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M. L. BYERS, INC. v. HRG PRODUCTIONS

June 13, 1980

M. L. BYERS, INC., individually and as agent for DANCERS, Plaintiff
v.
HRG PRODUCTIONS, INC., ROBERT SUNDERLAND and MARILYN BATES, Jointly and severally, Defendants.



The opinion of the court was delivered by: KNAPP; GERSHON

MEMORANDUM AND ORDER

We have reviewed Magistrate Nina Gershon's report and recommendation of May 8, 1980, as well as the transcript of the hearing held before the Magistrate on November 16, 1979. We hereby approve said report, confirm its conclusions, follow its recommendation, and incorporate the entire report (annexed hereto as Exhibit A) into this memorandum, making it a part hereof. In brief, we deny the pending motion made by defendant HRG Productions, Inc. and Robert Sunderland to dismiss the complaint for lack of personal jurisdiction.

 In accordance with the view we expressed at a hearing before us on May 4, 1979, we also deny without prejudice to a subsequent renewal on an adequate showing defendants' motion pursuant to 28 U.S.C. § 1404(a) to transfer the action to the United States District Court for the Southern District of Texas, Houston Division.

 SO ORDERED.

 EXHIBIT A

 REPORT AND RECOMMENDATION

 May 8, 1980.

 This breach of contract action was referred to me by the Honorable Whitman Knapp, District Judge, to hear and report on three questions:

 
(1) whether defendant Sunderland came to New York on one or two occasions for negotiations on the contract at issue;
 
(2) whether an agreement was reached in New York as to the substance of the contract; and,
 
(3) whether defendants' New York activities were sufficient to meet the jurisdictional requirements of C.P.L.R. § 302.

 The action arises out of an agreement negotiated between plaintiff, a New York resident; defendant HRG Productions, Inc. ("HRG"), a Texas corporation; defendant Robert Sunderland, vice-president of HRG; and defendant Marilyn Bates, executive producer for HRG when the agreement was made. Plaintiff is the agent for Dennis Wayne's Dancers ("Dancers"), a New York not-for-profit corporation conducting business as a contemporary ballet company. The corporate defendant HRG and one individual defendant, Robert Sunderland, have moved to dismiss the complaint on the grounds, inter alia, that there is no personal jurisdiction over them.

 Since this is a diversity action, the Court must look to the law of New York State to determine whether there is personal jurisdiction. Arrowsmith v. United Press International, 320 F.2d 219, 223 (2d Cir. 1963). The issue in this case is whether defendants have transacted business within the meaning of N.Y.C.P.L.R. § 302(a)(1). Upon review of the papers submitted by the parties and the evidence ...


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