New World Capital v. Poole Truck Line, Inc.

• Decision Date: 20 June 1985
• Docket Number: No. 84 Civ. 5432 (GLG).,84 Civ. 5432 (GLG).
• Citation: 612 F. Supp. 166
• Parties: NEW WORLD CAPITAL CORPORATION, Plaintiff, v. POOLE TRUCK LINE, INC. and Walter L. Poole, Defendants.
• Court: U.S. District Court — Southern District of New York

612 F. Supp. 166

NEW WORLD CAPITAL CORPORATION, Plaintiff, v. POOLE TRUCK LINE, INC. and Walter L. Poole, Defendants.

No. 84 Civ. 5432 (GLG).

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

June 20, 1985.

COPYRIGHT MATERIAL OMITTED

Reaves & Yates, New York City, for plaintiff; Ray L. LeFlore, James A. Reaves, New York City, of counsel.

Friedman & Gass, P.C., New York City, for defendants; Arthur S. Friedman, Laurie P. Josephs, New York City, and Richard A. Ball, Jr., Ball, Ball, Duke & Matthews, P.A., Montgomery, Ala., of counsel.

OPINION

GOETTEL, District Judge:

The plaintiff, New World Capital Corporation ("New World"), is a Delaware corporation with its principal place of business in New York. It specializes in locating companies that wish to be acquired and matching them with companies seeking acquisitions.

This action arises out of a written agreement dated August 23, 1979, between New World and defendant Poole Truck Line, Inc. ("Poole Truck"), an Alabama corporation with its principal place of business in Evergreen, Alabama. The agreement provided that New World would attempt to locate a purchaser for Poole Truck. In return, Poole Truck would pay New World a "finder's fee" if New World introduced Poole Truck to its eventual purchaser.

On or about June 9, 1980, New World introduced IU International Corporation ("IU") to Poole Truck as a potential buyer. IU initially advised New World that it was not interested in the acquisition. Subsequently, unbeknownst to New World, IU and Poole Truck entered into negotiations. On October 6, 1983, the Wall Street Journal reported that IU had agreed to acquire Poole Truck. On or about February 2, 1984, the sale was completed. Poole Truck refused to pay New World its "finder's fee."

On July 26, 1984, New World commenced this action against Poole Truck and Walter Poole, Poole Truck's president and the former owner of 50% of its stock. New World asserted a claim against Poole Truck for breach of contract and against Walter Poole for tortious interference with the Poole Truck/New World agreement. Though this factual scenario may evoke some sympathy for the plaintiff, the merits of the dispute are not before the Court.

Before us are the defendants' motions pursuant to Fed.R.Civ.P. 12(b) to dismiss both claims for lack of personal jurisdiction. Because the parties rely on numerous affidavits and exhibits outside of the pleadings, the Court will treat this as a motion for summary judgment. See Fed.R. Civ.P. 12(b)(6). Even when viewed in a light most favorable to the plaintiff, the facts do not support the exercise of personal jurisdiction over either defendant.¹ The defendants' motions are, therefore, granted.

I. Jurisdictional Facts

The pertinent jurisdictional facts are summarized below. Poole Truck is an interstate trucking concern that hauls freight interstate under the authority of the Interstate Commerce Commission ("ICC"). Poole Truck has intrastate authority to haul freight in only two states, Alabama and Mississippi.² Alabama is Poole Truck's state of incorporation and principal place of business. Poole Truck is not licensed to do business in New York and has no registered agent for service of process under the laws of New York.³ It has never employed a freight broker in this state. It has no office, warehouse, terminal, or other real property in this state and does not employ an agent to solicit business in New York. It has no New York telephone number, employs no persons in New York, maintains no New York bank account, and does not advertise in New York.

Poole Truck's primary contact with New York is its operation of interstate routes, one way, into or out of New York. Poole Truck's drivers pick up and deliver goods to and from New York on a daily basis. Between January 1, 1983, and September 30, 1984 (a random but illustrative time period), Poole Truck invoiced its customers a total of $9.6 million for over 300 million pounds of goods hauled into and out of New York. During that period, Poole Truck's New York activities never exceeded 1.5% of its total business activities as measured by miles traveled.⁴ Poole Truck has no authority to haul goods under contract from any New York carrier. The ICC has permitted Poole Truck to operate as a contract carrier for the James River Corporation, a Virginia corporation for whom Poole Truck does some hauling into and out of New York.

During the four years prior to the commencement of this action, Walter Poole made three trips to New York to solicit hauling. Robert E. Tate, Poole Truck's former executive vice-president, made five such trips. Poole Truck made no other efforts to solicit business from New York shippers. Poole Truck maintains a mailing list that includes the addresses of New York shippers and shipping consultants. Those on the list receive Poole Truck's current tariff quotations.⁵ Poole Truck does not otherwise solicit the business of those on the list. Poole Truck's drivers and terminal operators frequently telephone those receiving freight in New York to arrange for someone to accept delivery. Poole Truck also has a WATS telephone line over which it can be contacted from any point in the country including New York.

