gauze orders. Sinkow Aff. PP 6, 14. Bauhinia initially complied, but later ceased paying commissions to Marsin. Complaint P 8. Marsin brought this action for the balance of the payments. Bauhinia counters that it was only obligated to pay commissions until it reimbursed Marsin for an earlier shipment of latex gloves. Ng Aff. PP 6-11. Although the parties dispute the terms of the commission agreement, they agree that Sinkow and Ng negotiated the agreement on behalf of their respective companies while Sinkow was in Pennsylvania and Ng was in Hong Kong. Sinkow Aff. P 14; Ng Aff. P 11.
I. Personal Jurisdiction
A. Motion to Dismiss Standards
Prior to discovery, a plaintiff may defeat a Rule 12(b)2 motion to dismiss a complaint by a prima facie showing of in personam jurisdiction over the defendant. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985). The plaintiff can satisfy this burden on the basis of her allegations alone, "by pleading in good faith . . . legally sufficient allegations of jurisdiction." Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 112 L. Ed. 2d 116, 111 S. Ct. 150 (1990). At this early stage in the case, a court should construe all pleadings and any affidavits before it in the light most favorable to the plaintiff, Id., to determine whether facts "may exist" that would satisfy jurisdictional requirements. PC Com. Inc. v. Proteon, Inc., 906 F. Supp. 894, 905 (S.D.N.Y. 1995).
B. Personal jurisdiction requirements
A federal court sitting in New York may exercise personal jurisdiction over a foreign corporation if the corporation's contacts with New York meet the requirements of Due Process and if (1) the corporation is either "present" in New York State for purposes of New York State Civil Practice Law Rules ("CPLR") Section 301, or (2) the corporation's contacts with New York meet the requirements of the New York State Long Arm Statute. CPLR § 302. Arrowsmith v. United Press Int'l, 320 F.2d 219, 222-31 (2d Cir. 1963) (the law of the forum state governs whether a federal court has personal jurisdiction over a defendant in a diversity action).
(i) Due Process
The requirements of Due Process are satisfied if a defendant's contacts with the forum state are such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. State of Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945). CPLR §§ 301 and 302 permit New York courts a jurisdictional reach that is somewhat narrower than the maximum permissible under the Due Process clause. Longines-Wittnauer Watch Co., Inc. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68 (N.Y. Ct. App.), cert. denied, 382 U.S. 905 (1965).
(ii) CPLR § 301
CPLR Section 301 provides, "a court may exercise such jurisdiction over persons, property or status as might have been exercised heretofore." As construed by the courts of New York, this section would authorize this Court to exercise personal jurisdiction over a foreign corporation like Bauhinia if it "engaged in such a continuous and systematic course of 'doing business' here as to warrant a finding of its 'presence' in this jurisdiction." Landoil Resources Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1990) (quoting McGowan v. Smith, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 645, 419 N.E.2d 321 (N.Y. Ct. App. 1981)). To justify the exercise of personal jurisdiction under this provision, Marsin would have to demonstrate that Bauhinia is present in New York "not occasionally or casually, but with a fair measure of permanence and continuity." Landoil, 918 F.2d at 1043 (quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (1917)). The test of a corporation's presence is fact based and case specific. However, to determine whether a foreign corporation engages in a continuous and systematic course of business in New York State, courts typically consider whether the corporation maintains an office, mailing address or telephone number in New York; whether it solicits business in New York or owns bank accounts or other property in New York, and/or whether the corporation has New York employees or agents. Id. ; Guardino v. American Savings & Loan Ass'n of Fla., 593 F. Supp. 691, 693 (E.D.N.Y. 1984).
In support of its argument that it is not present in New York State for purposes of CPLR Section 301, Bauhinia Director Ng affirms that Bauhinia's offices are located in Hong Kong, which is Bauhinia's principle place of business. Ng Aff P 2. Ng also states that Bauhinia has never been authorized to do business in New York, has never maintained offices, bank accounts or inventory in New York, and has never had a New York telephone number. Ng Aff. P 4. Moreover, Ng asserts that Bauhinia does not advertise or otherwise actively solicit business in New York. Ng Aff. P 5. According to Ng, Bauhinia only makes contact with New York when it arranges for the shipment of goods into the state. Ng Aff. P 5.
