and it was they who shopped Samsonov around attempting to find him a suitable American team on which he could play. That the Vipers generally play their home games in Michigan is of no moment as plaintiffs allege that the actual agreement resulting in Samsonov's decision to play for the team was negotiated in New York. Similarly, the fact that a Vipers' representative may never have physically visited New York to consummate the agreement is inapposite. See ParkeBernet, CT Chemical (USA), Inc. v. Horizons Int'l, Inc., 106 F.R.D. 518, 519-21 (S.D.N.Y. 1985) (finding personal jurisdiction over defendant that injected itself into New York by means of mail and telephone contacts). Thus, based on plaintiffs' allegations, the Court finds that maintenance of this action does not offend traditional notions of fair play and substantial justice, and that the Vipers are amenable to personal jurisdiction.
With respect to the IHL, plaintiffs claim that six out of the league's 20 teams are farm clubs of various NHL organizations, including the New York Islanders (which has offices located in Uniondale, New York). (Berkovich Reply Decl. PP 38-39.) Additionally, they claim that the NHL is headquartered in New York City and that many IHL players are under contract with NHL teams. (Id.) Lastly, they state that the IHL and some of its member clubs market team logos on goods sold in New York City and that the IHL deals with cable networks in New York City that broadcast IHL games in New York and elsewhere. (Id. P 39.) Based on these allegations -- and despite Ufer's allegations that the NHL is headquartered in Toronto, Canada and his statement that the IHL does not have agreements with specific cable networks (see Ufer Aff. II P 5) -- it is reasonable to conclude that the IHL regularly conducts business in New York City with the NHL, various sports marketers, and cable companies. Thus, the Court finds that the IHL has a "presence" in this state and that maintenance of this action does not offend traditional notions of fair play and substantial justice. Accordingly, the IHL is subject to personal jurisdiction in this action.
Defendants Vipers and IHL move to dismiss the complaint against them for improper venue under 28 U.S.C. § 1391(a).
Where venue is challenged, it is the plaintiff's burden to prove that it is proper. Saferstein v. Paul, Mardinly, Durham, James, Flandreau & Rodger, P.C., 927 F. Supp. 731, 735 (S.D.N.Y. 1996). To do so, the plaintiffs must show that the chosen forum lies in the district in which a substantial part of the events giving rise to the claim occurred. 28 U.S.C. § 1391(a)(2); Levcadia National Corp. v. FPL Group Capital, 93 Civ. 2908, 1993 WL 464691, *5 (S.D.N.Y. Nov. 9, 1993). Alternatively, plaintiffs can show that further discovery will reveal that this is the case. Cf. Gaines, Emhof, Metzler & Kriner v. Nisberg, 843 F. Supp. 851, 854 (S.D.N.Y. 1994) (where plaintiff cannot show that further discovery would reveal sufficient contacts with chosen forum, venue is improper).
Here, plaintiffs have shown that a substantial part of the events giving rise to their claims occurred in New York. In fact, the parties most responsible for consummating Samsonov's deal with the Vipers -- namely Samsonov's agents, Grossman and A&A -- are headquartered in New York. There is no indication that the events leading up to the signing took place outside of New York. Rather, plaintiffs have tendered sufficient evidence to suggest that discovery will reveal that Grossman operated out of his New York office in brokering Samsonov's arrangement with the Vipers. Thus, the Court finds that venue is proper.
The Vipers and the IHL argue that if the Court finds venue proper, then it should transfer this action to the Eastern District of Michigan pursuant to 28 U.S.C. § 1404(a).
The purpose of section 1404 is to prevent waste of time, energy, and money, and to protect litigants, witnesses, and the public against unnecessary inconvenience and expense. Van Dusen v. Barrack, Pa., 376 U.S. 612, 615, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964). It does not, however, defeat a plaintiff's right to bring an action in the forum of its choice. See H.L. Green Co. v. MacMahon, 312 F.2d 650, 652 (2d Cir.), cert denied, 372 U.S. 928, 83 S. Ct. 876, 9 L. Ed. 2d 736 (1963). Thus, courts ought to give due consideration to a plaintiff's choice of forum. See Seiko Time Corp. v. Pascual, 117 F.R.D. 354, 358 (S.D.N.Y. 1987). Indeed, courts in this circuit are loath to disturb a plaintiff's choice of forum absent a showing that "the balance of convenience and justice weighs heavily in the favor of transfer." Somerville v. Major Exploration, Inc., 576 F. Supp. 902, 908 (S.D.N.Y. 1983).
