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Dworin v. Deutsch

October 30, 2006

RE: DWORIN
v.
DEUTSCH ET AL.



The opinion of the court was delivered by: Hon. Ronald J. Hedges, U.S.M.J.

LETTER-OPINION AND ORDER ORIGINAL FILED WITH CLERK OF THE COURT

Dear Counsel:

This matter comes before me on the motion of defendants Linda Sawyer and Deutsch Inc. to dismiss this action for lack of personal jurisdiction or, in the alternative, to dismiss on grounds of forum non conveniens or to transfer venue to the United States District Court for the Southern District of New York. I have considered the papers submitted in support of and in opposition to the motion. There was no oral argument. Rule 78.

BACKGROUND

Plaintiff Steven Dworin ("Dworin") commenced this action against Donald Deutsch ("Mr. Deutsch"), Linda Sawyer ("Sawyer") and Deutsch Inc. for breach of contract and libel in connection with the statements contained in a book entitled Often Wrong, Never In Doubt: Unleash The Business Rebel Within ("Often Wrong").*fn1 Dworin filed the Complaint on March 30, 2006, in the Superior Court of New Jersey, Law Division, Union County. The matter was then removed to this Court pursuant to 28 U.S.C. § 1446(a).

Deutsch Inc. is an advertising agency headquartered in New York, which develops advertising campaigns and strategies for its nationwide client base. It neither owns property in New Jersey nor maintains an office or bank account in the State. Deutsch Inc. is not registered to do business in the State and has never filed a New Jersey tax return. Although Deutsch Inc. serves clients with offices in New Jersey, defendants maintain that their work for such clients does not specifically target the New Jersey market but is instead designed for nationwide marketability.

In 1991, Dworin was recruited by Deutsch Inc. to serve as president and partner. Mr. Deutschwas the Executive Vice-President and equity-holder at Deutsch Inc. The two men worked closely with one another until Dworin resigned from Deutsch in February of 1994. The Complaint includes lengthy accounts of the disputes and activities that, accordingly to Dworin, resulted in his voluntary resignation from Deutsch Inc. Conflicting accounts are given concerning the reasons for Dworin's departure, but it is apparent that Dworin left because he found the business practices and behavior of Mr. Deusch to be intolerable.*fn2 Significantly, in February 1994, a severance agreement ("the Severance Agreemnt") was negotiated and executed in New York specifying the terms of Dworin's departure from Deutsch Inc. The agreement provides that it is to "be governed by and construed in accordance with [the] laws of the State of New York."

Often Wrong was first published in October, 2005, over ten years after Dworin's departure from Deutsch Inc. The book is an "autobiographical business success manual" in which Mr. Deutsch shares his personal experiences.*fn3 The statements in controversy are found in approximately 13 pages of the 248-page book. Dworin takes issue with the characterization of his former partnership with Mr. Deutsch and the circumstances surrounding his eventual resignation from Deutsch Inc., maintaining that such descriptions violate the Severance Agreement by defaming his reputation. Compl. ¶ 2.

Sawyer, a citizen of New York, worked at Deutsch Inc. for over 16 years.

Sawyer states that she neither owns property in New Jersey nor regularly travels to the State for business or social engagements. Dworin alleges that Sawyer, in her capacity as Chief Executive Officer of Deutsch Inc., served as a "de facto editor" of Often Wrong. Compl. ¶ 21. Dworin further alleges that several other employees and high-ranking personal of Deutsch Inc. collaborated in the preparation and editing of Often Wrong. Although the extent of their participation is disputed, the record demonstrates that several Deutsch Inc. employees were at least marginally involved in the process of preparing Often Wrong for publication.

Often Wrong was distributed to retail establishments located in states other than New York, including New Jersey. Dworin, a New Jersey resident, seeks damages in response to the book's defamatory misrepresentations concerning the circumstances leading up to his resignation from Deutsch Inc.

ANALYSIS

A district court may transfer a case pursuant to 28 U.S.C. § 1404(a) with or without personal jurisdiction over the defendant. U.S. v. Berkowitz, 328 F.2d 358, 361 (3d Cir. 1964); Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467 (1962)). "Where a defendant has challenged a court's power over his person and, at the same time, has moved alternatively for transfer, the interests of judicial economy are best served by initial address of the transfer issue." Berk v. Ronald, 2006 U.S. Dist. LEXIS 25862, *2 (E.D. Pa. Apr. 2, 2006); Lomanno v. Black, 285 F. Supp.2d at 640. Therefore, I will decide whether transfer is appropriate and I decline to decide the personal jurisdiction question. See Thorlabs ...


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