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April 15, 1974

Henry AARON et al., Defendants

Gurfein, District Judge.

The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge:

On February 1, 1973 when defendant Henry Aaron was on the way to breaking Babe Ruth's home run record, he signed a paper by which he appointed Mattgo Enterprises, Inc. ("Mattgo") to be "my true and lawful attorney-in-fact and to represent me as my exclusive personal manager, attending to all my business arrangements, except for personal investment counselling, accounting and banking services and preparation of tax returns, for a period of two years. . . ." Mattgo was given authority to sign contracts "in my name on my behalf." Aaron agreed to pay Mattgo "fifteen per cent of all the gross monies and other considerations I receive directly or indirectly, except the monies I receive for compensation as a member of a professional baseball team." Mattgo was "authorized to receive all gross monies and other compensation resulting from agreements on my behalf and to deposit same, after deducting its fees therefrom; thereafter remitting the balance to me."

 It was also provided that Mattgo "shall not be obligated to render exclusive services to me." It provided that "[this] Power shall supersede any existing agreements that I have with [Mattgo]." The paper was not signed by Mattgo.

 The only motion before me is to dismiss the complaint against Aaron on the ground that the Court has no jurisdiction over his person. We may assume that the complaint is good since it has not been challenged. I shall, therefore, refer to the paper signed only by Aaron as "the agreement."

 The agreement was executed in Atlanta, Georgia. Though there are other factual disputes with respect to the place and extent of the negotiations for this 1973 agreement, there is no doubt that there was an earlier agreement, of a non-exclusive nature, between Aaron and Mattgo.

 Paul Goetz, president of Mattgo, testifies by affidavit as follows: As early as May and June of 1970 there were discussions with Mr. Aaron at the Roosevelt Hotel in New York City, and there Goetz and Aaron negotiated the terms of a non-exclusive contract whereby the plaintiff would represent Mr. Aaron. A signed contract was later signed by Mr. Aaron in Atlanta and returned to the plaintiff in New York where it maintained its offices at 435 West 57th Street. From June, 1970 until the date of breach of the contract alleged in the complaint, plaintiff provided personal representation for Mr. Aaron from its offices in New York.

 Goetz avers and Aaron denies, however, that Aaron personally used the Mattgo offices in New York and that it was Aaron who had printed and used personal stationery showing the Mattgo office address. Nor does Mr. Aaron agree that he ever directed officials of the Atlanta Braves to refer inquiries to the plaintiff. What Mr. Aaron does not deny is that the plaintiff provided him with personal representation from its offices in New York, and that in June 1970 Mr. Aaron came to New York City to make a television commercial for Gillette Razor Blades, arranged by the plaintiff. Nor is it denied that in December, 1971, Mr. Aaron was in New York City to perform a contract with the Celanese Corporation which had also been arranged by the plaintiff in New York.

 Other meetings with Mr. Aaron in New York City are recited, but since they are inferentially controverted I shall disregard them.

 In 1973, Mr. Aaron met in New York City with plaintiff's officers and others to discuss business. He met with Mr. David Wolf, an author. It appears to be uncontradicted that in New York City Mr. Goetz and Mr. Aaron met with officers of Adirondack, a Division of A-T-O, Inc., and executed a contract annexed to the Goetz affidavit (Ex. C). The contract recites that it was "made in New Jersey," but it does provide that notices to be sent to Aaron would be addressed to Mattgo at 185 East 85th Street. The contract is witnessed by Mr. Goetz.

 Mr. Aaron avers that he did not ever come to New York in 1973 except as a baseball player with the Atlanta Braves. He does not deny that he had meetings in New York with the principals of the plaintiff but says that these were incidental to his coming to New York to play baseball.

 Essentially it is the defendant's contention that his contacts with the State of New York from June 5, 1970 until January 31, 1973 are separate and apart from the controversy in suit and are, hence, irrelevant. Treating as a discrete time period the interim from February 1, 1973 until September 13, 1973, he argues that the agreement was not signed in New York and was not to be performed here. He notes it was not even negotiated here. He further contends that Mattgo is not an agent but an independent contractor, and that, in any event, an agent cannot "bootstrap" himself in a suit against his own principal for the purpose of establishing long-arm jurisdiction.

 The jurisdiction of this Court is based upon diversity of citizenship. The action was originally brought in the state court, and removed by the defendant Aaron to this Court. Aaron was served in Atlanta, Georgia. After removal, he made this motion to dismiss. *fn1"

 This Court must follow state law with respect to the reach of the New York long arm statute. Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317, 319 (2 Cir. 1964); Agrashell, Inc. v. Bernard Sirotta Co., 344 F.2d 583, 587 (2 Cir. 1965). In view of the divergent views of the judges of the New York Court of Appeals, see McKee Electric Co. v. Rauland-Borg Corp., 20 N.Y. 2d 377, 283 N.Y.S. 2d 34, 229 N.E. 2d 604 (1961) (4 to 3), it is not easy to prophesy what the Court would say in given circumstances. But a federal court must try.

 It is sufficient for constitutional due process that the suit is based on a contract which has substantial connection with the state. McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957). The constitutionality of the service of process depends then upon ...

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