While this case could have been filed in the Eastern District of Michigan, transfer would merely serve to shift the inconveniences from the Vipers and the IHL to the other parties in the case. See Seiko Time Corp., 117 F.R.D. at 358 (change of venue that would simply shift inconvenience from defendant to plaintiff does not defeat plaintiff's choice of forum). As stated, a substantial part of the events underlying this action occurred in New York, and thus it is likely that this forum will also serve as a locus of operative facts and witnesses. In fact, defendants Grossman and A&A are located in New York and there is no indication that witnesses now located in Michigan would be unable or unwilling to testify in New York.
Additionally, plaintiffs are Russian organizations with lesser means than the IHL and the Vipers. In this connection, it would be easier for plaintiffs and their Russian witnesses to travel from Russia to New York than from Russia to Detroit, while representatives from the Vipers and the IHL can easily travel from Detroit to New York. Further, Viktor Jlouktov, the president of the CSKA's hockey club, states that their current attorney is essential to plaintiffs' representation. This attorney, who speaks fluent Russian and is familiar with the issues surrounding professional hockey, is located in New York and informed the Court that the CSKA cannot afford to retain both him and Michigan counsel. All of these factors lead to the conclusion that it would cause the plaintiffs great hardship to continue this action in Michigan.
Moreover, Russian law will likely dominate much of this case. Thus, it cannot be said that the Michigan court is more familiar with the law to be applied.
For these reasons, this Court finds that defendants Vipers and the IHL have failed to show that the Eastern District of Michigan would be a more suitable venue in which to try this action. Accordingly, the Court proceeds to discuss the merits of plaintiffs' motion for a preliminary injunction.
II. MOTION FOR INJUNCTIVE RELIEF
Plaintiffs ask the Court to enjoin defendants from employing Samsonov and interfering with their business and contractual relationship with him. A court may grant a preliminary injunction only upon the movant's showing of:
(a) irreparable harm; and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.
Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994); accord Baker's Aid v. Hussmann Foodservice Corp., 830 F.2d 13, 15 (2d Cir. 1987); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979); see also Hanson Trust PLC v. MS SCM Acquisition, Inc., 781 F.2d 264, 273 (2d Cir. 1986).
A. Likelihood of Success or Sufficiently Serious Questions Going to the Merits
Plaintiffs claims are based largely on the contention that the defendants tortiously interfered with the Player's Contract and their business relationship with him.
Since Samsonov signed the Player's Contract before he turned eighteen years old, the agreement is voidable.
Under New York Law, there is no liability for interference with such an agreement absent employment of wrongful means, unlawful restraint of trade, or lack of competitive motive. Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 633-34, 406 N.E.2d 445 (Ct. App. 1980); Michael J. Taub v. Amana Imports, Inc., 140 A.D.2d 687, 528 N.Y.S.2d 884, 885 (App. Div. 1988). Similarly, the tort of intentional interference with non-contractual relations "must be effected by unlawful means or, under the theory of prima facie tort, by lawful means without justification." Quail Ridge Assocs. v. Chemical Bank, 162 A.D.2d 917, 558 N.Y.S.2d 655, 658 (App. Div.) (New York law), appeal dismissed, 76 N.Y.2d 936, 563 N.Y.S.2d 64, 564 N.E.2d 674 (Ct. App. 1990); accord BPS Clinical Laboratories v. Blue Cross and Blue Shield of Michigan, 217 Mich. App. 687, 552 N.W.2d 919, 925 (Mich. Ct. App. 1996) (Michigan law) (requiring unlawful means).
The CSKA, however, has not demonstrated that the defendants acted with "wrongful means" or without justification. Indeed, nothing shows that these defendants acted in an unlawful, unethical, unfair, dishonest, or fraudulent manner. Rather, all their actions were undertaken with the justifiable business motive of securing a business asset -- in this case, a star hockey player. Specifically, the evidence does not suggest that Grossman and A&A surreptitiously sought to steal the Russian athlete from the CSKA, but shows that they acted only after Samsonov and his father engaged their agency with intent to enter the American hockey world. Similarly, Arena and the Vipers did not engage in any improper conduct when signing Samsonov, but understood that he was free from other obligations. Lastly, there is no evidence that the IHL acted at all, let alone with unlawful means, with regard to Samsonov's signing with the Vipers. Accordingly, the CSKA has not shown a likelihood of success or sufficiently serious questions going to the merits of its claims.
