BARBARA JONES, District Judge

Plaintiff, Plastwood Corporation and Plast Wood S.R.L. ("Plastwood" or "Plast Wood SRL") brought this diversity action against defendants, Deborah L. Robinson; TT, LLC; Lightrix, Inc.; Kingdom Puzzles, Inc.; Ekos-USA, Inc.; and Geomag USA for unfair competition, cyberpiracy, interference with business relationships, conversion, misappropriation of trade secrets and breach of confidence, and breach of fiduciary duty. Defendants Deborah L. Robinson, TT, LLC, Lightrix, Inc., Kingdom Puzzles, Inc., Ekos-USA, Inc., and Geomag USA ("Robinson") moved to dismiss the complaint pursuant to Rule 12(b)(2) for lack of personal jurisdiction, or in the alternative to transfer it.

The plaintiff bears the burden of establishing that the Court has personal jurisdiction over the defendants. Marine Midland Bank v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). Before an evidentiary hearing is held, the plaintiff may meet that burden with only a prima facie showing that jurisdiction exists. CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986). The facts are based on the pleadings and affidavits of the parties, all construed in the light most favorable to the plaintiff. Id. at 365.

FACTS

Around 2000, an Italian concern called Plast Wood SRL began selling a magnetic toy called "Geomag" to customers in Europe. They licensed the toy from its Italian inventor, Claudio Vincentelli. Sometime in 2001 an American toy broker named Deborah Robinson heard about Geomag via an acquaintance who saw it at a toy show in Italy. In November 2001, Robinson independently secured a $50,000 order for Geomag from the Sharper Image catalog. A few months later, in February 2002, Robinson met Edoardo Tusacciu, president of Plast Wood SRL, at a toy fair in New York. Tusacciu proposed that Robinson direct his newly created Delaware corporation, Plastwood USA. Telephone negotiations followed in March 2002, but a written contract was never drawn up. As a result of the deal, Plastwood USA moved its operations from a small room in Boston to Robinson's office and storage facility in San Leandro, California. Robinson alleges and Plast Wood SRL does not dispute that all subsequent Plastwood USA business — until the termination of their relationship in early 2004 — was directed from California. She was given the title "managing director" of Plastwood USA. Plaintiffs describe her as a Plastwood employee; Robinson says the corporate structure was a joint venture between Plastwood USA and her company, TT LLC.

In 2002 Plast Wood SRL's relationship with Geomag's inventor ended. Plast Wood and Mr. Vincentelli, the inventor, are currently embroiled in multiple patent and licensing disputes in Italy. Tusacciu Declaration. After the termination of the Plast Wood/Vincentelli license, Plast Wood SRL began making and marketing "Supermag," a product very similar to Geomag. In late 2002 Robinson began selling Supermag, but continued to sell the backstock of Geomag stored in her California and Atlanta warehouses.

Robinson sold one of those containers of Geomag to herself. Erwin Kotzab, president of German toy distributor Ekos and Robinson's partner in a company called IKR, called her in July 2003 to complain that his Geomag shipments from Italy — via Plast Wood SRL's German partner — were late and his distributees were annoyed. Kotzab also told her that he had had a falling out with Plast Wood's German office regarding a bonus agreement he said he was owed. Without telling Plast Wood S.R.L in Italy, Robinson had Plastwood USA, which she controlled, sell a container of Geomag to IKR. Robinson claims Kotzab paid IKR, their joint company, and IKR paid Plastwood USA in full.

