of California, thereby subjecting plaintiff to this Court's in personam jurisdiction.
The parties expend a great deal of energy and paper arguing over whether the Court may consider Mr. Novelly's actions as an officer of Crest Tankers in determining whether he has minimum contacts with California. Plaintiff is correct in asserting that all of Mr. Novelly's conduct, official or personal, may be considered by this Court in assessing the propriety of jurisdiction here.
The point is immaterial, however, because plaintiff has failed to establish that defendant in any capacity took actions that affected California.
The evidence plaintiff submits to show that defendant did in fact authorize the telex agreement is speculative at best and is clearly contradicted by evidence submitted by defendant. True, Mr. Novelly's deposition states that he told someone "to get it done," referring to the Pomerol negotiations, but he also states that he had never seen or authorized the particular telex in question. Both Mr. Novelly and Mr. Horn, the attorney who negotiated the release of the Pomerol on Crest Tankers's behalf, affirm that they never spoke to one another. Mr. Horn believed that Milton Burmaster, the head of Crest Tankers's legal department, authorized him to enter into the agreement. Further, Mr. Horn had no idea whether Mr. Burmaster consulted with defendant, or whether defendant himself authorized the agreement.
In response, plaintiff offers the deposition of Jere White, an officer at Crest Tankers. Mr. White's deposition, however, is not competent to contradict plaintiff's declarations regarding Mr. Novelly's involvement in negotiating the telex agreement. Mr. White merely speculates that Mr. Novelly would have directed and been aware of the agreement. He has no personal knowledge as to whether or not defendant authorized the agreement. If defendant knew nothing of what "getting the job done" entailed, he could not very well have purposefully directed his actions toward California or its residents.
Moreover, even if the Court accepts plaintiff's claim that Mr. Novelly directly participated in the telex agreement negotiations, plaintiff nonetheless has failed to establish that defendant purposefully availed himself of the privilege of conducting transactions in California. It is well-settled that the "purposeful availment" requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985); Brainerd v. Governors of Univ. of Alberta, 873 F.2d 1257, 1259 (9th Cir. 1989); Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987). Defendant's alleged connection with California as a result of the negotiation of an agreement with California counsel is the paradigm case of a random, fortuitous, and attenuated contact. Plaintiff is a Chinese corporation; Crest Tankers is a Missouri corporation; defendant is a Missouri resident and citizen; the Pomerol was attached off the Louisiana coast and subsequently sailed to New Hampshire. The effects of defendant's alleged fraud might have been felt in China, Missouri, Louisiana, or New Hampshire -- just about anywhere but in California. It was a completely fortuitous event that one attorney of the several negotiating the release resided in California. The frustration experienced by a foreign corporation's attorney at having an agreement he negotiated fall through is hardly reason enough to subject defendant to jurisdiction in this state.
The cases cited by plaintiff for the proposition that jurisdiction is proper where a nonresident defendant knows that his actions will have an effect on the forum state do not apply here. In each of these cases, either the defendant acted in the forum state, the plaintiff was a resident of the forum state, or the brunt of the defendant's wrongdoing was borne by the forum state. None of these circumstances exist here. Compare Calder v. Jones, 465 U.S. 783, 79 L. Ed. 2d 804, 104 S. Ct. 1482 (1984) (plaintiff resident of forum state; effects felt primarily in forum state); Brainerd, 873 F.2d 1257 (injury occurred in forum state); Lake, 817 F.2d 1416 (injury experienced primarily in forum state); Edwards v. Pulitzer Publishing Co., 716 F. Supp. 438 (N.D. Cal. 1989) (plaintiff resident of forum state; injury felt in forum state).
Nor is it material that Crest Tankers in the telex agreement consented to submit to this Court's jurisdiction in the event of a dispute. Defendant is not a party to this agreement. In fact, his name is not even mentioned in the telex.
Under all the circumstances, defendant could not reasonably have anticipated being haled into this Court. Given the lack of minimum contacts between defendant and California, this Court's exercise of jurisdiction over Mr. Novelly would be eminently unreasonable.
Plaintiff's counsel has represented to the Court that dismissal of this action could create a statute of limitations problem. In view of this possibility and in the interests of justice, the Court deems it appropriate to transfer the action to the Eastern District of Missouri, pursuant to 28 U.S.C. § 1404.
IT IS HEREBY ORDERED that this matter be transferred to the Eastern District of Missouri.
IT IS FURTHER ORDERED that defendant's remaining motions are DENIED.