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DESIGN STRATEGY CORP. v. NGHIEM

February 11, 1998

DESIGN STRATEGY CORPORATION, Plaintiff, against ANN NGHIEM, Defendant.

Robert L. Carter, U.S.D.J.


The opinion of the court was delivered by: CARTER

OPINION

ROBERT L. CARTER, District Judge

 Defendant moves to dismiss plaintiff's complaint for lack of personal jurisdiction. Rule 12, F.R. Civ. P. Plaintiff moves, inter alia, to amend the original complaint, adding an additional party, Rule 15(a), F.R. Civ. P., and to compel discovery. Rule 37, F.R. Civ. P.

 I. Introduction

 Plaintiff Design Strategy Corporation ("Design") is engaged in the business of recruiting computer programmers and technicians and hiring them out to corporate clients as temporary staffers or consultants. In April, 1996, defendant Anne Nghiem, a Canadian resident of some twenty years, responded to plaintiff's recruiting ad in a Toronto newspaper describing a job opportunity in Phoenix, Arizona for computer programmers. After several interviews in Toronto, plaintiff offered defendant a position as a computer consultant for the American Express Company. Defendant was informed that she would be required to move to Phoenix to work at American Express's offices, but that she would remain employed and paid by Design. Defendant accepted the job offer.

 Prior to relocating to Phoenix, defendant received a copy of a seven page, two column, single spaced document entitled "Employment Contract Agreement" (the "Agreement"). The Agreement provided for defendant's relocation to Phoenix, Arizona to work at facilities operated by American Express from May 13, 1996, to May 12, 1997. The contract also provided, inter alia, an indemnity to Design for all losses suffered by Design as a result of any breach of the contract, and an agreement to reimburse Design for relocation expenses in the event that defendant resigned or was terminated for cause before completing the first year of employment. Defendant noticed that the Agreement incorrectly listed her Toronto address and had many typographical errors. (Def.'s Mem. of Law at 5). Defendant did not sign this Agreement.

 On May 13, 1996, approximately two weeks after first receiving a copy of the Agreement, defendant moved from Toronto to Phoenix. On that same day, defendant received another copy of the Agreement, this time with her correct Toronto address. (Id.) After being advised that she could not commence work until she signed the Agreement, defendant signed it and commenced work as scheduled.

 On December 18, 1996, defendant informed plaintiff by letter that she was resigning from her employment with Design due to other opportunities. Her resignation became effective January 10, 1997. Plaintiff later learned that defendant was subsequently hired by CDI Information Services ("CDI"), a competitor of Design.

 Design filed suit against defendant on February 4, 1997, in the Southern District of New York. The suit makes claims for, inter alia, damages, injunctive relief, breach of contract, breach of fiduciary duties, breach of fiduciary obligations and unfair competition. Plaintiff now seeks to amend its complaint to add CDI and Edward Fuccello as defendants. Edward Fuccello is allegedly employed by CDI and allegedly knowingly engaged defendant to break her contract with Design. *fn1" Plaintiff further moves to compel defendant to respond to plaintiff's interrogatories issued on March 20, 1997, and to compel the defendant to appear for deposition. Defendant, in turn, seeks to dismiss the instant suit for lack of personal jurisdiction. *fn2"

 Defendant first argues that she lacks the minimum contacts required for the court to assert personal jurisdiction under New York's long arm statute. (Def.'s Mem. of Law at 7). Specifically, she avers that the Agreement was formed in Toronto, Canada and/or Phoenix, Arizona and that defendant's presence in New York was limited to a single family visit to upstate New York approximately ten years ago. Defendant also raises an equity argument by implying that the expense of pursuing litigation in New York would render the forum so inconvenient as to preclude defendant from effectively defending herself. (Def.'s Reply Mem. of Law at 11).

 In addition, defendant argues that she, a computer programmer, was placed in an unfair position by plaintiff, a corporation, in that she was required to sign the Agreement after she had already moved to Phoenix and under threat of not being able to work without so doing. Defendant also emphasizes that she did not consult a lawyer prior to signing the Agreement, a contract that she claims is highly tilted in plaintiff's favor. In sum, she points to the "disparity between [plaintiff's] and [defendant's] experience in the negotiation and drafting of [labor agreements], the circumstances and pressures surrounding Nghiem's execution of the Agreement, and the unreasonably favorable (to Design Strategy) provisions included in the Agreement" as enough to render the Agreement overreaching, unconscionable, and, therefore, unenforceable. (Def.'s Reply Mem. of Law at 9, 10).

 Finally, if defendant is found to be subject to the court's personal jurisdiction, she argues that paragraph 19.1 of the Agreement dictates that any claim relating to breaching the Agreement should be referred to arbitration.

 Although plaintiff makes a cursory reference to minimum contacts as support for personal jurisdiction in this matter, *fn3" paragraph 22.1 of the Agreement is the primary basis ...


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