The opinion of the court was delivered by: Garaufis, District Judge
Plaintiff Starlift Logistics, Inc. d/b/a Speed of Sound ("Plaintiff" or "SOS") move for a preliminary injunction against defendants Paul Stacey ("Stacey") and Map Cargo International ("Map Cargo") (collectively "Defendants"). All three parties work on musical tour logistics around the country. Defendants move for dismissal of the complaint under Rule 12(b)(3) of the Federal Rules of Civil Procedure for improper venue. Stacey also moves for dismissal of the complaint under Rule 12(b)(2) for lack of personal jurisdiction. I held a two-day hearing on these matters at which substantial evidence was presented. I find that while this court has personal jurisdiction over both defendants, venue is not appropriate in the Eastern District of New York.
I also find that it is in the interests of justice to transfer this matter to a judicial district where venue is proper. This court will therefore hold this case open for thirty (30) days for the Plaintiff to identify a district where venue is proper.
In 2001, Stacey moved from California to New Jersey, where he worked as an operations manager at SOS until 2003. (Tr. Hearing dated Sept. 21, 2005 ("9/21 Tr.") 61; Tr. Hearing dated Sept. 22, 2005 ("9/22 Tr.") 142.) In August 2004, Stacey entered into a six-month employment agreement to be a salesman for SOS in California. (Pl. Amended Compl. 2; 9/21 Tr. 66.) That employment agreement included a non-solicitation provision.*fn1 After approximately six months, Stacey's employment was extended for an additional six month period. (Pl. Amended Compl. 3.) During the course of Stacey's employment with SOS as a salesman, at least 15 percent of SOS's work involved New York state in some way. (9/22 Tr. 175.) In July 2005, Stacey began working for Map Cargo in California. (Id.) Stacey has continued to work with a number of acts that had previously been customers of SOS, including Herbie Hancock, Slipknot, Yamaha, Rojan, and the Violent Femmes. (Id. at 4.) Stacey coordinated a delivery for Yamaha, and may have made other arrangements, through Map Cargo's New York office. (Id.) Stacey worked on some projects that involved shipments into or out of John F. Kennedy airport. (9/22 Tr. 173.) Furthermore, Stacey coordinated a pick-up of equipment for Rojan at the North Fork Theater in Westbury, New York. (Pl. Amended Compl. 4)
Plaintiff sues Defendants for the violation of the non-solicitation covenant in his employment contract. Defendants both currently reside in California. Map Cargo has an office on Long Island. Plaintiff resides in New Jersey.
Stacey has moved to dismiss the complaint for lack of personal jurisdiction. All parties agree that the court has personal jurisdiction over Map Cargo because Map Cargo has an office within the Eastern District of New York.
In a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that the court has jurisdiction over the defendant. Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001). Where the parties have not yet conducted discovery, the plaintiff may defeat such a 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, 197 (2d Cir. 1990)). However, before a court may enter a preliminary injunction against a litigant, personal jurisdiction over that party must be "clearly established." Weitzman v. Stein, 897 F.2d 653, 658-659 (2d Cir. 1990); Do the Hustle, LLC v. Rogovich, 03 Civ. 3870, 2003 U.S. Dist. LEXIS 10445 (S.D.N.Y. 2003) (finding that a preliminary injunction requires more than prima facie showing).
A court considering a motion to dismiss a complaint under Rule 12(b)(2) for want of personal jurisdiction must first apply the law of the state where the federal court sits to determine personal jurisdiction over a defendant. Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). Under Rule 4(k)(1)(A) of the Federal Rules of Civil Procedure, the service of a summons establishes personal jurisdiction over a defendant "who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located." Id. If jurisdiction is established, the court must then determine whether the exercise of jurisdiction under the relevant state law would violate the defendant's due process rights. Bank Brussels Lambert, 171 F.3d at 784.
The applicable portion of New York's long arm statute provides:
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his ...