The opinion of the court was delivered by: ARTHUR D. SPATT
The defendant UK Optical Ltd. ("UK Optical") moves to dismiss the Complaint as against it for lack of personal jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(2), and to dismiss the second cause of action in the Complaint alleging violation of the Robinson-Patman Act, 15 U.S.C. § 13, pursuant to Fed. R. Civ. P. 12(b)(6). UK Optical also seeks a protective order governing certain discovery requests pursuant to Fed. R. Civ. P. 26(c).
The defendant UK Optical is a corporation organized under the laws of the United Kingdom, and is engaged in the manufacture of several types and models of designer eyeglass frames. UK Optical's principal place of business and corporate headquarters are located in England. The plaintiff En Vogue is a New York general partnership located in New York, and is engaged in the business of importing and reselling optical frames throughout the United States.
On July 30, 1992, En Vogue entered into an Exclusive Distribution Agreement with the defendant UK Optical. According to the plaintiff, the parties negotiated the agreement at arms length and by telephone, and U.K. Optical's Director of Frame Business visited New York for the purpose of final execution of the agreement. Under the terms of the distribution agreement, En Vogue would be UK Optical's exclusive distributor in the continental United States for UK Optical's "Saville Row Collection" of gold-filled eye glass frames. UK Optical in turn, was obligated not to supply the eye glass frames to any other person in the continental United States during the term of the agreement. The agreement called for En Vogue to purchase a minimum of 10,000 units of certain eye glass frames from UK Optical for the year 1992-1993. The parties agreed that the law of the United Kingdom would govern the contract.
Soon after the execution of the distribution agreement, the parties began exchanging accusations that the other breached the agreement. En Vogue alleged that UK Optical breached the distribution agreement, because it sold eye-glass frames covered by the distribution agreement to one of En Vogue's competitors, the defendant British Optical Imports ("British Optical"), for distribution in the US. On the other hand, UK Optical alleged that En Vogue first repudiated the distribution agreement, because it never purchased the minimum volume of frames required by the agreement.
Unable to resolve the dispute, En Vogue commenced this action by filing its Complaint on May 4, 1993, alleging that UK Optical breached the terms of the distribution agreement. En Vogue also sought a preliminary injunction enjoining UK Optical from any further sales of the eye glass frames to British Optical. On June 4, 1993, this Court denied the plaintiff's motion for a preliminary injunction. UK Optical sent written notice on August 6, 1993 to En Vogue, stating that it was terminating the exclusive distribution agreement within ninety days, but that it would allow En Vogue to continue purchasing the eye glass frames on a C.O.D. basis.
The defendant UK Optical filed the instant motion seeking, inter alia, to dismiss the plaintiff's complaint as against it because of lack of personal jurisdiction over UK Optical. In support of this aspect of its motion, UK Optical enumerates a number of factors which, it argues, indicate that UK Optical has virtually no contacts with the state of New York. Included in these factors are the allegations that UK Optical does not now, and has never: (1) been licensed or registered to do business in New York; (2) paid income taxes to New York; (3) had any real property interests in New York; (4) had an office in New York; (5) had any employees in New York; (6) had a telephone number or answering service in New York; (7) had a New York mailing address; (8) belonged to a trade association or group in New York; (9) had any bank account or security account in New York; (10) designated an agent for service of process in New York.
Moreover, UK Optical asserts that any connection to New York State established by the distribution agreement is tenuous, and does not justify personal jurisdiction over it. According to UK Optical, entering into the distribution agreement has not given it any greater contact with New York because: there have been no sales at all by U.K. Optical to En Vogue for shipment to New York since the execution of the distribution agreement in July, 1992; orders for eyeglass frames were sent by En Vogue to the United Kingdom and accepted there by UK Optical; payment for the orders was to be made by Pounds Sterling in England, not dollars in New York; the parties' choice of law was English law; and UK Optical's sales to EN Vogue constituted a "minuscule" portion of UK Optical's total sales of eye-glass frames, 1.34% in 1991 and .01% in 1992. Indeed, were it not for this distribution agreement, UK Optical asserts it would have no sales of eyeglass frames to companies located in New York.
1. Personal Jurisdiction Over UK Optical
Where a Court is asked to rule on a combination of Rule 12(b) defenses, it will pass on the jurisdictional issues before considering whether a claim is stated in the complaint. Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir. 1963). If the Court relies on the pleadings and affidavits alone, the plaintiff need only make a prima facie showing of jurisdiction in order to defeat the motion to dismiss. The pleadings and affidavits are construed in the light most favorable to the plaintiff, and all doubts are resolved in its favor. CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986). Moroever, pursuant to Fed. R. Civ. P. 8(a)(1), a pleading need only contain a short and plain statement of the grounds upon which the court's jurisdiction depends.
Personal jurisdiction over a defendant in a diversity action is determined by reference to the relevant statutes of the forum state. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985). Under New York law, the Court must follow a two-step procedure in order to determine whether there is personal jurisdiction over a defendant: (1) the Court must determine whether New York Civil Practice Law and Rule ("CPLR") sections 301 or 302 provide a basis for personal jurisdiction, and (2) if they do, the Court must then conduct a constitutional inquiry to determine whether the exercise of personal jurisdiction over the defendant would offend due process pursuant to International Shoe Company v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), and its progeny. See A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 82 (2d Cir. 1993).
Pursuant to CPLR § 301, the Court can exercise general jurisdiction over a non-domiciliary based on the defendant's "presence" within the state. The defendant is present if he is found to be "doing business" in the state. Frummer v. Hilton Hotels, International, Inc., 19 N.Y.2d 533, 536, 281 N.Y.S.2d 41, 227 N.E.2d 851, cert. denied, 389 U.S. 923, 88 S. Ct. 241, 19 L. Ed. 2d 266 (1967). "Doing business" has been equated with a continuous and systematic course of business by the defendant in New York. Twine v. Levy, 746 F. Supp. 1202, 1204 (E.D.N.Y. 1990). A corporation that is licensed to do business in New York meets the criteria of "doing business" for purposes of personal jurisdiction under CPLR § 301. Augsbury Corp. v. Petrokey Corp., 97 A.D.2d 173, 470 N.Y.S.2d 787, 789 (3d Dept. 1983).
In the present case, the plaintiff admits that CPLR § 301 is not applicable to confer jurisdiction over the defendant UK Optical, because UK Optical is neither licensed to do business in New York, nor conducts a continuous and systematic course of business in New York. Rather, the plaintiff argues that personal jurisdiction is conferred upon UK Optical pursuant to New York's Long-Arm statute, CPLR § 302(a)(1). That section provides that a non-domiciliary is subject to personal jurisdiction if they, "transact business within the state, ...