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CONTINENTAL FIELD SERV. CORP. v. ITEC INTL.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


July 26, 1995

CONTINENTAL FIELD SERVICE CORPORATION, Plaintiff against ITEC INTERNATIONAL, INC., Defendant.

The opinion of the court was delivered by: BARRINGTON D. PARKER, JR.

MEMORANDUM DECISION AND ORDER

 Plaintiff, Continental Field Services Corporation ("CFS") charges Defendant ITEC International Inc. ("ITEC") with breach of contract. Before the Court is Defendant's motion pursuant to Fed.R.Civ.P. 12(b)(2) to dismiss the complaint for lack of personal jurisdiction. For the reasons set forth, Defendant's motion is granted.

 FACTS

 ITEC is a United States Virgin Islands Foreign Investment Sales Corporation. It maintains an office in Huntsville, Alabama. Plaintiff is a Delaware corporation with its principal place of business in New York.

 ITEC, pursuant to an agreement with the Venezuela telephone company ("CANTV"), undertook to install a nationwide telephone system in that country. To that end, in July 1993, ITEC entered into an subcontract with Telecomunicaciones-Continental Field Services ("TCFS"), whereby TCFS would provide services and equipment for the CANTV project. While the terms of the purchase order agreement did not specify where payment would be made *fn1" , ITEC agreed orally to accommodate TCFS by wiring funds to an account in the name of Continental Field Service with Marine Midland Bank in New York. Apparently, TCFS was a subsidiary of CFS, but the extent of ITEC's awareness of CFS's relationship to TCFS as it existed throughout contract negotiations and as it exists is subject to some dispute. *fn2" All communications relating to the contract took place in Caracas, Venezuela. According to the complaint, TCFS completed all work on the project as of July 1993; however, in September 1993, ITEC stopped making payments. *fn3" On December 1, 1994, CFS filed a complaint based on ITEC's alleged breach of the Venezuelan agreement. With respect to jurisdiction, paragraph 5 of the Complaint states that "that Defendant is subject to personal jurisdiction in this judicial district."

 DISCUSSION

 In diversity actions, the reach of the Court's personal jurisdiction is, of course, determined by New York law. Arrowsmith v. United Press International, 320 F.2d 219 (1963). The burden of proving jurisdiction is on the party asserting it. Lehigh Valley Industries Inc. v. Birenbaum, 527 F.2d 87, 92 (2d Cir. 1975). In the absence of an evidentiary hearing, plaintiff must show through pleadings and affidavits that jurisdiction exists. CutCo Industries v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986).

 CFS asserts that jurisdiction is proper under the "transaction of business" provision of the New York long-arm statute. CPLR § 302(a)(1). *fn4" This section authorizes the exercise of personal jurisdiction over a nondomiciliary who in person "or through an agent transacts any business within the state "provided that there is some articulable nexus between the business transacted and the [claim]" Beacon Enterprises Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir. 1983).

 Although the test for transacting business under § 302(a)(1) in contract actions can be somewhat imprecise, significant factors typically include: defendant's physical presence in New York, the extent of negotiations in New York and whether the contract was performance in New York. See Berk v. Nemetz, 646 F. Supp. 1080, 1084 (S.D.N.Y. 1986). Underlying these factors, however, is the central question of whether the defendant has performed purposeful acts in New York in relation to the contract. A.C.K. Sports v. Doug Wilson Enterprises, 661 F. Supp. 386, 389 (S.D.N.Y. 1987). See also CutCo Industries, 806 F.2d at 365 (2nd Cir. 1986).

 Here, ITEC has directed little activity to New York. First, ITEC has no physical presence here: it owns no property in New York, it has neither offices nor employees in New York and it neither transacts nor solicits business in New York. Second, as the record indicates, all contract negotiations took place in Caracas, Venezuela. Third, performance under the contract took place primarily in Venezuela since all of the work was done in Venezuela by Venezuelans. Defendant's only contact with New York was its wiring of payments at TCFS' request to a Marine Midland bank account in New York. However, this passive accommodation does not establish the requisite purposeful activity to justify jurisdiction. See Colson Services Corp. v. Bank of Baltimore, 712 F. Supp. 28, 31 (S.D.N.Y. 1989) (holding that defendant's wiring of funds at request of plaintiff is insufficient to establish jurisdiction); See also The Golden Budha Corp. v. the Canadian Land Company of America, 1989 U.S. Dist. LEXIS 13591 (S.D.N.Y. 1989).

 In its attempt to connect further the ITEC/TCFS contract with the State of New York, plaintiff argues that ITEC was aware during contract negotiations that TCFS was a subsidiary of CFS--a New York Corporation. In support, plaintiff makes much of a dinner in Caracas prior to the execution of the contract. At that dinner, Michael Hill Vice President of CFS, told Leon Callahan, ITEC's Vice President, that TCFS was a CFS subsidiary and then presented him and other ITEC executives with business cards and brochures which identified CFS as having a New York address. According to Hill, ITEC executives informed him that they would forward the brochures to their offices in Huntsville Alabama. ITEC disputes this version of events. Nonetheless, even viewing this version of events in a light most favorable to plaintiff, see Hoffritz for Cutlery v. Amajac, 763 F.2d 55, 57 (2d Cir. 1985), we find that ITEC's purported knowledge of plaintiff's parent's physical presence in New York does not establish the purposeful availment of the laws of New York necessary for jurisdiction. See A.C.K. Enterprises Inc., 661 F. Supp. at 390 (finding no jurisdictional basis for lawsuit even where plaintiff was unquestionably a New York corporation).

 Finally, as a basis for personal jurisdiction, plaintiff looks to two letters from Morris to plaintiff's counsel which attempted to resolve the nonpayment problem. The first appears to respond to a letter from plaintiff's counsel to ITEC's president dated September 19, 1994. The second responds to another letter from plaintiff's counsel and informs him that Senior Management has authorized that ITEC pay CFS $ 5,000 per month. Plaintiff suggests that the letters constitute transacting business. We disagree.

 ITEC's forwarding a letter to New York in response to a letter from a New York address does not indicate ITEC's purposeful availment of benefits and obligations of transacting business in New York. While acts performed by a defendant subsequent to the execution of a contract can be of jurisdictional consequence, the attempts here to resolve a dispute under a contract made and performed elsewhere do not translate into jurisdictional contacts. Cutco, 806 F.2d at 368.

 CONCLUSION

 Based on the foregoing, Defendant's motion to dismiss is granted. The Clerk is directed to enter judgment in favor of Defendants.

 SO ORDERED

 BARRINGTON D. PARKER, JR.

 U.S.D.J.

 Dated: White Plains, New York

 July 26, 1995


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