totality of circumstances." Catauro v. Goldome Bank for Savings, 189 A.D.2d 747, 592 N.Y.S.2d 422 (2d Dep't 1993).
Of particular significance here is that New York's long-arm statute, N.Y. Civ. Prac. & Proc. § 302, looks to when the cause of action accrued and not when the claim was filed to determine whether a defendant is subject to personal jurisdiction. See Polgar v. Morse, 104 Misc. 2d 816, 429 N.Y.S.2d 351, 352 (Sup. Ct. 1980).
Plaintiff has made a substantial showing that the defendants were transacting business in New York at the relevant time and that the discriminatory claim consisted of a course of conduct occurring over a period of time both within and without of New York, but, in any case, while the defendants were transacting business in New York.
If plaintiff can establish his claim, the defendants caused injury to him in New York including making insulting remarks to plaintiff while at a business gathering in California; faxing plaintiff a memo with an allegedly discriminatory remark in New York, firing plaintiff in New York for discriminatory reasons, and subsequently, failing to re-hire him in California for the same improper motives. Consequently, the court finds jurisdiction in New York courts on all these bases of New York's long arm statute.
(1) Transacts any business -- § 302(a)(1)
Here, the cause of action, the discriminatory failure to re-hire, arises from defendants' transaction of business in New York including the firing of Launer. Because defendants regularly held meetings in New York, and even more often telephoned, faxed, and mailed items to its two offices in New York, and plaintiff's job included overlooking the sales to New York (as he was the Eastern regional vice-president of sales), and the essential meeting in which Launer was fired occurred in the Eastern District of New York for the convenience of the defendants, Pltff's Decl. at P 13 and Compl. at P 22, there is no question that defendants transacted business within the state.
Although the defendants' present contacts with New York are not clear, Section 302 requires that the defendants had business contacts in New York at the time the cause of action arose and not that a defendant had contacts with the state when the suit was brought. Lancaster v. Colonial Motor Freight Line, Inc., 177 A.D.2d 152, 581 N.Y.S.2d 283, 287 (1st Dep't 1992); see also State v. Davies, 24 A.D.2d 240, 265 N.Y.S.2d 358 (3d. Dep't 1965), aff'd, 18 N.Y.2d 950, 277 N.Y.S.2d 146, 223 N.E.2d 570 (1966).
While the defendants assert that the telephone and mail contacts are not enough to rely upon as a basis for jurisdiction, especially since they claim that they have nothing to do with the New York office which Launer used, and thereby not "purposefully availing [themselves] . . . of the benefits and protections of [New York's] laws," Parke-Bernet Galleries v. Franklyn, 26 N.Y.2d 13, 308 N.Y.S.2d 337, 256 N.E.2d 506 (1970), the setting up of important meetings for the company in New York establishes purposeful use under New York's long arm statute. It is important to emphasize that defendants had a choice of where to conduct these meetings and chose New York. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Barnum, 162 Misc. 2d 245, 616 N.Y.S.2d 857, 862 (Sup. Ct. N.Y. Cty 1994).
Further, it should be noted that defendants are wrong when they assert that telephone and mail contacts with New York cannot be used to justify in personam jurisdiction.
One need not be physically present in order to be subject to the jurisdiction of our courts under CPLR 302 for, particularly in this day of instant long-range communications, one can engage in extensive purposeful activity here without ever actually setting foot in the State.
Parke-Bernet Galleries, Inc., supra, at 17.
Defendants maintain that the specific cause of action that gave rise to Launer's religious discrimination claim is that he was not re-hired, rather than that he was fired. Thus, according to the defendants, since the non-re-hiring decision was made in California, New York's long arm statute does not apply. However, this court believes that such a narrow view of events is inappropriate. As previously mentioned, the final or ultimate act causing injury need not occur in New York. If religious discrimination was indeed a factor in Launer's firing in New York, then surely the firing was part and parcel of the final act, the failure to re-hire. The firing occurred in New York at a forum chosen by the defendants for their convenience. This event immediately led to the re-hiring of all of its employees except for Launer.
