SFI’s business activities bring it within the purview of section 301 because it solicits business in the Northern District via an interactive website, in addition to its “selling of tickets and accepting of employment applications, financing of operations, and contracting to supply goods and ser *269 vices at its theme park here.” See Pl.’s Mem. of Law in Opp’n to Def.’s Mot. to Dismiss or Transfer Venue at 14. In addition to the sixflags.com website, Meteoro cites four UCC financing statements which, they claim, are evidence that SFI guarantees the loans of its New York subsidiary, Great Escape, LLC. See id. at 15; Aff. of George R. McGuire, Jan. 6, 2008 at Ex. E.

At oral argument, counsel for plaintiff admitted that defendant does not have an office or employees in the Northern District, but reiterated plaintiffs argument that defendant SFI’s website activity as well as Great Escape’s UCC financing statement are evidence that the “solicitation plus” standard for “doing business” is met in this case. See Tr. at 33-34.

Regarding the UCC financing statements, SFI claims that the only loans it guarantees are those of its direct subsidiary, SFTPI, and that its General Counsel signed Great Escape’s financing statements as an officer of that subsidiary, not in his capacity as General Counsel to defendant. See Tr. at 37-38. A review of the four financing statements submitted to this court by plaintiff shows that defendant SFI is named in each as the parent company of Great Escape. See McGuire Aff. at Ex. E. 4 However, SFTPI is named in each statement as the primary borrower, and there is no mention of SFI as the guarantor of any loans. See id.

The issue of which entity owns and operates the sixflags.com website is a contentious one. See McGuire Aff. at ¶ 2, Ex. A; Reply Aff. of James M. Coughlin, Feb. 7, 2003 at ¶ 8. Assuming arguendo this court concludes defendant is that entity, nonetheless courts in this circuit have repeatedly found that ownership and operation of a website within the district, without more, is not enough to satisfy the “solicitation plus” standard for doing business pursuant to C.P.L.R. section 301. See In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 230 F.Supp.2d 376, 383 (S.D.N.Y.2002). This is so whether the website is “passive,” (used only as a means of advertisement), see In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, No. 01 Civ. 7342,. 2003 WL 1807148, at *6 (S.D.N.Y. Apr.4, 2003); Mason Tayler Med. Prods. Corp. v. Qwikstrip Prods., L.L.C., No. 99-CV-0177, 2000 WL 432807, at *3 (W.D.N.Y. Apr.14, 2000); Drucker Cornell v. Assicurazioni Generali Nos. 97 Civ. 2262 & 98 Civ. 9186, 2000 WL 284222, at *2 (S.D.N.Y. Mar.16, 2000); Loudon Plastics, Inc. v. Brenner Tool & Die, Inc., 74 F.Supp.2d 182, 185-86 (N.D.N.Y.1999), or as here, interactive, see In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 230 F.Supp.2d 403, 408 (S.D.N.Y.2002); Citigroup, Inc. v. City Holding Co., 97 F.Supp.2d 549, 569-71 (S.D.N.Y.2000).

Presence of Subsidiary

Alternatively, Meteoro argues that SFI is subject to the jurisdiction of the Northern District via the business activities of the Great Escape subsidiaries. See Pl.’s Mem. of Law in Opp’n to Def.’s Mot. to Dismiss or Transfer Venue at 16-19. Mere presence of a subsidiary in the forum does not render its parent amenable to suit. See Jazini v. Nissan Motor Co., 148 F.3d 181, 184 (2d Cir.1998). In order for a court to have personal jurisdiction over a parent via the presence of a subsidiary, the latter “must be either an ‘agent’ or a ‘mere department’ of the foreign parent.” See *270 id., (citing Koehler v. Bank of Bermuda, Ltd., 101 F.3d 863, 865 (2d Cir.1996)).

1. Agency

In order to establish that the subsidiary is an agent of its parent, a plaintiff “must show that the subsidiary ‘does ah the business which [the parent corporation] could do were it here by its own officials.’ ” See Jazini, 148 F.3d at 184, (citing Frummer v. Hilton Hotels Int’l, Inc., 19 N.Y.2d 533, 537, 281 N.Y.S.2d 41, 227 N.E.2d 851, remittitur amended, 20 N.Y.2d 737, 283 N.Y.S.2d 99, 229 N.E.2d 696, and cert. denied, 389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266 (1967)). In other words, the test is whether the parent would have to enter the market directly if the subsidiary was absent because the market is too important to the parent’s welfare. See Bulova Watch Co., Inc. v. K. Hattori & Co., Ltd., 508 F.Supp. 1322, 1342 (E.D.N.Y.1981). See also In re Ski Train Fire, 230 F.Supp.2d 376, 385.

