The plaintiff has the burden of establishing that this Court
has personal jurisdiction over the defendants. Roper Starch
Worldwide v. Reymer & Assocs., 2 F. Supp.2d 470, 472 (S.D.N Y
1998). Where no evidentiary hearing has been held, the plaintiff
need only make 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 govern the determination of whether this Court has
personal jurisdiction over the defendants.
I. 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." Tauza v. Susquehanna Coal Co.,
220 N.Y. 259, 267, 115 N.E. 915 (N.Y. 1917). The determination of
whether the foreign corporation is doing business in the states
is unique to each case. Katz Agency, Inc. v. Evening News
Ass'n, 514 F. Supp. 423 (S.D.N.Y. 1981), judgment aff'd,
705 F.2d 20 (2d Cir. 1983).
It is well-settled in this Circuit that solicitation of
business, by itself, will not subject a foreign corporation to
personal jurisdiction in the state of New York on an unrelated
cause of action. See Landoil Resources Corp. v. Alexander &
Alexander Services, Inc., 918 F.2d 1039, 1043 (2d Cir. 1990).
"On the other hand, if solicitation is substantial and
continuous, and defendant engages in other activities of
substance in the state, then personal jurisdiction may properly
be found to exist. . . . Under this `solicitation-plus' rule,
`once solicitation is found in any substantial degree very little
more is necessary to a conclusion of doing business.'" Id. at
1043-44 (quoting Aquascutum of London, Inc. v. S.S. American
Champion, 426 F.2d 205, 211 (2d Cir. 1970)).
Taking Pfeffer's allegations in the light most favorable to
him, this Court is compelled to conclude that he has satisfied
the "solicitation" prong of the "solicitation-plus" rule. Here,
the plaintiff's affidavit clearly states that Mark Athletic,
through Mark and Pfeffer, has "personally and regularly called on
its customers and potential customers located in the State of New
York to solicit, establish and maintain business relationships
with them."*fn2 Pl. Mem. at 4. As such, the Court now turns to
whether Pfeffer has satisfied the "plus" prong of the
The plaintiff has alleged the following facts that this Court
credits as "plus" factors for the purposes of determining
personal jurisdiction. First, Pfeffer, a shareholder and
principal of Mark Athletic, resides in New York. Compare
Rolls-Royce Motors, Inc. v. Charles Schmitt & Co., 657 F. Supp. 1040
(S.D.N.Y. 1987) (in declining to find § 301 jurisdiction
noting that, inter alia, the defendant had no shareholders
residing in the forum state). Second, Mark Athletic's bank
accounts are in New York. See Hoffritz for Cutlery, Inc. v.
Amajac Ltd., 763 F.2d 55, 58 (2d Cir. 1985) (noting that
presence of bank accounts in New York is factor that New York
courts credit as helpful in establishing § 301 jurisdiction).
Third, forty per cent of Mark Athletic's sales have been to
purchasers in New York State. See Laufer v. Ostrow, 55 N.Y.2d 305,
312, 434 N.E.2d 692, 449 N.Y.S.2d 456 (N.Y. 1982) (noting
that volume of business done by out-of-state defendant in forum
state is relevant as to whether there is "any unfairness or
unreasonableness in allowing
the action to be brought against it in New York").
Numerous cases in this Circuit have sustained jurisdiction upon
facts comparable to those found here. See, e.g., Katz Agency,
Inc. v. Evening News Ass'n, 514 F. Supp. 423 (S.D.N.Y. 1981),
judgment aff'd, 705 F.2d 20 (2d Cir. 1983) (foreign corporation
subject to personal jurisdiction under the "solicitation-plus"
doctrine because its officials visited New York on a regular
basis, its employees visited customers in New York to solidify
ongoing relationships and to solicit future business, and the
corporation derived approximately one-third of all its national
advertising revenue from sales to the New York market);
Stursberg & Veith v. Eckler Industries, Inc., 1995 WL 728480
(S.D.N.Y. 1995) (jurisdiction found over foreign corporation
using "solicitation-plus" rubric where corporation generated
revenue from sales in New York, purchased supplies in New York
and derived a "significant portion" of its revenues from New York
The plaintiff, through his pleading and affidavit, has alleged
facts that establish that the defendant solicited business in New
York and engaged in additional activity that confers jurisdiction
under § 301. See, e.g., Aquascutum, 426 F.2d at 211 (reasoning
that once the court finds that the defendant solicited business
in New York, it need only find slight additional activity to
reach the conclusion that the defendant corporation is "doing
business" in New York). Accordingly, defendants' motion to
dismiss the Complaint as to Mark Athletic is denied.*fn3
II. CPLR § 302(a)(1)
Pfeffer contends that the jurisdictional predicate over the
defendants exists also under New York's long arm statute, 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
N YCiv.Proc.L. & R. § 302(a)(1) (McKinney 1990).
Under § 302(a)(1), personal jurisdiction in contract actions is
determined by examining whether the "defendant has performed
purposeful acts in New York in relation to the contract."
Premier Lending Services, Inc. v. J.L.J. Associates,
924 F. Supp. 13, 15 (S.D.N.Y. 1996) (citing CutCo Industries, Inc. v.
Naughton, 806 F.2d 361, 365 (2d Cir. 1986)). New York courts
have held that:
[A] single transaction of business in New York, out
of which the claim has arisen, may be sufficient for
long arm jurisdiction under CPLR § 302(a)(1). . . .
It does not matter whether the negotiations are
preliminary or whether the contract is executed in
New York, or whether performance is contemplated for
Id. at 15-16.