By October 2003 Robinson became aware of the licensing dispute between Plast Wood SRL and Geomag's inventor and says she was concerned about the legality of selling Geomag. When Mr. Kotzab called from Germany wanting another container of Geomag, Robinson suggested he take a container of Supermag. She claims that she had permission to sell Supermag and had sold it to other customers. However, she again hid the sale from Plast Wood SRL, which she claims was still angry with Kotzab over the commission conflict in the German office. Again the sale was laundered through one of Robinson's own companies, TT LLC. In November 2003, before the 90-day net payment came due, Plast Wood SRL learned of the sale and concluded that Robinson was stealing from them by selling the containers without remitting the profits. Robinson met Plast Wood SRL's president Tusacciu in New York the following month to discuss their differences. Plast Wood proposed that Robinson cease working as Plastwood USA's managing director and become a sales representative. Plast Wood says she accepted the offer; Robinson says she returned to California without replying to the proposal. Whether or not she accepted the new job at the meeting does not bear on the question of personal jurisdiction. In February 2004 the Italians told Robinson not to attend the New York Toy Fair on Plastwood's behalf. The next day she sent a letter ending her business relationship with Plastwood.

Plaintiffs allege that Robinson failed to relinquish a toll-free phone number they say belonged to them, as well as internet domain names that reflect or resemble Plastwood trademarks. In addition, Plaintiffs say that Defendant's computer database still contains Plastwood customer data, which they claim Robinson is using to poach customers. They also claim she did not remit payment for the second container of toys sold to Mr. Kotzab in Germany. Defendant admits she has use of the toll-free number but says it belonged to her businesses prior to the venture with Plastwood. She says the internet domain names can be reassigned by the computer technician she still shares with Plastwood, if only Plastwood would ask. She acknowledges that data from Plastwood remains in her database but says Plastwood is welcome to have it if they pay for the cost of data extraction.

Robinson's Contact with New York

Robinson does not live or work in New York. She has lived and worked in California both during her tenure with Plastwood and since. When she ran Plastwood, its records, phone lines, and employees were all in California. The product was shipped from Italy to warehouses in California and Georgia, and delivered to customers from there.

Robinson has traveled to New York on business many times. She attended the annual Toy Fair in February in 2002, 2003, and 2004, as well as the semi-annual New York Gift Show, and has held intermittent business meetings with toy retailers here. The genesis of Robinson's relationship with Plastwood occurred in New York in 2002, when Robinson met Plast Wood SRL's Edoardo Tusacciu at the Toy Fair and he proposed that she run Plastwood's American operation. A conversation in December 2003, in which Robinson was demoted from managing director to sales representative, also took place in New York. When Plastwood dissolved its relationship with Robinson, it ordered her to ship records and documents to New York, which she did.

Robinson's companies sell their products, including Geomag, to customers all over the country. They sell their products through several methods, including a toll-free phone number that is a subject of this dispute. The records of that toll-free number indicate that at least until January 2004 approximately six or seven percent of the incoming phone calls to the toll-free number came from prospective customers in New York.

Plastwood has offered no evidence that New Yorkers continued to call the number after the parties divorced, nor that New York callers purchased any products from Robinson. They have offered no evidence of how many customers, orders, or dollars they claim to have lost in the state.

DISCUSSION

• avails itself of the benefits of the forum,

• has sufficient minimum contacts with it,

• and should reasonably expect to defend its actions there.

Before evaluating whether this Court can constitutionally reach the Defendant, we examine whether we have jurisdiction under New York's "long arm" statute, N.Y.C.P.L.R. § 302(a) (McKinney 2001). The Plaintiffs assert jurisdiction under three of the four prongs of the New York long arm statute, so the court will consider each of them in turn.

1) N.Y.C.P.L.R. § 302(a)(1) — Breach of Fiduciary Duty Claim

The first prong of the long-arm statute establishes personal jurisdiction over a defendant who "transacts any business within the state or contracts anywhere to supply goods or services in the state." N.Y.C.P.L.R. § 302(a)(1).

New York's long-arm statute is a "single act" statute, meaning that one business transaction can be sufficient to create jurisdiction. The single act can't be just any transaction, however; for the court to exercise jurisdiction under 302(a) (1), the claim must "arise from" that transaction. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58-59 (2d Cir. 1985); Traver v. Officine Meccaniche Toshci SpA, 233 F. Supp.2d 404 (N.D.N.Y. 2002).

