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.

BERK v. NEMETZ

November 4, 1986

PHYLLIS BERK, Plaintiff,
v.
ZENA NEMETZ and BACK BAY RESTORATIONS, INC., as general partners of BACK BAY RESTORATION COMPANY, a Limited Partnership; JULIE NICHOLAS GATES, as Executrix of the Estate of Alfred Percy Gates, Jr., deceased, Defendants



The opinion of the court was delivered by: LEISURE

OPINION & ORDER

LEISURE, District Judge :

 In this diversity action plaintiff, Phyllis Berk, a citizen and resident of New York, has sued defendants Zena Nemetz and Back Bay Restorations, Inc. ("Restorations"), as general partners of Back Bay Restoration Company ("BBR"), a limited partnership, all residents and domiciliaries of Massachusetts, and Julie Gates, a resident of Texas, as executrix of the Estate of Alfred Gates, Jr. Plaintiff's claim is two-fold: first, she seeks a declaratory judgment, pursuant to 28 U.S.C. § 2201, stating that she is the legal owner of the limited partnership interest in BBR purchased by Mr. Gates; second, plaintiff seeks to impose a constructive trust over this limited partnership interest.

 Defendants Nemetz, Restorations, and BBR (hereinafter referred to collectively as the "movants") have moved pursuant to Fed. R. Civ. P. 12(b)(2) and (3) for dismissal of this action on the grounds of improper venue and lack of personal jurisdiction. In the alternative, the movants have requested pursuant to 28 §§ U.S.C. 1404(a) and 1406(a), a transfer of this action to the District of Massachusetts. For the following reasons, the Court hereby grants the movants' request for transfer.

 FACTUAL BACKGROUND

 This case arises from an allegedly close personal and business relationship between plaintiff and Mr. Gates. Plaintiff claims that she and Mr. Gates knew each other from 1971 until his death in 1985. Affidavit of Phyllis Berk in Opposition to Motion to Dismiss P2. During that time, plaintiff alleges that Mr. Gates lived and worked at the Hotel Carlyle, in New York City, except for a brief stay with an associate in Greenwich, Connecticut. Id.

 Plaintiff alleges that she and Mr. Gates entered into their personal and business relationship in 1971. She claims that they each promised and agreed to aid and support the other. Plaintiff further alleges that she involved herself in Mr. Gates' business activities and assisted him from 1971 until his death in 1985. In return, she claims that he cared for her and provided for her financial needs. Mr. Gates also specifically agreed to provide for plaintiff after his retirement or in the event of his death. Id. at P3 These agreements were all allegedly made in New York.

 The following facts are of particular interest at this juncture. According to plaintiff, in 1977 Mr. Gates informed her of a solicitation for a limited partnership he had received from movants. He told plaintiff he was interested in subscribing to the partnership on her behalf. Id. at P4.

 In furtherance of this interest, Mr. Gates arranged for a meeting among the parties. This meeting was held in the fall of 1977 at the Hotel Carlyle in New York City. At the meeting movant Nemetz, plaintiff, and Mr. Gates discussed the "details, prospects and requirements" for the sale to Mr. Gates of an interest in BBR, a limited partnership. Id. According to plaintiff, at this meeting Mr. Gates informed Nemetz that he intended to purchase the partnership interest as the agent and nominee of plaintiff. In other words, Mr. Gates informed Ms. Nemetz that his limited partnership interest would be the property of plaintiff and that she would be entitled to any payments or profits therefrom.

 Subsequent to this meeting the parties met again, this time in Boston, Massachusetts, where they discussed the partnership further. At this meeting, plaintiff alleges that Mr. Gates again made clear to Ms. Nemetz that plaintiff would be the real owner of the limited partnership interest and that he would be merely her nominee. Id. at P5.

 No partnership arrangement was actually agreed upon or executed during the aforesaid meeting in New York. Furthermore, more than a predominant share of the arrangements regarding Mr. Gates' purchase of an interest in the limited partnership were orchestrated in Massachusetts. In fact, plaintiff's papers suggest that -- aside from Mr. Gates' special attention to plaintiff's status as the real party in interest -- the meeting in New York was merely exploratory. The subsequent meeting in Boston reinforces the Court's conclusion that the New York meeting was merely of a preliminary nature.

 The purchase agreement for the limited partnership interest in BBR was executed in Massachusetts. The movants carry on all their business dealings in Massachusetts. Furthermore, all subsequent interstate communications between the movants and Mr. Gates consisted of letters mailed by the movants to Mr. Gates in Greenwich, Connecticut and Houston, Texas.

 LEGAL DISCUSSION

 A. Personal ...


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.