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July 14, 1981


The opinion of the court was delivered by: BRIEANT


Defendant in this diversity case brought to recover for goods sold and delivered, moves to dismiss pursuant to Rule 12(b)(2), F.R.Civ.P., for want of in personam jurisdiction in this Court based upon service of process upon the Secretary of State of New York or possible "long-arm" service in Connecticut. For reasons set forth below, the Court concludes that the service was ineffective, and that in personam jurisdiction in this District cannot be obtained.

 In the interests of justice, rather than dismiss this case, it is hereby transferred to the District of Connecticut, pursuant to 28 U.S.C. § 1406(a).

 Plaintiff is a Delaware corporation having its principal office in this District. Defendant is a Connecticut corporation, having its principal office at Shelton, Connecticut. The action is to recover $ 556,579. for goods sold and delivered by plaintiff to defendant, consisting of certain electrical components, known as "mosfets".

 The contract sued upon arose as a result of initial discussions in Connecticut followed by interstate telephone calls as well as interstate letters, purchase orders and acknowledgements exchanged by mail. Claiming to be a winner of the customary "battle of the forms," plaintiff seeks, inter alia, to found in personam jurisdiction in this Court by reason of a forum selection clause and consent to jurisdiction buried in the fine print of its "acknowledgements" of the purchase orders, quoted below. Alternatively, plaintiff founds jurisdiction on § 301 New York C.P.L.R. or on § 302(a) thereof.

 The goods sold were required to be and were shipped via an interstate common carrier, from the plaintiff's plant in the Eastern District of New York to defendant's plant at Shelton, Connecticut, or to its affiliate in Taiwan. All payments were made by checks drawn in Connecticut and mailed to New York. Defendant or its representatives in the making of the contract never came into the State of New York, nor took the benefit of its laws. Cf. Mendelson v. Fleischmann, 386 F. Supp. 436 (S.D.N.Y.1973) and cases therein cited.

 Upon the papers submitted on this motion, the record is clear that defendant is not "doing business" in New York within the meaning of New York C.P.L.R. § 301. It has no regular or systematic contacts with New York, and has no office or general agents here. Nor can reliance properly be placed on § 302(a) of the New York C.P.L.R. There was no single, purposeful act by defendant in New York in connection with the making of the contract. The contract sued on resulted solely from telephone calls and interstate exchange of correspondence and personal visits by plaintiff's salesmen to Connecticut. This is insufficient contact to provide a basis for in personam jurisdiction in New York. See Total Sound, Inc. v. Universal Record Distributing Corp., 286 F. Supp. 123, 125 (S.D.N.Y.1968), applying New York law, and Galgay v. Bulletin Company, Inc., 504 F.2d 1062, 1066 (2d Cir. 1974).

 In an attempt to resolve a subsequent dispute about claimed defects, representatives of the defendant did come into New York State and held discussions with the plaintiff. The Court concludes, however, that the contract was already made, and attempts thereafter to compromise or adjust a dispute as to performance are not sufficient to confer in personam jurisdiction upon the courts of New York with respect to a pre-existing contract over which no jurisdiction existed prior to the settlement attempts. Indeed, it is doubtful that these discussions would even be admissible in evidence, in view of Rule 408, F.R.Evid. The Court declines to found in personam jurisdiction on these settlement meetings.

 This then leaves us with the sole basis for in personam jurisdiction to be found in the outcome of the "battle of the forms."

 Defendant's purchase order No. 10836 was issued September 22, 1980 and mailed by defendant to plaintiff. That purchase order, by clause 21 of its own fine print, provided that it "shall be governed by and interpreted in accordance with the laws of the State of New York." As this is a sale between merchants and the Uniform Commercial Code is in effect in both states, this point would seem of no significance. The purchase order also provided for acceptance in writing within fifteen days, with the following provisions:

"No changes or modifications are to be made without Buyer's (defendant's) written consent. Buyer is not bound by any provisions, printed or otherwise, at variance with this order that may appear on any acknowledgment form used by Seller." (Emphasis added).

 On August 1, 1980, plaintiff issued a written "Acknowledgment" of the order on its own printed form, which provided for billing to Shelton, Connecticut, and shipment of the goods to Taiwan. This acknowledgment form, and later such forms sent by plaintiff contained a printed condition on their face as follows: "Thank you for your order which is accepted subject to the terms and conditions on the reverse side of this acknowledgment."

 These printed terms and conditions contain 22 separate paragraphs. Paragraph 1 of these terms and conditions provided that:

"Buyer's failure to object to any of these Terms of Sale in writing prior to the commencement of performance by Seller or the acceptance of any of the goods or services described on the front hereof shall be conclusively deemed to be acceptance of all these Terms of Sale. * * * Seller's failure to object to terms contained in any ...

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