302(a)(1), rather than section 302(a)(2), the provision at issue here. Section 302(a)(1) confers jurisdiction over a defendant who "transacts any business within the state or contracts anywhere to supply goods or services in the state." N.Y. CPA § 302(a)(1) (McKinney 1990). Courts have not placed such a construction of section 302(a)(2). See Fox-Rich Textiles, supra, 14 U.S.P.Q.2d at 1845; Factors, supra, 444 F. Supp. at 288; Honda, supra, 374 F. Supp. at 888.
Moreover, in McKee, the Court of Appeals specifically noted that the acts committed by the defendants in New York did not give rise to the tort sued upon in that case, see 20 N.Y.2d at 381, 283 N.Y.S.2d at 37, and for that reason could not be the basis of personal jurisdiction. See 20 N.Y.2d at 382, 283 N.Y.S.2d at 38. The facts of McKee fit within the rule that "single or isolated items of activities" which are unrelated to the lawsuit cannot be the basis for personal jurisdiction. See International Shoe Co. v. Washington Office of Unemployment Compensation & Placement, 326 U.S. 310, 317, 90 L. Ed. 95, 66 S. Ct. 154 (1945). In the present case, defendants' activities in New York provide the basis for both personal jurisdiction and the cause of action sued upon and thus do not come within the ambit of the rule stated in McKee.
Therefore, based on defendants' sales of rockers in New York, it is clear that the court possesses personal jurisdiction over plaintiff's patent infringement claims. Likewise the court possesses jurisdiction over plaintiff's unfair competition and dilution claims based on sales of defendants' other furniture, since 13 percent of this furniture was sold in New York.
Defendants have also moved to dismiss or transfer this action for improper venue. As indicated by the following discussion, venue is proper in this district and this motion must be denied.
Venue in an action for patent infringement is governed by 28 U.S.C. § 1400(b) which provides that venue may be established where "the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business." In 1988, Congress amended 28 U.S.C. § 1391(c), the general corporation venue statute, which provides that: "for purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." See Pub. L. 100-702, Title X, § 1013, 102 Stat. 4669 (Nov. 19, 1988). Sections 1391(c) and 1400(b) are in the same chapter of the Judicial Code. Therefore, courts have interpreted these two sections as establishing venue in any district where a corporation is subject to personal jurisdiction. See VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed. Cir. 1990), cert. denied, 113 L. Ed. 2d 248, 111 S. Ct. 1315 (1991); Farberware, supra, 19 U.S.P.Q.2d at 1080; Regents of University of California v. Eli Lilly & Co., 734 F. Supp. 911 (N.D.Cal. 1990). But see Doelcher Prods. Inc. v. Hydrofoil Int'l Inc., 735 F. Supp. 666 (D. Md. 1989). Since defendants are subject to personal jurisdiction in this district, venue is proper here with respect to plaintiff's patent infringement claims.
Venue for plaintiff's other claims is governed by two identically worded provisions of the general venue statute, 28 U.S.C. § 1391(a)(1) and § 1391(b)(1), which provide that venue is proper in "a judicial district where any defendant resides, if all defendants reside in the same State." Assuming that defendant Lukingbeal is sued in his official capacity only, both he and the defendant corporation reside in the same state.
Section 1391(c) is also incorporated into analysis of venue under sections 1391(a) and (b), making venue proper where defendants are subject to personal jurisdiction. Therefore venue is proper in this district with respect to plaintiff's remaining claims.
Finally, defendants have moved, under 28 U.S.C. § 1404(a), to transfer this action to the Eastern District of Tennessee. Section 1404(a) allows transfer of an action "for the convenience of parties and witnesses, in the interest of justice" to another district "where it might have been brought." However, it is evident that this action could not have been brought in the Eastern District of Tennessee, since that court has already determined that venue for Van Klassens' declaratory judgment action was improper in that district and transferred that action here. Therefore this action cannot be transferred to the Eastern District of Tennessee and defendants' motion must be denied.
Accordingly, defendants' motion, under Rules 12(b)(2) and 12(b)(3), F.R.Civ.P., to dismiss this action for lack of personal jurisdiction and improper venue is denied. Defendants' motion to transfer this action, under 28 U.S.C. § 1404(a), to the Eastern District of Tennessee is denied.
IT IS SO ORDERED.
Dated: New York, New York
September 4, 1992
Robert L. Carter