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NATIONAL CATHODE CORP. v. MEXUS CO.

June 20, 1994

NATIONAL CATHODE CORP., Plaintiff,
v.
THE MEXUS COMPANY, TRANSTEK INTERNATIONAL LTD., and LIGHT MEDIA GROUP, Defendants.


Leisure


The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge:

 This is an action for breach of fiduciary duty, breach of contract, tortious interference with contractual relations, tortious interference with prospective economic advantage, conversion, and fraud. The action is brought by National Cathode Corp. ("N.C.C."), a New York corporation, against the Mexus Company ("Mexus"), Transtek International, Ltd. ("Transtek"), and the Light Media Group ("Light Media") (collectively the "defendants"). At the time the action arose, Mexus was headquartered in Pennsylvania and was an affiliate of Transtek and of Light Media. See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss, dated March 28, 1994 ("Plaintiff's Mem."), at Exhibit B. This Court has subject matter jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a)(1).

 Defendants now move the Court for an order, pursuant to Fed. R. Civ. P. 12(b)(2), dismissing the action for lack of in personam jurisdiction or alternatively for an order, pursuant to Fed. R. Civ. P. 12(b)(3), dismissing the action for improper venue. See 28 U.S.C. § 1391 (a). For the reasons stated below, the Court denies defendants' motion in its entirety.

 BACKGROUND

 In May 1992, Lawrence Silverman and the president of N.C.C., Jimmie Evanisko, attended a lighting industry trade show at the Jacob Javits Convention Center in New York City, New York. Complaint at P 12. See Defendants' Memorandum of Law in Support of Motion to Dismiss, dated March 14, 1994 ("Defendants' Mem.") at 3.

 Later in May 1992, after Silverman and Evanisko returned to their respective offices in Pennsylvania and New York, Transtek and N.C.C. negotiated and executed a contract providing that Mexus would be N.C.C.'s exclusive representative for N.C.C.'s marketing of its cold cathode lighting in Mexico. The contract was drafted by plaintiff, sent by plaintiff to Transtek on May 21, 1992, signed by Silverman in Pennsylvania on May 22, and signed by Evanisko on May 26. See Plaintiff's Mem. at 2-3, Exhibit B; Defendants' Answer and Counterclaims at P 9. *fn1" Among the communications during the course of the negotiations was a memorandum, dated May 20, 1992, sent by Silverman to plaintiff's New York office by fax, expounding on plaintiff's interest in doing business with defendants. The memorandum reads in part, "We feel that your products meet our critria [sic], and that we will be able to provide you with a good source of business." Plaintiff's Mem. at Exhibit B. *fn2"

 DISCUSSION

 I. PERSONAL JURISDICTION

 A. PERSONAL JURISDICTION GENERALLY

 The Due Process Clause of the United States Constitution requires "minimum contacts" to be present between the forum state and a defendant before a court may properly exercise personal jurisdiction over a defendant. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980). Maintenance of a suit in a plaintiff's home forum must not "offend 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). To be amenable to suit in a given state, the defendant's contacts with that state must be "such that [defendant] should reasonably anticipate being haled into court there." World-Wide, 444 U.S. at 297. "It is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958).

 The burden of establishing jurisdiction over a defendant is on the plaintiff. The plaintiff must merely make a prima facie showing that jurisdiction exists, however, despite contrary allegations by the moving party. See A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79 (2d Cir. 1993); Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981); Rolls-Royce Motors, Inc. v. Charles Schmitt and Co., 657 F. Supp. 1040, 1043 (S.D.N.Y. 1987) (Leisure, J.). Given that no evidentiary hearing has been held, plaintiff need not, at this point, prove jurisdiction by a preponderance of the evidence. Rolls-Royce Motors, Inc., 657 F. Supp. at 1043.

 The Court is to construe all pleadings and affidavits in the light most favorable to the plaintiff, and is to resolve any doubts in the plaintiff's favor. See A.I. Trade Finance, Inc., 989 F.2d at 79, 80 (citing CutCo Industries, Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986) and Hoffritz for Cutlery Inc. v. Amajac, ...


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