775 F.Supp. 650 (S.D.N.Y. 1991), 89 Civ. 8127, ICC Primex Plastics Corp. v. LA/ES Laminati Estrusi Termoplastici S.P.A.

Docket Nº89 Civ. 8127 (JES).
Citation775 F.Supp. 650
Party NameICC PRIMEX PLASTICS CORP., Plaintiff, v. LA/ES LAMINATI ESTRUSI TERMOPLASTICI S.P.A., Co-Ex Corporation, and Cosimo Conterno, Defendants.
Case DateOctober 10, 1991
CourtUnited States District Courts, 2nd Circuit, United States District Courts. 2nd Circuit. Southern District of New York

Page 650

775 F.Supp. 650 (S.D.N.Y. 1991)

ICC PRIMEX PLASTICS CORP., Plaintiff,

v.

LA/ES LAMINATI ESTRUSI TERMOPLASTICI S.P.A., Co-Ex Corporation, and Cosimo Conterno, Defendants.

No. 89 Civ. 8127 (JES).

United States District Court, S.D. New York.

Oct. 10, 1991

Page 651

Bigham Englar Jones & Houston, New York City (Francis A. Montbach, Karin A. Schlosser), of counsel, for plaintiff.

Peter L. Costas, Hartford, Conn. (Peter L. Costas), of counsel, for defendants.

OPINION AND ORDER

SPRIZZO, District Judge:

Plaintiff ICC Primex Plastics Corp. ("Primex") brings this action against defendants LA/ES Laminati Estrusi Termoplastici S.P.A. ("LA/ES"), CO-EX Corporation ("CO-EX") and individual defendant Cosimo Conterno. The action stems from a failed joint venture allegedly entered into by Primex and LA/ES, and includes allegations that the defendants breached their obligations under a letter of intent to form the joint venture, misappropriated information provided to them by the plaintiff and used that information for their own purposes in derogation of a fiduciary duty, interfered with Primex's business opportunities, and breached fiduciary duties owed to the plaintiff. All defendants move to dismiss the action for lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2), or for a transfer to the District of Connecticut. 28 U.S.C. § 1404(a). The Court has held a hearing and considered all of the testimony and exhibits submitted by the parties and, for the reasons that follow, the motions to dismiss are granted. 1 The following constitutes

Page 652

the Court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

FACTS

LA/ES is an Italian Corporation engaged in the business of acetate sheet production for the optical industry. See Transcript of Hearing ("Tr.") at 43. Its main office is in Italy and it has no offices or sales personnel in the State of New York. See Tr. 44. LA/ES's sales representatives solicit business throughout the world and the United States, including the State of New York, primarily by mail and telephone from Italy. See Defendant's Response to Plaintiff's Interrogatories No. 9 ("Int.") (annexed to Affidavit of Karin Schlosser ("Schlosser Aff.") at Ex. 14). Those representatives have made sales calls upon customers in New York on occasion, and have attended some trade shows in New York. See Tr. 47; Int. No. 9. Moreover, in addition to the sales representatives located in Italy, LA/ES presently has a sales agent located in Connecticut, Roland Optical Co., which receives a commission on its sales. 2 See Tr. 47. LA/ES also has a number of customers in New York and received gross revenue of $404,130.00 from sales to New York customers between June 1, 1987 and August 1990. See Int. No. 56 & Schedule C.

Individual defendant Cosimo Conterno is an Italian citizen residing in Switzerland. See Tr. 43. He is the chief executive officer of both LA/ES and Estrusione Materie Plastiche, S.A. ("EMP"), a Swiss corporation which manufactures extrusion polycarbonate thin wall sheet. See id. Conterno does not maintain any offices or residences in New York, but he has travelled to New York and continues to travel to Connecticut from time to time for business reasons. See Tr. 44; Affidavit of Cosimo Conterno at ¶ 14 (July 31, 1990) ("Conterno Aff. I"); Int. No. 61-68.

In late 1987, Conterno and LA/ES entered into discussions with Primex regarding the possibility of forming a joint venture for the production and distribution in the United States of polycarbonate wall sheets, which are typically used in the construction of greenhouses. See Tr. 19-20, 44-47, 100-03. These discussions included trips by plaintiff's representatives Murray Aibinder and Paul Bertsch to Italy to meet with Conterno and inspect LA/ES' plants, see Tr. 45-46, 100, 136, and visits by Conterno to Primex's offices in Indiana and New Jersey. See Tr. 46; Conterno Aff. I at ¶ 4. In addition, LA/ES and Conterno furnished technical materials and other data to Primex. See Tr. 46-47, 133, 143-45.

These preliminary discussions resulted in the execution of a letter of intent on January 12, 1988. See Schlosser Aff. at Ex. 1. The letter of intent contemplated three stages leading to the formation of the joint venture: (1) the parties would explore the feasibility of the project, with Primex responsible for the investigation of the cost and feasibility of marketing, distribution, and manufacturing the product in the United States and LA/ES and Conterno responsible for negotiations with suppliers of resin, a raw material necessary for production; (2) the parties would form a corporation which would market in the United States polycarbonate sheets manufactured in Europe for six months; and (3) if the marketing experiment phase proved successful, the company would thereafter begin to manufacture as well as distribute the product in the United States. See Schlosser Aff. at Ex. 1; see Tr. 101-104. The evidence at the hearing established that the

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most critical prerequisite for the success of the joint venture was the success of Conterno's efforts to obtain a global contract for raw materials, such as the resin necessary to manufacture the product. See Tr. 76, 102-05, 120-22; Defendants' Memorandum of Law in Support of Motion to Dismiss at Ex. B (letter from John Farber to Cosimo Conterno (March 8, 1988)). However, although Conterno had discussions with some suppliers and visited one in May, 1988 in Michigan, he was not able to obtain such a contract. See Schlosser Aff. at Ex. 2 (letter from C. Conterno to M. Aibinder (Aug. 24, 1988)).

