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February 6, 1996


The opinion of the court was delivered by: TRAGER

 TRAGER, District Judge:

 Defendants bring this motion to dismiss for lack of personal jurisdiction and improper venue. Plaintiff has brought an action in the Eastern District of New York claiming employment discrimination based on religion in violation of Title VII, violation of ERISA, as well as tort claims under New York City Administrative Code and the New York State Human Rights Law.



 Defendant, Buena Vista Winery, Inc., is a California corporation with its principal place of business in Sonoma, California. Defendant Racke USA is a division of Buena Vista and is incorporated in California with its principal place of business in Sonoma, California. Its parent corporation is defendant Racke GmbH whose corporate residence is in Bingen, Germany.

 Presently, none of the above mentioned companies has an office in New York. Nor are they licensed to sell wine, to offer it for sale, or to solicit or to accept any order for the sale of wine in New York. Nor do they have any employees in New York. Aff. of Marjorie Dworak at P 3. Defendant Buena Vista does have winery representatives contacting wholesalers in New York, but they cannot take orders.

 Since 1991, Buena Vista has contracted with Proprietary Brands, Inc., an independent corporation neither owned nor controlled by any of the defendants as a brand agent for wines sold in New York. "Proprietary is the company that conveys title to anyone who purchases Buena Vista wines in the state of New York." Aff. of Dworak, dated 7/28/95, P 5. Proprietary invoices the wine purchased and collects payment from wholesalers and retailers and pays state taxes on these sales. Any wine purchased in New York through Proprietary is shipped by Buena Vista in Proprietary's name from Sonoma, California.

 According to Launer, "Plaintiff is a resident of the State of New Jersey, and part-time resident of the State of New York, and worked in the greater metropolitan New York area for defendants maintaining an office within this district . . . ." Decl. of Maione at P 9. The complaint alleges that "Plaintiff . . . owns property [in] . . . Long Island City, New York, although he is a resident of the State of New Jersey." Compl. at P 7. When the plaintiff was employed by Buena Vista, the winery also employed one Anne Marie Harrison as a division manager of New York and New Jersey whose office was located in New York. In addition, plaintiff, who was the vice president of sales for the Eastern region, had an office located in Long Island City, New York. Ex. C of Pltff's Decl.

 No one has worked in New York as an employee of Buena Vista since plaintiff and Harrison were terminated in November 1993. Aff. of Marjorie Dworak at P 4. From about February 1994 until April 1995, an employee based in New Jersey marketed accounts in the tri-state area and Pennsylvania. Since April of 1995, marketing is being handled by an independent broker, not an employee, in Massachusetts. Id.

 Launer was employed by defendants from March 1991, was notified of his termination in August 1993, and was "retained on the books" until November 15, 1993. Compl. at P 25. During his employment, he conducted and attended regional sales meetings in New York. Pltff's Decl. at P 11. In addition, as was previously mentioned, he had an employee, Anne Marie Harrison, working under him based in New York. "Because New York was and is such an important market, Buena Vista's winemaker or brand managers would fly into New York approximately once every two to three months to conduct business. Also, regional meetings were held and conducted by Buena Vista's former president in New York approximately every six months." *fn1" Id. at P 12.

 Launer was notified of his termination along with other employees in August, 1993 at a meeting attended by the management of Buena Vista at LaGuardia Airport. It appears that Buena Vista was attempting to re-structure the company turning its salespeople into independent brokers rather than employees. According to defendants, this was the only contact they ever had with New York. Defs. Memo. of Law at 7.

 Soon after the firings all but two of the fired employees were rehired. Launer was one of two individuals not rehired. "In fact, when Marcus Moller-Racke, Chairman of GMBH, revoked the Termination Plan, he indicated to Mr. Launer that all former employees were definitely to be re-hired, except for Mr. Launer, and despite the fact that Mr. Launer's performance at Buena Vista had been exemplary." Compl. at P 28. According to Launer, the only other individual who was not rehired -- Anne Marie Harrison -- was not looking for her job back. Decl. of Maione at P 26.

 Defendants maintain that the court does not have in personam jurisdiction over them because they deal with an independent brand agent for wines in New York which is not owned by them, and they employed Launer in the state of New Jersey. Launer lived in New Jersey. His checks were sent to New Jersey and his withholding and employment taxes were paid to the state of New Jersey. Aff. of Dworak at P 6 and Ex. C.

