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October 6, 2005.

CANARAIL, INC. Defendant.

The opinion of the court was delivered by: HAROLD BAER JR., District Judge


Pro se Plaintiff brings this action in diversity against Defendant for breach of contract, unjust enrichment, and misappropriation of proprietary information. Defendant has moved to dismiss for lack of personal jurisdiction, lack of subject matter jurisdiction, and insufficiency of process pursuant to Fed.R.Civ.P. 12(b). For the following reasons, Defendant's Motion is DENIED.


  The facts alleged in the Complaint, which are assumed to be true for the purposes of this motion, are as follows. Plaintiff Benjamin L. Anderson ("Anderson") is a New York resident and the principal of Anderson Consulting Group LLC ("Anderson Consulting"), which is not a party to this action.*fn1 Defendant Canarail, Inc. ("Canarail") is a Canadian corporation with its place of business in Montreal, Province of Quebec, Canada. Canarail does not maintain any offices, bank accounts, or real property in New York, nor does it supply goods or services to anyone in this state. Canarail has contacts in New York with Anderson, who was retained by Canarail as a consultant. (Compl. Ex. A.)

  On July 15, 2002, the parties entered an agreement whereby Anderson Consulting would provide consulting services in connection with Canarail's advisory services to the Government of Uganda (the "Agreement"). This endeavor was to support the privatization of Uganda Railways Corporation. (Compl. Ex. A.) Defendant executed the Agreement in Montreal, Canada, and Plaintiff signed the Agreement in New York. (Tadgell Aff. ¶ 8.) According to the Agreement, Defendant agreed to compensate Anderson for his services in U.S. dollars and provide airfare for travel between New York and Uganda. (Compl. Ex. A.) Although the Agreement provides that "it will be governed by Canadian Law," it does not contain a forum selection clause. (Compl. Ex. A.)

  On April 14, 2005, Anderson filed the instant action against Canarail alleging breach of contract, unjust enrichment and misappropriation of proprietary information. On April 15, 2005, Anderson delivered the Summons and Complaint to the Clerk of Court for the Southern District of New York. (Dckt. 2.) The Clerk of Court sent a copy of the Summons and Complaint to Canarail at its Montreal offices via international registered mail, return receipt requested, and Defendant received the Summons and Complaint on April 26, 2005. (Tadgell Aff. ¶ 5.)


  Canarail contends this Court lacks personal and subject matter jurisdiction, and service of process was insufficient. On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b), when no discovery and no evidentiary hearing as to jurisdictional matters have been conducted, a plaintiff need only allege facts which constitute a prima facie showing of jurisdiction over the defendant (see Jazini v. Nissan Motor Co., 148 F3d. 181, 184 (2d Cir. 1998)), and the Court must construe the pleadings and affidavits in the light most favorable to the plaintiff (see CutCo Industries, Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986)).


  New York provides for personal jurisdiction over a corporation if (1) the corporation is "doing business" within New York (N.Y. Civ. Prac. L. & R. ("CPLR") § 301)) or (2) the non-domiciliary corporation's actions fall within the reach of New York's long-arm statute or some other jurisdiction-enlarging statute, and (3) the exercise of personal jurisdiction over the defendant comports with the Due Process Clause of the Fifth and Fourteenth Amendments. See 5-5-Star Mgmt. v. Rogers, 940 F.Supp. 512, 516 (E.D.N.Y. 1996).

  The New York long-arm statute, N.Y.C.P.L.R. § 302(a)(1), provides for personal jurisdiction in New York if an individual or corporation "transacts business within the state or contracts anywhere to supply goods or services in the state," and the suit arises out of the transaction. An entity is deemed to be "transacting business" in New York when it "purposefully avails [itself] of the privilege of conducting activities within [New York]." CutCo Industries, 806 F.2d at 365. Even a single transaction may, depending on the quality of the contract, be sufficient to invoke personal jurisdiction. PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997). To determine whether a defendant "transacted business" in New York, courts consider:
(1) whether the defendant has an ongoing contractual relationship with a New York corporation; (2) whether the contract was negotiated or executed in New York and whether, after executing a contract with a New York entity, the defendant visited New York for meetings devoted to the contractual relationship; (3) what choice of law clause (if any) is in the contract; and (4) whether the contract requires defendant to send notices and payments into New York, or subjects defendant to supervision by the plaintiff corporation in New York.
Agency Rent A Car Sys. v. Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir. 1996). No single factor is dispositive, and all are relevant to this analysis. Id.

  Under the totality of the circumstances concept applicable here, and taking the allegations as true as I must at this stage, Anderson has demonstrated sufficient connections between Canarail and New York for this Court to exercise jurisdiction over the Defendant in this matter.

  The parties contemplated an ongoing contractual relationship where a substantial amount of work was to be completed by Anderson in New York, even though his services would also be performed in Uganda. The Agreement states in pertinent part: "[f]or your work you will be paid in U.S. dollars $650 (six hundred and fifty) per day. In the field, a week is defined as 5 days of work. For work that might be required in the home office, a work-day is defined as 8 hours." (Compl. Ex. A.)

  Canarail argues that in New York, under a principal-agent relationship, an agent's actions in the forum state cannot be the basis for jurisdiction over his principal. See Merde v. Mile State Tech. Inc., 269 F. Supp. 2d 246, 254 (S.D.N.Y. 2003); see also Haar v. Armendaris, 31 N.Y.2d 1040, 342 N.Y.S.2d 70 (1973). However, this "merely removes from the jurisdictional calculus the acts of the agent committed on the foreign principal's behalf." Celton Man Trade, Inc. v. Utex S.A., No. 84 Civ. 8179, 1986 WL 6788, at *3 (S.D.N.Y. June 12, 1986). Anderson's jurisdictional claims are not based upon his actions as an agent of Canarail. Rather, they focus on Canarail's actions and contacts with New York. Anderson also claims, and Canarail does not dispute, that Anderson negotiated and executed the contract in New York. (Pl. Memo. ¶ 11.) While not dispositive, this may be considered a factor in the Court's analysis. Stein v. Microelectronic Packaging, Inc., No. 98 Civ. 8952, 1999 WL 540443, at *6 (S.D.N.Y. July 26, 1999). Canarail must have known that Anderson was in New York during the negotiations and execution of the Agreement. As such Canarail should have ...

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