Apc Commodity Corp. v. Ram Dis Ticaret A.S.

• Citation: 965 F.Supp. 461
• Decision Date: 19 May 1997
• Docket Number: No. 96 Civil 9162 (JGK).,96 Civil 9162 (JGK).
• Parties: APC COMMODITY CORPORATION d/b/a Sunrise Commodity, Plaintiff, v. RAM DIS TICARET A.S., Defendant.
• Court: U.S. District Court — Southern District of New York

965 F.Supp. 461

APC COMMODITY CORPORATION d/b/a Sunrise Commodity, Plaintiff, v. RAM DIS TICARET A.S., Defendant.

No. 96 Civil 9162 (JGK).

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

May 19, 1997.

COPYRIGHT MATERIAL OMITTED

Peter J. Pizzi, Connell, Foley & Geiser, Roseland, NJ, for Plaintiff.

John Reichman, Gold & Wachtel, New York City, for Defendant.

KOELTL, District Judge:

This is an action for damages arising out of a contract under which the defendant, Ram Dis Ticaret A.S., agreed to ship containers of dried apricots from Turkey to the plaintiff, APC Commodity Corporation d/b/a Sunrise Commodity, in the United States. The plaintiff alleges that the defendant breached and repudiated its contract with the plaintiff by refusing to ship certain containers called for by the contract.

The plaintiff initially filed its complaint in the New York State Supreme Court, New York County. On November 6, 1996, the plaintiff sought and obtained from the New York State court an ex parte order of attachment. This order of attachment was levied on $104,306.81 held by the plaintiff's New York bank as amounts receivable for the defendant. On December 5, 1996, the defendant removed this action to this Court. Thereafter the plaintiff filed a complaint in this Court. The defendant now moves to dismiss the complaint for lack of personal jurisdiction and to vacate the state court's order of attachment. The plaintiff cross-moves to confirm the order of attachment.

I.

The plaintiff is a Delaware corporation with its principal place of business in Englewood Cliffs, New Jersey. (Compl. I 1.) The plaintiff is in the business of importing food products for sale and distribution in the United States. The defendant is a corporation with its principal place of business in Istanbul, Turkey. (Compl. ¶ 2.) The defendant is in the business of selling and shipping food products from Istanbul and other ports of origin to the United States. The defendant does not have an office in the State of New York. (Erol Certification ¶ 5.)

The plaintiff alleges that beginning in May 1996, the defendant agreed to sell and the plaintiff agreed to buy a total of twenty-three container loads of dried apricots to be shipped from Istanbul, Turkey, to the Port of New York and New Jersey. (Compl. ¶ 3.) On May 23, 1996, the plaintiff sent to the defendant a facsimile confirming the transaction and the plaintiff's agreement to buy sixteen containers from the defendant as agents for Sunsweet, and ten containers for itself. (Compl. ¶ 4 & Ex. B; Dicker Aff. ¶ 9 & Ex. A.) On May 24, 1996, the defendant sent to the plaintiff a facsimile clarifying some of the terms of the transaction. (Compl. ¶ 4 & Ex. C; Dicker Aff. ¶ 10 & Ex. B.)

The plaintiff alleges that on or about October 16, 1996, the defendant shipped two containers of dried apricots to the plaintiff from Istanbul. (Dicker Supplemental Aff. ¶ 9.) Although all the correspondence referred to New York as the port of discharge, (Dicker Aff. Ex. A; Dicker Supplemental Aff. Ex. L-O), the containers were shipped to Port Elizabeth, New Jersey. (Erol Certification ¶ 9.) On October 24, 1996, the defendant's bank in Istanbul, The Chase Manhattan Bank, N.A. ("ChaseIstanbul"), sent to the plaintiff's New York bank, Rabobank Nederland ("Rabobank"), the defendant's invoices, bills of lading, certificates of origin, and phytosanitary certificates for the two containers. (Dicker Supplemental Aff. ¶ 10 & Exs. P, Q.) In exchange for the documents, Chase-Istanbul instructed Rabobank to draw the invoice amount from the plaintiff's Rabobank account and to transfer it to an account at Chase Manhattan Bank in New York ("Chase-New York").

The plaintiff alleges that the defendant shipped only two of the ten containers intended for the plaintiff and three of the remaining thirteen containers. (Compl. ¶ 7.) The plaintiff alleges that as a result of the defendant's failure to ship the remaining containers, the plaintiff has been forced to purchase replacement merchandise in order to meet its supply obligations to its customers and has incurred damages of about $348,000. (Dicker Supplemental Aff. ¶ 15.) On November 6, 1996, the plaintiff sought and obtained from the New York Supreme Court, New York County, an ex parte order of attachment that was levied on $104,306.81 held by Rabobank, which represents amounts receivable by the defendant for two containers shipped by the defendant to the plaintiff.

II.

