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BARON PHILIPPE DE ROTHSCHILD, S.A. v. PARAMOUNT DI

April 30, 1996

BARON PHILIPPE DE ROTHSCHILD, S.A.; SOCIETTE CIVILE CHATEAU LAFITE ROTHSCHILD; GUY DE ROTHSCHILD; ERIC DE ROTHSCHILD; AND PHILIPPINE DE ROTHSCHILD, Plaintiffs, against PARAMOUNT DISTILLERS, INC.; PARAMOUNT BRANDS, INC.; MAR-INTER S.A.R.L.; AND ROGER L. MYERS AND CHANTAL MYERS, d/b/a MONOPOLES ALFRED ROTHSCHILD AND LES CAVES M.A.R., Defendants.


The opinion of the court was delivered by: STEIN

 SIDNEY H. STEIN, District Judge.

 Defendants Mar-Inter S.A.R.L., Roger L. Myers and Chantal Myers (the "Myers defendants") move to dismiss plaintiffs' amended complaint for lack of personal jurisdiction and improper venue, to transfer this action to the Southern District of Florida or, alternatively, for summary judgment. For the reasons that follow, the Myers defendants' motion is denied.

 I. BACKGROUND

 Plaintiffs Baron Phillippe de Rothschild S.A., Societe Civile Chateau Lafite Rothschild, Guy de Rothschild, Eric de Rothschild and Phillippine de Rothschild brought this action in 1987 against defendants Paramount Distillers, Inc. and Paramount Brands, Inc. (collectively, "Paramount") alleging trademark infringement for Paramount's use of multiple trademarks that incorporate the Rothschild name. On February 7, 1995, plaintiffs amended their complaint to add Mar-Inter S.A.R.L., Roger L. Myers and Chantal Myers as defendants. See Rothschild v. Paramount Distillers, Inc., No. 87 Civ. 6820, 1995 U.S. Dist. LEXIS 12541, 1995 WL 49274 (S.D.N.Y. February 7, 1995). The added defendants are the original owners of the allegedly infringing trademarks. In granting the motion to amend, the Court (McKenna, J.) explained that plaintiffs allege "that even after transferring the marks to Paramount, [the Myers defendants] 'have continued to assist in the infringement by importing and supplying defendants with the infringing products.'" Id. at *1. In its amended complaint, plaintiffs assert claims for (1) federal trademark infringement; (2) federal unfair competition; (3) common law trademark infringement and unfair competition; (4) violation of New York's anti-dilution statute; (5) violations of New York Civil Rights Law; and (6) cancellation of the allegedly infringing trademark.

 II. MOTION TO DISMISS

 The Myers defendants move to dismiss this action against them for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2) and for improper venue pursuant to Fed.R.Civ.P. 12(b)(3).

 A. Lack of Personal Jurisdiction

 The Myers defendants claim that their "only business contact...with New York since 1967 was to ship, at the behest of the Paramount defendants, small quantities of wine, brandy, and/or cognac to the said Paramount defendants' facility in Mamaroneck, New York." (Defendants' Local Civil Rule 3(g) Statement, P 9.) Furthermore, they claim that these shipments to New York stopped after the summer of 1994. (Id. at P 10.)

 Eventually, if challenged, plaintiffs must establish personal jurisdiction by a preponderance of the evidence either at an evidentiary hearing or at trial, but at this stage of the litigation plaintiffs may defeat a motion to dismiss for lack of personal jurisdiction by merely making a prima facie showing of jurisdiction. See A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993); Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985); PI, Inc. v. Quality Prods., Inc., 907 F. Supp. 752, 758 (S.D.N.Y. 1995); Dave Guardala Mouthpieces, Inc. v. Sugal Mouthpieces, Inc., 779 F. Supp. 335, 336-37 (S.D.N.Y. 1991).

 In that regard, plaintiffs are entitled to have their complaint and affidavits interpreted, and any doubts resolved, in the light most favorable to them. See Landoil Resources Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1991); Hoffritz for Cutlery, 763 F.2d at 57; Linzer v. EMI Blackwood Music, Inc., 904 F. Supp. 207, 211 (S.D.N.Y. 1995); Editorial Musical Latino Americana, S.A. v. Mar Int'l Records, Inc., 829 F. Supp. 62, 64 (S.D.N.Y. 1993). This burden is satisfied even when the moving party makes contrary allegations that place in dispute the factual basis of plaintiff's prima facie case. See A.I. Trade Finance, 989 F.2d at 79-80; Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981); Lancaster v. Zufle, 165 F.R.D. 38, 40 (S.D.N.Y. 1996); National Cathode Corp. v. Mexus Co., 855 F. Supp. 644, 646 (S.D.N.Y. 1994).

