Appeal in an action to recover on a promissory note from an opinion and judgment entered in the United States District Court for the Southern District of New York, Marvin E. Frankel, Judge, denying defendant's motion to dismiss for lack of in personam jurisdiction and granting plaintiff's motion for summary judgment.
Moore, Oakes and Timbers, Circuit Judges.
This case is an action brought by plaintiff-appellee Sterling National Bank and Trust Co. of New York ("Sterling") against defendant-appellant Fidelity Mortgage Investors ("Fidelity") to recover on a $2,000,000 promissory note dated August 17, 1973 and payable on November 7, 1973. The suit was commenced in the New York Supreme Court but removed to federal court on diversity grounds. The appeal is from an opinion and judgment of the United States District Court for the Southern District of New York denying Fidelity's motion to dismiss for lack of in personam jurisdiction and granting Sterling's motion for summary judgment. Since a determination that the district court erred in finding that it had personal jurisdiction over Fidelity would obviate consideration of the merits, we shall consider the jurisdictional issue first.
The sole jurisdictional question is whether, with respect to the promissory note, Fidelity transacted any business in New York so as to bring it within the reach of New York's long-arm statute, NYCPLR § 302(a)1 (McKinney's 1972), which provides in relevant part:
(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 nondomiciliary, . . . who in person or through an agent:
1. transacts any business within the state; . . .
The facts in this regard are undisputed.
Sterling is a bank organized under the laws of the United States, having its principal place of business in New York City. Fidelity is an unincorporated business trust organized under the laws of Massachusetts with its principal place of business in Boston. Fidelity has no office in New York. The business relationship between the parties commenced on March 2, 1972 when a Sterling representative in New York telephoned Kerry B. Fitzpatrick, Financial Vice President of Fidelity, stationed in Jacksonville, Florida, about the possibility of Fidelity having a line of credit at Sterling. In a subsequent telephone conversation on March 13 it was agreed that, subject to the approval of the bank executive committee, Sterling would extend a line of credit for $1,000,000. Fidelity in return would keep compensating balances of 10% of the line of credit and an additional 10% of actual borrowings in a non-interest bearing account at Sterling. Sterling's executive committee did not act on the line of credit immediately, and on March 29, 1972, Fitzpatrick, who was in New York City on unrelated business, responded to an earlier invitation and dropped by Sterling's office to get acquainted with some of the employees there. No negotiations took place during the visit, although someone from Sterling did mention that the executive committee would pass on the line of credit the following day.
The $1,000,000 line of credit was approved, and on April 6, 1972 Fidelity opened an account at Sterling containing the requisite $100,000 compensating balance. Some borrowing by Fidelity occurred thereafter, and on March 1, 1973 by mutual agreement the line of credit was increased to $2,000,000. Fitzpatrick was informed of the favorable action on the increase by Sterling's executive committee when Sterling representatives dropped by a public meeting of Fidelity shareholders in New York City. This visit by Sterling representatives had not been arranged by Fitzpatrick, and other than the social call described earlier, it was the only time when he met in New York with people from Sterling. Balances in Fidelity's account were increased to compensate for the addition to the line of credit, and for a time Fidelity borrowed to the full extent of the line. On June 12, 1973, however, all debt owing from Fidelity to Sterling was paid, and the situation between the parties remained in this state for about two months.
Discussions concerning the $2,000,000 note here at issue began on August 14, 1973 when Fitzpatrick, while in Florida, received a call from Sterling requesting that Fidelity "draw down the entire line," that is, borrow $2,000,000. As was customary, a $200,000 compensating balance would be left in a non-interest bearing account at Sterling. Fitzpatrick agreed, and his office immediately prepared the note in question and transmitted it to New York via mail. The note by its terms made the $2,000,000 face amount payable on November 7, 1973 at Sterling's office in New York. The note was discounted at a rate of 9 1/4%, and the discount amount ($42,138.89) deducted from the proceeds, leaving net proceeds to Fidelity of $1,957,861.11. This amount was first credited to Fidelity's account at Sterling, and then pursuant to Fidelity's direction $1,757,861.11 (net proceeds less the $200,000 compensating balance) was bankwired to Morgan Guaranty Trust Company in New York for credit to Fidelity's account there.
Whether the foregoing acts by Fidelity are sufficient to constitute the transaction of business in New York is a close question under any circumstances, and the inquiry is made more acute by the necessity of a federal tribunal having to predict what the New York courts would do in the same circumstances. American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corporation, 439 F.2d 428, 431 (2d Cir. 1971). We believe, however, that the district court was correct in exercising jurisdiction over Fidelity.
The proper inquiry in a case such as this is "whether looking at 'the totality of the defendant's activities within the forum', purposeful acts have been performed in New York by the foreign corporation in relation to the contract, 'albeit preliminary or subsequent to its execution.'" Galgay v. Bulletin Company, Inc., 504 F.2d 1062, 1064 (2d Cir. 1974), quoting Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 457 & n.5, 209 N.E.2d 68, 75, 261 N.Y.S.2d 8, 18 (1965), cert. denied sub nom. Estwing Manufacturing Co., Inc. v. Singer, 382 U.S. 905, 15 L. Ed. 2d 158, 86 S. Ct. 241 (1965). Relating this standard to the specific circumstances of this case, there is first the fact that the note, although prepared and executed by Fidelity in Florida, was expressly made payable in New York. Secondly, with respect to the making of the loan, the funds were not wired to Fidelity in Boston or Florida but first credited to Fidelity's account at Sterling. Fidelity then directed that they be transferred by Sterling to another bank in New York. As a direct condition of the loan, Fidelity ...