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December 6, 2001


The opinion of the court was delivered by: Kaplan, District Judge.


This action between plaintiff Mario Valente Collezioni, Ltd., and Semeraro Paolo, an Italian citizen who personally does business under the name Confezioni Semeraro Paolo, S.R.L. ("CSP"), and his Italian company, Confezioni Mario Valente-Firenze, S.R.L. ("CMV"), is before this Court on remand from the Court of Appeals.

Defendants moved, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, to vacate the default judgment this Court entered against them on the grounds that, inter alia, the judgment was void because it was rendered in the absence of personal jurisdiction. This Court, after conducting an evidentiary hearing, held that the defendants Semeraro, CSP, and CMV were subject to the personal jurisdiction of this Court under the New York long arm statute.*fn1 Defendants appealed that decision with respect to Semeraro and CSP. The Second Circuit upheld this Court's determination that the conduct of the defendants and their agents rendered Semeraro and CSP within the New York long arm statute, but remanded for a determination as to whether this exercise of personal jurisdiction comported with constitutional due process.*fn2 The facts in this case are well summarized in the prior opinions, and only those relevant to the due process inquiry need be recited here.

I. New York Long Arm Jurisdiction

In its opinion of September 8, 2000, this Court found that its exercise of personal jurisdiction over Semeraro and CSP (collectively "Semeraro/CSP") on plaintiffs tort claims was proper as a matter of New York law because Semeraro/CSP, through agents Maurice Kindler and Joseph Sheer, committed tortious acts in New York, bringing Semeraro/CSP within the scope of CPLR § 302(a), subd. 2.*fn3 The Second Circuit agreed.*fn4 Additionally, because they committed tortious acts outside New York that caused injury within the state,*fn5 this Court found Semeraro/CSP subject to this Court's personal jurisdiction under CPLR § 302(a), subd. 3.*fn6 With respect to plaintiffs contract claims, this Court found that Semeraro/CSP was party to an exclusive distributorship contract that called for CSP, that is to say, Semeraro personally, to supply goods to the plaintiff in New York.*fn7 Because it is the breach of this contract that gives rise to plaintiffs claim, Semeraro/CSP is subject to in personam jurisdiction here. Again, the Second Circuit agreed.*fn8

This Court notes that to the extent defendants argue that this Court erred in considering CMV, CSP, and Semeraro as one entity, they misread this Court's prior opinion. Semeraro and CSP of course are a single entity because CSP is nothing more than a trade name under which Semeraro conducts business. But the Court respected the corporate existence of CMV, of which Semeraro is the sole owner. In any case, it separately found that each defendant was subject to in personam jurisdiction, not because they were one entity, but because each was responsible for acts that made it amenable to in personam jurisdiction under the New York long arm statute. Semeraro personally signed the 1994 contract, and he did so on behalf of CSP. In substance, then, he signed in his individual capacity. In its opinion in this case, the Second Circuit held that this Court's finding that Semeraro, CSP, and CMV all were parties to the 1994 contract was not clearly erroneous.*fn9 Because there was a contract among plaintiff, Semeraro, CSP, and CMV to ship goods to New York and because goods were shipped to New York under that contract, jurisdiction over Semeraro/CSP is proper on the contract claim.*fn10 Semeraro/CSP shared an agency relationship with Kindler, and this relationship extended to Sheer who functioned as Kindler's agent. Based on the record before it, including witness testimony from the evidentiary hearing, this Court concluded that Semeraro/CSP had knowledge of Kindler's activities in New York, benefitted or expected to benefit from those activities, and exercised some control over Kindler with respect to those activities. As a result, this Court found Semeraro/CSP subject to in personam jurisdiction on the tort, as well as the contract, claims under New York's long arm statute.

II. Due Process

The Supreme Court's opinion in International Shoe Co. v. Washington*fn11 defines the extent to which the Due Process Clause permits a court to exercise personal jurisdiction over a nondomicilliary. Prior to International Shoe, in personam jurisdiction had focused on the physical presence of a potential defendant in the forum state. In International Shoe, the Supreme Court held that the Due Process Clause permits a court to exercise jurisdiction over a defendant so long as the defendant had "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'"*fn12 The Court explained that this test was neither "mechanical or quantitative," but rather depended on the "quality and nature" of the defendant's contacts with the forum state.*fn13

The minimum contacts test of International Shoe sets the outer limits of personal jurisdiction that may be exercised under the Constitution. New York, however, has not seen fit to allow its courts to exercise the full range of personal jurisdiction permitted by the Constitution. As courts repeatedly have held and as defendant concedes, rather than codifying the International Shoe minimum contacts test, the New York legislature enacted a narrower long arm statute, CPLR 302, which requires that a defendant's minimum contacts with New York meet one of the additional enumerated factors before a New York court will be permitted to exercise specific personal jurisdiction over that defendant.*fn14 In consequence, any exercise of jurisdiction consistent with CPLR 302 a fortiori is consistent with due process. Nevertheless, for the sake of clarity, this Court now separately turns to the constitutionality of the exercise of in personam jurisdiction over Semeraro/CSP on these claims.

A. Minimum Contacts and Purposeful Availment

As the panel opinion in this case noted, due process analysis opens with a minimum contacts inquiry. This Court first must consider whether plaintiffs claim arose out of or relates to the defendants' contacts with New York. If so, it then must consider whether the defendants purposefully availed themselves of the privilege of doing business in New York so that they reasonably could have foreseen being haled into a court of law in New York.*fn15 The purposeful availment inquiry "ensures that a defendant will not be haled into a jurisdiction solely as the result of random, fortuitous, or attenuated contacts."*fn16

1. Tort Claims

As noted in this Court's prior opinion, the tort claims arise out of defendants' contacts with New York because Kindler, as Semeraro/CSP's agent and at Semeraro's direction, committed the torts in New York. Kindler, on his own and through Sheer, contacted Bloomingdale's and Lord & Taylor in New York and told these two stores, which previously had purchased Mario Valente coats from the plaintiff, that the plaintiff either had gone out of business or had lost the Mario Valente label. These acts establish minimum contacts with New York, and they also satisfy the purposeful availment prong of the constitutional due process inquiry. By sending an agent to New York to perform these acts, Semeraro/CSP purposefully availed itself of the privilege of doing business in New York and reasonably could have foreseen that Semeraro/CSP could be made to answer for these tortious acts in front of a New York court. These contacts with the State of New York, purposefully set in motion by Semeraro/CSP, were by no ...

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