Deutsche Bank Securities, Inc. v. Montana Board of Investments

21 A.D.3d 90, 797 N.Y.S.2d 439, 2005 N.Y. App. Div. LEXIS 6541
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 14, 2005
StatusPublished
Cited by17 cases

This text of 21 A.D.3d 90 (Deutsche Bank Securities, Inc. v. Montana Board of Investments) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deutsche Bank Securities, Inc. v. Montana Board of Investments, 21 A.D.3d 90, 797 N.Y.S.2d 439, 2005 N.Y. App. Div. LEXIS 6541 (N.Y. Ct. App. 2005).

Opinion

OPINION OF THE COURT

Marlow, J.

Plaintiff Deutsche Bank Securities, Inc. is a Delaware corporation with its principal place of business in New York County. Defendant Montana Board of Investments is a governmental [92]*92agency organized under the laws of the State of Montana, for the purpose of investing public funds, with its principal place of business in Helena.

In this breach of contract action, we are asked to resolve three issues. First, as a threshold matter, whether this action must be dismissed, as defendant contends, because its New York activities, including the instant transaction, are insufficient to confer in personam jurisdiction on our state courts. Second, assuming jurisdiction, whether the complaint should be dismissed based on the doctrine of sovereign immunity and as a matter of comity. Finally, plaintiff asks this Court to dismiss the affirmative defenses attacking the court’s exercise of jurisdiction, and, further, for partial summary judgment on the affirmative defense claiming plaintiff engaged in insider trading.

For the reasons which follow, we find that defendant’s activities have subjected it to, and that it is not immune from, New York’s jurisdiction and that plaintiff is entitled to partial summary judgment as to liability on its breach of contract claim.

On the morning of March 25, 2002, plaintiffs director in the Global Market Sales Division contacted defendant’s senior investment officer-fixed income and offered to swap defendant’s Pennzoil-Quaker State Company 2009 bonds for plaintiffs Toys R Us bonds or purchase from defendant the Pennzoil bonds at a certain price. The two communicated through the Bloomberg Messaging System which provides instant messaging between subscribers of the Bloomberg service for the purpose of negotiating and completing trades and dispensing other financial information. During the message exchanges, plaintiffs director was located in New York, and defendant’s investment officer was located in Montana.

The two exchanged several messages that morning. Initially, defendant’s investment officer indicated he was not interested in a swap, but plaintiffs director responded that the deal “looks good.” Defendant’s investment officer stated he wanted to hold onto the Pennzoil bonds, and plaintiffs director thanked him. Ten minutes later, defendant’s investment officer sent a message to plaintiff’s director and recommenced negotiations by asking whether the quoted price applied only to the swap or if the price would be the same for a cash purchase, and, defendant’s investment officer stated that, if so, defendant had $15 million in Pennzoil bonds to sell plaintiff. After conferring with his trader, plaintiffs director responded that plaintiff would pay the agreed price: $5 million outright and plaintiff would be able [93]*93to trade the balance with one phone call. Defendant’s investment officer countered with a request that plaintiff see if all $15 million could be sold at a specified price. After plaintiffs director was informed by his trader that there was a market for all $15 million, he sent defendant’s investment officer a message saying that he was interested in purchasing all $15 million at a specific price with a specific settlement date. Defendant’s investment officer agreed to the terms, and plaintiffs director sent a trade ticket and confirmation of the deal.

On the evening following the sale, it was publicly announced that Shell Oil entered an agreement to acquire Pennzoil, an event which could affect the value of the Pennzoil bonds. The next day, defendant’s investment officer advised plaintiffs director that defendant was going to break the trade based on its investment officer’s belief that plaintiff had traded on insider information. Plaintiffs director and trader claim that neither had any advance knowledge of the Shell/Pennzoil accord.

After defendant refused to honor the deal, plaintiff purchased the bonds elsewhere at an additional cost. Thereafter, in September 2002, plaintiff commenced this action for damages based on defendant’s breach of the agreement to sell the Pennzoil bonds. Defendant answered and asserted affirmative defenses of, inter alia, lack of personal jurisdiction, sovereign immunity, and comity. In addition, defendant asserted an affirmative defense of insider information.

After some limited discovery, plaintiff moved for summary judgment as to liability and to dismiss defendant’s affirmative defenses. Defendant cross-moved to dismiss the complaint based on lack of personal jurisdiction, sovereign immunity, and as a matter of comity. The motion court granted defendant’s cross motion to dismiss the complaint for lack of personal jurisdiction and denied plaintiff’s motion for partial summary judgment, implicitly denying plaintiffs motion to dismiss certain affirmative defenses.

We reverse. CPLR 302 (a) (1) permits a New York court to exercise personal jurisdiction over a nondomiciliary if the non-domiciliary conducts “purposeful activities” within the state and the claim against the nondomiciliary involves a transaction bearing a “substantial relationship” to those activities (see Talbot v Johnson Newspaper Corp., 71 NY2d 827, 829 [1988]; McGowan v Smith, 52 NY2d 268, 272 [1981]). This “is a ‘single act statute’ and proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never [94]*94enters New York” as long as the requisite purposeful activities and the connection between the activities and the transaction are shown (Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]).

If a court determines that a defendant has transacted business pursuant to CPLR 302 (a) (1), then it must further ascertain whether the exercise of jurisdiction comports with due process (see LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 216 [2000]). Due process is not offended “[s]o long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there . . . even if not ‘present’ in that State” (Kreutter, 71 NY2d at 466, citing McGee v International Life Ins. Co., 355 US 220 [1957]). In order to satisfy the minimum contacts requirement, it is essential that there be “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” (Hanson v Denckla, 357 US 235, 253 [1958]).

While electronic communications, telephone calls or letters, in and of themselves, are generally not enough to establish jurisdiction (see Liberatore v Calvino, 293 AD2d 217, 220 [2002]; Granat v Bochner, 268 AD2d 365 [2000]), they may be sufficient if used by the defendant deliberately to project itself into business transactions occurring within New York State (see Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574 [1980]; Parke-Bernet Galleries v Franklyn, 26 NY2d 13 [1970]; Courtroom Tel. Network v Focus Media, Inc., 264 AD2d 351 [1999]).

We find under the particular facts of this case that defendant cannot evade transactional jurisdiction by simply claiming that it did not initiate the deal and that it was nowhere near. New York when the deal was consummated.

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Bluebook (online)
21 A.D.3d 90, 797 N.Y.S.2d 439, 2005 N.Y. App. Div. LEXIS 6541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deutsche-bank-securities-inc-v-montana-board-of-investments-nyappdiv-2005.