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SALTZMAN v. LOUISIANA AUCTION EXCH.

March 20, 1998

WILLIAM H. SALTZMAN, Plaintiff, against LOUISIANA AUCTION EXCHANGE, INC., RONALD L. CAUSEY and SANDRA McELWEE CAUSEY, Defendants.

Peter K. Leisure, U.S.D.J.


The opinion of the court was delivered by: LEISURE

LEISURE, District Judge :

 Pursuant to Rule 56 of the Federal Rules of Civil Procedure, plaintiff moves for summary judgment. Plaintiff also seeks interest on any monies owed to him, pursuant to New York Civil Practice Law and Rules ("CPLR") § 5001, and attorneys' fees and costs chargeable to this litigation, pursuant to Fed. R. Civ. P. 54. Defendants Louisiana Auction Exchange, Inc. ("LAE"), Ronald Causey, and Sandra McElwee Causey move pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(3) to dismiss the claims against them asserting that the Court lacks jurisdiction over them and that the Southern District of New York is an improper venue under Title 28, United States Code ("U.S.C."), Section 1391. For the reasons stated below, plaintiff's motions are granted in part and denied in part, and defendants' motions are denied.

 BACKGROUND

 In July, 1994, plaintiff, a resident of New Rochelle, New York, viewed an advertisement in "Art and Antiques Weekly" for an auction to be conducted by LAE. Plaintiff then requested by telephone a catalogue for the auction, which LAE mailed to his home in New York. Plaintiff submitted a bid on a painting, which LAE accepted. LAE delivered the painting to plaintiff without any difficulties. After this transaction, plaintiff was placed on the LAE mailing list, and he received notices, brochures, catalogues, and other literature concerning LAE auctions over the next several months.

 On or about March 1, 1995, plaintiff received a catalogue depicting approximately one-hundred forty-one works of art scheduled to be auctioned by defendants on March 18, 1995, in Baton Rouge, Louisiana. Based on the descriptions in the brochure, Saltzman submitted by facsimile transmission maximum bids for certain pieces of art. On or about March 22, 1995, plaintiff received facsimile notification at his home that LAE accepted his bid for eleven pieces of art, consisting of nine paintings and two sculptures. The invoice listed total purchases of $ 50,650.00 and a buyer's premium of $ 5,065.00, for a total price of $ 55,715.00. Of this total, the invoice attributed $ 52,855.00 to the paintings, breaking down to a $ 48,050.00 purchase price and a buyer's premium of $ 4,805.00.

 After consultations with experts, plaintiff determined that the paintings were forgeries. He attempted to return the paintings to defendants in exchange for a refund of the $ 52,855.00 paid for the paintings. After defendants refused this proposal, plaintiff retained the services of counsel to handle the issue. The parties attempted to resolve the dispute by having an appraiser issue a binding ruling on the value of the paintings, but were unable to agree on an appraiser.

 Following indications that plaintiff was about to commence legal proceedings, defendants contacted plaintiff's counsel in an effort to settle the dispute. Defendants proposed that in exchange for plaintiff's return of the paintings, defendants would have a period of time in which to attempt to resell the art, but after that period, plaintiff would receive the entire $ 52,855.00, regardless of defendants' success in reselling the paintings.

 On March 11, 1996, the parties executed the settlement in the form of a letter agreement, signed by plaintiff's counsel on behalf of plaintiff and by Ronald Causey, an attorney admitted to practice law in Louisiana, on behalf of himself, his wife Sandra McElwee Causey, and LAE. The letter agreement contained the following terms: (1) in exchange for Saltzman not commencing a lawsuit immediately, the expiration dates of any applicable statutes of limitations would be extended one full year beyond the original expiration dates; (2) Saltzman would return to LAE the paintings purchased at the March 18, 1995, auction; (3) LAE would attempt to sell the paintings within the next eight months; (4) LAE immediately would forward to Saltzman the proceeds of any sale up to the price Saltzman paid; (5) after no later than eight months from the date of the letter agreement, LAE would refund Saltzman in total for the paintings, regardless of whether LAE had resold the paintings; and (6) the parties would exchange appropriate releases upon full payment to Saltzman. The parties also agreed that if LAE failed to make full payment to Saltzman, plaintiff was free to assert any claims against defendants.

 Following the execution of the letter agreement, Saltzman returned the paintings to LAE and refrained from commencing any legal action. On November 11, 1996, the eight-month period ended and defendants' obligation to make full payment of $ 52,855.00 matured. Defendants did not remit any payment to plaintiff, and Saltzman commenced this action. Plaintiff served all defendants and the defendants failed to answer the Complaint. However, on March 27, 1997, defendants filed a motion to dismiss for improper venue. *fn1" Ronald Causey filed the motion on behalf of all defendants, although he was not admitted to practice before this Court. The Court scheduled a pre-trial conference for April 18, 1997, at which the defendants were not represented. The Court instructed plaintiff that several options were available to him under the Federal Rules of Civil Procedure, and that he could proceed in the manner he felt was most appropriate. On May 6, 1997, this Court granted Ronald Causey's motion to be admitted pro hac vice. Plaintiff then filed a motion for summary judgment, as well as his opposition to defendants' motion to dismiss. Defendants filed additional documents in support of their motion to dismiss, but filed no opposition to plaintiff's motion for summary judgment.

 DISCUSSION

 I. JURISDICTION

 Plaintiff brought this action pursuant to this Court's diversity jurisdiction under 28 U.S.C. § 1332. "Personal jurisdiction over a defendant in a diversity action is determined by reference to the law of the jurisdiction in which the court sits." Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55 (2d Cir. 1985). Accordingly, the Court refers to the law of New York to determine whether the Court has personal jurisdiction over defendants.

 Both LAE and the Causeys are subject to the jurisdiction of New York based on New York's long-arm statute, CPLR 302. ...


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