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MARSIN MED. INT'L, INC. v. BAUHINIA LTD.

November 12, 1996

MARSIN MEDICAL INTERNATIONAL, INC., Plaintiff, against BAUHINIA LTD., Defendant.


The opinion of the court was delivered by: GLASSER

 GLASSER, United States District Judge:

 Plaintiff Marsin Medical International, Inc. ("Marsin") brought this diversity action against defendant Bauhinia Ltd. ("Bauhinia") to recover for breach of contract and fiduciary duty. Bauhinia moves for dismissal under Federal Rule of Civil Procedure 12(b)2 ("Rule 12(b)2") for lack of personal jurisdiction, or in the alternative, under the doctrine of forum non conveniens, arguing that the Eastern District of New York is an inappropriate forum for this case. For the reasons that follow, the Court denies the defendant's motion.

 FACTS

 For the purposes of this motion, the following facts are presumed true. Defendant Bauhinia, a Hong Kong corporation, locates products manufactured in the Far East for United States distributors. Ng Aff. P 3. Bauhinia's principal place of business is Hong Kong. It is not authorized to do business in New York, nor does it have offices, employees, inventory, bank accounts, telephone numbers or a mailing address in this state. Ng Aff. PP 4, 5. In 1990, plaintiff Marsin, a Pennsylvania medical supply company, introduced Bauhinia to Cross Country Paper Products Corporation ("Cross Country"). Cross Country is a dental supply company located in New York. Marsin introduced the two companies in the hopes that Cross Country would order cotton-filled gauze through Bauhinia. Complaint P 7; Sinkow Aff. P 2; Ng Aff. P 9.

 To convince Cross Country to place an order through Bauhinia, Bauhinia and Marsin communicated regularly with each other and with Cross Country in late 1989 and throughout 1990. Sinkow Aff. PP 7-9. Bauhinia Director Richard Ng, on behalf of his company, participated in these initial negotiations by making phone calls and sending faxes from Hong Kong to Cross Country in New York. Sinkow Aff. P 9. In September 1990, Ng accompanied Adolph Sinkow, Marsin's president, to Cross Country's offices on Long Island in New York to meet with individuals associated with Cross Country. Sinkow Aff. PP 10, 11. Sinkow affirms that Ng "made other sales calls on Cross Country in New York" after his September 1990 visit and that unspecified "Bauhinia representatives have met with representatives of Cross Country in New York since the initial 1990 meeting." Sinkow Aff. PP 12, 30. At some point presumably during 1990, Cross Country began ordering cotton-filled gauze through Bauhinia. Complaint P 7; Ng. Aff. P 9.

 DISCUSSION

 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 ...


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