Rohrer v. Iriss, Inc. et al

Filing 63

ORDER denying 29 Motion for Summary Judgment. Oral argument on the non-jurisdictional issues set forth in Docket ## 23, 29 and 40 will be held 8/19/2011 at 10:30 a.m. Signed by Hon. Jonathan W. Feldman on 8/9/2011. (RJO)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TIMOTHY M. ROHRER,
DECISION AND ORDER
09-CV-6587

Plaintiff(s),
v.
IRISS, INC. and MARTIN ROBINSON,
Defendant(s).

Preliminary Statement
In

this

diversity

action

plaintiff

Timothy

M.

Rohrer

(hereinafter “Rohrer” or plaintiff) has sued his former employer
defendant IRISS, Inc. (hereinafter “IRISS” or defendant) and Martin
Robinson (hereinafter “Robinson”) for various claims arising out of
his employment with IRISS.

Although several motions have been

filed, this Decision and Order is limited to the issue of whether
the Court has personal jurisdiction over IRISS and Robinson.
(Docket # 29).

Pursuant to 28 U.S.C. § 636(c), the parties have

consented to the jurisdiction of this Court.

Based on the current

record, and for the reasons that follow, the defendants’ motion to
dismiss the complaint for lack of personal jurisdiction is denied.

Relevant Facts
IRISS is a manufacturer of infrared windows and is based in
Bradenton, Florida. On October 4, 2007, plaintiff was offered
employment by IRISS as Director of Sales and Marketing.

See

Affidavit of Timothy M. Rohrer (hereinafter “Rohrer Aff.”) (Docket

# 24) at ¶ 4.
were

The negotiations leading up to the employment offer

conducted

by

Rohrer

and

defendant

Martin

President and Chief Executive Officer of IRISS.

Robinson,

the

Pursuant to the

October 4, 2007 offer letter presented to plaintiff by Robinson,
IRISS

designated

Rohrer’s

“normal

place

of

work”

to

be

his

residence in Rochester, New York. See October 4, 2007 offer letter
attached as Exhibit “B” to Rohrer Aff.

Plaintiff accepted IRISS’s

offer and began working for IRISS on October 8, 2007.
Aff. at ¶ 9.

See Rohrer

His starting salary was $70,000 and was subject to

New York State taxes and withholdings.
Rohrer contends that sufficient facts exist to find that the
Court has personal jurisdiction over the defendants.

For example,

Rohrer avers that during his employment with IRISS, he routinely
represented to others doing business with IRISS that his residence
was a New York branch office of IRISS.

See Response Affidavit of

Timothy M. Rohrer (Docket # 38) at ¶ 6.
conducted

official business

on

behalf

Rohrer avers that he

of IRISS

in

New

York,

including delivering IRISS products to a distributor in New York
and signing contracts as a corporate representative on behalf of
IRISS in New York.

Id. at ¶¶ 7-8.

IRISS shipped products to

Rohrer at his residence office in New York.

Id. at ¶ 10.

Rohrer

maintained regular contact with his employer in Florida by use of
email, telephone and teleconferencing.

Id. at ¶ 12.

Rohrer avers

that when he bought products for IRISS he would either pay for them

2

himself and be reimbursed by IRISS, use Robinson’s credit card or
have the bill sent directly to IRISS’s main office in Florida.

Id.

at ¶ 9.
IRISS

and

Robinson

argue

that

IRISS’s

limited

business

presence in New York is insufficient for personal jurisdiction.
Robinson argues that IRISS never maintained an office in New York
and that Rohrer’s residence was never considered by IRISS to be a
branch office.

According to Robinson, IRISS has no bank accounts

in New York, does not own or lease property in New York, has no
telephone listing in New York and “has never done any business
within the State of New York.”

See Response Affidavit of Martin

Robinson annexed to Docket # 31 at ¶¶ 15-20.1

Discussion
It

is

well

settled

that

plaintiff

bears

the

burden

of

establishing jurisdiction by a preponderance of the evidence.
Hoffritz for Cutlery Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.
1985).

Absent a full evidentiary hearing,2 plaintiff need only

make a prima facie showing that jurisdiction exits.

Moreover,

“[i]n the absence of an evidentiary hearing on the jurisdictional
allegations, or a trial on the merits, all pleadings and affidavits

1

Although titled as an Affidavit, Robinson’s statement is not
notarized or witnessed.
2

None of the parties here have requested an evidentiary
hearing on the jurisdictional issue.
3

are construed in the light most favorable to plaintiff, and where
doubts exist, they are resolved in the plaintiff’s favor.”

Id.

Where, as here, plaintiff’s complaint is grounded in diversity
jurisdiction, personal jurisdiction is determined under New York
law.

Agency Rent A Car Sys., Inc., v. Grand Rent A Car Corp., 98

F.3d 25, 29 (1996).
New York’s Long-Arm Jurisdiction Statute: In deciding whether
long-arm jurisdiction exists, the court must apply a two-step
analysis. First, the court must look to the forum State's long-arm
statute and determine whether the statute reaches the foreign
corporation.

