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CONNIFF v. DODD

August 30, 1984

RICHARD CONNIFF, Plaintiff, against DODD, MEAD & CO., THOMAS NELSON CO. and SAMUEL MOORE, Defendants.


The opinion of the court was delivered by: GOETTEL

GOETTEL, D.J.:

INTRODUCTION

 Richard Conniff compiled a book of verse, poetry, limericks, and epigrams entitled The Devil's Book of Verse. His publisher, Dodd, Mead & Co. ("Dodd, Mead"), *fn1" informed him that portions of the book were considered blasphemous by Thomas Nelson, Inc. ("Thomas Nelson"), the parent of Dodd, Mead, and Sam Moore, the president of Thomas Nelson. Therefore, unless these portions were removed, Dodd, Mead would have to discontinue promotion, distribution, and sales of the book by the direction of Thomas Nelson and Moore.

 Conniff refused to remove the objectionable portions. Dodd, Mead, therefore, ceased promotion, distribution, and sales of the book. Moore explained to the press that he ordered Dodd, Mead to take these actions against Conniff because he did not want his companies to publish trash.

 In response to the above, Conniff has sued Thomas Nelson and Moore for causing Dodd, Mead to breach its contract with Conniff and for defaming him. *fn2" Presently before the Court are motions by the defendants to dismiss the complaint. Moore moves, pursuant to Fed. R. Civ. P. 12(b)(2), to dismiss the complaint as to him for lack of personal jurisdiction. Thomas Nelson and Moore both move, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss the complaint for failure to state a claim upon which relief can be granted. *fn3" The defendants' motions are granted in part and denied in part.

 DISCUSSION

 A. Motion to Dismiss for Lack of Personal Jurisdiction

 Moore moves to dismiss the complaint as to him for lack of personal jurisdiction on the grounds that (a) he does not individually do business in New York within the meaning of N.Y. Civ. Prac. Law & R. § 301 (McKinney 1972) and (b) he is not subject to jurisdiction under New York's long arm statute, N.Y. Civ. Prac. Law & R. § 302 (McKinney 1972 & Supp. 1984) ("CPLR 302"), because all of his alleged acts took place in his corporate, not personal, capacity. Conniff argues that Moore is subject to jurisdiction under CPLR 302 and that the fiduciary shield doctrine is not, and should not be, applicable to Moore in this situation.For the following reasons, the Court agrees with Moore.

 Under the fiduciary shield doctrine, a person is free from the exercise of jurisdiction over him personally when his only contact with the state was by virtue of acts carried out by him as a fiduciary of a corporation. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 902 (2d Cir. 1981). However, the fiduciary shield doctrine is not available when the corporate officer is acting in his own best interests rather than the corporation's interests. Id. at 903. The following is considered to determine if this is the situation:

 It is appropriate to focus not only on the fealty of the employee to the corporation in the performance of those acts, but also on the nature of the corporation and the individual's relationship to it. If the corporation is a mere shell for its owner, the employee-owner's actions may be viewed as having been taken simply in his own interest.

 Id. at 903.

 Conniff contends that the tortious conduct complained of in this controversy calls for denial of the benefits of the shield doctrine. He argues that Moore's actions demonstrate that the corporate officer acted in his own personal interest rather than in the best interest of the corporation and, therefore, Moore is not shielded. Conniff further argues that Moore should not be shielded because he is the president of Thomas Nelson. Conniff, however, has not demonstrated that Moore's actions were not in the best interest of Thomas Nelson or that Thomas Nelson was a mere shell for Moore. *fn4"

 The mere charge of tortious conduct against a corporate officer acting in his official capacity, without more, cannot support the assertion of personal jurisdiction over him. Therefore, Moore's motion ...


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