The opinion of the court was delivered by: William C. Conner, Senior District Judge.
In this diversity action, plaintiff Unlimited Care, Inc.
("UCI") alleges that defendant Visiting Nurse Association of
Eastern Massachusetts, Inc. ("VNA"), has breached its services
agreements with UCI's wholly owned subsidiary by failing to
tender payment for services rendered. Defendant moves to dismiss
plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(2) for lack
of personal jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(3)
for improper venue. In the alternative, defendant moves to
dismiss on the ground of forum non conveniens. Plaintiff
requested that, in the event the Court found that it lacked
jurisdiction, the action be transferred pursuant to
28 U.S.C. § 1404(a) or § 1406(a) rather than dismissed. For the reasons
discussed below, the action is hereby transferred to the District
The following facts are undisputed except as otherwise noted.
Plaintiff UCI is a corporation organized and existing under the
laws of the State of New York, with its principal place of
business in White Plains, New York. It is a provider of home
health care professional services. Defendant VNA is a
Massachusetts nonprofit corporation with its principal and only
place of business in Somerville, Massachusetts.
In 1995, VNA entered into a Professional Services Agreement
(the "Agreement") with a Massachusetts corporation also named
Unlimited Care, Inc. ("UCIM"), with its principal place of
business in Boston, Massachusetts. UCIM is a wholly-owned
subsidiary of UCI. UCI does not dispute that all contract
negotiations took place at UCIM's offices in Boston,
Massachusetts. The Agreement was executed by VNA in Massachusetts
on May 19, 1995. UCIM then forwarded the agreement to UCI in New
York where it was executed by Harriet Smith, as President of
UCIM, on June 1, 1995. Under the terms of the Agreement, UCIM
agreed to provide the services of home health care professionals
to VNA patients in Massachusetts and to invoice VNA for such
services on a weekly basis. All services rendered by UCIM
pursuant to the Agreement were performed in Massachusetts by
employees of UCIM. The only "performance" required of VNA was to
compensate UCIM for its services promptly upon receipt of such
invoices. The Agreement did not provide an address to which VNA
remit payment. All time logs were prepared in UCIM's Boston
office and were printed on forms containing the Boston address.
All invoices submitted to VNA were printed on forms containing
UCIM's Boston address but requested that payment be remitted to
UCI in White Plains, New York.*fn1 VNA complied with this
request and mailed its payments to New York.
Plaintiff UCI brought this action in diversity seeking to
recover amounts allegedly due and owing under the Agreement. UCI
alleges that it is a proper party plaintiff because it is an
intended third-party beneficiary of the Agreement, or
alternatively, because UCIM assigned all rights to payment under
the Agreement to UCI.*fn2 UCI further alleges that all
collection efforts with respect to the alleged delinquent
accounts (i.e., telephone calls and correspondence) were made by
UCI from its office in White Plains, New York.
Plaintiff bears the burden of establishing this Court's
jurisdiction over the defendant. See Metropolitan Life Ins. Co.
v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). The
nature of the plaintiff's obligation, however, "varies depending
on the procedural posture of the litigation." Ball v.
Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.
1990). Prior to discovery, a motion to dismiss pursuant to Rule
12(b)(2) may be defeated if the plaintiff's complaint and
affidavits contain sufficient allegations to establish a prima
facie showing of jurisdiction. See id. Moreover, the court must
assume the truth of the plaintiff's factual allegations. See
In diversity actions, the extent of the Court's personal
jurisdiction is governed by New York law, as circumscribed by the
Due Process Clause of the United States Constitution. See,
Metropolitan Life Ins., 84 F.3d at 567; Arrowsmith v. United
Press Int'l, 320 F.2d 219, 223 (2d Cir. 1963). UCI asserts
jurisdiction over VNA on the basis of § 302(a)(1) of New York's
Long Arm Statute. N.Y.C.P.L.R. § 302(a)(1). This section provides
that "a court may exercise personal jurisdiction over any
non-domiciliary . . . who in person or through an agent transacts
any business within the state," and the cause of action arises
therefrom. As interpreted by the New York Court of Appeals, the
exercise of jurisdiction under this provision will comport with
the due process guarantees only if "`the defendant purposefully
avails itself of the privilege of conducting activities within
[New York], thus invoking the benefits and protections of its
laws.'" McKee Elec. Co. v. Rauland-Borg Corp., 20 N.Y.2d 377,
382, 229 N.E.2d 604, 607, 283 N.Y.S.2d 34, 38 (1967) (quoting
Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d
1283 (1958)); accord Cut-Co Indus., Inc. v. Naughton,
806 F.2d 361, 365 (2d Cir. 1986).
Applying those factors, it is clear that VNA did not transact
business in New York. The Agreement was negotiated by VNA and
UCIM in Massachusetts. VNA executed the contract in
Massachusetts.*fn3 At no time was a representative of VNA
physically present in New York. Further, the Agreement contains a
choice-law-clause that provides: "XVIII. APPLICABLE LAW: This
Agreement shall be governed by and construed under the laws of
the Commonwealth of Massachusetts." All services to be rendered
by UCIM were to be rendered in Massachusetts by employees of
UCIM. VNA is obligated, under the terms of the Agreement, to
render payment to UCIM upon receipt of invoices which UCIM is to
provide on a weekly basis. Nothing in the Agreement contractually
obligates VNA to remit its payments to UCI in New York. Indeed,
there is absolutely no mention of UCI in the Agreement.
Certainly, the Agreement does not contemplate any form of
on-going contractual relationship between VNA and a New York
corporation (i.e., UCI).
Plaintiff contends that VNA transacted business in New York by
virtue of the following: (1) VNA mailed payments due under the
Agreement to UCI in New York; (2) VNA made promises to pay
outstanding balances while speaking by telephone with UCI
employees who were located in New York; and (3) as a result of
these contacts, VNA was aware that it was engaged in an on-going
business relationship with a New York corporation.
Assuming the truth of all such jurisdictional averments,
defendant's conduct does not constitute the transaction of
business in New York within the meaning of C.P.L.R. § 302(a)(1).
The consensual (but not contractually required) mailing of
payments to UCI in New York, standing alone, does not convey
jurisdiction over VNA. See, e.g., Roper Starch Worldwide, Inc.
v. Reymer & Assoc., Inc., 2 F. Supp.2d 470, 475 (S.D.N.Y. 1998)
("merely sending payment to New York is not sufficient to
establish personal jurisdiction over a defendant"); Continental
Field Service Corp. v. ITEC Intern., Inc., 894 F. Supp. 151, 154
(S.D.N.Y. 1995) ("this passive accommodation does not establish
the requisite purposeful activity to justify ...