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CHAMPION MOTOR GROUP v. VISONE CORVETTE OF MASSACH

January 29, 1998

CHAMPION MOTOR GROUP, INC., Plaintiff, against VISONE CORVETTE OF MASSACHUSETTS, INC. AND ANTHONY VISONE a/k/a TONY VISONE, Defendants.


The opinion of the court was delivered by: GERSHON

 GERSHON, United States District Judge:

 Invoking the Court's diversity jurisdiction, plaintiff Champion Motor Group ("Champion") brings an action against defendants Visone Corvette of Massachusetts ("VCM") and its principal Anthony Visone ("Tony Visone") in his individual capacity for breach of contract and fraud arising out of a failed relationship to market and sell used Chevrolet Corvette automobiles at plaintiff's location on Long Island, New York. Defendants move to dismiss the complaint under Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure.

 THE COMPLAINT

 Plaintiff alleges the following: Champion is an automobile dealership located on Long Island, New York. VCM, incorporated and headquartered in Massachusetts, is a large dealer of used Chevrolet Corvette automobiles. Tony Visone is also a resident of Massachusetts. During the summer of 1995, VCM and its principal Tony Visone approached plaintiff with a proposal for a business relationship to sell used Corvettes at plaintiff's location on Long Island. Defendants suggested a "joint strategic alliance", in which Champion would market and sell used Corvettes that are owned and provided by defendants. The parties would also share in the marketing of products and services, originate a common point of sale, develop franchises and jointly manage the inventory of vehicles. Defendants offered plaintiff full access to their telemarketing systems, expanded floor plan lines, working capital and strategic planning and the possibility of developing additional profitable markets.

 Negotiations between the parties continued for approximately a year. On June 18, 1996, an agreement was reached in which defendants appointed plaintiff to sell used Corvettes to be provided by the defendants at plaintiff's location on Long Island, New York. In furtherance of their agreement, plaintiff leased new commercial space for the purpose of showcasing and storing defendants' vehicles, but only after defendants' representative had approved the site. Plaintiff also incurred costs of surveying, engineering and drafting associated with the new location and the expenses involved in acquiring new equipment and training its employees in accordance with defendants' procedures.

 Defendants, it is alleged, breached and wholly repudiated the agreement. They refused to supply and deliver the promised Corvettes and failed to execute any of their obligations under the agreement. Plaintiff also alleges that defendants knowingly misrepresented their commitment to execute an agreement and, in fact, never intended to appoint plaintiff Champion as its exclusive sales agent for Long Island. Instead, defendants fraudulently induced plaintiff to incur significant expenses for the sole purpose of gaining valuable marketing expertise in the plaintiff's geographical region of Long Island, New York.

 PERSONAL JURISDICTION

 Both defendants claim a lack of personal jurisdiction.

 
In deciding a pretrial motion for lack of personal jurisdiction, a district court has considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion. If the court chooses not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials.

 Marine Midland Bank v. Miller, 664 F.2d 899, 904 (2d Cir.1981) (internal citations omitted); see also New Moon Shipping Company, Limited v. Man B & W Diesel AG, 121 F.3d 24, 29 (2d Cir.1997). In analyzing the affidavits, the facts are construed in the light most favorable to the plaintiff with all doubts resolved in its favor, "notwithstanding a controverting presentation by a moving party." A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993). A disputed fact may be resolved in a manner adverse to the plaintiff only after an evidentiary hearing. CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986). Here, discovery has not been completed, and there has been no evidentiary hearing; plaintiff therefore need only offer prima facie evidence of personal jurisdiction.

 In a diversity action, a federal district court must examine the forum state's general jurisdictional or long-arm jurisdictional statutes to determine whether personal jurisdiction exists over a nonresident defendant. Cosmetech International, LLC v. Der Kwei Enterprise and Co., Ltd., 943 F. Supp. 311, 317 (S.D.N.Y.1996). Plaintiff argues that VCM and Tony Visone are subject to personal jurisdiction under New York Civil Practice and Rules ("CPLR") § 302(a), which 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 . . . who in person or through an agent: (1) transacts any business within the state or contracts anywhere to supply goods or services in the state.

 Long-arm jurisdiction "reaches only a defendant who purposefully avails itself of the privilege of conducting activities within New York, thus invoking the benefits and protections of its laws." Viacom International, Inc. v. Melvin Simon Productions, Inc., 774 F. Supp. 858, 862 (S.D.N.Y.1991) (internal quotations omitted). CPLR § 302(a)(1) "is a 'single act statute', and proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities were purposeful and there is a substantial relationship between the transaction and the claim asserted." Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467, 527 N.Y.S.2d 195, 522 N.E.2d 40 (1988). Although CPLR § 302(a)(1) requires only limited New York activity, there must be "some articulable nexus between the business transacted and the cause of action sued upon." McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 419 N.E.2d 321 (1981). ...


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