 Defendants initially claimed that they did not know of plaintiff's office in New York City, going so far as to provide an affidavit by John D. Wales, who searched the NYNEX Telephone Directory White Pages, reporting that Launer did not have a telephone number listed in Queens New York until 1994-95. Launer's name did not appear in the 1991, 1992, or 1993 books. However, Launer produced contrary evidence -- a phone bill that was reimbursed by defendants as company calls from a number with a 718 area code (a Brooklyn and Queens area code) which was dated May 1993. Pltff's Decl., Ex. B. Further, Launer produced a Racke USA salesteam list, dated January 2, 1992, which lists Richard Launer with a home address in New Jersey and a business address in Long Island City, New York. Id. at Ex. C. Moreover, Buena Vista's Vice President of Administration prepared a declaration which, among other things, stated: "Neither Buena Vista Winery nor Racke USA have ever maintained a 'regional office' in New York. . . . Further, neither Buena Vista Winery nor Racke USA have ever listed that office as a regional office," Decl. of Dworak at P 4. However, as this information was directly contrary to the salesteam list provided by plaintiff, on November 28, 1995, the defendants conceded that the plaintiff's exhibit was a corporate document. Ltr from McGrath to court, dated 11/28/95. In fact, the memorandum which plaintiff uses as proof of his substantive claim was sent by the president of Buena Vista to the plaintiff in New York. Compl. at P 18. Defendants maintain that "if plaintiff truly worked and lived in New York, he could prove that assertion by showing that he paid New York State and New York City income taxes, and generally shouldered the burdens that any other state resident shoulders." Defs' Reply Memo. at 1.

 The issue of whether plaintiff is a New York or New Jersey resident (and where he paid taxes) is tangential and not determinative of whether in personam jurisdiction exists here. Similarly, who actually owned or paid the rent for Launer's New York office (defendants contend that they didn't know of such an office and did not pay for it) is irrelevant since Launer has proof that defendants contacted him at a 718 phone and fax number, received and sent weekly and monthly reports to a Long Island City address, and had meetings in New York. Pltff's Decl. at P 5-6.

 Launer claims religious discrimination. Launer was the only Jewish employee of Buena Vista. Compl. P 11-12. According to Launer, no one knew that he was Jewish when he was hired or for a significant time thereafter. Id. at P 13. For the first eighteen months, he received positive reviews. Id. at P 15. In July 1992, disparaging comments were allegedly made by the vice president of finance of Buena Vista and an employee of Racke GmbH, Mr. Kaspar, about Jews as well as New Yorkers who have a Jewish attitude at a winery social event in California. Compl. at P 16. Launer confronted this individual and told him that he was Jewish. Id. at P 17. In September 1992, when Launer requested vacation time because of the Jewish holy days, he received "disparaging remarks" from his superior, the president of Buena Vista, Mr. Cousins, and a further disparaging memo from him at Launer's New York office. Id. at P 18. After the termination meeting at which many employees were fired but allowed to work an additional three months, the companies reconsidered their policy and re-hired everyone except Launer. Id. at PP 21-28.

 Aside from his religious discrimination claim, Launer has an ERISA claim. Launer further contends that defendants "withheld certain fringe benefits due [him], including . . . not paying him his vested interest in the [Money Purchase Pension] Plan." Id. at P 35. Although notified of the termination in August 1993, Launer was "retained on the books" as an employee until November 15, 1993, receiving all benefits and entitlements. Id. at P 36. According to the law of New Jersey, where plaintiff was a resident, Launer was an "employee" of the corporate defendant up to and including November 15, 1993. Id. at P 39. California law, according to the plaintiff, would similarly interpret its law to find plaintiff is an employee. Consequently, Launer "would have amassed well over the 1,000 hour minimum required to receive three years vesting in the Plan and, therefore, would have had a distribution made to him out of the Plan at the time that the corporate defendants determined not to re-hire him." Id. at P 41.


 Federal courts look to the law of the state where the court sits to determine personal jurisdiction. In federal question cases, in the absence of a statutory provision for service, jurisdiction is limited by the forum state's long-arm statute. Omni Capital International v. Rudolf ...

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