Moreover, even assuming, arguendo, that the Player's Contract is not voidable, the plaintiffs' claims fail. In order to prove tortious interference with contract, a party must establish (1) the existence of a valid contract between the plaintiff and a third party, (2) the defendant's knowledge of that contract, (3) the defendant's intentional inducement of the third party to breach that contract, and (4) damages. Kronos Inc. v. AVX Corp., 81 N.Y.2d 90, 595 N.Y.S.2d 931, 934, 612 N.E.2d 289 (Ct. App. 1993) (New York law); Trepel v. Pontiac Osteopathic Hosp., 135 Mich. App. 361, 354 N.W.2d 341, 346 (Mich. Ct. App. 1984) (Michigan law). In addition, the party must show that the motive for the interference was "improper." Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 632 & n.2, 406 N.E.2d 445 (Ct. App. 1980) (New York law); Trepel, 354 N.W.2d at 346 (Michigan law).
Similarly, in order to prove an intentional interference with a non-contractual business relationship, a party must establish (1) the existence of a valid business relation, (2) the defendant's knowledge of that relationship, (3) the defendant's intentional interference inducing or causing a termination of that relationship, and (4) damages. See Volvo North Am. Corp. v. Men's Int'l Prof. Tennis Council, 857 F.2d 55, 74 (2d Cir. 1988) (New York law); Bonelli v. Volkswagen of Am., 166 Mich. App. 483, 421 N.W.2d 213, 219 (Mich. Ct. App. 1988) (Michigan law) (quoting 45 Am. Jur. 2d § 50); Sommer v. Kaufman, 59 A.D.2d 843, 399 N.Y.S.2d 7, 8 (App. Div. 1977) (New York law).
The facts on this record simply do not support either claim.
1. No inducement
Most glaringly, the CSKA has failed to establish that the defendants induced Samsonov to breach the Player's Contract or his business relationship with the CSKA. First, with regard to the IHL, there is no evidence whatsoever showing that the IHL was involved in either Samsonov's decision to leave Russia, his relationship with A&A or Grossman, or his signing with the Vipers. Second, the defendants came into contact with Samsonov after he and his father decided to leave Russia so that Samsonov could play hockey elsewhere. To the extent Samsonov's decision to play in the United States compelled him to breach the Player's Contract
or to sever his business ties with the CSKA, it did so before he contacted the defendants. Accordingly, the most that can be said is that the defendants facilitated his entry into the American hockey scene, not that they induced him to leave his Russian team.
2. No awareness of contractual obligations
Additionally, the CSKA has not shown that the defendants knew Samsonov was under any obligation with the CSKA when they acted in regard to him. When Moliver and Grossman met Samsonov, they believed that the CSKA was in breach of its agreement with Samsonov due to the failure to play him in a "premier league." Additionally, the Vipers signed Samsonov on the assumption that he had been released from any contractual obligations he might have had in Russia. Similarly, there is no evidence that any IHL representative knew that Samsonov had signed with the CSKA before plaintiffs' lawyer informed Ufer of such -- which occurred in September, 1996, the month after Samsonov signed with the Vipers.
3. No improper motive
The CSKA also has failed to establish that any of the defendants involved in Samsonov's signing with the Vipers acted with "improper" motive or without legitimate justification. In this connection, there is no evidence showing that these defendants sought to destroy the CSKA or acted with malicious or even indecorous intent. Rather, they sought to promote their legitimate business interests; Grossman and A&A sought to secure a profitable client, while the Vipers and Arena sought to sign a star athlete who will help attract fans and win games. Moreover, the mere making of an offer to Samsonov, absent any indication that the defendants thought he was not free to leave the CSKA, is not an actionable tort. See Triangle Film v. Artcraft Pictures, 250 F. 981, 982 (2d Cir. 1918) (Hand, L. J.).
For the foregoing reasons, the defendants' motion to dismiss and, alternatively, to transfer venue is denied. Additionally, the plaintiffs' motion for preliminary relief is denied. The parties are directed to appear for a pretrial scheduling conference on January 24, 1997 at 10:00 a.m. in Courtroom 618 to discuss the further conduct in this case.
Dated: New York, New York
January 20, 1997
BARBARA S. JONES
UNITED STATES DISTRICT JUDGE