Launer engaged defendant in months of negotiations and requests for explanations from the moment he was fired on August 11, 1993 until he was ultimately discharged in November 1993. Compl. PP 25-27. Furthermore, although the decision to not re-hire Launer while re-hiring everyone else they had fired at the August meeting may have been made in California, it was made at a time when Launer was still working in New York for the defendants. Finally, in light of the false representations made to the court by defendants regarding the existence of a New York office, the court will fairly infer that the defendants were transacting business in New York both at the time of the firing and three months later at the time of the failure to re-hire. Consequently, viewing the totality of circumstances around defendants' activity in New York, the necessary nexus exists between the transaction of business and the cause of action. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 60 (2d Cir. 1985); Bialek v. Racal-Milgo, Inc., 545 F. Supp. 25, 34 (S.D.N.Y. 1982); McGowan, supra, at 272.
(2) "Tortious act within the state," § 302(a)(2)
In addition, Launer has a second method of obtaining personal jurisdiction over defendants by invoking § 302(a)(2) which provides personal jurisdiction to one who commits a tortious act in New York.
In this instance, the alleged tortious act is the defendants' discriminatory conduct in firing and subsequently failing to re-hire the plaintiff. Again, it must be emphasized that, if plaintiff's allegations are true, both actions may fairly be considered one event as they arose from the same course of conduct based on religious discrimination. The fact that the statute of limitations may have run on the firing prior to bringing this proceeding does not change the fact that the firing was also part of a series of intentional acts which were part of a continuous tortious act as well as an independent wrong.
The phrase "tortious acts" encompasses more than simply torts. See Clark v. United States, 481 F. Supp. 1086, 1097 (S.D.N.Y. 1979) (finding that constitutional violations of illegal surveillance "appear sufficiently akin to tortious activity to warrant a holding that they fall within the reach of § 302(a)(2) and (3)"); Naples v. City of New York, 34 A.D.2d 577, 309 N.Y.S.2d 663 (2d Dep't 1970). In fact, discrimination can be a tortious act. In United States v. Burke, 504 U.S. 229, 246, 119 L. Ed. 2d 34, 112 S. Ct. 1867 (1992), Justice Souter noted: "Our cases have, indeed, recognized parallels . . . between tort claims and claims under antidiscrimination statutes other than Title VII." See also Goodman v. Lukens Steel Co., 482 U.S. 656, 677 n.9, 96 L. Ed. 2d 572, 107 S. Ct. 2617 (1987) ("The tortious aspect of racial discrimination has been noted by the Court in Curtis v. Loether, 415 U.S. 189, 196 n.10, 39 L. Ed. 2d 260, 94 S. Ct. 1005, . . . in which Justice Marshall suggested that racial discrimination might eventually be treated as a 'dignitary tort.'"). Thus, acts of discrimination are often considered to be civil rights violations which have been found to be torts. U.S. v. Burke, 504 U.S. 229, 119 L. Ed. 2d 34, 112 S. Ct. 1867 (1992).
The tortious acts alleged here are not like the negligence of a car accident which occurs at one time and in one place. Rather, the nature of the conduct alleged by Launer often occurs over a period of time including actions taking place within and without the state.
The injury from the discriminatory and insulting remarks made to him in California and New York as well as the discriminatory firing and failure to re-hire occurred to the plaintiff where he worked, where he was fired, and where he maintained an "ongoing dialogue" with the defendants in an effort to be an employee or a broker for the defendants. Compl. at P 27. Section 302(a)(2) provides for jurisdiction over non-residents who commit a tortious act in New York state as long as the out-of-state resident was actually in New York when the act was committed. Roth v. El Al Israel Airlines, Ltd., 709 F. Supp. 487 (S.D.N.Y. 1989). Here, the management of the defendants came to New York in order to fire the employees, thus the elements of § 302(a)(2) are satisfied.
(3) "Tortious act without the state" -- § 302(a)(3)
Finally, Launer can also maintain personal jurisdiction in the Eastern District of New York relying on the third branch of the long arm statute which provides personal jurisdiction to one who commits a tortious act outside of the state with injury resulting in the state and defendants' deriving substantial revenue from New York.
