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UNICON MGMT. CORP. v. KOPPERS CO.

February 7, 1966

UNICON MANAGEMENT CORP., Plaintiff,
v.
KOPPERS COMPANY, Inc., Fletcher L. Byrom, Walter P. Arnold, H. A. Denny, R. G. Wilson, W. A. Anderson, Paul H. Titus and Harry W. Powell, Defendants


Herlands, District Judge.


The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge:

Pursuant to an order of this court incorporated in its opinion dated December 7, 1965, 38 F.R.D. 474 (S.D.N.Y.1965), each party has served and submitted affidavits in support of its respective position with reference to the question of whether or not the individual defendants have committed a "tortious act" in the State of New York within the meaning of New York CPLR § 302(a)(2). The order was made because the court deemed the record then before it to be inadequate to decide that question.

 The court finds that it lacks personal jurisdiction over the individual defendants for the reasons hereinafter set forth.

 Plaintiff alleged in its complaint:

 
"TWENTY-SECOND: On information and belief, between January 28, 1964 and the present, the Individual Defendants jointly and severally agreed that their individual personal economic advantages and personal beliefs and ambitions would be served by causing or precipitating a termination of the contractual relationship existing between plaintiff and Koppers.
 
TWENTY-THIRD: On information and belief, the decision of the Individual Defendants to seek to cause or precipitate the termination of the contractual relationship between Malan Construction Department and Koppers was not motivated by and is not motivated by any desire to serve the best interest of their employer Koppers.
 
TWENTY-FOURTH: On information and belief, said Individual Defendants agreed upon an implementation of their plan which was calculated to precipitate a termination of the contractual relationship existing between Malan and Koppers.
 
TWENTY-FIFTH: On information and belief, the Individual Defendants have, since the time of reaching their joint agreement, sought to implement their plan and to achieve their objective * * * all with a view to undermining the confidence of Koppers in plaintiff's competence and ability to carry out the terms of its Management Contract, all of which is calculated to precipitate a breach of said contract between Koppers and plaintiff, and all of which constitutes a wrongful interference with the contractual relationship existing between Koppers and plaintiff."

 The affidavit of Thomas R. Farrell, plaintiff's attorney, submitted in opposition to the present motion, states:

 
" The Tortious Acts
 
12. The appointment of these 'coordinators' and 'administrators' to visit Malan's offices at 2 Park Avenue and the actions of these agents of defendants in 'coordinating' and 'administering' at Malan's New York offices are among the precise acts of the individual defendants about which plaintiff complains. It is plaintiff's position that these 'coordinators' were not appointed for any legitimate corporate purpose of Koppers but were agents of the individual defendants who were acting in furtherance of a plan conceived by the individual defendants to advance their own personal interests by impeding and hindering plaintiff in the performance of its agreement with Koppers and thus bring about the eventual breach of the agreement. * * * [Defendants] have interfered with, impeded and hindered plaintiff in the management of Malan and have sought to prevent plaintiff from exercising its rights under its agreement with Koppers. Since the offices of Malan are at 2 Park Avenue, New York and since it was there that plaintiff was to perform the agreement, defendants' interference with plaintiff would have to occur in New York. * * *
 
15. Plaintiff, of course, does not expect defendants to concede that the various 'coordinators' and 'administrators' which they sent to New York were the personal agents of defendants engaged in the furtherance of the alleged conspiracy. Defendants, quite naturally, will take the position that these agents were sent in the interests of Koppers, for the legitimate purpose of overseeing plaintiff's performance. That, however, is the precise point at issue between the parties. Plaintiff asserts that the actions of these agents - and defendants' motives in sending them - were all part of a tortious plan to interfere in plaintiff's contractual relations with Koppers. Defendants cannot avoid a trial of this issue by a bland assertion that these 'coordinators' and 'administrators' were not their personal agents and hence that this Court has no jurisdiction."

 On the contrary, plaintiff cannot by a "bland assertion" that those Koppers employees were the agents of the individual defendants confer personal jurisdiction over the individual defendants upon this court, even if it is assumed arguendo that those employees committed tortious acts of some sort within New York. The burden of pleading and proving jurisdiction is upon the party asserting its existence.

 Pursuant to the court's order of December 7, 1965, the plaintiff has submitted the affidavit of Sidney Feldman, plaintiff's president, sworn to December 22, 1965; a reply affidavit of Sidney Feldman, sworn to January 10, 1966; and a reply affidavit of ...


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