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BICICLETAS WINDSOR, S.A. v. BICYCLE CORP. OF AMERI

January 27, 1992

BICICLETAS WINDSOR, S.A., Plaintiff, against BICYCLE CORPORATION OF AMERICA, Defendant.

HAIGHT, JR.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

HAIGHT, District Judge:

 This diversity case is before the Court on defendant's motion to dismiss for lack of personal jurisdiction and improper venue under N.Y.C.P.L.R. § 301 and 28 U.S.C. § 1391. Alternatively, the defendant moves to transfer the action to the Eastern District of Pennsylvania pursuant to 28 § U.S.C. 1404.

 Plaintiff cross-moves to vacate the Court's prior vacatur of default judgment because of defendant's failure to answer the original complaint. In the alternative, plaintiff moves for attorney's fees and costs incurred in filing for the default judgment.

 BACKGROUND

 Plaintiff Bicicletas Windsor, S.A. ("BWS") is a manufacturer of bicycle frames with its principal place of business and sole plant in Naucalpan, Mexico. Defendant Bicycle Corporation of America ("BCA") is a manufacturer of bicycles with its principal place of business in Bethlehem, Pennsylvania.

 The action arises out of a contract for the sale and delivery of bicycle frames. The plaintiff claims that the defendant breached by failing to pay for the frames. while BCA does not deny its failure to pay, it argues that BWS failed to deliver the frames by the date specified in the contract and that, even when BWS finally did make delivery, the frames were defective.

 BWS filed and served its original complaint on the defendant on December 10, 1990. When BCA failed to reply, BWS moved for default. The Court granted the motion on January 9, 1991 and the Clerk entered the judgment the next day in the amount of $ 106,782.44.

 BCA then moved by Order to Show Cause on February 20, 1991 to vacate the default judgment and dismiss the complaint for lack of jurisdiction. when BWS failed to appear by the return date of February 22, 1991, the Court entered an Order vacating the default judgment under Rule 60(b)(1), Fed. R. Civ. P., but withheld judgment on the jurisdiction issue.

 BWS now moves to reinstate the default judgment and, alternatively, for attorney's fees and costs. It also opposes defendant's motion to dismiss. For the reasons stated below, I deny defendant's motion to dismiss for lack of personal jurisdiction and improper venue. I deny plaintiff's motion to reinstate the default but grant its motion for attorney's fees. I also grant defendant's motion to transfer the case to the Eastern District of Pennsylvania.

 DISCUSSION

 Jurisdiction

 In order to defeat a motion to dismiss for lack of personal jurisdiction brought after discovery, plaintiff must make a prima facie showing of facts that, if credited by the trier of fact, would suffice to establish jurisdiction over the defendant. United Bank of Kuwait v. James M. Bridges, Ltd., 766 F. Supp. 113, 115 (S.D.N.Y. 1991) (citing Ball v. Metallurgie Hoboken-Overpelt S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 112 L. Ed. 2d 116, U.S. , 111 S. Ct.. 150 (1990)). Bare allegations of jurisdiction will not suffice where, as in this case, discovery has taken place. Id.

 BWS contends that BCA was "doing business" under CPLR § 301 and was therefore subject to jurisdiction in New York, even if the cause of this action did not arise in New York. *fn1" While the statute itself provides only that "[a] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore," courts have construed it to include foreign corporations who are doing business in the "traditional sense." See Ball, supra, at 198 (citing Frummer v. Hilton Hotels International, Inc., 19 N.Y.2d 533, 281 N.Y.S.2d 41, 43, 227 N.E.2d 851, cert. denied, 389 U.S. 923, 19 L. Ed. 2d 266, 88 S. Ct. 241 (1967)) (emphasis in original).

 In the case at bar, plaintiff claims several factors demonstrate that BCA is "doing business" in New York. First, BCA solicits business in the state on a regular basis. In discovery the defendant produced a list of 270 New York companies that it uses to target promotional mailings, catalogs and telephone marketing. Plaintiff's Memorandum in Support of Vacatur ("Plaintiff's Brief") at 9; Affidavit of Jonathan A. Olsoff ("Olsoff Aff."), Exhibit B; Deposition of Robert Andrew Ehrlich ("Ehrlich Dep.") at 14-16. BCA has hired a "territorial manager" to represent the company in the New York City metropolitan area, *fn2" and the BCA sales manager occasionally accompanies her on sales calls. Ehrlich Dep. at 35. BCA also solicits business in New York by purchasing advertisements in journals distributed in New York. Id. at 25. These advertisements appear four to six times a year in at least three nationally distributed magazines, including American Bicyclist and Motorcyclist, Bicycle Business Journal and Bicycle Dealer Showcase. Id. One of these magazines, American Bicyclist and Motorcyclist, is itself located in New York. Olsoff Aff., Exhibit D.

 In addition to soliciting business in New York, the defendant also has commercial and financial dealings of its own here. BCA has purchased 8,000 to 10,000 kickstands from a New York company in each of the last two years, and has purchased bicycle parts from two other New York companies during the same period. *fn3" Olsoff Aff., Exhibit E; Ehrlich Dep. at 29-32.

 These facts are enough to satisfy the "doing business" standard of § 301. As now Circuit Judge McLaughlin wrote in the Commentary to the CPLR:

 It is clear . . . that the doing business test does not require the primary activities of the defendant to be carried on in this state. It is sufficient that the foreign corporation has an agent or employee who solicits business in New York systematically, and who devotes a major portion of his time to promoting the business interests of the defendant. Solicitation of business alone may not be sufficient to constitute doing business; but solicitation plus additional business activities related to the defendant's operative or financial structure usually satisfies the test. See Elish v. St. Louis South Western Ry. Co., 1953, 305 N.Y. 267, 112 N.E.2d 842; Scanapico v. Richmond, Fredericksburg & Potomac R. Co., C.A.N.Y. 1970, 439 F.2d 17, affirmed en banc 439 F.2d 25.

 While it is settled that "mere solicitation" of business in this state is not sufficient to constitute "doing business," and that something more is required, it is clear from the cases in recent years that the something "more" has become very little else. The rule has been further diluted by a major decision of the Court of Appeals [ Laufer v. Ostrow, 55 N.Y.2d 305, 449 N.Y.S.2d 456, 434 N.E.2d 692 (1982)] that if the corporation doing the solicitation in New York is different from the corporation on whose ...


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