Popolizio v. Schmit

Civil Practice

New York Law Journal


Judge Lawrence Kahn

Under their agreement to import, breed, and sell certain specialty cattle, Popolizio, Schmit and Craig held ownership interests in two cows and two bulls, boarded in North Dakota and Wisconsin. Some embryos were sold, but others were brought to term, increasing the size of defendants' herds. Breeders' rules required Schmit and Craig to pay Popolizio his share of fees and revenues from embryo and calf sales. Only Schmit remains in Popolizio's diversity jurisdiction action for contract breach, unjust enrichment and conversion. Noting Schmit's claims that none of the cattle were bought from New York or by a New York seller, were never boarded in New York, and that no bull semen sold under the agreement was ever sold in New York or to a New York buyer, the court granted Schmit's motion seeking dismissal. Popolizio failed to establish jurisdiction under New York Civil Practice Law and Rules §301's "doing business" standard. Lacking long-arm jurisdiction under CPLR §302, the court found the subject relationship's "center of gravity" was where the cattle were housed or where breeding or cattle transactions occurred. Nor was Schmit's remittance of payments to Popolizio's New York address sufficient to establish personal jurisdiction.

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