provision of the promotional agreement; once to conduct a press conference, and the other time to have the defendant boxer taped on HBO. The first of these activities had to be performed in New York where the members of the press were located. The other could occur only in New York where the taping was conducted.
Schenk concerned an employment contract between plaintiff, a New York chef, and defendant, a restaurant located in Washington, D.C. Plaintiff was required under the terms of his employment contract to hire qualified personnel. Plaintiff "recruited and hired Walzog in New York in conformance with his express authority as agent for the Red Sage. While in New York, [plaintiff] also approached persons other than Walzog . . . for prospective employment at the Red Sage." 1994 U.S. Dist. LEXIS 399, AT *13, 1994 WL 18630, *5 One can only "recruit" persons where they are to be found, and expert chefs are hardly likely to be located in Newark or Jersey City.
In Crouch, the court held that an Idaho corporation was "transacting business" in New York where it contracted with either New York residents to move their household goods out of state, or with out-of-state residents to ship their goods into New York. 834 F. Supp. at 601. The court found that the defendant had purposefully directed its business activity in New York. Id.
Northeast Plastics concerned a breach of contract action where a Massachusetts manufacturer of plastic parts and tooling was subjected to personal jurisdiction under the "transacting business" standard. The court found that the defendant had voluntarily availed itself of the privilege of transacting business in New York where it had shipped 6,000 plastic buttons to New York based on an order solicited by the plaintiff pursuant to the contract.
Tullar concerned a contract whereby defendant, a non-domiciliary manufacturer of fastening equipment, hired plaintiff, a New York citizen, to act as defendant's exclusive sales representative to develop a market for and sell its products in North America. 591 N.Y.S.2d at 189, 188 A.2d at 503. Plaintiff on defendant's behalf had solicited sales of defendant's equipment in New York. Again, one can only solicit business where the persons solicited are to be found.
We now turn to a case not cited by plaintiff which has facts virtually indistinguishable from the case at bar. In PaineWebber, Inc. v. WHV, Inc. (S.D.N.Y.) 95 Civ. 52 (LMM), 1995 U.S. Dist. LEXIS 6514, 1995 WL 296398, plaintiff and defendant had entered into a an agreement whereby plaintiff would assist defendant in finding a buyer for its stock or assets. During the duration of the agreement, plaintiff had used its New York office to analyze the market and prepare marketing materials and lists of potential buyers. Plaintiff subsequently brought suit for breach of this contract in New York. The court held that the negotiation of the agreement via telephone between New York and California, the execution of the agreement by plaintiff in New York, the performance of the agreement by plaintiff in New York, and the three visits by defendant's representatives to plaintiff's office in New York did not amount to "transacting business." As in PaineWebber, defendant in the case at bar did not visit New York during the negotiation of the contract. In fact, the only pre-contract visit made by the parties was by plaintiff to defendant's offices in Puerto Rico. In that case defendant made three post-contract visits to New York for the purpose of meeting potential buyers of its assets or stock, but the visits were ultimately unproductive. Defendant in the instant case made only one post-contract visit to New York and it too did not result in the sale of defendant's business.
We find the reasoning in PaineWebber applicable to the case at bar. Therefore, defendant's motion for summary judgment for want of personal jurisdiction is granted.
November 7, 1995
New York, New York
WHITMAN KNAPP, SENIOR U.S.D.J.
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