The opinion of the court was delivered by: VICTOR MARRERO, District Judge
In this action, plaintiff Julian Miller ("Miller"), a citizen of the
United States and resident of Hawaii, asserts various claims arising out
of his computer software business relationship with defendants Yannis
Calotychos ("Calotychos"), Victoria Thompson ("Thompson") and iView
Multimedia, Ltd. ("iView") (collectively "Defendants"). Calotychos and
Thompson, who are married to each other, are citizens and residents of
the United Kingdom, and iView is a corporation formed by them in the
United Kingdom. Before the Court is Defendants' motion to dismiss
Miller's complaint on the ground that the Court lacks personal
jurisdiction over Defendants or, alternatively, that New York is not a
convenient forum for the litigation of this matter. For the reasons
described below the motion is denied.
Miller asserts in his complaint that his business contacts with
Defendants commenced sometime in 1996. At that time, he came across an
internet browser program operated by Calotychos. Miller proposed that he
and Calotychos develop a version of the program to market commercially.
Communicating primarily through electronic means from Nevada and later
Hawaii and England, the parties entered into a licensing arrangement in
June 1998 that ultimately led to the incorporation of iView. Miller
alleges that under his initial written agreement with Calotychos, Miller
was to serve as a distributor of the software, but that the arrangement
was subsequently modified, by oral agreement reached between them through
discussions by e-mail and the telephone, into a business development
partnership in which each was to own 50 percent of he venture. The
business was incorporated by Calotychos and Thompson in the United
Kingdom in 1998. According to Miller, the underlying dispute arose in
part when Calotychos insisted that Thompson be given a substantial
equity interest in the corporation. Calotychos and Thompson, denying that
any agreement with Miller ever existed granting him an equity share in
the company and asserting that they are its sole owners, terminated their
relationship with Miller following a meeting among the parties in New
York in 2001.
On these pleadings, Miller asserts six claims: breaches of contract and
of joint venture agreement; conversion of his share of iView profits and
their wrongful distribution to Calotychos and Thompson; replevin for his
shares of iView stock; and declaratory relief seeking judgments that he
owns a 50 percent equity interest in iView and that he is a coauthor of
three software programs which Miller claims were created in collaboration
between him and Calotychos.
The jurisdictional dispute raised by Defendants' motion concerns the
extent of the parties' dealings relating to iView business that: occurred
in New York. Miller claims that during the time of his involvement with
the venture, iView's business was largely directed at a customer market
and Macintosh program applications industry and licensing partners
located in the United States, and that New York was the company's
principal target for business development and marketing. Specifically,
Miller claims that he first met Calotychos and Thompson at a MacWorld
Conference and Exposition, held in New York over six days in July 1999,
and that they all attended at
the invitation of Adaptec, a new licensee of iView. According to Miller,
over several days at this convention he and Calotychos reaffirmed their
agreement and solidified their business relationship by collaborating in
promoting iView software programs to other companies, working with Adaptec
representatives in supporting a new Adaptec product, and together holding
themselves out as iView's two principals.
Miller also attests that he and Calotychos and Thompson again engaged
in iView business transactions in New York at the 2001 MacWorld
conference at which iView rented a booth. During the course of that
event, according to Miller, he, Calotychos and Thompson met in New York
with the principals of Center for Digital Imaging ("GDI"), a software
company based in New York, and initiated a business relationship between
GDI and iView. Miller claims that while in New York he also met to
discuss iView business with an official of Nikon, and arranged for the
sale of iView Software through several retail outlets and for bulk
licenses with Conde Nast and Time, Inc., and that he and Calotychos met
with representatives of Minolta, Apple Computer, VST, a hardware maker,
and with photo journalists, graphic designers and other industry agents.
Miller asserts that after the convention, he, Calotychos and Thompson
remained in New York and met for an entire day to continue discussions
concerning differences of opinion that
had arisen among them relating to the company's ownership and
management, specifically the denial by Calotychos and Thompson, implicit
in a draft distributorship agreement Thompson had transmitted to Miller
prior to the convention, of Miller's claim that he owned a substantial
equity interest in iView. This meeting included participation by Mark
Fleming, a computer software engineer resident of Canada who worked with
Miller and Calotychos as a technical consultant developing programs for
iView. (See Fleming Decl. ¶¶ 1-2.) Miller states that he refused to sign
the draft distributorship agreement, maintaining that it did not reflect
his ownership of an equity share of the company.
Finally, Miller asserts that iView maintains a fully interactive
website through which its software products may be directly ordered from
New York and that Defendants reserved a booth at the 2003 MacWorld
conference but did not attend by reason of the instant litigation.
In support of their motion and responding to Miller's contentions,
Defendants assert that they are not now and never were present in New
York for jurisdictional purposes; that they did not negotiate, enter or
execute any agreement with Miller in New York; and that they have no
offices, agents, bank accounts or other assets, advertising or continuing
business relations with any New York company. According to
Defendants, Calotychos' written agreement with Miller had no connection
with New York, and neither did the oral modification of their contract
Miller claims was made in 1998, both allegedly concluded long before the
parties' first personal encounter in New York in July 1999. Defendants
contend that on the two occasions the parties did meet in New York in
1999 and 2001, their discussions were not substantive, did not involve
Miller's ownership interest in iView and were not essential to the
formation of the alleged contract or to the advancement of the parties'
business relationship, and therefore had no importance for jurisdictional
purposes. By Calotychos' account, when Defendants visited New York in
1999, it was only as a stopover at Adaptec's invitation, on their way to
business meetings in California. Of the parties' 2001 discussion,
Calotychos asserts that it was a "very brief meeting" at which they
endeavored to resolve "whether [Miller] was willing to sign the Sales
Negotiator and Rep Agreement and, if so, Whether we could agree on
whether [Miller] should become a shareholder of iView." (Calotychos Aff.
¶ 15.) Calotychos also acknowledges that he visited New York again in
September 2001 to meet with Nikon representatives and in 2002 to attend
the MacWorld expo, where iView rented a booth.
Miller contends that this Court has personal jurisdiction
over Defendants pursuant to New York Civil Practice Law and Rules PCPLR")
§§ 302(a)(1) and 301. Defendants challenge the application of those
provisions to this case and assert that exercise of jurisdiction would
also offend the requirements of due process necessary to satisfy
constitutional standards. See International Shoe Co. v. Washington,
326 U.S. 310, 316 (1945); Asahi Metal Indus. Co., Ltd, v. Superior Court,
480 U.S. 102, 113 (1987).
At this stage of the litigation, "`prior to discovery, a plaintiff
challenged by a jurisdiction testing motion may defeat the motion by
pleading in good faith . . . 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, 199
(2d Cir. 1990) (internal citation omitted); Landoil Res. Corp. v.
Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1990);
Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.
1985). In reviewing a motion to dismiss, the court assumes that
plaintiff's factual allegations are true, construes pleadings and
affidavits in the light most ...