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CROUCH v. ATLAS VAN LINES

October 15, 1993

RICHARD A. CROUCH, Plaintiff,
v.
ATLAS VAN LINES, INC.; MERCHANT'S MOVING & STORAGE, INC.; RONALD GROVE, SR.; RONALD GROVE, JR.; HENRY "HANK" FURUSHIRO, Defendants.


Hurd


The opinion of the court was delivered by: DAVID N. HURD

United States Magistrate Judge

 MEMORANDUM-DECISION and ORDER

 I. INTRODUCTION.

 This diversity action was brought pursuant to 28 U.S.C. § 1332 by an independent contractor/trucker against two moving companies, two employees of one of the moving companies, and another independent truck driver. The complaint states causes of action for conversion, personal injury, fraud, and six instances of breach of contract. The parties have stipulated to the dismissal of the action as to defendants Atlas Van Lines, Ronald Grove, Sr., Ronald Grove, Jr., and the eighth cause of action as to all defendants.

 The remaining two defendants, Merchant's Moving and Storage, Inc. ("Merchant's"), and Henry Furushiro ("Furushiro"), have moved for summary judgment claiming this court lacks personal and/or subject matter jurisdiction and that venue is improper. Merchant's also alleges that plaintiff has failed to state a claim upon which relief can be granted as to the seventh cause of action. For the reasons that follow, the court grants defendants' motion and the complaint is dismissed.

 II. FACTS.

 Plaintiff is a citizen of New York. Merchant's, whose principal business is the long distance moving of household and other goods, is an Idaho corporation with its principal place of business in Boise, Idaho. Merchant's is not licensed to do business in New York and has no agents or employees located in New York. Furushiro is a resident of Idaho.

 Plaintiff complains that Merchant's: (1) has not paid him the full contract price for several pick-up and deliveries throughout the country; (2) owes him for the cost of storage of goods while in transit; (3) owes him for four "dead head trips" *fn1" between Hampton, New Hampshire and La Jolla, California; (4) deducted the insurance charge from his compensation in violation of the agreement; (5) after he was hurt on the job, deliberately indicated to him that he was not able to file a worker's compensation claim because the compensation was through Atlas; (6) did not provide him with a new gated trailer as promised; and (7) falsely stated that he would be hauling Henley shipments on a full-time basis.

 Defendants have denied the material allegations contained in the complaint, and have asserted several affirmative defenses including lack of personal and subject matter jurisdiction and failure to state a claim upon which relief can be granted.

 III. DISCUSSION.

 A. Personal Jurisdiction.

 Since this court's subject matter jurisdiction is based on diversity, the law of New York will decide whether this court may exercise personal jurisdiction over the defendants. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985); see also Arrowsmith v. United Press Int'l, 320 F.2d 219, 223-24 (2d Cir. 1963) (en banc). Accordingly, the court must determine whether New York's Civil Practice Law and Rules (CPLR) provides a vehicle through which the court may exercise its jurisdiction. N.Y. Civ. Prac. L. & R. §§ 301, 302 (McKinney 1990). Merchant's alleges that its business contacts in New York are not regular and systematic enough for them to be deemed present within the state for the purposes of obtaining jurisdiction pursuant to CPLR § 301, and that any of its transactions conducted in New York did not "arise out of" the plaintiff's causes of action for the purposes of obtaining jurisdiction pursuant to CPLR § 302.

 1. Merchant's.

 Merchant's essentially first argues that this court may not exercise jurisdiction over it pursuant to CPLR § 301 because it does not engage in a regular and systematic course of "doing business" in New York so as to warrant a finding of its "presence" in this jurisdiction. Frummer v. Hilton Hotels Int'l, Inc., 19 N.Y.2d 533, 536, 227 N.E.2d 851, 853, 281 N.Y.S.2d 41, 43 (1967), cert. denied, 389 U.S. 923, 19 L. Ed. 2d 266, 88 S. Ct. 241 (1967). Without any physical presence in New York, a foreign corporation may only be subjected to the jurisdiction of New York if the corporation purposefully directs or conducts business, "not occasionally or casually, but with a fair measure of permanence and continuity." Landoil Resources Corp. v. Alexander & Alexander Services, Inc., 77 N.Y.2d 28, 34, 565 N.E.2d 488, 490, 563 N.Y.S.2d 739, 741 (1990) (quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915, 917 (1917)). "The test for 'doing business' is a 'simple [and] pragmatic one,' which varies in its application depending on the particular facts of each case." Id. Merchant's, therefore, can only be subjected to personal jurisdiction in New York if it operates here with some measure of regularity.

 
To invoke jurisdiction over a foreign corporation pursuant to CPLR 301, the corporation must have engaged in more than merely soliciting business. Substantial solicitation plus evidence of the foreign corporation's "financial or commercial dealings in New York . . . or the defendant's holding himself out as operating in New York" will suffice to subject the defendant to the court's jurisdiction ( Aquascutum of London, Inc. v. S.S. American Champion, 426 F.2d 205, 211-12 (2d Cir. 1970)) . . . .

 Pacamor Bearings, Inc. v. Molon Motors & Coil, Inc., 102 A.D.2d 355, 357, 477 N.Y.S.2d ...


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