third party, in New York. The Court implicitly found that, through its agreement with the New York distributor, the defendant had transacted business in New York. Because the cause of action bore a "substantial relationship" to that transaction, jurisdiction existed. There, plaintiff's claim was dependent on the existence of defendant's New York contacts and distribution of the book in New York. Here, as stated above, WFA's claim is independent of any New York transactions Event may hypothetically have engaged in subsequent to the Agreement. WFA has failed to make out a prima facie case that its claim arises from any New York transactions of business by Event.
2. Contracting to Provide Goods or Services in New York
Under Section 302(a)(1), Event be may subject to the Court's jurisdiction if it "contracted anywhere to supply goods or services in New York," so long as the action arises from that contract. The Agreement authorized Event to provide access to the Matches in forty-nine states, including New York. It certainly contemplated that Event would provide such access, possibly in New York, and Event does not deny that some of its customers for the October 16 Match were in New York. The contract which is the subject of this action, however, was not one for the provision of goods or services in New York. To the extent Event may have provided New York access to the October 16 Match, that service was pursuant to secondary contracts with its customers, and not the Agreement. The Agreement did not require Event to distribute the broadcasts at all, and certainly did not require it to do anything in New York.
New York cases support the conclusion that jurisdiction under the "contracts anywhere" prong of Section 302(a)(1) should not be based on secondary contracts potentially involving the provision of services in New York. In J.E.T. Advertising, the plaintiff had sued a New Jersey franchisor of lawn care dealerships for breach of an agreement to advertise the franchisor's services. The court held that "any services or goods which defendant supplies to its New York franchisees are ineffective to sustain jurisdiction, since plaintiff's action does not arise out of these franchise agreements." 84 A.D.2d at 745, 443 N.Y.S.2d at 747.
In Spectra Products, the New York plaintiff had agreed to insert advertisements for the Florida defendant's citrus products in certain bank mailings. Some of defendant's customers were in New York. When plaintiff sued for breach of the parties' agreement, the court ruled that jurisdiction could not be sustained by defendant's sales to New York customers "since plaintiff's action does not arise out of these sales." 144 A.D.2d at 834, 534 N.Y.S.2d at 572.
In Cooperstein, the New York plaintiff had borrowed money from a Virginia bank to buy a yacht. Plaintiff sued the seller and the bank, alleging that the two effectively were joint venturers in the sale, on the ground that the yacht was defective. The court found no jurisdiction over the bank, in part because the suit was grounded in "acts not based upon the loan agreement, but merely incidental to the loan itself." 124 A.D.2d at 633, 507 N.Y.S.2d at 895.
3. "Doing Business" in New York
WFA also contends that jurisdiction is appropriate under Section 301 of the C.P.L.R., which allows for jurisdiction over foreign corporations "doing business" in New York, regardless of whether the claim arose from that business. N.Y. C.P.L.R. § 301 (authorizing jurisdiction on any grounds available before enactment); Simonson v. International Bank, 14 N.Y.2d 281, 285, 200 N.E.2d 427, 429, 251 N.Y.S.2d 433, 436 (1964) (prior to enactment of C.P.L.R., an unauthorized foreign corporation was "amenable to local suit only if it was engaged in such a continuous and systematic course of 'doing business' here as to warrant a finding of its 'presence' in this jurisdiction").
WFA has failed to allege the type of "continuous and systematic" conduct in New York necessary to a finding of jurisdiction under this provision. Instead, WFA merely speculates that the instant transaction may be "typical of the way Event does business," so that Event may have regular customers in New York. Unsupported allegations such as these are insufficient to confer personal jurisdiction over an out-of-state defendant. See Falik, 884 F. Supp. at 865. Thus, for the reasons stated above, the Court does not have personal jurisdiction over Event with regard to the instant claims.
4. Venue Transfer
Event has moved, alternatively, for a transfer of venue to the Central District of California pursuant to 28 U.S.C. § 1404(a). Section 1404(a) allows a district court, "for the convenience of parties and witnesses, in the interest of justice," to transfer a civil action to a district where it might have been brought. 28 U.S.C. § 1406(a) requires the Court, if venue here is improper, to dismiss or, in the interest of justice, to transfer the action to a district where venue would be proper.
The absence of personal jurisdiction does not vitiate the Court's power to transfer a case to a district where venue is proper. Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77, 78-80 (2d Cir. 1978) (citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 8 L. Ed. 2d 39, 82 S. Ct. 913 (1962)). The Second Circuit has held that a district court without jurisdiction over the defendant may transfer an otherwise properly venued action pursuant to Section 1406(a). Corke, 572 F.2d at 79-80. That is, the statutory predicate of improper venue may be satisfied solely by the absence of personal jurisdiction. Id.; Spar, Inc. v. Information Resources, Inc., 956 F.2d 392, 394 (2d Cir. 1992) (§ 1406 transfer permitted notwithstanding proper venue where "the transfer has enabled the parties to surmount an obstacle, such as the lack of jurisdiction, which would have precluded suit in the transferor district"); Troyer v. Karcagi, 488 F. Supp. 1200, 1206 (S.D.N.Y. 1980) (Sweet, J.).
When transferring a case in the interest of justice based on the lack of personal jurisdiction, a court need not elect between reliance on 28 U.S.C. § 1404(a) and 28 U.S.C. § 1406(a). Corke, 572 F.2d at 80; Troyer, 488 F. Supp. at 1206-07 ("taken together the statutes confer authority to transfer the suit whether or not venue is properly laid in [the transferor] district"). Also, the mere appearance of a colorable jurisdictional issue may be a factor in a court's decision to transfer venue under 28 U.S.C. § 1404(a). Lencco Racing Co., Inc. v. Arctco, Inc., 953 F. Supp. 69, 73 (W.D.N.Y. 1997).
Although it does not otherwise appear that this forum is inconvenient for purposes of Section 1404(a), the lack of personal jurisdiction over Event justifies the transfer of this action to the Central District of California, where Event concededly is subject to jurisdiction. This case is hereby transferred to the Central District of California.
Dated: Brooklyn, New York
November 10, 1997
RAYMOND J. DEARIE
United States District Judge