defendants benefited from resolution of these issues, plaintiff does not establish any link between defendants' alleged decision to repudiate the agreement and the matters discussed at this meeting. Because plaintiff has not shown that its claims have any connection with this meeting, it has not established the meeting's jurisdictional significance.
In contrast, the non-technical discussions which occurred later in the day are jurisdictionally relevant because of the role they played in defendants' alleged decision to repudiate the July 13 agreement. During meetings in London the prior week, plaintiff had suggested reducing both its and defendants' interests in the refinery deal from 50% to 45% in order to give El Paso, the proposed operating partner, a 10% interest in the refinery. At the September 14 meeting in New York, Asher objected vehemently to this proposal. (Tr. at 140-41.) Defendants argue that this discussion carries no jurisdictional weight because it was not the purpose for which Asher went to New York, and it did not result in a modification of the agreement.
Plaintiff's insistence on reducing defendants' equity interest in the refinery was a significant factor in defendants' alleged repudiation of the July 13 agreement. In a letter to plaintiff dated September 28, 1980, Woloshyn stated "if you do not confirm today unequivocally that you will do the 50-50 deal, and if we have the opportunity to conclude a deal with another partner which preserves our 50% interest, then we shall do so." (Hardiman Aff., Ex. D.) Although these conversations were not part of the meeting's formal agenda and did not result in a modification of the agreement, it is clear that defendants' alleged repudiation of the agreement arose from these business discussions in New York.
3. Choice of Law
While a choice of law provision in a contract is not a consent to personal jurisdiction, it is relevant to the determination of whether defendant "transacted business" for § 302(a)(1) purposes. Cutco, 806 F.2d 361 (2d Cir. 1986) (citations omitted). However, plaintiff has failed to establish by a preponderance of the evidence that defendants consented to application of New York law.
As evidence of defendants' consent to application of New York law, plaintiff relies on defendants' "express agreement" that the July 13 agreement would be governed by New York law and the fact that defendants attempted to retain a New York attorney on July 13, and later used New York counsel when negotiating with Goldman Sachs in October, 1990.
When Woloshyn was informed over the telephone that the draft agreement contained a New York choice of law provision, he responded "Okay. Once it's done could you please send it simultaneously to us . . ." (Asher Aff., P 13.) Since Woloshyn was not responding to a request for consent to application of New York law, but rather was being informed of the contents of the draft, the most reasonable interpretation of his response is that he used the term "OK" to acknowledge that he understood what had been said.
Defendants' attempt to retain, and the later use, of a New York attorney in connection with the agreement do not establish that defendants agreed to the application of New York law. Because plaintiff has not proved that defendants agreed to the application of New York law, I have not considered the effect of such an agreement in weighing the totality of the circumstances for purposes of personal jurisdiction.
Finally, defendants do not argue, nor do I find, that requiring defendants to defend this suit in New York in any way "offends 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945).
Plaintiff has shown by a preponderance of the credible evidence that this court has personal jurisdiction over Asher, Woloshyn and Beta with respect to the breach of contract claims against them. Therefore, the motion to dismiss these claims is denied. As to the remaining claims against Asher, Woloshyn and Beta, plaintiff has made no showing that this court has personal jurisdiction. Therefore, defendants' motion to dismiss these claims is granted.
Dated: New York, New York
January 15, 1993
MIRIAM GOLDMAN CEDARBAUM
United States District Judge