The opinion of the court was delivered by: BAER
HON. HAROLD BAER, JR., U.S.D.J.
Plaintiff Gary Carlson ("plaintiff") brings this cause of action against Defendant Elena Larrain Valdez, individually and as a representative of the estate of Raymundo de Larrain, ("the Larrain defendants") alleging tortious interference with contract, tortious interference with prospective advantage and disparagement of title.
This motion by the Larrain defendants seeks to dismiss the first six claims in plaintiffs amended complaint pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(5) for lack of personal jurisdiction and insufficiency of process. In plaintiffs seventh claim, he seeks a declaratory judgement as to rightful ownership of the painting. After hearing oral argument on this motion in early May and viewing the facts in the light most favorable to the nonmoving party, the Court finds that the plaintiff failed to show an adequate basis for personal jurisdiction under New York's long arm statute. Accordingly, the first six claims in plaintiffs amended complaint are dismissed. The Court, however, does not reach the question of in rem jurisdiction because the parties have previously stipulated that this Court has in rem jurisdiction over the painting.
In February of 1995 plaintiff entered into a consignment agreement with Sotheby's, Inc. ("Sotheby's") to sell a Salvador Dali painting known as the "Portrait of the Marquis de Cuevas" ("Painting") at an auction for his benefit. The Larrain defendants claimed ownership rights to the painting and attempted to prevent the auction. Ms. Elena Larrain Valdez, a lifelong citizen of Chile who has not been to New York in two years, requested that her attorney in Florida pursue her ownership rights with Sotheby's. Defendants' attorney made approximately twelve phone calls and either sent or faxed an additional twelve pieces of correspondence to the auction house. Plaintiff argues that these communications contained either direct or implied threats in regard to defendant's claim of ownership. Subsequent to defendants' attorney's actions Sotheby's declined to proceed with the auction.
Generally, the plaintiff bears the burden of establishing jurisdiction over a defendant. United Resources 1988-I Drilling and Completion Program, L.P. v. Avalon Exploration, Inc., 1994 U.S. Dist. LEXIS 152, 1994 WL 9676 (S.D.N.Y. Jan. 10, 1994). Personal jurisdiction in diversity actions is determined by the law of the forum in which the federal court sits. Beckett v. Prudential Ins. Co. of America, 893 F. Supp. 234, 238, 1995 WL 296437, at *3 (S.D.N.Y. 1995). In New York, long arm jurisdiction over a defendant can be predicated on C.P.L.R. § 302(a) which states:
a court may exercise personal jurisdiction over any non-domiciliary . . .who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or services within the state; or
2. commits a tortious act within the state . . . .
In International Shoe Co. v. Washington the Supreme Court declared that one does not have to be physically present in a state to be subjected to that state's jurisdiction. 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). While the mere presence of the defendant is not necessary to a finding of proper jurisdiction, there are certain "minimal contacts" which must be found. Id. ; see also Hanson v. Denckla, 357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1957). For an interstate communication to "constitute a transaction of business subjecting [the defendant] to section 302(a)(1) jurisdiction, 'it is essential in each case that there be some act by which the defendant purposefully avails [herself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws . . . .'" Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 766 (2nd Cir. 1983) (quoting George Reiner and Co. v. Schwartz, 394 N.Y.S.2d 844, 846, 41 N.Y.2d 648, 363 N.E.2d 551 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1957))).
When determining whether a defendant is considered to be transacting business in New York a "court must look at the totality of circumstances". PaineWebber Inc. v. WHV, Inc., 1995 U.S. Dist. LEXIS 6514, No. 95 Civ. 0052, 1995 WL 296398 at *2 (S.D.N.Y. May 16, 1995). This is especially important with telephone communications as the vehicle for sustaining § 302(a)(1)jurisdiction. The mere existence of defendant's telephone calls into New York are not sufficient to sustain New York long arm jurisdiction. Beacon, 715 F.2d at 766. Telephone calls are significant only if they are ...