The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge
MEMORANDUM OF DECISION AND ORDER
The plaintiff HD Brous & Company, Inc. ("Brous" or the "plaintiff")
alleges that the defendant Synthesys Secure Technologies, Inc. a/k/a
Synthesys Technologies, Inc. ("Synthesys" or the "defendant") breached an
agreement to pay for investment banking services that Brous provided to
it. Synthesys now moves to dismiss the complaint for lack of personal
jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil
Procedure and on the ground of forum non conveniens. Alternatively,
Synthesys moves to transfer venue to the Southern District of Florida
pursuant to 28 U.S.C. § 1404(a).
The following facts are taken from the complaint unless otherwise
noted. Brous is a Delaware corporation with its principal place of
business in Great Neck, New York. It provides a full spectrum of
financial and investment banking services to companies and individuals.
Synthesys is a Florida corporation with its principal place of business
in Boca Raton, Florida. It develops and markets software products that
prevent identity theft and information security.
On or about June 20, 2001, Synthesys entered into a letter agreement
with Brous entitled "Financial Advisory and Investment Banking Agreement"
(the "Agreement"). The Agreement provided for Brous to identify and
introduce a third-party with whom Synthesys could effect a sale or
license of its technology, a joint venture or other relationship. Also,
the Agreement provided that upon the completion of an "Eligible
Transaction" between Synthesis and a third-party, Synthesys would pay
Brous a fee of $60,000 plus additional compensation in the form of stock
or fees depending on the type of transaction.
Thereafter, Brous provided Synthesys with analysis and advise that led
to a "strategic alliance" with IMSure Network, Inc. ("IMSure"). Brous
alleges that the "strategic alliance" was an "Eligible Transaction" under
the Agreement triggering Synthesys' obligation to pay Brous $60,000 and
500,000 shares or 5% of its stock. On the other hand, Synthesys claims,
among other things, that the IMSure transaction was never completed and
refused to compensate Brous for its services.
In responding to a motion to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of showing that jurisdiction
exists over the defendant. Distefano v. Carozzi North America, Inc.,
286 F.3d 81, 84 (2d Cir. 2001). The plaintiff's burden depends on the
posture of the case. Bank Brussels Lambert v. Fiddler Gonzalez &
Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). Without extensive discovery
or an evidentiary hearing — as here — the plaintiff need only
make a prima facie showing that personal jurisdiction exists over the
defendant. Id. See also Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181,
184 (2d Cir. 1998). At this early stage, a court must construe all
pleadings and affidavits in the light most favorable to the plaintiff and
any doubt must be resolved in favor of the plaintiff. Hoffritz for
Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985) (citations
In a diversity case — as here — a court exercises personal
jurisdiction over a party in accordance with the law of the forum state,
subject to the requirements of due process under the United States
Constitution. Whitaker v. Amer. Tele., Inc., 261 F.3d 196, 208 (2d Cir.
2001). As such, the Court must look to New York's personal jurisdiction
statutes, CPLR §§ 301 — general — and 302 — long-arm
— to determine whether Brous has made a prima facie showing of
personal jurisdiction over Synthesys. If there is jurisdiction under the
CPLR, then the Court evaluates whether the exercise of that jurisdiction
comports with due process requirements.
Brous argues that jurisdiction exists under CPLR § 302(a)(1).
Jurisdiction is established under Section 302(a)(1) where, (a) the
defendant has transacted business within the state; and (b) the claim
arises out of that activity. See Bank Brussels, 171 F.3d at 787.
"Transacting business" under Section 302 requires only a minimal quantity
of activity, provided that it is of the right nature and quality and, in
making a determination, a court must examine the totality of the
defendant's contact with the forum. Agency Rent A Car System, Inc. v.
Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir. 1996). Even ...