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January 26, 1995



The opinion of the court was delivered by: KEVIN THOMAS DUFFY


 Plaintiff originally brought this action in New York state court. On May 3, 1994 Defendant removed the case to this court pursuant to 28 U.S.C. §§ 1441, 1446, based on diversity of citizenship of the parties, 28 U.S.C. § 1332. Defendant now moves to dismiss the complaint for lack of personal jurisdiction, Fed. R. Civ. P. 12(b)(2). Alternatively, Defendant moves to dismiss the second cause of action for failure to plead fraud with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure, and for failure to state a claim upon which relief may be granted, Fed. R. Civ. P. 12(b)(6). For the reason set forth below, Defendant's motion is granted in part and denied in part.


 In determining a defendant's motion to dismiss a complaint pursuant to Rule 12(b)(6), the court should construe all allegations in the complaint to the plaintiff's benefit. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). If there exists any set of facts which could be construed so as to entitle the plaintiff to relief, the complaint should not be dismissed. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Consequently, all factual allegations in the complaint will be presumed true for present purposes.

 Neither Plaintiff Lomaglio Associates Incorporated ("LAI") nor Defendant LBK Marketing Corporation ("LBK") is a citizen of New York. LAI is a corporation organized under the laws of New Jersey, while LBK is a corporation organized under the laws of Ohio. On or about October 12, 1992, Plaintiff and Defendant entered into a written contract by which the parties agreed that LAI would be LBK's exclusive sales representative to Avon Products Incorporated ("Avon"). Avon is a corporation having its headquarters in New York City.

 In June 1993, Avon placed an order for 82,400 "Mrs. Albee" ceramic figurines with Defendant. On or about May 1993, Plaintiff and Defendant agreed that Plaintiff's commission for Avon's order would be $ 1.555 per figurine. The total commission due to Plaintiff amounted to $ 128,132.

 At some point (not specified in the complaint), Defendant shipped sample figurines to Avon in New York City. In addition, Defendant's representatives held several meetings in New York City with Avon's representatives regarding the sale of the figurines. As late as September 1, 1993, Defendant repeatedly represented to both LAI and Avon that it had the ability and intent to produce the figurines ordered by Avon. However, on September 10, 1993 Defendant informed both LAI and Avon that it would not produce the figurines.

 Plaintiff has unsuccessfully sought payment of the $ 128,132 commission from Defendant. Moreover, as a result of Defendant's refusal to produce the figurines, Plaintiff's business relationship with Avon has been damaged.



 A. Personal Jurisdiction

 In a diversity action, the district court's personal jurisdiction over the defendant is typically determined in accordance with the law of the state in which the court sits. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985); Scottish Air International, Inc. v. British Caledonian Group, PLC., 152 F.R.D. 18, 23 (S.D.N.Y. 1993). On a motion to dismiss, the plaintiff ultimately bears the burden of demonstrating by a preponderance of the evidence that the court maintains jurisdiction over the defendant. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981); Scottish Air Int'l, 152 F.R.D. at 23. However, a defendant's 12(b)(2) objection for lack of personal jurisdiction is waivable. Fed. R. Civ. P. 12(h). If a party requests that the court exercise its power on that party's behalf, and the request is not preceded or accompanied by an objection to personal jurisdiction, that party is deemed to have waived its defense of lack of personal jurisdiction. Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir. 1972).

 Defendant argues that because neither party is a citizen of New York, Defendant must have sufficient purposeful contacts with New York so as to allow for personal jurisdiction under New York's jurisdictional statutes, N.Y.C.P.L.R. §§ 301, 302. According to Defendant, it does not "do business" under the meaning of N.Y.C.P.L.R. § 301, nor has it "transacted business" in New York which would be ...

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