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May 25, 1993


The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.



 Sanford Gilbert ("Plaintiff"), a Florida resident, brought this action in the Northern District of New York against Andrew and Roberta Wilson ("Defendants"), Virginia residents, for damages incurred as a result of Defendants' alleged breach of contract. Jurisdiction is proper in federal court pursuant to 28 U.S.C. § 1332. This matter is presently before the court on Defendants' motion to dismiss Plaintiff's claim for lack of personal jurisdiction pursuant to Fed.R.Civ.P. ("FRCP") 12(b)(2) *fn1" and/or improper venue pursuant to FRCP 12(b)(3). In the alternative, Defendants move to transfer venue to the United States District Court for the District of Massachusetts pursuant to 28 U.S.C. § 1406 or § 1404.

 The court heard oral argument in Albany, New York on December 4, 1992 and reserved decision on this matter, advising the parties that this written opinion would follow.


 On August 7, 1985, Plaintiff and Defendants entered into an agreement whereby Plaintiff sold to Defendants certain stock in the GEG corporation, a Delaware corporation with corporate headquarters in Hillsdale, New York, for which the purchase price was to be paid over a ten-year period. See Complaint PP 2-5 and exh. 1 attached thereto. GEG is the parent corporation of Catamount Development Corporation ("CDC"), a New York corporation also licensed to transact business in Massachusetts. Plaintiff alleges that the only significant asset of CDC is Catamount Ski Area, located on the border of New York and Massachusetts such that one-half of the ski area falls in each state. Gilbert Aff. P 5. Plaintiff further alleges that the subject agreement was "executed by the plaintiff and defendants at the office of GEG corporation, in the Town of Hillsdale, State of New York." Id. P 8.

 Defendants allege that the subject agreement "was executed by all parties at the offices of Catamount Ski Area, located in South Egremont, Commonwealth of Massachusetts." A. Wilson Aff., Doc. 8, P 12; R. Wilson Aff. PP 9-10.

 On March 29, 1986, Defendants assigned their rights in the agreement to William Gilbert (brother of Plaintiff and a then-resident of New York) and Donald Edwards, principals in GEG Corporation. See Complaint P 9 and exh. 3 attached thereto. Plaintiff alleges that he "was not a party to the subsequent assignment, nor did [he] authorize or approve of the assignment of the defendants' obligations as set forth in the agreement dated August 7, 1985." Complaint P 13. Plaintiff further asserts that Defendants have failed to make payments due under the agreement although Plaintiff has made demands for same, id. at P 11, and that he "has fully performed all of his obligations pursuant to the agreement." Id. at 15.

 Defendants assert that the Northern District of New York has not obtained personal jurisdiction over them, as Defendants deny having any significant contacts with this district or even with New York State. Furthermore, Defendants claim that they have never worked in or derived income from the State of New York. See A. Wilson Aff. at P 4; R. Wilson Aff. at P 4.

 Plaintiff responds that this court has obtained personal jurisdiction over Defendants pursuant to N.Y. Civ. Prac. L. & R. ("CPLR") § 302, as the subject agreement was signed in the Northern District of New York, and that venue is therefore proper in this district. See Gilbert Aff. at P 8. Plaintiff further argues that this action should not be transferred as Defendants have failed to prove that Massachusetts is a more convenient forum.


 1. Personal Jurisdiction

 When personal jurisdiction is challenged, "the plaintiff has the ultimate burden of establishing jurisdiction over defendant by a preponderance of the evidence[.]" Cutco Industries v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986) (citation omitted); Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir. 1983) (references omitted). A district court, however, has considerable discretion in deciding a pretrial motion to dismiss for lack of personal jurisdiction. See Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). The Marine Midland court noted that the district court

may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion. If the court chooses not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials.

 Id. at 904 (citations omitted). Furthermore, "until such a hearing is held, a prima facie showing suffices, notwithstanding any controverting presentation by the moving party, to defeat the motion." Id. (citations omitted). The Second Circuit has also noted that

in the absence of an evidentiary hearing on the jurisdictional allegations, or a trial on the merits, all pleadings and affidavits are construed in the light most favorable to plaintiff, and where ...

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