Meteoro argues that defendant SFI’s subsidiaries in the Northern District are so important to defendant that if they were absent, SFI would enter the market. This is because, according to plaintiff, SFI’s subsidiaries own real property and carry out business operations in this district. In addition, plaintiff argues, the fact that SFI’s role is intertwined with the role of its subsidiaries is further evidence of an agency relationship because SFI solicits business on behalf of Great Escape, LLC, contracts with suppliers and helps provide financing. See Pl.’s Mem. of Law in Opp’n to Def.’s Mot. to Dismiss or Transfer Venue at 17. Plaintiff cites a Securities and Exchange Commission Form 10-K filed by SFOI as well as the sixflags.com website for these propositions. See McGuire Aff. at Ex. A2, B15-16.

At oral argument, counsel for SFI pointed out that the 10-K statement cited by plaintiff was actually filed by SFOI, not SFI, and further reminded the court that the only subsidiary whose loans defendant guarantees is SFTPI, not Great Escape, LLC. See Tr. at 37-38. Further, in its reply memorandum, SFI argues that the present case is distinguishable from Bulo-va because, unlike the parent company in that case, SFI’s business is not significantly dependent on that of its subsidiaries. See Reply Mem. in Further Supp. of Def.’s Mot. to Dismiss or Transfer Venue at 8, (citing Bulova, 508 F.Supp. 1322). As evidence of its lack of dependence, SFI cites an affidavit of its general counsel, averring that the revenue of the Great Escape subsidiaries comprises less than three percent of SFI’s revenue. See id., (citing Coughlin Rep. Aff. at ¶ 7). Moreover, SFI argues, the Bulova court found it instructive that the acts complained of in the complaint were those of the subsidiary, unlike the present case where the complaint does not allege any infringing acts by the Great Escape subsidiaries. See id., (citing Bulova, 508 F.Supp. at 1341).

At oral argument, counsel for plaintiff argued that because defendant is a “multinational, billion dollar company,” three percent amounts to almost thirty million dollars, which is a large amount of revenue earned in the Northern District. See Tr. at 40. However, as this court views it, the relevant inquiry is not whether the amount of revenue generated by a subsidiary exceeds a certain threshold, but instead whether said revenue, relative to the overall revenue generated by the parent, is large enough that the parent would enter the market in the absence of the subsidiary in order to make up for the financial loss. It is unlikely, given the evidence presently before the court, that SFI would enter the market itself to make up for the loss of revenue generated by the Great Escape subsidiaries. Therefore, the court *271 must continue its analysis regarding whether it has jurisdiction over defendant pursuant to C.P.L.R. section 301.

2. “Mere Department”

In order for the court to determine whether a subsidiary is a “mere department” of its parent, the following factors must be considered: (1) whether there is common ownership, which is essential, (2) whether the subsidiary is financially dependent on the parent, (3) the extent to which the parent exerts control over selection and assignment of subsidiary personnel and fails to observe corporate formalities, and (4) the extent of the parent’s control over marketing and operational policies of the subsidiary. See Jazini, 148 F.3d at 184-185, (citing Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120-122 (2d Cir.1984)).

a. Common Ownership

Meteoro argues that the first and only essential factor exists here because, according to the Great Escape subsidiaries’ New York Department of State registration statements, SFI’s CEO is the chief executive of its subsidiaries and the subsidiaries share the same executive offices as their parent, defendant SFI. See PL’s Mem. of Law in Opp’n to Def.’s Mot. to Dismiss or Transfer Venue at 18, (citing McGuire Aff. at Dl). The overlapping of directors and officers of the parent and subsidiary to some extent does not lead to the conclusion that the subsidiary is a mere department of its parent. See Jazini, 148 F.3d at 185, (citing Porter v. LSB Indus., 192 A.D.2d 205, 600 N.Y.S.2d 867, 873 (N.Y.App.Div.1993)). However, it is indicative of common ownership that SFI owns one hundred percent of the stock of its subsidiaries, see Tsegaye v. Impol Aluminum Corp., 2003 WL 221743 at *5 (S.D.N.Y., Jan.30, 2003) (“In the present case, the first factor, common ownership, is clearly met, since Impol Slovenia owns ninety percent of the stock of Impol Aluminum.”), a fact which defendant itself submitted to this court. See Coughlin Aff. at ¶ 6. See also In re Ski Train Fire, 230 F.Supp.2d 403, 410, (citing Beech Aircraft, 751 F.2d at 121). Therefore, the court finds that the first “mere department” factor, common ownership, exists in this case.