If

the

long-arm

statute

authorizes

personal

jurisdiction over a defendant, the court must then determine
whether the exercise of such jurisdiction “comports with federal
due

process.”

Bank

Brussels

Lambert

v.

Fiddler

Gonzalez

&

Rodriguez, 305 F.3d 120, 127 (2d Cir. 2002).
Pursuant to the New York long-arm statute, there are two ways
that a New York court can exercise personal jurisdiction over a
non-resident

defendant:

general

jurisdiction

pursuant

to

N.Y.

C.P.L.R. § 301 or specific jurisdiction pursuant to N.Y. C.P.L.R.
§ 302. Here, plaintiff argues that the Court has jurisdiction over
the defendants pursuant to both New York’s general jurisdiction
statute and New York’s specific jurisdiction statute.

The Court

need not determine whether general jurisdiction over the defendants
exists based on CPLR § 301 because I find that the specific

4

“transacts any business” standard set forth in § 302(a)(1) has been
satisfied.3
“To establish personal jurisdiction under section 302(a)(1),
two

requirements

must

be

met:

(1)

The

defendant

must

have

transacted business within the state; and (2) the claim asserted
must arise from that business activity.” Sole Resort, S.A. de C.V.
v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d Cir. 2006).
“No single event or contact connecting defendant to the forum state
need be demonstrated; rather, the totality of all defendant's
contacts with the forum state must indicate that the exercise of
jurisdiction would be proper.” CutCo Indus., Inc. v. Naughton, 806
F.2d 361, 365 (2d Cir. 1986).4

Construing the facts in the light

3

The Second Circuit has instructed that “[t]he showing
necessary for a finding that defendant ‘transacted business’ and is
suable on a cause of action arising from that transaction is
considerably less than that needed to establish defendant's ‘doing
business,’ which renders the defendant subject to suit on even an
unrelated cause of action.” Hoffritz for Cutlery Inc. v. Amajac,
Ltd., 763 F.2d 55, 58 (2d Cir. 1985).
4

The Second Circuit summarized several factors that the Court
may consider in deciding whether a defendant has transacted
business in New York within the meaning of CPLR § 302(a)(1):
The question of whether an out-of-state defendant
transacts business in New York is determined by
considering a variety of factors, including: (i) whether
the defendant has an on-going contractual relationship
with a New York corporation, (ii) whether the contract
was negotiated or executed in New York, and whether,
after executing a contract with a New York business, the
defendant has visited New York for the purpose of meeting
with parties to the contract regarding the relationship,
(iii) what the choice-of-law clause is in any such
contract, and (iv) whether the contract requires
5

most favorable to plaintiff, I find that Rohrer has satisfied both
prongs needed for jurisdiction under § 302(a)(1).
As to the first prong, defendants hired plaintiff as their
Director of Sales and Marketing.

Plaintiff’s employment contract

and compensation was negotiated while plaintiff was in New York.
Plaintiff executed his employment contract with defendants from his
New York office and by agreement with defendants was permitted to
designate his residence in New York as his place of employment.
Plaintiff was paid by defendants in New York, was subject to New
York withholdings and paid New York State income taxes on wages
received from IRISS.

Further, from his New York office plaintiff

negotiated and executed contracts on behalf of defendants with
customers and suppliers.

Plaintiff entertained and solicited

clients in New York and developed New York-based manufacturer
relationships for defendants from his New York office.

Defendants

not only shipped products to plaintiff at his New York office but
permitted plaintiff to pay for products from various New York
machine shops on behalf of IRISS with his personal credit card and

[defendant] to send notices and payments into the forum
state or subjects them to supervision by the corporation
in the forum state. Although all are relevant, no one
factor is dispositive. Other factors may also be
considered, and the ultimate determination is based on
the totality of the circumstances.
Agency Rent A Car Sys., Inc. v. Grand Rent A Car Corp., 98 F.3d 25,
29 (2d Cir. 1996)(citations omitted).
6

then be reimbursed from funds belonging to defendants.

IRISS

concedes that one of its largest customers – the individual to whom
IRISS sells the most products – is in New York and was serviced by
plaintiff from his New York office.

In performing all of the

aforementioned activities, there is no dispute that Rohrer was
acting pursuant to his responsibilities as Director of Sales and
Marketing for IRISS.
Based on the totality of the circumstances present here, the
Court finds that plaintiff’s business activities in New York as an
agent for defendant IRISS established a New York “presence” for
IRISS such that IRISS was “transacting business” under the New York
long-arm statute. As to Martin Robinson, it is true that corporate
officers are not subject to jurisdiction simply because long-arm
jurisdiction can be obtained over the corporation itself. However,
where the corporate transactions at issue were performed with the
knowledge and consent of the officer and the officer exercised
control over the corporation in the transaction, New York’s longarm statute confers jurisdiction over the non-resident corporate
officer. See Retail Software Servs., Inc. v. Lashlee, 854 F.2d 18,
22 (2d Cir. 1988)(Just as the actions of a corporate agent may be
sufficient

to

confer

jurisdiction

on

the

corporation,

“a

corporation can act as an agent for an individual for the purposes
of § 302(a)(1).”).

