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MERKEL ASSOCS. v. BELLOFRAM CORP.

September 15, 1977

MERKEL ASSOCIATES, INC. and Robert H. Merkel, Individually, Plaintiffs,
v.
BELLOFRAM CORPORATION, John F. Taplin, Donald W. Comstock and Bellofram Patents, Inc., Defendants



The opinion of the court was delivered by: ELFVIN

MEMORANDUM and ORDER

 ELFVIN, District Judge.

 Plaintiffs herein complain that defendants breached and caused to be breached certain duties imposed upon defendant Bellofram Corporation in and by a certain written contract with plaintiffs and upon said defendant and defendant John F. Taplin in and by a certain unwritten agreement with plaintiffs and that defendants conspired tortiously to harm plaintiffs in their rights under said contracts and otherwise. Plaintiffs are residents and citizens of New York State and this judicial district and all defendants are residents in and citizens of the State of Massachusetts or, at least, not residents in or citizens of New York State. This court's jurisdiction of the subject matter is bottomed on such diversity and an appropriate amount in controversy.

 Defendants have questioned this Court's jurisdiction over the persons of the defendants. It affirmatively appears that each of the defendants was served outside of the State of New York. Service was effected upon the two corporations and defendant Comstock by serving "Mary Chilani Office Mngr" and upon defendant Taplin by serving his wife. All such services were made in Massachusetts. No complaint has been made to these particular services other than the basic assertion that none of the defendants was doing business or otherwise present in New York State within the purview of section 302 of New York's Civil Practice Law and Rules ("CPLR § 302") or any other provision of law. Additionally, it is set forth that defendant Bellofram Patents, Inc. ("Patents") was not present or doing business in Massachusetts.

 Service sufficient to the acquisition of jurisdiction over the person of a defendant is controlled by rule 4(d) of the Federal Rules of Civil Procedure which provides in pertinent part as follows:

 
"* * * Service shall be made as follows:
 
"(1) Upon an individual by leaving copies [of the summons and of the complaint] at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein * * *.
 
* * *
 
"(3) Upon a * * * foreign corporation * * * by delivering a copy of the summons and of the complaint to * * * a managing * * * agent * * *.
 
* * *
 
"(7) Upon a defendant of any class referred to in (1) or (3) of this subdivision of this rule, it is also sufficient if the summons and complaint are served * * * in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state."

 Not complaining of the "manner" of service of process, defendants do assert that there can be no personal jurisdiction over any of them by the courts of New York State and, consequently, by a federal court sitting in New York State where the subject matter jurisdiction is premised on diversity of citizenship. Plaintiffs point to CPLR § 302(a) as entitling New York courts and this Court to exercise personal jurisdiction over each defendant. Thereunder this Court, sitting in New York State in this diversity action, "may exercise personal jurisdiction over any nondomiciliary * * * who in person or through an agent:

 
"1. transacts any business within the state; or
 
"2. commits a tortious act within the ...

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