A contractual relationship could meet the "transacts business" standard if (1) the defendant's relationship to a New York corporation were ongoing; (2) the contract were negotiated or executed in New York; or (3) the defendant visited New York for the purpose of meeting with the parties in regard to the contractual relationship. Agency Rent a Car Inc. v. Grand Rent a Car Corp., 98 F.3d 25, 29 (2d Cir. 1996). The New York Court of Appeals found that someone who came from out of state to interview and contract for a job in New York did "purposefully avail himself of the privilege of conducting activities in New York," and could thus be subject to personal jurisdiction here.Reiner Co. v. Schwartz, 41 N.Y.2d 648, 653 (N.Y. 1977).

Plaintiff asserts that Defendant was initially hired by them during a meeting in New York, and subsequently demoted at another New York meeting nearly two years later. Plaintiffs assert that these meetings create personal jurisdiction sufficient to support their claim for breach of fiduciary duty. This claim is the only one Plaintiffs have made concerning Defendant's actions while their relationship was intact, and therefore the cause of action could be said to have arisen from the New York conversations which created that relationship. However, although the meetings took place in New York, Plastwood was neither incorporated nor domiciled in New York at those times. Cases in which just one or two in-state meetings were enough to give rise to jurisdiction all involved out-of-state defendants visiting a state to which they knew the plaintiff was connected. When Robinson met Tusacciu in New York, she was a visitor in town for a business meeting with another visitor. They met in an international business capital that was effectively equidistant by airplane. Plastwood's only U.S. office at the time was a small one in Boston; it had no business ties to New York. Thus it cannot be said that Defendant "purposefully availed" herself of the privilege of conducting business in New York, or could reasonably have expected to be haled into court here. Even if New York law were to permit jurisdiction over Robinson under 302(a)(1), the Constitution would not.

2) N.Y.C.P.L.R. § 302(a)(2) — Lanham Act Claim

Personal jurisdiction inheres if an out-of-state defendant "commits a tortious act within the state." C.P.L.R. § 302(a)(2). Although Defendant Robinson was physically in California when the alleged injuries occurred, Plaintiffs assert that their Lanham Act complaint creates jurisdiction in New York. Under the Lanham Act, 15 U.S.C. § 1125, a tort is committed wherever a trademark-infringing good is offered for sale. GTFM, Inc. v. FUBUTU Home Educ. Media, Inc., 2003 U.S. Dist. LEXIS 19159 (S.D.N.Y. 2003). An out-of-state company sending infringing materials to a New York customer, even without a sale, may give rise to jurisdiction. Id.

Plaintiffs submitted the transcript of a conversation between Defendant's sales representative and a private investigator posing as a customer to demonstrate unfair competition under the Lanham Act. Callahan affidavit, Exhibit A. The private investigator called the 800-number in dispute, posed as a buyer for a Toronto-based company with offices in New York, and was sent Geomag sales materials at his New York address. The Defendant's representative clearly distinguished between Defendant's company and Plaintiffs' company and the similar but distinct products sold by each. When the private investigator specifically requested "Supermag," the Plaintiffs' product, the phone rep said immediately, "Supermag is manufactured by Plastwood. They used to manufacture Geomag." He described it as a "pretty comparable toy" but went out of his way to be clear that the product he was selling wasn't Plastwood's.Id. Without making a prima facie case for unfair competition under the Lanham Act, Plaintiffs cannot claim personal jurisdiction on that basis.

3) N.Y.C.P.L.R. § 302(a) (3) — All Claims

The third and most expansive prong of New York's long arm statute allows jurisdiction over defendants who commit tortious acts out of state that cause injury within New York. N.Y.C.P.L.R. § 302(a)(3). To establish jurisdiction under 302(a)(3), plaintiffs must show that in addition to causing injury in the state, the defendant either

(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or

(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce

a) § 302(a)(3)(i)

