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THEE v. MARVIN GLASS & ASSOCS.

May 4, 1976

Christian THEE, Plaintiff,
v.
MARVIN GLASS & ASSOCIATES et al., Defendants



The opinion of the court was delivered by: BRAMWELL

MEMORANDUM AND ORDER

 BRAMWELL, District Judge.

 This matter comes before the Court on the motion of defendant, Marvin Glass & Associates (hereinafter "Glass"), pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, to dismiss the complaint as to Glass on the grounds that (1) this Court has no personal jurisdiction over the said defendant; and/or (2) the Eastern District of New York is not proper venue as to the said defendant.

 Plaintiff Christian Thee (hereinafter "Thee") has interposed a cross-motion for an order: (1) under Rule 21 of the Federal Rules of Civil Procedure, severing plaintiff's claims against defendant Glass from this action, with plaintiff to proceed against defendant Glass as a separate action; and (2) under 28 U.S.C. Section 1406(a), transferring the severed action against defendant Glass to the United States District Court for the Northern District of Illinois, Eastern Division.

 I

 Plaintiff Thee is a self-employed artist, designer, and part-time developer of ideas, know-how, designs, and works who resides in Brooklyn, New York. In the parlance of his trade, he is known as a "game developer". His work product, which constitutes a substantial portion of the subject matter of this action, is a game called "Artifax".

 Defendant Glass is an Illinois limited partnership having its sole place of business in Chicago, Illinois, which is within the Northern District of Illinois, Eastern Division. Glass' only business is the development and design of consumer products, particularly such items as toys, games, and novelty items for the toy industry which it licenses to manufacturers. Glass does not maintain a manufacturing facility of its own for production of these consumer products, nor does it manufacture such goods. Therefore, Glass, too, is a "game developer". Glass' work product, which also constitutes a substantial portion of the subject matter of this action, is a game called "Masterpiece".

 Plaintiff's complaint alleges that the named defendants in their creation, development, manufacture, and distribution of the game "Masterpiece", have, to the material detriment of plaintiff and of his proprietary interest in the game "Artifax": engaged in a conspiracy in restraint of trade in violation of Section 1 of the Sherman Antitrust Act (15 U.S.C. Sec. 1); monopolized or attempted to monopolize in violation of Section 2 of the Sherman Antitrust Act (15 U.S.C. Sec. 2); infringed plaintiff's common law copyright as to "Artifax" and/or plagiarized parts of "Artifax" protected by Thee's common law copyright; committed fraudulent acts against plaintiff; breached a fiduciary and confidential relationship with Thee; committed acts of commercial piracy and unfair competition, and thus have unjustly enriched themselves at Thee's expense.

 I

 Plaintiff Thee has determined, after extensive and exhaustive discovery, that the non-resident defendant Glass lacks sufficient minimum contacts with New York so as to subject it to the personal jurisdiction of this Court consistent with the requirements of due process of law. See International Shoe Co. v. Washington Office of Unemployment Compensation and Placement, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945); Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958).

 This Court concurs in that determination, after careful consideration of the following jurisdictional facts:

 Defendant Glass is an Illinois limited partnership having its sole place of business in Chicago, Illinois, which is within the Northern District of Illinois, Eastern Division. Glass' sole business is the development and design of consumer items, particularly toys, games, and novelty items for the toy industry which it licenses to manufacturers. The defendant has no manufacturing facility of its own for production of consumer goods. No negotiations, dealings, correspondence, or any other activities pertaining to the subject matter of the instant action and involving defendant Glass occurred in New York. Moreover, all partners or employees of Glass, who had any knowledge of the "Masterpiece" game, or played any role in the conception, development, or production of the prototype of said game reside within the State of Illinois and within the Chicago metropolitan area, which falls within the Northern District of Illinois, Eastern Division.

 In International Shoe, supra, the Supreme Court stated:

 
Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory, of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial ...

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