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ROPER STARCH WORLDWIDE, INC. v. REYMER & ASSOCS.

April 9, 1998

ROPER STARCH WORLDWIDE, INC., Plaintiff, against REYMER & ASSOCIATES, INC., Defendant.


The opinion of the court was delivered by: PARKER

MEMORANDUM DECISION AND ORDER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 Plaintiff Roper Starch Worldwide, Inc. ("Roper Starch") brought this action against Reymer & Associates, Inc. ("Reymer"), claiming breach of contract and unjust enrichment. *fn1" Reymer now moves to dismiss on the grounds that this Court lacks personal jurisdiction over it, or in the alternative, to transfer venue to the Eastern District of Michigan. See 28 U.S.C. § 1404(a). For the reasons that follow, defendant's motion to dismiss is granted.

 BACKGROUND

 Roper Starch is a New York corporation with a principal place of business in Mamaroneck, New York and a "phone center" in New York, New York. Roper Starch conducts advertising, media marketing, and public opinion research. Reymer is a Michigan corporation with its principal place of business in Southfield, Michigan. Reymer is a media research "think tank," which analyzes information collected by various subcontractors and generates reports for its media clients.

 Reymer hired Roper Starch to perform market research and tabulate data in connection with three companies: TCI, Showtime, and ViewTrak. Reymer negotiated its contract with Roper Starch through Sandy Kapular, a Roper Starch employee and a resident of Northfield, Illinois. The contract negotiations occurred either in Michigan or Illinois, and Kapular supervised performance of the contract from her home office in Illinois.

 In each of the three studies for which Roper Starch was hired, Reymer designed the questionnaire that formed the basis for the questions Roper Starch was to ask, and e-mailed it to Roper Starch's New York offices. Roper Starch's work in connection with the contract consisted of telephone calls to individuals in forty-eight states, asking those individuals questions, and compiling their answers. The calls and resultant data compilations were made in Roper Starch's New York offices, under Kapular's supervision from Illinois. Payment was forwarded by Reymer to Roper Starch's Mamaroneck, New York office. In her affidavit, Kapular states that several conference calls were made between Reymer, Kapular, and other employees of Roper Starch in New York to discuss changes to the work after the completion of preliminary tabulations. Reymer contends that these calls were made only after it found Roper Starch's performance unsatisfactory, and were to ensure compliance with the contract terms.

 Because Reymer asserts that Roper Starch's performance of its duties was inadequate, it has not paid the full amount due to Roper Starch under the contract. Roper Starch thus brought this suit seeking to recover the amount it claims Reymer still owes under the contract. Reymer now seeks dismissal on the grounds that this Court lacks personal jurisdiction over it. Specifically, Reymer contends that it is not present in the state with sufficient continuity and that it has not transacted business within this state to the extent necessary for this Court to have personal jurisdiction over it. In the alternative, Reymer moves for transfer of this case to the Eastern District of Michigan, pursuant to 28 U.S.C. § 1404(a).

 DISCUSSION

 The plaintiff has the burden of establishing that this Court has personal jurisdiction over the defendant. Walters v. Woodson, 1987 U.S. Dist. LEXIS 9349, No. 87 Civ. 2500, 1987 WL 19026, *1 (S.D.N.Y. Oct. 16, 1987); Spectra Products, Inc. v. Indian River Citrus Specialties, Inc., 144 A.D.2d 832, 534 N.Y.S.2d 570, 571 (3d Dept. 1988). Where no evidentiary hearing has been held, the plaintiff need only made a prima facie showing that jurisdiction exists. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985). In addition, all pleadings and affidavits are construed in the light most favorable to plaintiff. Id.

 Personal jurisdiction over a foreign corporation in a diversity action is determined in accordance with the law of the state in which the court sits. Id. The parties agree that this Court must resolve jurisdictional issues according to New York law, and that Sections 301 and 302(a)(1) of the New York Civil Practice Law and Rules will accordingly govern whether this Court has personal jurisdiction over Reymer.

 A. CPLR § 301

 Under CPLR § 301, a foreign corporation may be subject to jurisdiction in New York if that corporation is present in the state "not occasionally or casually, but with a fair measure of permanence and continuity." *fn2" Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (1917). As our Circuit has noted,

 
The New York courts, in applying the pragmatic test for section 301 jurisdiction, have focused upon factors including: the existence of an office in New York; the solicitation of business in the state; the presence of bank accounts and other property in the state; ...

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