The first prong of 302(a)(3) offers four alternative ways to connect the defendant to New York. Regularly doing business, or soliciting business, or any other persistent course of conduct could be enough, as might deriving substantial revenue from goods used or consumed or services rendered in the state. Although Plaintiffs do not specify which actions support which elements of the statute, drawing all inferences in their favor we accept that Robinson's repeated business trips to New York could amount to a "persistent course of conduct" or even "regularly doing business." However, Plaintiffs' statement that Defendant "market[s] products that are sold in New York" (Motion in Opposition, p. 10) does not demonstrate that she "derives substantial revenue" from goods sold here. Plaintiffs must produce "hard evidence" of substantial revenue derived from New York customers. Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 200 (2d Cir. 1990). Plaintiffs report that some of the very same products that Robinson wholesales are available for retail purchase in New York. They offer no proof that Robinson herself sold them, nor do they allege that she is the exclusive or sole distributor of said toys. Even if Plaintiffs could make a prima facie showing that Defendant derived substantial revenue in New York, to sustain jurisdiction under 302(a)(3)(i) plaintiffs must also show that those goods are "used or consumed" in New York. Id. at 200.

b) § 302(a) (3) (ii)

The test of whether a defendant expected or reasonably should have expected its actions to have direct consequences in New York is an objective one. Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 241 (2d Cir. 1999). Plaintiffs argue that objectively, Robinson should have foreseen that her actions would have consequences in New York. Knowing that Plastwood USA was relocating to New York after its split from Robinson, a reasonable person would have realized that harm might accrue there. To make out a case for personal jurisdiction under 302(a)(3)(ii), the plaintiff must also show that the defendant derives substantial revenue from interstate or international commerce. Given the quantities of product discussed throughout the pleadings, the Court will credit the assertion that Defendant's nationwide and international business is substantial.See Cable News Network, L.P. v. GoSMS.com, Inc., 2000 U.S. Dist. LEXIS 16156 (S.D.N.Y. 2000) (crediting $60,000 worth of international business as sufficient to create personal jurisdiction). Thus, examining the facts in the light most favorable to the plaintiffs, the defendant could be found to meet the `contact' element of the long-arm statute under 302(a)(3). What the Court cannot find, however, is sufficient evidence of local injury.

c) Local injury

Plaintiffs have not made a prima facie showing of injury in New York. New York does not become the situs of injury merely because the plaintiff is a domiciliary or resident of New York. Am. Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428, 433 (N.Y. 1971). The overall diminution of a New York company's net worth is not enough injury to support jurisdiction.Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326 (N.Y. 1980). Rather, there must be "discernible local impact" — something beyond loss of profit to a company whose office is in New York. Am. Eutectic at 433.

The loss of customers in New York will satisfy the local injury requirement, but plaintiffs must make a prima facie showing that such injury has been suffered. The only support Plastwood offers for its claim that it has been harmed is affidavits from two current Plastwood sales representatives and one from a private investigator. As discussed above, the private investigator's affidavit and transcript do not on their face support the claim that Robinson is doing anything to harm Plastwood in New York. The affidavits and call logs of Alexandra Pomerantz and Michael Anthony Gibson, two current Plastwood salespeople, do not demonstrate any lost customers in New York. Gibson's notes do not identify the customers by location; those that could be found by an internet search were located in Albuquerque, New Mexico; Greenville, South Carolina; and Littleton, Colorado. Pomerantz's exhibit logged calls to potential customers in Savannah, Georgia; Scottsdale, Arizona; Wilmington, North Carolina; and Williamstown, Massachusetts. While the prospect of sales lost in those places as a result of tortious conduct would hurt Plastwood USA's bottom line in New York, "that sort of derivative commercial injury in the state is only the result of plaintiffs' domicile here." Am. Eutectic, 439 F.2d at 433. It is not enough to give rise to personal jurisdiction over the defendant. The Plaintiffs' pleadings have failed to make out a claim for actual injury in New York. It is not enough simply to allege that one has been injured. There must be some showing that injury has actually occurred. Without it, there is no foothold for this Court to assert jurisdiction over the defendant.

Finding no jurisdiction under the law of the forum state, the Court need not address the constitutional elements of personal jurisdiction.

CONCLUSION

SO ORDERED.