Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

APC COMMODITY CORP. v. RAM DIS TICARET A.S.

May 19, 1997

APC COMMODITY CORPORATION d/b/a SUNRISE COMMODITY, Plaintiff, against RAM DIS TICARET A.S., Defendant.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 This is an action for damages arising out of a contract under which the defendant, Ram Dis Ticaret A.S., agreed to ship containers of dried apricots from Turkey to the plaintiff, APC Commodity Corporation d/b/a Sunrise Commodity, in the United States. The plaintiff alleges that the defendant breached and repudiated its contract with the plaintiff by refusing to ship certain containers called for by the contract.

 The plaintiff initially filed its complaint in the New York State Supreme Court, New York County. On November 6, 1996, the plaintiff sought and obtained from the New York State court an ex parte order of attachment. This order of attachment was levied on $ 104,306.81 held by the plaintiff's New York bank as amounts receivable for the defendant. On December 5, 1996, the defendant removed this action to this Court. Thereafter the plaintiff filed a complaint in this Court. The defendant now moves to dismiss the complaint for lack of personal jurisdiction and to vacate the state court's order of attachment. The plaintiff cross-moves to confirm the order of attachment.

 I.

 The plaintiff is a Delaware corporation with its principal place of business in Englewood Cliffs, New Jersey. (Compl. P 1.) The plaintiff is in the business of importing food products for sale and distribution in the United States. The defendant is a corporation with its principle place of business in Istanbul, Turkey. (Compl. P 2.) The defendant is in the business of selling and shipping food products from Istanbul and other ports of origin to the United States. The defendant does not have an office in the State of New York. (Erol Certification P 5.)

 The plaintiff alleges that beginning in May 1996, the defendant agreed to sell and the plaintiff agreed to buy a total of twenty-three container loads of dried apricots to be shipped from Istanbul, Turkey, to the Port of New York and New Jersey. (Compl. P 3.) On May 23, 1996, the plaintiff sent to the defendant a facsimile confirming the transaction and the plaintiff's agreement to buy sixteen containers from the defendant as agents for Sunsweet, and ten containers for itself. (Compl. P 4 & Ex. B; Dicker Aff. P 9 & Ex. A.) On May 24, 1996, the defendant sent to the plaintiff a facsimile clarifying some of the terms of the transaction. (Compl. P 4 & Ex. C; Dicker Aff. P 10 & Ex. B.)

 The plaintiff alleges that the defendant shipped only two of the ten containers intended for the plaintiff and three of the remaining thirteen containers. (Compl. P 7.) The plaintiff alleges that as a result of the defendant's failure to ship the remaining containers, the plaintiff has been forced to purchase replacement merchandise in order to meet its supply obligations to its customers and has incurred damages of about $ 348,000. (Dicker Supplemental Aff. P 15.) On November 6, 1996, the plaintiff sought and obtained from the New York Supreme Court, New York County, an ex parte order of attachment that was levied on $ 104,306.81 held by Rabobank, which represents amounts receivable by the defendant for two containers shipped by the defendant to the plaintiff.

 II.

 The defendant moves to dismiss the complaint under Fed. R. Civ. P. 12(b)(2) on the basis that this Court does not have personal jurisdiction over the defendant. A district court has "broad discretion" in deciding how to proceed with a motion to dismiss for lack of personal jurisdiction, including conducting an evidentiary hearing. See CutCo Indus. v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986); International Customs Assocs., Inc. v. Ford Motor Co., 893 F. Supp. 1251, 1258-59 (S.D.N.Y. 1995). Because there has not been an evidentiary hearing in this case, the plaintiff need only make a prima facie showing of personal jurisdiction over the defendant, and the pleadings and affidavits are to be interpreted in the light most favorable to the plaintiff. 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); CT Chem. (USA) Inc. v. Horizons Int'l, Inc., 106 F.R.D. 518, 519 (S.D.N.Y. 1985).

 A court sitting in diversity applies the law of the forum state in determining whether it has personal jurisdiction over a defendant. See Cutco, 806 F.2d at 365; Hoffritz, 763 F.2d at 57; International Customs Assocs., 893 F. Supp. at 1259. The plaintiff argues that this Court has personal jurisdiction pursuant to the New York long-arm statute. See N.Y. C.P.L.R. § 302(a)(1). *fn1" N.Y. C.P.L.R. § 302(a)(1) provides in relevant part:

 
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 ... 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). Under this provision, "the existence of some articulable nexus between the business transacted and the cause of action sued upon" is essential. McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.