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NATIONAL TEL. DIRECTORY CONSULTANTS, INC. v. BELLS

October 27, 1998

NATIONAL TELEPHONE DIRECTORY CONSULTANTS, INC., Plaintiff, against BELLSOUTH ADVERTISING & PUBLISHING CORPORATION and YELLOW PAGES PUBLISHERS ASSOCIATION, INC., Defendants.


The opinion of the court was delivered by: PARKER

MEMORANDUM DECISION AND ORDER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 Plaintiff National Telephone Directory Consultants, Inc. ("NTDC") seeks monetary damages from defendants Bellsouth Advertising & Publishing Corporation ("BAPCO") and Yellow Pages Publishers Association, Inc. ("YPPA") for alleged breach of contract, tortious interference with prospective business relations, conspiracy and related claims under Georgia statutory law and under both Georgia and federal common law for restraint of trade and unfair business practice. Both defendants move pursuant to Fed. R. Civ. P Rule 12(b)(2) to dismiss for lack of personal jurisdiction, and in the alternative, under 28 U.S.C. § 1404, to transfer venue to the United States District Court for the Northern District of Georgia. For the reasons that follow, the motion to dismiss is granted.

 BACKGROUND

 The following facts are drawn from the complaint, affidavits and documentary exhibits submitted by both parties, and on this motion, are construed in the light most favorable to plaintiff. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 56-57 (2d Cir. 1985). Absent an evidentiary hearing, plaintiff bears the burden to make a prima facie showing of personal jurisdiction. Cutco Indus., Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986).

 BAPCO is a publisher of printed telephone directories, including Yellow Pages, for cities within a nine state region in the Southeastern United States: Georgia, North Carolina, South Carolina, Florida, Louisiana, Alabama, Mississippi, Kentucky and Tennessee. BAPCO is incorporated under the laws of Georgia and its principal place of business is in Atlanta, Georgia. BAPCO sells advertising in its Yellow Pages that is either national or local. NTDC is a Certified Marketing Representative ("CMR") incorporated under the laws of New York with its principal place of business in Pearl River, New York. National advertisers are solicited by CMRs, and BAPCO has its own sales force to solicit local advertisers within the cities for which it publishes directories. YPPA is a national trade association in the Yellow Pages industry that was incorporated in Delaware as a non-profit corporation with headquarters in Denver, Colorado. Publishers and CMRs are members of YPPA. YPPA has 123 publisher members and 188 CMR members. Both BAPCO and NTDC are members of YPPA.

 On June 9, 1997, NTDC and BAPCO entered into a contract ("Contract") in which BAPCO agreed to accept and publish national yellow pages listings and advertising timely submitted by NTDC, in return for which NTDC would receive a commission. The Contract adopted YPPA's definition of what constituted a "national" account. The discussions concerning the Contract were conducted by NTDC in New York and BAPCO in Georgia. The Contract was executed by NTDC in New York and BAPCO in Georgia. In the process of entering into the Contract, no representative of BAPCO traveled to New York. The Contract stated that it was to be construed under the laws of Georgia. YPPA is not a party to the Contract.

 This dispute arises out of NTDC's claim that, despite the fact that two advertising programs submitted by NTDC to BAPCO are national under the definition contained in the Contract, BAPCO rejected the programs. The two rejected advertisers are attorneys with offices solely in Atlanta, Georgia and Raleigh, North Carolina respectively. NTDC claims it has requested that YPPA compel BAPCO to adhere to YPPA's bylaws and guidelines and to accept the programs, and YPPA failed to do so. Thus, NTDC has sued BAPCO and YPPA for breach of contract, tortious interference with prospective business relations, conspiracy and related claims under Georgia statutory law and under both Georgia and federal common law for restraint of trade and unfair business practice.

 DISCUSSION

 Subject matter jurisdiction is predicated on diversity of citizenship. 28 U.S.C. § 1332(a). Plaintiff is a New York corporation with its principal place of business in New York; defendants are Georgia and Delaware corporations with principal places of business in Georgia and Colorado respectively; plaintiff seeks damages in excess of $ 75,000 exclusive of interest and costs. The New York long arm statute, N.Y. Civ. Prac. L. & R. § 302, controls the question of whether this Court has personal jurisdiction over the defendants since, in diversity cases, a federal court applies the long-arm statute of the state in which it sits. Savin v. Ranier, 898 F.2d 304, 306 (2d Cir. 1990).

 NTDC asserts personal jurisdiction pursuant to two sections of the New York Civil Practice Law and Rules ("CPLR"): (1) § 302(a)(1), and (2) § 302(a)(3)(ii). We will take each section in turn.

 Under CPLR § 302(a)(1) a court may exercise personal jurisdiction over:

 
any non-domiciliary, or his executor or administrator, who in person or through his agent:
 
1. transacts any business within the state or contracts anywhere to supply goods or ...

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