b. Financial Dependence

Regarding the second factor, Meteoro argues that the Great Escape subsidiaries are financially dependent on SFI because SFI guarantees their debts and SFI’s general counsel signed many of the financing statements on behalf of Great Escape, LLC. See Pl.’s Mem. of Law in Opp’n to Def.’s Mot. to Dismiss or Transfer Venue at 18, (citing McGuire Aff. at E, E-17 and E-31). SFI counters that their general counsel signed those financing statements in his capacity as an officer of the subsidiary, not SFI, and therefore the statements are not evidence that SFI guarantees Great Escape’s loans. See Reply Mem. in Further Supp. of Def.’s Mot. to Dismiss or Transfer Venue at 9, (citing Coughlin Reply Aff. at ¶¶ 17-19). Meteo-ro’s proffer nonetheless falls short of what is required to show financial dependence. To establish financial dependence, plaintiff must show that the Great Escape subsidiaries could not be run without the financial backing of SFI. See In re Ski Train Fire, 230 F.Supp.2d 403, 410. There is no allegation, for example, as to the percentage of the subsidiaries’ business that is conducted with SFI as opposed to third parties. See Impol Aluminum, 2003 WL 221743 at *5. Where a subsidiary had re-céived numerous loans from its parent, had yet to repay them, and was dependent upon the parent’s continued financial support to stay in business, the Court held that the subsidiary was a “mere department” of, and thus the court had jurisdic *272 tion over, the parent. See Jacobs v. Felix Bloch Erben Verlag fur Buhne Film und Funk KG, 160 F.Supp.2d 722, 735 ( S.D.N.Y.2001), (citing Beech Aircraft, 751 F.2d at 121). Such is not the case here. The fact that SFI (through its wholly-owned subsidiary SFOI) guaranteed two loans for its subsidiaries does not rise to the level of financial control required by courts in this circuit. See Impol Aluminum, 2003 WL 221743 at *5; In re Ski Train Fire, 230 F.Supp.2d 403, 410; Jacobs, 160 F.Supp.2d at 735. Therefore, because plaintiff has not established sufficient evidence of financial dependence, the second factor of the “mere department” analysis does not weigh in its favor,

c. Control of Selection and Assignment of Personnel

As to the third factor, Meteoro admits that due to a lack of discovery there is little evidence at this stage of litigation regarding control by SFI over selection and assignment of subsidiary personnel. However, plaintiff argues that since SFI and the Great Escape subsidiaries share a CEO, there is an inference of such control. See Pl.’s Mem. of Law in Opp’n to Def.’s Mot. to Dismiss or Transfer Venue at 18, (citing McGuire Aff. at E-l) 5 . Courts have found that excessive overlap of board members, officers, directors, or employees between a parent and its subsidiary will infer control by the parent over the selection and assignment of subsidiary personnel. See Obabueki v. Int’l Bus. Machs. Corp., Nos. 99 Civ. 11262 & 99 Civ. 12486, 2001 WL 921172, at * 5 (S.D.N.Y. Aug.14, 2001), (citing Satcorp Int’l Group v. China Nat’l Import & Export Corp., 917 F.Supp. 271, 278-79 (S.D.N.Y.1996)). Cf. J.L.B. Equities, Inc. v. Ocwen Fin. Corp., 131 F.Supp.2d 544, 549 (S.D.N.Y.2001), (citing Porter v. LSB Indus., Inc., 192 A.D.2d 205, 214, 600 N.Y.S.2d 867 (A.D. 4th Dep’t 1993); Jazini 148 F.3d at 185) (finding that “overlapping officers and directors are ‘intrinsic to the parent-subsidiary relationship,’ and that they are not determinative as to whether the subsidiary is a ‘mere department’ of the parent”.) But see Self Int’l (HK) Ltd. v. La Salle Nat’l Bank, Chicago, 01 Civ. 4291, 2002 WL 500372 at *3 (S.D.N.Y. Mar.29, 2002), (citing Jazini 148 F.3d at 185) (finding that “[ajlthough it is normal in a parent-subsidiary relationship for corporate officers to overlap ‘to an extent,’ ” where there is ‘mirror image symmetry' between the executive personnel of the parent and subsidiary, there is a suggestion of considerable control by the parent over its subsidiary.) For example, where a subsidiary’s four member board of directors were also officers or directors of its parent, the court found that the third factor of the “mere department” analysis Weighed in favor of an exercise of the court’s jurisdiction over the parent. See Obabueki 2001 WL 921172, at *5. Here, plaintiff only alleges that there is one overlapping officer, Kieran Burke, who apparently is CEO of both SFI as well as Great Escape Holding, Inc. See Am. Compl. ¶ 12; McGuire Aff. at Ex. D-l. While defendant did not address this factor in its moving papers or at oral argument, plaintiffs allegation falls short of the required proffer of evidence of any interference by defendant in the selection and assignment of its Great Escape subsidiaries’ personnel. Therefore, the third factor of the “mere department” analysis does not weigh in plaintiffs favor here.