The defendant moves to dismiss the complaint under Fed.R.Civ.P. 12(b)(2) on the basis that this Court does not have personal jurisdiction over the defendant. A district court has "broad discretion" in deciding how to proceed with a motion to dismiss for lack of personal jurisdiction, including conducting an evidentiary hearing. See CutCo Indus. v. Naughton, 806 F.2d 361, 364 (2d Cir.1986); International Customs Assocs., Inc. v. Ford Motor Co., 893 F.Supp. 1251, 1258-59 (S.D.N.Y.1995). Because there has not been an evidentiary hearing in this case, the plaintiff need only make a prima facie showing of personal jurisdiction over the defendant, and the pleadings and affidavits are to be interpreted in the light most favorable to the plaintiff. See A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993); Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985); CT Chem. (USA) Inc. v. Horizons Int'l, Inc., 106 F.R.D. 518, 519 (S.D.N.Y.1985).

A court sitting in diversity applies the law of the forum state in determining whether it has personal jurisdiction over a defendant. See CutCo, 806 F.2d at 365; Hoffritz, 763 F.2d at 57; International Customs Assocs., 893 F.Supp. at 1259. The plaintiff argues that this Court has personal jurisdiction pursuant to the New York long-arm statute. See N.Y. C.P.L.R. § 302(a)(1).¹ N.Y. C.P.L.R. § 302(a)(1) provides in relevant part:

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 executor or administrator, who in person or through an agent ... transacts any business within the state or contracts anywhere to supply goods or services in the state....

N.Y. C.P.L.R. § 302(a)(1). Under this provision, "the existence of some articulable nexus between the business transacted and the cause of action sued upon" is essential. McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 645, 419 N.E.2d 321 (1981); see also CutCo, 806 F.2d at 365.

Under the first prong of § 302(a)(1) jurisdiction, transacting business "has been interpreted to require a certain quality, rather than a specific quantity, of contacts with New York." Broad Horizons, Inc. v. Central Crude Ltd., No. 94 Civ. 1593, 1994 WL 623075, at *2 (S.D.N.Y. Nov. 9, 1994) (citation omitted); see also International Customs Assocs., 893 F.Supp. at 1259; Cavalier Label Co., Inc. v. Polytam, Ltd., 687 F.Supp. 872, 876 (S.D.N.Y.1988). "A nondomiciliary transacts business under CPLR § 302(a)(1) when he purposefully avails himself of the privilege of conducting activities within New York, thus invoking the benefits and protections of its laws." CutCo, 806 F.2d at 365 (internal quotations and citations omitted). "Whether or not the contacts are of the appropriate nature must be determined by an analysis of the totality of the circumstances." United States Theatre Corp. v. Gunwyn/Lansburgh Ltd. Partnership, 825 F.Supp. 594, 596 (S.D.N.Y.1993) (citations omitted)

Under the second prong of § 302(a)(1) jurisdiction, "New York courts may exercise jurisdiction over a nondomiciliary who contracts outside this State to supply goods or services in New York so long as the cause of action arose out of that contract." Anderson Dev. Corp. v. Isoreg Corp., 154 A.D.2d 859, 860, 546 N.Y.S.2d 720, 721 (3d Dep't 1989); see also Cavalier, 687 F.Supp. at 877. Jurisdiction may exist even when the goods are never shipped or supplied to New York. See Laumann Mfg. Corp. v. Castings USA Inc., 913 F.Supp. 712, 716 (E.D.N.Y.1996); En Vogue v. UK Optical Ltd., 843 F.Supp. 838, 843 (E.D.N.Y.1994); Alan Lupton Assocs., Inc. v. Northeast Plastics, Inc., 105 A.D.2d 3, 6, 482 N.Y.S.2d 647, 650 (4th Dep't 1984). "The key issue is that the nondomiciliary contracted and intended to send goods to New York." Laumann, 913 F.Supp. at 717.

In this case, the plaintiff has made a prima facie showing that this Court has personal jurisdiction over the defendant under both prongs of N.Y. C.P.L.R. § 302(a)(1). First, the defendant transacted business in New York, and the plaintiff's claim against the defendant arises out of that business activity. See CutCo, 806 F.2d at 365; International Customs Assocs., 893 F.Supp. at 1259. The plaintiff alleges that its president met with the defendant's General Manager, Metin Gurbilek, three times between December 1995 and July 1996 and discussed the specifics of the pending transactions. (Dicker Supplemental Aff. ¶¶ 4-5.) Consistent with the usual course of dealing between the defendant and the plaintiff, the defendant caused Chase-Istanbul to send by international courier to Rabobank in New York documents of title and certificates of origin and sanitation for the two containers. (Dicker Aff. ¶ 4; Dicker Supplemental Aff. ¶¶ 6, 10-11 & Exs. P, Q.) Based upon the physical delivery of these documents of title to New York, Chase-Istanbul instructed Rabobank to wire to an account at Chase-New York the money owed for the merchandise. The defendant purposefully availed itself of the privilege of conducting activities in New York that were critical to the transactions at issue in this case. These activities are sufficient for personal jurisdiction.

Second, the plaintiff has demonstrated that its claim arises out of a contract to supply goods to New York. The plaintiff's May 23, 1996 facsimile to the defendant that confirmed the parties' agreement provided for "C & F NY," (Dicker Aff. Ex. A), the defendant's invoices sent to...