While Conterno was endeavoring to obtain the contract, Primex spoke to a number of sales representatives and requested that one of those firms, Polymark, Inc. ("Polymark") make a presentation to the joint venture partners. The principals of Polymark were David Bilhorn, Byron Roderick, and Leo Carter. A meeting was held at Primex's offices in New York on May 18, 1988, 3 the major purpose of which was to introduce...

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9 practice notes
  • 25 F.Supp.2d 192 (S.D.N.Y. 1998), 98 Civ. 2278, National Telephone Directory Consultants, Inc. v. Bellsouth Advertising & Pub. Corp.
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • 27 d2 Outubro d2 1998
    ...and speculation are insufficient to establish jurisdiction); ICC Primex Plastics Corp. v. LA/ES Laminati Estrusi Termoplastici, S.P.A., 775 F.Supp. 650, 656 (S.D.N.Y.1991); Barrett v. United States, 646 F.Supp. 1345, 1350 (S.D.N.Y.1986); Carte v. Parkoff, D.D.S., 152 A.D.2d 615, 543 N.Y.S.2......
  • 27 F.Supp.3d 517 (S.D.N.Y. 2014), 13 Civ. 7884 (AT), United States Commodity Futures Trading Commission v. Wilson
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • 26 d4 Junho d4 2014
    ...(1988), Inc., 463 F.Supp.2d 423, 432-33 (S.D.N.Y. 2006); ICC Primex Plastics Corp. v. LA/ES Laminati Estrusi Termo-Plastici S.P.A.., 775 F.Supp. 650, 655 (S.D.N.Y. 1991). Unlike the present case, which involves recurrent and purposeful bids on a contract traded on a New York exchange and cl......
  • 325 F.Supp.2d 176 (E.D.N.Y. 2004), 03-CV-772, PDK Labs, Inc. v. Proactive Labs, Inc.
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Court (Eastern District of New York)
    • 15 d4 Julho d4 2004
    ...is sufficient for finding jurisdiction under § 302(a)(3). See ICC Primex Plastics Corp. v. LA/ES Laminati Estrusi Termo-Plastici S.P.A., 775 F.Supp. 650 (S.D.N.Y.1991) (noting that threatened economic injury is sufficient under § 302(a)(3)) (citing Additionally, district courts in trademark......
  • Covanex, Inc. v. Duvvada, 120715 NYWDC, 14-CV-6050-FPG
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Court of Western District of New York
    • 7 d1 Dezembro d1 2015
    ...Buyline, Inc., 2 F.Supp.2d 420, 439 (S.D.N.Y. 1998); see also ICC Primex Plastics Corp. v. LA/ESLaminati Estrusi Thermoplastici S.P.A., 775 F.Supp. 650, 656 (S.D.N.Y. Here, Covanex has failed to adequately allege that it suffered injury in New York as a result of RAIT's tortious conduct. Th......
  • Request a trial to view additional results
9 cases
  • 25 F.Supp.2d 192 (S.D.N.Y. 1998), 98 Civ. 2278, National Telephone Directory Consultants, Inc. v. Bellsouth Advertising & Pub. Corp.
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • 27 d2 Outubro d2 1998
    ...and speculation are insufficient to establish jurisdiction); ICC Primex Plastics Corp. v. LA/ES Laminati Estrusi Termoplastici, S.P.A., 775 F.Supp. 650, 656 (S.D.N.Y.1991); Barrett v. United States, 646 F.Supp. 1345, 1350 (S.D.N.Y.1986); Carte v. Parkoff, D.D.S., 152 A.D.2d 615, 543 N.Y.S.2......
  • 27 F.Supp.3d 517 (S.D.N.Y. 2014), 13 Civ. 7884 (AT), United States Commodity Futures Trading Commission v. Wilson
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • 26 d4 Junho d4 2014
    ...(1988), Inc., 463 F.Supp.2d 423, 432-33 (S.D.N.Y. 2006); ICC Primex Plastics Corp. v. LA/ES Laminati Estrusi Termo-Plastici S.P.A.., 775 F.Supp. 650, 655 (S.D.N.Y. 1991). Unlike the present case, which involves recurrent and purposeful bids on a contract traded on a New York exchange and cl......
  • 325 F.Supp.2d 176 (E.D.N.Y. 2004), 03-CV-772, PDK Labs, Inc. v. Proactive Labs, Inc.
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Court (Eastern District of New York)
    • 15 d4 Julho d4 2004
    ...is sufficient for finding jurisdiction under § 302(a)(3). See ICC Primex Plastics Corp. v. LA/ES Laminati Estrusi Termo-Plastici S.P.A., 775 F.Supp. 650 (S.D.N.Y.1991) (noting that threatened economic injury is sufficient under § 302(a)(3)) (citing Additionally, district courts in trademark......
  • Covanex, Inc. v. Duvvada, 120715 NYWDC, 14-CV-6050-FPG
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Court of Western District of New York
    • 7 d1 Dezembro d1 2015
    ...Buyline, Inc., 2 F.Supp.2d 420, 439 (S.D.N.Y. 1998); see also ICC Primex Plastics Corp. v. LA/ESLaminati Estrusi Thermoplastici S.P.A., 775 F.Supp. 650, 656 (S.D.N.Y. Here, Covanex has failed to adequately allege that it suffered injury in New York as a result of RAIT's tortious conduct. Th......
  • Request a trial to view additional results