 Furthermore, where, as in this case, discovery has not even commenced on this issue, plaintiffs are entitled to rely on mere factual allegations to make their prima facie showing of jurisdiction. See Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S. Ct. 150, 112 L. Ed. 2d 116 (1990); Executive Telecard, Ltd. v. Engelman, No. 95 Civ. 9505, 1996 U.S. Dist. LEXIS 5159, *6, 1996 WL 191967, at *2 (S.D.N.Y. Apr. 19, 1996); Pilates, Inc. v. Pilates Inst., Inc., 891 F. Supp. 175, 177 (S.D.N.Y. 1995); Palmieri v. Estefan, 793 F. Supp. 1182, 1186 (S.D.N.Y. 1992); Kinetic Instruments, Inc. v. Lares, 802 F. Supp. 976, 981 (S.D.N.Y. 1992). Matters outside the pleadings, however, may also be considered in resolving a motion to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2) without converting it into one for summary judgment. See Visual Sciences, Inc. v. Integrated Communications, Inc., 660 F.2d 56, 58 (2d Cir. 1981); John Hancock Property and Casualty Ins. Co. v. Universale Reinsurance Co., Ltd., No. 91 Civ. 3644, 1992 U.S. Dist. LEXIS 1113, 1992 WL 26765, at *6 (S.D.N.Y. Feb. 5, 1992).

 Personal jurisdiction over a defendant is measured by the law of the jurisdiction in which the court sits.See Pilates, 891 F. Supp. at 179. Under New York's long-arm statute, a court may assert personal jurisdiction over any defendant that "transacts any business within the state or contracts anywhere to supply goods or services in the state." N.Y. C.P.L.R. § 302(a)(1). Plaintiff's amended complaint alleges that the Myers defendants are acting in concert with Paramount to infringe plaintiffs' trademarks. Furthermore, plaintiffs have presented the Court with evidence or allegations showing that Paramount continued to purchase product from the Myers defendants as recently as March of 1992, that the Myers defendants sent bulk brandy to Paramount which was bottled and labeled with allegedly infringing labels, that the Myers defendants designed, approved, or provided some of the infringing labels, that the Myers defendants assisted in obtaining regulatory approval of the labels and that the Myers defendants continue "to cooperate and collaborate" with Paramount "to enhance the sale of [Paramount] products." (Lepera Aff., Exhibits E, G, H, I, J & L.) Furthermore, there is no dispute that the Myers defendants sent to New York at least 14 shipments of wine that allegedly violated plaintiffs' trademarks, each shipment containing approximately 1200 cases of wine. (Transcript of Oct. 12, 1996 oral argument, p. 4.) Even ignoring plaintiffs' other allegations, these undisputed transactions alone are sufficient to satisfy the requirements of N.Y. C.P.L.R. § 302(a)(1).

 Personal jurisdiction pursuant to section 302(a)(1) may be satisfied with proof that just one transaction occurred in New York as long as defendants' activities were purposeful and substantially related to plaintiffs' claim. See Pilates, 891 F. Supp. at 178 (citing Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 527 N.Y.S.2d 195, 198-99, 522 N.E.2d 40, 43 (1988)); Independent Nat'l Distributors, Inc. v. Black Rain Communications, Inc., No. 94 Civ. 8464, 1995 U.S. Dist. LEXIS 14086, *11, 1995 WL 571449, at *4 (S.D.N.Y. Sept. 28, 1995); PaineWebber Inc. v. WHV, Inc., No. 95 Civ. 0052, 1995 U.S. Dist. LEXIS 6514, *10, 1995 WL 296398, at *2 (S.D.N.Y. May 16, 1995); Klagsbrun v. Ross, No. 93 Civ. 7709, 1995 U.S. Dist. LEXIS 1191, *7, 1995 WL 43664, at *2-3 (S.D.N.Y. Feb. 3, 1995); Business Trends Analysts v. Freedonia Group, Inc., 650 F. Supp. 1452, 1455 n.8 (S.D.N.Y. 1987). As noted above, the Myers defendants admit that they shipped the allegedly ...


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