As previously discussed, a tortious act occurred outside of New York as well as in New York. The decision to not re-hire Launer, according to defendants, occurred in California which resulted in injury to him in New York where he was negotiating with defendants for his job. New York law is clear that an injury does not occur in New York simply because the plaintiff is domiciled or does business there. American Eutectic Welding Alloys Sales Co. V. Dytron Alloys Corp., 439 F.2d 428 (2d Cir. 1971). Just as clear, however, is that the injury occurring in this instance was received in New York where plaintiff had been working for defendants and had been negotiating for his job. Launer's situation is analogous to the plaintiff's position in Sybron Corp. v. Wetzel et. al., 46 N.Y.2d 197, 413 N.Y.S.2d 127, 385 N.E.2d 1055 (1978). In Sybron, plaintiff employed defendant Wetzel who worked for plaintiff in New York for thirty-four years. Wetzel then retired to Florida, but was induced by plaintiff's competitor to work for that company in New Jersey, providing the competitor plaintiff's trade secrets. Plaintiff sued to enjoin its competitor from employing Wetzel, and the New York Court of Appeals found that the competitor was subject to jurisdiction under § 302(a)(3) on the ground that the competitor committed a tortious act in New Jersey causing an injury in New York.
The last element to be established in order to have jurisdiction pursuant to § 302(a)(3) is that defendants derived substantial revenue from New York. Substantial revenue can mean either a substantial sum of money, Allen v. Canadian General Elec. Co., 65 A.D.2d 39, 410 N.Y.S.2d 707 (3d Dep't 1978), aff'd, 50 N.Y.2d 935, 431 N.Y.S.2d 526, 409 N.E.2d 998 (1980), or that the defendant's interstate revenue is a substantial portion of its total revenue. Allen v. Auto Specialties Mfg. Co., 45 A.D.2d 331, 357 N.Y.S.2d 547, 550 (3d Dep't 1974). Launer's affidavits maintain that New York was the defendants' second biggest market and an "important" market. Pltff's Decl. at PP 7-8. Thus, it is apparent that the defendants derived a large portion of their revenues from New York. Consequently, under § 302(a)(3), New York courts have personal jurisdiction over defendants for the tortious act it committed, by discriminatorily deciding not to re-hire Launer in California causing injury to him in New York, a state from which defendants derive substantial revenue.
Consequently, in personam jurisdiction over defendants exists in the Eastern District of New York under the long arm statute, § 302(a)(3), as well as § 302(a)(1) and § 302(a)(2).
(4) Improper Venue -- 42 U.S.C. § 2000e-5(f)(3) & 29 U.S.C. § 1132(e)(2)
Defendants contend that the case must be dismissed for improper venue. However, it is clear that venue is proper for all of the plaintiff's claims. Subject matter jurisdiction is based on federal questions raised by 42 U.S.C. §§ 2000e-2 and 2000e-3 and ERISA. Claims under Title VII are strictly governed by the venue provisions of that title which provide:
An action may be brought in any judicial district in the state in which the unlawful employment practice alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged employment practice. 42 U.S.C. § 2000e-5(f)(3).
Plaintiff contends that, relying on the last clause of the statute "in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice," venue is proper in the Eastern District of New York because Launer maintained an office in Long Island City, New York.
Defendants counter Launer's proposition, relying upon Wade v. Olympus Indus. Inc., 695 F. Supp. 730, 734 (S.D.N.Y. 1988), which found that where a termination was made in New York, but other more substantial decisions, such as executing employment contracts, were made in Washington, venue in New York was improper. However, this case can be distinguished on two grounds. Wade was a diversity case and thus was reviewing 28 U.S.C. § 1391(a) rather than a Title VII or ERISA action. Second, even if § 1391 was the governing statute, since Wade was decided the relevant section has been amended to include venue as proper in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." As previously explained, the firing occurred in New York as did Launer's negotiations to be re-hired. Consequently, a substantial part of the events giving rise to the discrimination claim occurred in New York.
In addition, ERISA's venue provision provides that an action may be brought:
in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found . . . 29 U.S.C. § 1132(e)(2).