The opinion of the court was delivered by: LASKER
Defendants move to dismiss this action for lack of personal jurisdiction pursuant to rule 12(b)(2) of the Federal Rules of Civil Procedure. Plaintiff opposes this motion but asks, in the event that it is granted, that the suit be transferred to the United States District Court for the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a). At oral argument heard on November 18, 1983, defendants represented that they did not oppose a transfer of the suit to Illinois. For the reasons set forth below, the motion to dismiss is denied but the case is transferred to the Northern District of Illinois.
In January, 1981 Premier Electrical Construction Corporation ("Premier"), an electrical construction contractor, entered into a subcontract with Morse/Diesel Inc. ("Morse/Diesel"), the general contractor for the project, to complete certain electrical work.Folowing completion of Premier's work, a dispute arose between Premier and Morese/Diesel over the payment of $626,280 which led Premier to file a Notice and Claim for Mechanic's Lien ("Notice") on the Chicago property in the Cook County Record of Deeds Office on May 13, 1983.
The Notice was filed against the American National Bank of Chicago, the record owner of the property, "and the following parties who may have an ownership interest . . . to wit: 666 ASSOCIATES, a limited partnership, 666 SOUTH RESIDENCE CONDOMINIUM ASSOCIATION, [plaintiff] DAVID L. PAUL AND AM MART REALTY CORP."
It stated a claim for $626,280 and noted that this sum did not include a separate unlienable claim for $1.2 million which Premier is asserting against Morse/Diesel and/or the owner of the Chicago property. The Notice was mailed to the parties named, including plaintiff Paul, at Chicago addresses. Chemical Bank of New York, who is one of the mortgagees of the property, was the only out of state institution or person to receive a copy of the Notice.
Paul responded to being named in the Notice by filing a four count complaint against Premier, William J. Templeman, its Chairman and Chief Executive Officer, and Michael F. Hughes, Premier's President, in the Southern District of New York on June 29, 1983. The complaint alleges that defendants falsely named Paul in their Notice and that this act constituted libel (counts 1 & 2) and tortious interference with his present and future business relationships (counts 3 & 4). On August 22, 1983, defendants filed this motion to dismiss plaintiff's complaint for lack of personal jurisdiction.
In support of their motion to dismiss, defendants argue that their conduct and activities do not satisfy the personal jurisdictional requirements of the New York Civil Practice Law.
Premier is an Illinois corporation with its principal place of business located in that state. Templeman and Hughes are Illinois residents. Negotiation, execution and performance of the subcontract between Premier and Morse/Diesel took place in Illinois. the Notice of lien applies to property located in Illinois. Chemical Bank was the only New York addressee to receive a copy of the Notice. Defendants contend that their mailing of the Notice of lien to the Chemical Bank in New York does not establish a basis for a New York court to exercise personal jurisdiction over them because they were not "doing business" or "transacting business" in New York within the meaning of the relevant New York long-arm statutes.
Defendants further assert that their only contact with New York was their utterance of allegedly libelous material and that all of the plaintiffs' claims arise from the alleged defamation. Defendants note that sections 302(a)(2) and 302 (a)(3), the sections under which jurisdiction is asserted, exclude libel as a ground for asserting personal jurisdiction. In addition, they argue that even if the counts of plaintiff's complaint alleging tortious interference with his business allege an independent cause of action, the relevant jurisdictional statute requires the presence of the tortfeasor within New York to support successfully jurisdiction.
In this case, defendants claim there is no basis for finding their "presence" in New York because nothing points to New York as the place of their acts or where the critical events in issue took place or the situs of the injury.
Plaintiff answers that counts 3 and 4 of his complaint state a claim for tortious interference with economic advantage which he asserts constitutes an indpendent cause of action. He argues that his complaint is legally sufficient because it alleges that the defendants knew that Paul did not have a legal or equitable interest in the property that is the subject of the mechanic's lien, that defendants were aware of his current and future business relationships with third parties, that defendants knew that plaintiff would have to disclose the existence of the lien to these parties, and that defendants wrongfully interfered with Paul's business relationships with third parties. In addition, he argues that defendants' inclusion of a nonlienable claim in their Notice was "improper" under Illinois law
and therefore wrongfully interfered with economic advantage.
Paul contends that he has alleged facts which disclose a calculated course of conduct designed to impair his relations with various third parties and that while the background facts of this case support a claim for defamation, it does not follow that the alleged tort of tortious interference with economic advantage is merely a defamation count dressed in other garb.
Plaintiff further asserts that the defendants committed a tort within New York State shere he has substantial economic ties. While Paul acknowledges that New York law is not settled on whether a mailing of a communication, such as a mechanic's lien, into the state by itself supports personal jurisdiction under section 302(a)(2) of the Civil Practice Law, he argues that the case Polish v. Threshold Technology Inc.,
which held that a tort was committed in New York when an out of state defendent mailed a letter to a New York plaintiff, should be relied upon to deny defendants' motion.
Paul also contends that the defendants cannot prevail on their motion under rule 12(b)(2) of the Federal Rules of Civil Procedure merely by rebutting his allegations on paper. In his view, dismissal of these allegations is proper only after the close of trial. Finally, Paul argues that in the event it is found that personal jurisdiction over the defendants does not exist in New York, the action should be transferred to the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a) ...