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DelGuercio v. NCI Construction Corp.

December 4, 2007

RE: JOSEPH DELGUERCIO V. NCI CONSTRUCTION CORP., ET AL.


The opinion of the court was delivered by: William J. Martini Judge

MARTIN LUTHER KING JR . FEDERAL BLDG . & U.S. COURT HOUSE 50 WALNUT STREET, P.O . BOX 419 NEWARK, NJ 07101-0419 (973) 645-6340

LETTER OPINION

Dear Counsel:

This matter comes before the Court on a Motion to Dismiss filed by Defendants NCI Construction Corporation and Norman Rijo. This matter was decided on the parties' submissions. Fed. R. Civ. P. 78. For the reasons discussed below, the Motion to Dismiss is DENIED and the Complaint is TRANSFERRED to the U.S. District Court for the Eastern District of New York.

Background and Procedural History

This case arises from Plaintiff Joseph DelGuercio's employment as Vice President of Business Development at NCI Construction, Inc., a company based in Lake Success, New York. (Compl. Ex. A.) The terms of Plaintiff's employment were set forth in a one-page contract, which was signed by Plaintiff and by Defendant Norman Rijo, NCI's President, effective May 24, 2006. (Id.) Under the contract, Plaintiff was entitled to an annual salary of $110,000 in addition to 1% commissions on the gross volume of work he procured for the company. (Id.) Plaintiff alleges that when he joined NCI, he had 30 years of experience within the industry, as well as an excellent relationship with his previous clients and various industry contacts. (Compl. ¶ 8.) Plaintiff contends that during his employment with NCI, he quickly obtained new business and made various lucrative contracts on its behalf. (Id. ¶ 9.) Plaintiff alleges that on September 15, 2006, just after he had begun building momentum with his business contacts, and after he had brought in a contract valued at approximately $1,000,000, he was abruptly and wrongfully terminated by NCI and Rijo in violation of his employment contract, in furtherance of a bad faith motive by NCI to steal Plaintiff's contracts and avoid paying him rightfully owed commissions. (Id. ¶¶ 3, 10.)

Plaintiff filed suit in this Court on May 17, 2007, alleging breach of contract, conversion, tortious interference with economic advantage and unjust enrichment. Defendants argue that this Court lacks subject matter jurisdiction, personal jurisdiction and proper venue, and ask that the Complaint be dismissed pursuant to Fed. R. Civ. P. 12(b)(1), (2) and (3). Defendants' motion is now before the Court.

Discussion

As a threshold matter, the Court agrees with Defendants that venue is improper in the District of New Jersey. Because diversity of citizenship is the only proposed basis for federal jurisdiction in this case, the question of venue is governed by 28 U.S.C. § 1391(a). Under § 1391(a), a civil diversity action may be brought only in:

(1) a judicial district where any defendant resides, if all defendants reside in the same State,

(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or

(3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

28 U.S.C. § 1391(a). Venue is not proper in the District of New Jersey under any of these provisions. Section 1391(a)(1) does not apply because even if the Court accepts Plaintiff's argument that NCI can be said to "reside" in both New York and New Jersey, it is undisputed that Defendant Norman Rijo resides in New York. (Pl.'s Br. Opp. Mot. Dismiss 11; Compl. ¶ 2; Rijo Aff. ¶ 3; Rijo Reply Aff. ¶ 2.)*fn1

Section 1391(a)(2) also does not apply. This matter's only apparent connections with New Jersey are that Plaintiff resides in New Jersey, that NCI has conducted some business in New Jersey, and that NCI's website indicates that it provides services to the "Tri-state area." (Genitempo Cert. Exs. A, B). While these latter facts regarding NCI might be relevant to a personal jurisdiction analysis, they do not help to establish proper venue in New Jersey when the particular events and omissions giving rise to Plaintiff's claim appear to have taken place entirely in New York. Specifically, NCI is headquartered in Lake Success, New York (Rijo Aff. ¶ 3; Compl. ¶¶ 2, 4); Plaintiff's interview took place in New York (Rijo Aff. ¶ 6); the employment contract was executed in New York (id.); an NCI satellite office was established for Plaintiff in New York City (id. ¶ 7); Defendants allege that Plaintiff was ...


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