Prior to December 1978, R. Keating Hagmann, an officer at United States Trust Company, a New York bank, solicited Poole Truck's banking business. Poole Truck maintained a banking relationship with United States Trust from 1979 to 1982. During that time, the bank financed Poole Truck's equipment purchases. Although, on one occasion, Hagmann visited Poole Truck in Alabama to solicit new business, no agent or employee of Poole Truck ever traveled to New York on banking business.

In a 1979 telephone conversation with Walter Poole, Hagmann stated that he knew of a broker who had a prospect to purchase Poole Truck. Hagmann then forwarded a letter to Walter Poole containing a proposed letter agreement between Poole Truck and New World. The August 23, 1979 letter agreement was prepared from that form and signed and executed by Walter Poole and Robert Tate in Alabama. Poole then mailed the letter to New World in New York for execution. Between August 1979 and August 1983, New World introduced Poole Truck to more than thirty potential purchasers. Typically, New World would telephone Poole Truck, inform it that it had located a potential purchaser, and request Poole Truck's authorization to make an introduction. New World confirmed these "preclearance telephone calls" by letter. New World followed this procedure when it introduced Poole Truck to IU in June 1980.

In August 1981, Walter Poole traveled to New York and met for several hours with Randon Pavelic, an officer of New World, and members of a Dutch group whom New World had interested in purchasing Poole Truck. Walter Poole made another trip to New York in the same month to meet with another potential purchaser of Poole Truck, Mark Kaufman. New World did not introduce Poole Truck to Kaufman. Finally, Randon Pavelic asserts that he met with Walter Poole in New York City during a trip that Poole made to New Jersey in October 1982.⁶

II. Discussion

A federal court sitting in a diversity action must apply the jurisdictional statute of the state in which it sits. Arrowsmith v. United Press International, 320 F.2d 219, 223 (2d Cir.1963). The plaintiff asserts that Sections 301 and 302 of the N.Y. Civ.Prac.Law, N.Y.Civ.Prac.Law §§ 301, 302 (McKinney 1972) ("CPLR"), provide a basis for the exercise of jurisdiction over Poole Truck. According to the plaintiff, Walter Poole is subject to the Court's jurisdiction under Section 302. The Court finds that neither section supports the assertion of jurisdiction over either Poole Truck or Walter Poole.

A. Poole Truck

1. CPLR § 301: Doing Business.

CPLR § 301 vests the New York courts with the personal jurisdiction that they might have exercised prior to the section's enactment. "A non-resident defendant ... subjects itself to the personal jurisdiction of a New York court under CPLR § 301 ... if it does business in this State." Pneuma-Flo Systems, Inc. v. Universal Machinery Corp., 454 F.Supp. 858, 862 (S.D.N.Y.1978). "The test, though not `precise' is a `simple pragmatic one': is the aggregate of the corporation's activities in the State such that it may be said to be `present' in the State `not occasionally or casually, but with a fair measure of permanence and continuity....?" Laufer v. Ostrow, 55 N.Y.2d 305, 449 N.Y.S.2d 456, 458, 434 N.E.2d 692 (1982) (citations omitted). Although "the mysteries of corporate presence are no longer determinative of issues of personal jurisdiction over corporations" under the due process clause, Scanapico v. Richmond, Fredericksburg & Potomac Railroad Co., 439 F.2d 17, 19 (2d Cir.1970) (en banc), "the classic `presence test' is still followed in New York under § 301, even though, constitutionally, the test may be unnecessarily restrictive of state jurisdictional power." J. McLaughlin Practice Commentaries, N.Y.Civ.Prac.Law § 301, C301:2 (McKinney 1972); accord Laufer v. Ostrow, supra, 449 N.Y.S.2d at 458, 434 N.E.2d 692.

Poole Truck exhibits none of the classic indicia of doing business in New York. It is not licensed to conduct business in the state. It maintains no local office or bank accounts,⁷ possesses no New York property, and does not have a local telephone number. See Pneuma-Flo Systems, Inc. v. Universal Machinery Corp., supra, 454 F.Supp. at 861 (listing classic indicia); Masonite Corp. v. Hellenic Lines Ltd., 412 F.Supp. 434, 438 (S.D.N.Y.1976) (same). Poole Truck's hauling of freight into, out of, and through New York does not suffice to warrant a finding that Poole Truck is present and doing business in this state. See Glacier Refrigeration Service, Inc. v. American Transportation, Inc., 467 F.Supp. 1104, 1106 (E.D.N.Y.1979) (Defendant who engaged in interstate delivery of small packages in New York and had neither a license to do business nor a...