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DIETER v. MFS TELECOM

December 15, 1994

EDWARD DIETER and JULIA DIETER, Plaintiffs, against MFS TELECOM, INC., JAMES GEIGER, FIBERNET USA, INC., FIBERNET COMMUNICATIONS SERVICES, INC., and FIBERNET ROCHESTER, INC., Defendants.

ROBERT W. SWEET, U.S.D.J.


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 Defendants James Geiger ("Geiger"), MFS Telecom Inc. ("MFS"), and Fibernet Rochester, Inc. have moved for an order, pursuant to Rule 12(b)(1) dismissing the complaint for lack of subject matter jurisdiction. Defendant Geiger has, in the alternative, moved for a transfer of venue. For the reasons set forth below, the motion to dismiss on jurisdictional grounds is granted.

 Parties

 Plaintiffs, Edward and Julia Dieter (the "Dieters"), were residents of the State of New York at the time this action was commenced.

 Defendant MFS Telecom ("MFS") is a foreign corporation licensed to do business in New York, with its headquarters in Oak Terrace, Illinois. Defendants Fibernet U.S.A, Fibernet Communications Services, Inc. and Fibernet Rochester, Inc. (collectively "Fibernet"), wholly-owned subsidiaries of MFS, each has its principal place of business in Rochester, New York. Defendant Geiger is employed by Fibernet and is a resident of New York.

 Prior Proceedings

 On June 9, 1994 the Dieters filed a complaint in this district. The complaint named MFS, Geiger and Fibernet as defendants and asserted jurisdiction under 28 U.S.C. § 1332(a)(1) (1993), diversity jurisdiction, or in the alternative, pursuant to 28 U.S.C. § 1367 (1993) (Supplemental jurisdiction) for the claims against Geiger, a non-diverse party. *fn1"

 The complaint alleges a breach of the employment contract, a breach of covenant of good faith and fair dealing, and fraudulent misrepresentation against MFS. In addition, it alleges intentional interference with contractual relations, intentional interference with business relations, negligence against Geiger and Fibernet. There are allegations against MFS, Geiger and Fibernet for assault and battery and for other torts relating to the alleged incident on the bus.

 By letter motion dated September 7, 1994 Defendants MFS and Fibernet Rochester, Inc. moved for a motion to dismiss the action based on lack of subject matter jurisdiction. The Dieters responded in opposition by letter dated September 9, 1994. On September 20, 1994 Defendant Geiger moved for an order of dismissal for lack of subject matter jurisdiction or in the alternative for transfer of venue to the Western District of New York.

 Facts

 The facts are gleaned from the complaint, taken as true, and the memoranda submitted on the instant motion. Edward Dieter was hired by MFS, in May 1993 at its Houston Texas location and worked their until December 1993. In December 1993, MFS was in the process of acquiring Fibernet. Pursuant to a contract entered into between MFS and Dieter in December 1993, MFS agreed to employ Edward Dieter as a Consultant, acting in the capacity of Regional Sales Director in the Rochester, New York office.

 Edward Dieter began working in this capacity on December 10, 1993. The Dieter family moved from Houston to Rochester during that month.

 Fibernet had a box seat at Rich Stadium. On January 23, 1994 the Dieters attended a football game at Rich Stadium in connection with Edward Dieter's work. Fibernet provided transportation to and from that game in a bus, on which alcoholic drinks were made available to the ...


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