The opinion of the court was delivered by: PLATT
This diversity action was brought by the plaintiff to recover $189,410 on five promissory notes of the defendant which are allegedly due and owing. The defendant moves pursuant to F.R.C.P. 12(b)(2) for dismissal for lack of personal jurisdiction or, alternatively, for an order transferring the action to the United States District Court for the Central District of California under 28 U.S.C. § 1404(a).
The plaintiff, Louis Potash, was the owner of stock in a New York corporation known as Illustrated World Encyclopedia, Inc. ("IWE"). He alleges that at a meeting at LaGuardia Airport Mr. Ringer and his associate, Clyde Skeen, told Mr. Potash and his partner, Morry Gropper, that they would purchase the plaintiff's stock in IWE for ten dollars a share. On October 28, 1971, in Los Angeles, California, Mr. Potash signed various documents providing for the sale of his stock to Mr. Ringer.
Mr. Ringer, in his affidavit, says that in "October 1971, CLYDE SKEEN (hereafter "SKEEN") and I negotiated and entered into an oral agreement to the best of my recollection, in Los Angeles, California, with plaintiff LOUIS POTASH (hereafter "POTASH") and his partner, MORRY GROPPER (hereafter "GROPPER"), to purchase certain of the IWE shares which POTASH and GROPPER then owned, or would become entitled to under an earn-out agreement . . ."
The plaintiff alleges that in November of 1971 in New York Mr. Potash renegotiated that purchase agreement with Gary Berger who was acting as the defendant's agent. At that time Mr. Potash and Mr. Berger, as "Attorney-in-Fact for Ringer and Skeen", signed a new agreement in New York City. Under this agreement the defendant delivered five promissory notes to the plaintiff, the last one of which was payable May 5, 1974. All these notes remain unpaid.
Mr. Ringer on this point states:
"Later that month or in the first few days of November, 1971, the transaction with POTASH and GROPPER, as a result of further negotiations which, to the best of my recollection, also took place in California, was slightly restructured to provide for the purchase by SKEEN and myself of a lesser amount of POTASH's and GROPPER's IWE stock and to vest SKEEN with a 'call' and POTASH and GROPPER with a 'put' as to their remaining IWE stock. Attached hereto as Exhibit 'E' is the November 5, 1971 contract between SKEEN and myself, on the one hand, and POTASH on the other, in which we agreed to purchase from him 18,941 shares of IWE for $189,410, to be evidenced by a series of five promissory notes (upon which POTASH sues herein), . . . Exhibit 'E' was executed by Gary Berger in California as SKEEN's and my attorney-in-fact. It is my best recollection that POTASH also executed Exhibit 'E' while he was in California."
Thus there seems to be a sharp conflict as to where the November, 1971 agreement was signed. However, Mr. Ringer does not allege he was present at the signing, but rather that his agent, Gary Berger, was present. Mr. Berger on this point states in his affidavit that,
"d) I have no present recollection of whether or not there was a formal closing of the GROPPER/POTASH-RINGER/SKEEN transaction, nor can I state with any degree of certainty where such closing took place if, in fact, there was a closing."
Thus the only statement by Berger as to where the agreement was signed is that he cannot remember. Furthermore, the only statement by Ringer as to the LaGuardia meeting is that "to the best of my recollection" all the negotiations took place in California. Based on these affidavits the Court finds the defendant's allegations as to where the events of this case occurred unconvincing. Therefore the Court finds that the LaGuardia meeting and the New York signing took place where the plaintiff alleges. The question then is whether those contacts are sufficient to find jurisdiction over the defendant in New York.
Plaintiff asserts jurisdiction over the defendant by way of New York's "long arm" statute, CPLR § 302(a)(1). Personal jurisdiction is found under that section over a non-domiciliary defendant "who in person or through an agent . . . transacts any business within the state." The constitutional basis for this statute has recently been discussed by this Court in the case of Moser v. Boatman, 392 F. Supp. 270 (E.D.N.Y. 1975), and does not need to be repeated here.
The leading New York cases interpreting § 302 are Longines-Wittnauer Watch Co. Inc. v. Singer, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68, cert. denied, sub nom., Estwing Manufacturing Co. Inc. v. Singer, 382 U.S. 905, 15 L. Ed. 2d 158, 86 S. Ct. 241 (1965), and Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 308 N.Y.S.2d 337, 256 N.E.2d 506 (1970). See also Moser v. Boatman, supra. In Longines-Wittnauer the Court of Appeals said that "a single transaction in New York, out of which the cause of action has arisen, may satisfy the requirement of transaction of business provision." Longines-Wittnauer, supra, at 450, 261 N.Y.S.2d 8, 18, 209 N.E.2d 68, 74-75. Thus it is possible that the defendant's presence at LaGuardia Airport was sufficient to grant jurisdiction in this case. See Hi Fashion Wigs v. Hammond Advertising, 32 N.Y.2d 583, 347 N.Y.S.2d 47, 300 N.E.2d 421 (1973).
However, we do not have to rest our decision on that ground as the Parke-Bernet case is almost directly in point. In that case the defendant from California called Parke-Bernet Galleries and through an employee of Parke-Bernet bought a painting at an auction. The Court said that it "is important to emphasize that one need not be physically present in order to be subject to the jurisdiction of our courts under CPLR 302 . . ." Parke-Bernet, supra, at 17, 308 N.Y.S.2d 337, 340, 256 N.E.2d 506, 508. In that case the New York Court of Appeals ...