d. Extent of Control Over Marketing and Operational Policies

Meteoro argues that the fourth factor, control over marketing and operational *273 policies, exists here, citing a feature article regarding Gary Story, SFI’s President and COO, on the sixflags.com website as evidence that SFI’s president admits exerting control over daily operations and investments of its subsidiaries. See Pl.’s Mem. of Law in Opp’n to Def.’s Mot. to Dismiss or Transfer Venue at 18, (citing McGuire Aff. at B14-16; C3-4). In fact, the referenced article states that Story visits management teams at the thirty nine worldwide properties, directs operations at corporate headquarters, and invests millions in company properties. See McGuire Aff. at Ex. C. SFI’s general counsel avers that SFI has no control over the day to day operations or decision making of SFOI or any of the New York subsidiaries. See Coughlin Aff. at ¶¶ 8, 10-11.

At oral argument, counsel for plaintiff called the court’s attention to specific language in SFOI’s SEC Form 10-K, which plaintiff interprets to state that defendant SFI “is responsible for overseeing all the marketing and operations of all their individual parks.” See Tr. at 41, citing McGuire Aff. at Ex. B-2. Defense counsel countered that all references to “Six Flags” in the 10-K statement are actually references to SFOI, not SFI, and thus all oversight functions should be attributed only to SFOI. See .Tr. at 42. The court’s review of the 10-K statement reveals that in the introductory paragraph, SFI is defined as “Six Flags” while SFOI is defined as “the Company.” 6 The reader is then told that SFI operates thirty eight parks, but the remainder of the paragraph discusses SFOI’s operation of thirty five parks, as well as its management of the development of a new park in Spain. See McGuire Aff. at Ex. B-2. Several pages into the statement are sections referred to as “Marketing and Promotion” and “Park Operations”, respectively. See id. at Ex. B-14, 15. Under “Marketing and Promotion” it is explained that SFI’s Senior Vice President for marketing supervises SFOI’s marketing programs, with the assistance of SFI’s senior management and in house marketing staff, as well as SFI’s national advertising agency. See id. at Ex. B-14. Under “Park Operations” it is explained that each park is managed by a general manager who reports to one of SFI’s Executive Vice Presidents, each of whom reports to SFI’s Chief Operating Officer. See id. at B-15.

The Story article, by itself, presents little evidence of the pervasive control required for a determination that the fourth factor of the “mere department” analysis weighs in plaintiffs favor here. Certain activities by a parent company in regard to its subsidiaries amount to little more than a shareholder’s management of its investments, and should not result in a determination that said subsidiaries are its “mere departments”. See In Re Ski Train Fire, 280 F.Supp.2d 403, 410. Cf. Obabueki, 2001 WL 921172 at *5 n. 10. However, the 10-K Statement, while simply alluding to SFI’s indirect control over the marketing policies of its Great Escape subsidiaries, provides evidence of more direct control over operations, to wit, the requirement that general managers of all parks report directly to defendant. 7 See McGuire Aff. at Ex. B-14, Í5.

*274 Finally, plaintiff cites Cali v. East Coast Aviation Servs., 178 F.Supp.2d 276, 287 (E.D.N.Y.2001) for the proposition that the most compelling evidence that a subsidiary is a mere department of its parent is a “unified marketing image that indicates that the various entities operate as one company.” See PL’s Mem