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CELI v. CANADIAN OCCIDENTAL PETROLEUM LTD.

October 13, 1992

FRANK CELI, d/b/a F.R.C. MOTOR LINES, Plaintiff,
v.
CANADIAN OCCIDENTAL PETROLEUM LTD., CANADIAN CHEMICALS, LTD., and CXY CHEMICALS, INC., Defendants.



The opinion of the court was delivered by: STERLING JOHNSON, JR.

 Johnson, District Judge:

 Plaintiff Frank Celi commenced this action against Canadian Oxy, Canadian Oxy Chemicals, Ltd., and CXY Chemicals Inc. in New York Supreme Court, Queens County in May 1989. The Defendants removed this action to the United States Court for the Eastern District of New York in June 1989 pursuant to 28 U.S.C. § 1441. In January 1990, Magistrate Judge John L. Caden granted the Plaintiff leave to file an amended complaint naming Canadian Occidental Petroleum, Ltd ("COPL"), Canadian Oxy Chemicals, Ltd. ("CanadianOxy") and CXY Chemicals, Inc. ("CXY") as defendants. The Amended Complaint sets forth claims for breach of contract, consequential damages and promissory estoppel.

 Following discovery, Defendants COPL, CanadianOxy and CXY now move pursuant to Fed. R. Civ. P. ("Rule") 12(b)(2) and 56(b) for an order a) dismissing the complaint as against defendant COPL for lack of jurisdiction over the person and b) granting summary judgment dismissing the Complaint against all remaining defendants, including COPL in the event its motion pursuant to Rule 12(b)(2) is not granted. For the reasons stated below, the Defendants' motions are granted.

 I. STATEMENT OF FACTS

 Defendant Canadian Occidental Petroleum, Ltd. ("COPL") is a Canadian corporation with its principal place of business in Alberta, Canada. Canadian Oxy Chemicals, Ltd. ("CanadianOxy") is a wholly owned subsidiary of COPL and is Canadian corporation with its principal place of business in Alberta. CXY Chemicals, Inc. ("CXY") is a Delaware corporation and a wholly owned subsidiary of CanadianOxy.

 Plaintiff Frank Celi ("Celi") worked from 1978 through March 1987 for Akton Adhesives ("Akton"), an adhesives manufacturer. In 1986, William Zelman, the owner of Akton, told Celi that he was negotiating with Paul Subject ("Subject"), an employee of CXY, about the possibility of the Defendants acquiring Akton. Celi and Subject engaged in a discussion regarding defendant CanadianOxy Chemicals' Ltd. ("CanadianOxy") intention to enter the United States adhesives market by either building or acquiring a major adhesive manufacturing facility in the United States.

 On or about March 29, 1987, Celi met with Subject in Akton's New York office. Celi alleges that he and Subject agreed that CanadianOxy would employ Celi for a period of three years commencing March 30, 1987 and at a salary of $ 5,000 per month plus expenses. Akton ceased doing business on or about March 29, 1987.

 Celi began working for CXY Chemical, Inc. ("CXY"). Since CXY did not have its own manufacturing facility, it entered into agreements with other manufacturers to supply CXY with finished adhesive products. Later, CXY unsuccessfully attempted to acquire a major New Jersey manufacturer of adhesive products. In a letter dated September 22, 1988, Subject terminated Celi's employment. The relevant text of the letter states the following:

 CanadianOxy Chemicals Ltd. has decided to temporarily suspend its adhesives business in the United States of America and enclosed is a notice that is being sent to all of our customers and business associates. Consequently, your services provided under the Verbal Agreement are completed and you are hereby notified that the Verbal Agreement is terminated, effective immediately.

 Two months later, Celi and Zelman formed IMAR Corp., an asbestos removal company. Celi is the Vice-President and owns approximately twenty percent of the company.

 II. ANALYSIS

 A. Motion to Dismiss Complaint Against COPL For Lack of In Personam Jurisdiction

 Celi alleges that the Eastern District may exercise in personam jurisdiction over COPL pursuant to N.Y. Civ. Prac. L. & R ("CPLR") §§ 301 and 302. Under § 301, a court may assert in personam jurisdiction over a foreign corporation if it is "engaged in such a continuous and systematic course of 'doing business' as to warrant a finding of its 'presence' in this jurisdiction." Frummer v. Hilton Hotels International Inc., 19 N.Y.2d 533, 536, 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). The party asserting jurisdiction also bears the burden of proof. Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F. Supp. 1523 (1985). Celi has failed to submit any evidence of COPL's doing business in New York on a systematic and continuous basis. There is no evidence that COPL either possessed a license to conduct business in New York or maintained a local office, employees, designated agent, bank account, a telephone listing, or other property in New York. See Pneuma-Flo Systems v. Universal Machinery Corp., 454 F. Supp. 858, 861 (S.D.N.Y. 1978). Plaintiff contends that COPL is doing business in New York because COPL is traded on the American Stock Exchange in New York. However, this argument was rejected ...


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