The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff commenced this action in the Supreme Court of the State of New York, Suffolk County on September 28, 2006. Defendants removed the action to this Court on November 5, 2006. Defendants now move to dismiss the action as against MAAX, Inc., for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), or in the alternative, for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), and move to dismiss plaintiff's third, fourth and fifth causes of action against C.E. Cabinets, Ltd. for failure to state a claim. For the reasons set forth below, defendants' motion is granted in part and denied in part.
The following facts are either uncontested at this juncture or are derived from plaintiff's pleadings and affidavits in opposition to defendants' motion to dismiss, and accepted as true for purposes of this motion. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 56 (2d Cir. 1985); see also DiFolco v. MSNBC Cable L.L.C., No. 06-CV-4728 (LAP), 2007 U.S. Dist. LEXIS 23440, at *7 (S.D.N.Y. March 30, 2007).
MAAX Canada, the successor to MAAX, Inc. (hereinafter referred to as "MAAX"), the defendant named in this action, is a Canadian corporation with its principal place of business in Montreal, Quebec. (Aubin Aff. ¶ 3.) MAAX manufactures and sells bathroom accessories such as acrylic bathtubs and showers to customers in New York and internationally. (Id.) However, MAAX does not own or maintain any offices or property in New York. (Aubin Aff. ¶ 5.) MAAX maintains one bank account in New York with the New York branch of the National Bank of Canada, which is used exclusively to accept payments from MAAX's United States customers. (Id.) MAAX also maintains six other bank accounts in Canada with National Bank of Canada and the Royal Bank of Canada. (Id.) Funds in the New York account are automatically transferred to MAAX's primary account in Canada with the National Bank of Canada. (Id.) MAAX does not have any employees that work in New York. (Id.)
In January 1996, Valli Associates ("Valli") entered in an agreement (the "Agreement") with defendant C.E. Cabinets, Ltd. ("CE") which provided that Valli would be the exclusive sales representative for CE in connection with "kitchen cabinets and vanity" manufactured by CE for the territory of New York State, among others. (Compl. ¶ 7; Valli Aff. ¶ 5.) Valli is a New York Corporation with its principal place of business in Hauppauge, New York. (Compl. ¶ 1.) Under the Agreement, Valli was to receive a commission "deemed earned by Agent upon acceptance or delivery of the order by Principal, whichever occurs first." (Valli Aff. ¶ 6; Compl. Ex. A.) The Agreement contains a New York choice-of-law clause which provides that:
The term of this agency shall be one (1) year from the date thereof, renewable from year to year. This agreement shall continue in full force and effect until the date ("Termination Date") set forth in a notice given by one party to the other indicating such parties election to terminate this Agreement, which termination date shall be at least ninety (90) days after the date notice of such election is given. Alternatively, this Agreement may be terminated at any time by mutual written Agreement between both parties.
In February 1999, MAAX purchased all of the shares of CE. (Aubin Aff. ¶ 7.) After MAAX purchased all of the shares of CE, in February 1999, the Agreement was amended so that in order for defendant to terminate the Agreement, Valli was required to be given one year's written notice provided Valli's annual sales exceeded seven million dollars. (Vall Aff. ¶ 11; Compl. Ex. A.)
According to the complaint, the 1996 Agreement was renewed each year and remains binding between Valli and all defendants.*fn1 (Compl. ¶ 11.) Plaintiff brought this action as a result of the defendants alleged non-compliance with the Agreement. It is plaintiff's position that MAAX assumed the Agreement between Valli and CE. According to plaintiff, in September 2006, MAAX then attempted to terminate the Agreement effective immediately. (Valli Aff. ¶ 12.) According to Valli, this termination was not in compliance with the Agreement and, thus, the Agreement remains in full force.*fn2 (Valli Aff. ¶ 12.)
Defendants argue that this Court lacks jurisdiction over defendant MAAX and move for dismissal of MAAX under Fed. R. Civ. P. 12(b)(2). On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). However, prior to discovery, the plaintiff "need only make a prima facie showing of jurisdiction through its own affidavits and supporting materials to defeat the motion." Welinsky v. Resort of the World D.N.V., 839 F.2d 928, 930 (2d Cir. 1988) (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)). Furthermore, in considering a Rule 12(b)(2) motion, the pleadings and affidavits are to be construed in the light most favorable to plaintiff, the non-moving party, and all doubts are to be resolved in plaintiff's favor.*fn3 DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 85 (2d Cir. 2001).
This case is before this Court pursuant to diversity jurisdiction. Accordingly, the Court must determine whether New York law permits the Court to exercise personal jurisdiction over defendant MAAX. See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 124 (2d Cir. 2002). The Court must therefore consider (1) whether New York law would confer jurisdiction by New York courts over defendant MAAX and (2) whether the ...