The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM-DECISION & ORDER
The present action arises out of a Complaint filed on August
13, 1998 by Schomann International Corporation ("Schomann" or
"Plaintiff") against Northern Wireless, Ltd. ("Northern") and
Curt Koch ("Koch") (collectively the "Defendants"), alleging
breach of contract relating to the purchase of equipment and
construction and installation of cellular telecommunications
systems in the Republic of Georgia, formerly part of the
U.S.S.R. Defendants move to dismiss for lack of personal
jurisdiction and improper venue, pursuant to FED.R.CIV.P.
12(b)(2) and (3) or in the alternative, for a change of venue
for the convenience of the parties, pursuant to 28 U.S.C. § 1404(a).
This Court has subject matter jurisdiction pursuant to
28 U.S.C. § 1332.
In considering a motion to dismiss, the Court accepts as true
the factual allegations in the Complaint. See Dwyer v. Regan,
777 F.2d 825, 828-29 (2d Cir. 1985). Those allegations follow.
On or about December 18, 1997, Plaintiff, a New York
corporation with its principal place of business in
Skaneateles, New York, entered into a Consulting Services
Agreement (the "Agreement") with Koch, the principal and sole
shareholder of Northern, an Iowa corporation with its principal
place of business in Hudson, Iowa, requiring Defendants to act
as Plaintiff's engineering consultant with respect to its
acquisition and installation of a cellular telecommunications
system in the Republic of Georgia. Koch, a telecommunications
engineer, contracted to perform the services provided in the
Agreement. These services included, inter alia, selection of
the cell site locations; acquisition of all equipment;
provision of all facilities, tools, and personnel necessary to
test and ship the equipment; and installation of the equipment
at the selected cell site locations. The Agreement detailed
specific work and delivery requirements and required Northern
to complete the installation work in an "expeditious and
Schomann alleges that Defendants breached the Agreement by,
inter alia, suspending work on the project without proper
authorization, failing to provide written progress reports and
misrepresenting the status of the project, failing to provide
sufficient personnel, delaying completion of the project, and
failing to notify Plaintiff of such delays and take appropriate
remedial steps to comply with the delivery and installation
schedules provided in the Agreement.
Plaintiff seeks to hold Northern liable in its corporate
capacity, and against Koch, individually, as the sole
shareholder and "alter-ego" of Northern, and seeks monetary
damages for overpayments to Northern and lost revenues
resulting from Schomann's inability to solicit customers by the
date of completion set forth in the Agreement.
Defendants first move under FED.R.CIV.P. 12(b)(2) to dismiss
the Complaint against them for lack of personal jurisdiction.
Where subject matter jurisdiction is predicated upon
diversity of the parties, the law of the forum state applies in
determining whether a plaintiff has personal jurisdiction over
a defendant. See Agency Rent A Car Sys., Inc. v. Grand Rent A
Car Corp., 98 F.3d 25, 29 (2d Cir. 1996); CutCo Indus. Inc. v.
Naughton, 806 F.2d 361, 365 (2d Cir. 1986). A plaintiff bears
the ultimate burden of establishing jurisdiction over a
defendant by a preponderance of the evidence. See CutCo Indus.,
806 F.2d at 365. Where, however, personal jurisdiction is
challenged prior to discovery, a plaintiff may defeat the
motion "`by pleading in good faith, see FED.R.CIV.P. 11,
legally sufficient allegations of jurisdiction,' i.e., by
making a `prima facie showing' of jurisdiction." Jazini v.
Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir. 1998)
(quoting Ball v. Metallurgie Hoboken-Overpelt, S.A.,
902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150,
112 L.Ed.2d 116 (1990)). In deciding such a motion, all
pleadings and affidavits must be construed in the light most
favorable to the plaintiff. See PDK Labs, Inc. v. Friedlander,
103 F.3d 1105, 1108 (2d Cir. 1997); Hoffritz for Cutlery, Inc.
v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985).
Schomann contends that jurisdiction over Northern exists
under New York's long-arm statute, N.Y.C.P.L.R. § 302(a)(1),
which provides, in pertinent part:
(a) 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, or his executor or administrator,
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. . . .
N YC.P.L.R. § 302(a)(1) (McKinney Supp. 1999).
For a court to exercise jurisdiction under this provision,
two conditions must be met — the non-domiciliary must
"transact business" within the forum state and the claim must
also "arise from" the transaction of business within the state.
See Agency Rent A Car Sys., Inc., 98 F.3d at 29; CutCo Indus.,
806 F.2d at 365 (citing McGowan v. Smith, 52 N.Y.2d 268, 272,
437 N.Y.S.2d 643, 419 N.E.2d 321 (1981) (requiring an
"articulable nexus between the business transacted and the
cause of action sued upon")). To "transact business" under CPLR
§ 302(a)(1), a non-domiciliary must "purposefully avail
[himself] of the privilege of conducting activities within [New
York], thus invoking the benefits and protections of its laws."
CutCo Indus., 806 F.2d at 365 (quoting McKee Elec. Co. v.
Rauland-Borg Corp., 20 N.Y.2d 377, 382, 283 N.Y.S.2d 34,
229 N.E.2d 604 (1967)). The "arises from" prong is satisfied if
there exists a substantial relationship between the defendant's
activities in the forum state and the transaction out of which
the cause of action arose. See Vardinoyannis v. Encyclopedia
Britannica, Inc., 1990 WL 124338, at *4 (S.D.N.Y. August 20,
1990). These standards ensure that jurisdiction comports with
due process requirements such that the defendant can
"reasonably `anticipate being haled into court' in that forum."
See National Tel. Director Consultants, Inc. v. Bellsouth
Adver. & Publishing Corp., 25 F. Supp.2d 192, 196 (S.D.N Y
1998) (quoting World-Wide Volkswagen v. Woodson, 444 U.S. 286,
297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).
In determining whether an out-of-state defendant "transacts
business" in New York, the Second Circuit has adopted an
approach that considers a variety of factors, including: (1)
whether the defendant has an on-going contractual relationship
with a New York corporation; (2) whether the contract was
negotiated or executed in New York and whether, after executing
a contract with a New York business, the defendant has visited
New York for the purpose of meeting with parties to the
contract regarding the relationship; (3) what the choice-of-law
clause is in any such contract; and (4) whether the contract
requires notices and payments to be sent into the forum state
or requires supervision by the corporation in the forum state.
See Agency Rent A Car Sys., Inc., 98 F.3d at 29; National Tel.
Director Consultants, Inc., 25 F. Supp.2d at 195; Lacey v.
Zartman, 1998 WL 312354, at *6 (N.D.N.Y. June 8, 1998).
Although these factors provide some guidance, courts examine
the totality of the defendant's contacts within the forum state
in determining whether personal jurisdiction over a defendant
exists. See Agency Rent A Car Sys., Inc., 98 F.3d at 29; CutCo
Indus., 806 F.2d at 365; George Reiner & Co., Inc. v. Schwartz,
41 N.Y.2d 648, 394 N.Y.S.2d 844, 363 N.E.2d 551 (1977);
Glassman v. Hyder, 23 N.Y.2d 354, 362, 296 N.Y.S.2d 783,
244 N.E.2d 259 (1968). In certain instances, however, a single
transaction may satisfy the statutory transaction of business
requirement. See Ingraham v. Carroll, 90 N.Y.2d 592, 597, 665
N YS.2d 10, 687 N.E.2d 1293 (1997) (noting that a "`one shot'
single business transaction" is sufficient to meet ...