Here, all of the corporate transactions at

issue, including the negotiation of the employment contract, were

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performed and controlled by Robinson.

His direct involvement in

and singular control over IRISS’s business transactions in New York
are sufficient for long-arm jurisdiction under § 302(a)(1).

See

Alpha Int’l, Inc. v. T-Reproductions, Inc., No. 02 Civ.9586 SAS,
2003 WL 21511957, at *3 (S.D.N.Y. July 1, 2003)(where corporate
officer “clearly knew of and exerted substantial control over the
New York transactions on which [plaintiff] bases its claims,”
jurisdiction

over

corporate

officer

was

appropriate

under

§

302(a)(1)); Reynolds Corp. v. Nat’l Operator Servs., Inc., 73 F.
Supp. 2d 299, 303-04 (W.D.N.Y. 1999)(a finding that corporate
officers were the “primary actors in the allegations that give rise
to

this

action,”

justified

conferring

jurisdiction

over

the

corporate officers under § 302(a)(1)).5
In

sum,

the

Court

concludes

that

IRISS

and

Robinson

purposefully availed themselves of the privilege of conducting
activities within New York such that they “transacted business”
within the meaning of C.P.L.R. § 302(a)(1). See, e.g., Scholastic,
Inc. v. Stouffer, No. 99Civ.11480(AGS), 2000 WL 1154252, at *4
(S.D.N.Y.

Aug.

4,

2000)(activity

sufficient

to

establish

a

jurisdictional presence “may include the solicitation of business
by defendants, contract negotiations between the parties, meetings
at which defendants were present, or letters sent and phone calls

5

Whether Robinson could be held individually liable for any
debt that IRISS allegedly owes plaintiff is an issue for later
determination.
8

made by defendants to plaintiffs”); Assil Gem Corp. v. Greyhound
Leisure Servs., Inc., No. 00 Civ. 0072(NRB), 2000 WL 375244, at *3
(S.D.N.Y. Apr. 11, 2000)(finding that “the quality and nature of
defendant's

activities,

in

the

[defendant]

purposefully

availed

aggregate,

demonstrate

itself

the

of

that

privilege

of

conducting business in New York,” as it “carried on a six-year
business

relationship

with

a

New

York

domiciliary,

utilizing

telephone calls, e-mail and fax transmissions to communicate with
its supplier,” plaintiff also “sent merchandise from New York, and
[defendant] mailed payments to [plaintiff] in New York”); Crouch v.
Atlas Van Lines, Inc., 834 F. Supp. 596, 601 (N.D.N.Y. 1993)(“The
court easily finds that [defendant] is ‘transacting business’ in
New

York”

under

§

302

because

defendant

made

“pick-up

and

deliveries” in New York and shipped its goods into New York).
As to the second prong, the breach of contract claim asserted
by Rohrer clearly arises from the business activity conducted by
the defendants.

Indeed, Rohrer’s claim against the defendants

stems from his allegation that he has not been properly paid for
the business he transacted on the defendants’ behalf.
the

necessary

nexus

between

the

defendants’

plaintiff’s cause of action sufficiently exists.

I find that

business

and

Therefore, the

defendants are subject to personal jurisdiction under CPLR §
302(a)(1) because they transacted business in New York.
Due Process: As stated earlier, the exercise of long-arm

9

jurisdiction over defendants by a New York court must also satisfy
constitutional due process standards.
Inc., 98 F.3d at 32.

See Agency Rent A Car Sys.,

Traditional notions of fair play and

substantial justice required defendants’ contacts with New York to
be something more than “‘random’, ‘fortuitous,’ or ‘attenuated.’”
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 480 (1985)(citations
omitted).

Here, the defendants’ contacts with New York were

continuous

during

the

time

that

Rohrer

was

the

Director

of

Marketing and Sales and were not random, fortuitous or attenuated.
See Sirius Am. Ins. Co. v. SCPIE Indem. Co., 461 F. Supp. 2d 155,
164

(S.D.N.Y.

criteria

2006)(“[S]atisfaction

will

generally

of

meet

requirements.”)(citations omitted).

the

section

federal

302(a)(1)

due-process

Accordingly, the exercise of

jurisdiction over the defendants does not offend due process.

Conclusion
The Court finds that personal jurisdiction over the defendants
is proper under New York’s long-arm statute and the exercise of
this

jurisdiction

is

consistent

with

federal

due

process.

Accordingly, defendants’ cross-motion for summary judgment on the
ground

that

this

Court

lacks

personal

defendants (Docket # 29) is denied.

jurisdiction

over

the

The parties shall appear for

oral argument on the non-jurisdictional issues set forth in Docket

10

numbers 23, 29 and 40 on August 19, 2011 at 10:30 a.m.
SO ORDERED.

______________________________
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated: August 9, 2011
Rochester, New York

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