Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

I. OLIVER ENGEBRETSON, INC. v. ARUBA PALM BEACH HO

June 5, 1984

I. OLIVER ENGEBRETSON, INC., Plaintiff, against ARUBA PALM BEACH HOTEL & CASINO, ARUVEN, N.V., and MUZII & ASSOCIATES, INC., Defendants.


The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

 The above-captioned action is before this Court upon the motion of defendants Aruba Palm Beach Hotel & Casino and Aruven, N.V. ("the Aruba defendants") to dismiss for want of in personam jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, or, in the alternative, to dismiss pursuant to the doctrine of forum non conveniens. For the reasons stated below, the motion is denied.

 - BACKGROUND -

 Aruven, N.V. ("Aruven") is a corporation organized under the laws of the Netherlands Antilles with its principal place of business in Aruba. Aruven owns three resort hotels on the island of Aruba. One of those hotels is the defendant Aruba Palm Beach Hotel & Casino ("Aruba Hotel"). The Aruba defendants are not qualified to do business in New York. They do not have, nor have they ever maintained, any offices or employees in New York, nor do they have a New York telephone number. They do not own any real property here. They do, however, have contractual arrangements with local travel agents and hotel representatives.

 Engebretson* is an independent hotel representative in New York, apparently engaged in the business of representing resort hotels located primarily in the Caribbean. Engebretson flew to Aruba in August, 1982. While in Aruba, Engebretson flew to Aruba in August, 1982. While in Aruba, Engebretson negotiated with the management of the Aruba Hotel and, on August 15, 1982, entered into an agreement to serve as the Aruba Hotel's representative in North America for two years. Under the agreement, Engebretson would solicit, make, and confirm reservations in the Aruba Hotel, would promote the Hotel, and would attend trade fairs to promote business and create demand for the Hotel. In return for Engebretson's representation, the Aruba defendants would pay Engebretson three percent of the gross revenues generated from North America, irrespective of the source of the business.

 On or about August 24, 1982, the Aruba Hotel attempted to unilaterally modify the agreement. The Aruba Hotel sought to change the compensation arrangement with Engebretson so that Engebretson would receive five percent of the gross revenues generated by Engebretson. Engebretson refused to consent to this modification. Engebretson did, however, continue to represent the Aruba Hotel (although the adequacy of that representation is very much in dispute).

 On October 20, 1982, the Aruba Hotel hosted a large reception at the Waldorf-Astoria in New York. The reception was to inform the travel industry of the recent change of name and ownership of the Aruba Hotel.*a Approximately 200 travel agents, tour operators, and wholesaleres were invited to this reception which was organized, planned, and arranged by Engebretson and others, including Tom Duffy, an employee of Caribbean American Investment Co., Inc. (a seemingly uninterested third-party),** and Kalish & Rice, the Hotel's advertising agency from Philadelphia.

 After the reception, Paul Jaffe, an attorney from Philadelphia who represents the managing company for the Aruba Hotel, met with Engebretson in another room at the Waldorf. Exactly what transpired at that meeting is in dispute. Engebretson claims that Jaffe had two letters with him, one purporting to modify the agreement and the other terminating it. Moreover, Engebretson claims that after he refused to accept any modification, Jaffe handed him the termination letter. Jaffe, on the other hand, denies the existence of any "modification" letter, and claims that he merely handed him the previously prepared termination letter. I find this dispute irrelevant for these purposes*** -- the bottom line is that Engebretson's relationship with the Aruba defendants was terminated on October 20 by the delivery, in New York, of a previously prepared letter of termination.

 Shortly after Engebretson's termination, the Aruba defendants apparently secured the services of another hotel representative in New York -- Reservation Systems, Inc. ("RSI"), located at 6 East 46th Street. It is uncontroverted that RSI performed, and continues to perform, for the Aruba Hotel essentially all of the functions that Engebretson was retained to perform -- securing advertising, promoting the hotel, soliciting and confirming reservations there.

 Engebretson brought this action alleging breach of contract against the Aruba defendants, and seeking damages and an accounting. The Aruba defendants made the within motion to dismiss for want of in personam jurisdiction. A third defendant, Muzii & Associates, Inc. ("Muzii"), is alleged to have tortiously interfered with the contractual relationship between Engebretson and the Aruba defendants.*b Muzii remains a defendant in this action.

 - DISCUSSION -

 This Court has subject matter jurisdiction over this action pursuant to the diversity jurisdiction of the federal courts. 28 U.S.C. § 1332. In a diversity jurisdiction of the federal courts. 28 U.S.C. § 1332. In a diversity action, the scope of in personam jurisdiction (or, more accurately, "competence" -- meaning the power actually granted to the Court by the governing lawmakers, see Leab v. Streit, #83-5232, slip op. at 9-14 (S.D.N.Y. April 19, 1984)) is defined by the law of the forum state. See Arrowsmith v. United Press Int'l, 320 F.2d 219 (2d Cir. 1963); see also Leab v. Streit, supra. Plaintiff claims that the Aruba defendants are amenable to suit in New York pursuant to either or both of sections 301 and 302 of the New York Civil Practice Law and Rules.

 The burden of establishing the defendant's amenability to suit in this forum is on the plaintiff. E.g., Sanders v. Wiltemp Corp., 465 F. Supp. 71, 75 (S.D.N.Y. 1979); Ziperman v. Frontier Hotel of Las Vegas, 50 A.D. 2d 581, , 374 N.Y.S.2d 697, 700 (2d Dep't 1975). At this stage of the proceedings, plaintiff need only establish a prima facie case that defendants are amenable to suit here. See United States v. Montreal Trust Co., 358 F.2d ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.