In response, Marsin counters that Bauhinia is "doing business" in New York by virtue of "its extensive transactions with Cross Country and other New York businesses." Pl. Memo of Law p.12-13 n.2. To substantiate this claim, Marsin asserts that Bauhinia has arranged for goods to be shipped into New York and that Bauhinia's officers routinely attend business meetings and trade shows in New York. Sinkow Aff. PP 29-35. This evidence is insufficient to show that Bauhinia is doing business in New York State. Balancing all the relevant evidence in this case, and considering Bauhinia's strong showing that it lacks a New York presence, Marsin fails to state even a prima facie case that Bauhinia is subject to personal jurisdiction under CPLR § 301. See Landoil Resources Corp. v. Alexander & Alexander, 918 F.2d 1039, 1045-6 (2d Cir. 1990) (foreign corporation not authorized to do business in New York State, and lacking New York offices, bank accounts, telephone numbers, mailing address, employees, and property, not present in New York for § 301 purposes despite defendant's representatives' periodic trips to New York for business, since New York "transactions must be considered not in isolation, but against the background of multinational entities doing a much larger business of which these transactions were but a small part"); Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir. 1985) (foreign corporation without New York offices, phone numbers, employees, affiliates and property not present in New York for purposes of CPLR § 301 despite repeated visits to New York by corporation's president and sole shareholder to discuss business issues with plaintiff); Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 763 (2d Cir. 1983) (shipment of goods to New York does not ipso facto constitute doing business for purposes of CPLR § 301); Liquid Carriers Corp. v. American Marine Corp., 375 F.2d 951, 953 (2d Cir. 1967) (occasional visits by company Vice President to New York to solicit business and negotiate contracts for defendant, where not significantly regular or extensive, do not justify the exercise of personal jurisdiction under CPLR § 301); Lane v. Vacation Charters, Ltd., 750 F. Supp. 120, 125 (S.D.N.Y. 1990) (corporate officers attendance at trade show insufficient to establish that corporation is doing business in New York for purposes of CPLR § 301).
(iii) CPLR § 302
Although this Court cannot exercise personal jurisdiction over Bauhinia under CPLR Section 301, it may exercise personal jurisdiction over Bauhinia under New York's Long Arm Statue, CPLR Section 302. Section 302 provides in pertinent part:
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: (1) transacts any business within the state.
CPLR § 302.
To justify the exercise of personal jurisdiction under this section, a plaintiff must demonstrate that a defendant entered into (1) at least one business transaction in New York, (2) that was substantially related to the claim the plaintiff is pursuing before the court. Pilates. Inc. v. Pilates Inst., Inc., 891 F. Supp. 175, 179 (S.D.N.Y. 1995). To meet the minimum contacts requirements of Constitutional Due Process, the transaction must be one through which the defendant "'purposefully availed itself of the privilege of conducting activities within . . . [the] State' and thereby 'invoked the benefits and protections of its laws.'" Longines-Wittnauer Watch Co., Inc. v. Barnes & Reinecke. Inc., 15 N.Y.2d 443, 261 N.Y.S.2d 8, 19, 209 N.E.2d 68 (N.Y. Ct. App. 1965) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958)). Far more limited New York contacts are required to establish a New York transaction for § 302(a)1 purposes than are necessary to show that a defendant is "doing business" in New York for purposes of § 301. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d at 58. However, no precise formula exists to dictate whether a defendant has engaged in sufficiently purposeful activity to trigger § 302(a)1 jurisdiction. Instead, a court must examine the totality of circumstances to find whether an adequate basis for jurisdiction has been alleged. Pilates, 891 F. Supp. at 179.
In its recent decision Agency Rent A Car System, Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 1996 U.S. App. LEXIS 27252, 1996 WL 596794 (2d Cir. 1996), the Second Circuit listed a variety of factors a court may consider when it determines whether an out-of-state defendant transacted business in New York for purposes of § 302(a). The factors relevant to this case are:
(i) whether the defendant has an on-going contractual relationship with a New York corporation, [and] (ii) whether the contract was negotiated or executed in New York, and whether, after executing a contract with a New York business, the defendant has visited New York for the purpose of meeting with parties to the contract regarding the relationship.