In re Ski Train Fire in Kaprun, Austria On Nov. 11

• Decision Date: 08 August 2002
• Docket Number: No. MDL 1428(SAS).,No. 01 Civ. 6554.,MDL 1428(SAS).,01 Civ. 6554.
• Parties: In re SKI TRAIN FIRE IN KAPRUN, AUSTRIA ON NOVEMBER 11, 2000
• Court: U.S. District Court — Southern District of New York

Page 376

230 F.Supp.2d 376

In re SKI TRAIN FIRE IN KAPRUN, AUSTRIA ON NOVEMBER 11, 2000

No. MDL 1428(SAS).

No. 01 Civ. 6554.

United States District Court, S.D. New York.

August 8, 2002.

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COPYRIGHT MATERIAL OMITTED

Robert Swift, Martin J. D'Urso, Kohn, Swift & Graf, PC, Philadelphia, PA, Jay J. Rice, Nagel, Rice, Dreifuss & Mazie LLP, Livingston, NJ, Edward D. Fagan, Fagan & Associates, Livingston, NJ, Kenneth Nolan, Christina Frye, Speiser, Krause, Nolan & Granito, New York City, for Plaintiffs.

Thomas D. Yannucci, Christopher Landau, James F. Basile, Grant M. Dixton, Kirkland & Ellis, Washington, DC, for Defendant.

OPINION AND ORDER

SCHEINDLIN, District Judge.

Plaintiffs Angela and Rudolf Kern, John and Suzanne Habblett, Dick and Carol Baker, and Clair Goodridge, are the parents and grandparents of six Americans killed in a ski train accident on November 11, 2000 in Kaprun, Austria. Their individual actions alleging that a total of seventeen defendant train and train part manufacturers, ski resort operators, and marketing companies were negligent and/or should be held strictly liable, have been consolidated before this Court by the Judicial Panel on Multidistrict Litigation ("MDL Panel").¹ Defendant Siemens AG now moves to dismiss the action against it pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction,² and, in the alternative, pursuant to the doctrine of forum non conveniens. See 3/28/02 Siemens AG's Memorandum in Support of Its Motion to Dismiss ("Def.Mem."). For the reasons set forth below, Siemens AG's motion is denied.

I. BACKGROUND

A. The Moving Defendant

Siemens AG is a German corporation that has its principal place of business in Munich. See MC ¶ 36. It is one of the world's largest electrical engineering and electronics manufacturers, and employs approximately 443,000 people in 193 countries. See 4/24/00 "Press Release: Siemens Completes Acquisition of ENTEX IT Services, Inc.," Siemens Website ("4/00 Press Rel."), Ex. 17 to Plaintiffs' Brief in Opposition to Defendant's Motion to Dismiss Based on Personal Jurisdiction ("Pl. Opp."), at 2. Siemens AG owns 100% of Siemens Corporation, a New York corporation with its principal place of business in New York City. See MC ¶ 38.

B. Procedural History

Siemens AG originally moved to dismiss on December 10, 2001, but subsequently withdrew that motion because it had not been served with process, see 2/28/02 Letter from James Basile, Attorney for Siemens defendants, to the Court. On March 28, 2002, after having been served, defendant moved again to dismiss this action. Rather than oppose the motion, plaintiffs sought to compel jurisdictional discovery, see 4/3/02 Letter from Robert Swift to the Court ("4/3/02 Pl. Ltr."), and submitted several memoranda purporting to list Siemens AG's contacts with this forum, see Ex. C to 4/3/02 Pl. Ltr.; 1/23/02 Memorandum ("Pl. List Mem."), Ex. 1 to 1/22/02 Letter from Edward Fagan, Robert Swift and Jay Rice, Plaintiffs' Attorneys, to the Court ("1/22/02 Pl. Ltr."). On May 8, 2002, this Court directed plaintiffs to respond to defendant's motion so that the issue would be fully briefed. See 5/8/02 Order.

II. PERSONAL JURISDICTION

Plaintiffs argue that Siemens AG's contacts with New York are sufficient to confer jurisdiction over it. In the alternative, they contend that this Court has jurisdiction over Siemens AG by virtue of the New York presence of its New York subsidiary, Siemens Corporation.

A. Legal Standard

A court is obligated to dismiss an action against a defendant over whom it has no personal jurisdiction. See Fed. R.Civ.P. 12(b)(2); Laborers Local 17 Health and Benefit Fund v. Philip Morris, Inc., 26 F.Supp.2d 593, 597 (S.D.N.Y. 1998). Plaintiffs bear the ultimate burden of establishing, by a preponderance of the evidence, that this Court has jurisdiction over the defendant. See Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 240 (2d Cir. 1999); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). At the pretrial stage, however, plaintiffs may carry this burden by pleading in good faith sufficient allegations of jurisdiction. See Jazini v. Nissan Motor Co., 148 F.3d 181, 184 (2d Cir.1998); Koehler v. Bank of Bermuda, Ltd., 101 F.3d 863, 865 (2d Cir. 1996). Plaintiffs can make this showing through their own affidavits and supporting materials, containing an averment of facts that, if credited, would suffice to establish jurisdiction over the defendant. See Whitaker v. Am. Telecasting Inc., 261 F.3d 196, 208 (2d Cir.2001) (citations, quotation marks omitted). The court may thus consider materials outside the pleadings in ruling on this motion. See Hsin Ten Enter. USA, Inc. v. Clark Enter., 138 F.Supp.2d 449, 452 (S.D.N.Y.2000).

B. New York Law on Personal Jurisdiction

A court may exercise personal jurisdiction over any defendant "who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located," Fed.R.Civ.P. 4(k)(1)(a), provided that the exercise of jurisdiction comports with the Fifth Amendment's Due Process Clause. See Mario Valente Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 264 F.3d 32, 36 (2d Cir.2001). Thus, "[i]n assessing whether personal jurisdiction is authorized, `the court must look first to the long-arm statute of the forum state, in this instance New York.'" Whitaker, 261 F.3d at 208 (quoting Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir.1997)). "If the exercise of jurisdiction is appropriate under that statute, the court must decide whether such exercise comports with the requisites of due process." Id. (citing Bensusan, 126 F.3d at 27). New York subjects a foreign corporation to general jurisdiction if it is "doing business" in the state. See N.Y. C.P.L.R. § 301 (McKinney 2002) ("CPLR § 301");<sup>3</sup> Aerotel Ltd. v. Sprint Corp., 100 F.Supp.2d 189, 191 (S.D.N.Y.2000) (interpreting CPLR § 301). Under this test, "a foreign corporation is amenable to suit in New York if it is `engaged in such a continuous and systematic course' of `doing business' here as to warrant a finding of its `presence' in this jurisdiction." Aerotel, 100 F.Supp.2d at 191-92 (quoting Frummer v. Hilton Hotels Int'l Inc., 19 N.Y.2d 533, 536, 281 N.Y.S.2d 41, 227 N.E.2d 851 (1967)).

To determine whether a foreign corporation is doing business in New York, courts have focused on a traditional set of indicia: (1) whether the company has an office in the state; (2) whether it has any bank accounts or other property in the state; (3) whether it has a phone listing in the state; (4) whether it does public relations work there; and (5) whether it has individuals permanently located in the state to promote its interests. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 98 (2d Cir.2000) (Leval, J.) (citing Hoffritz, 763 F.2d at 58; Frummer, 19 N.Y.2d at 537, 281 N.Y.S.2d 41, 227 N.E.2d 851), cert. denied, 532 U.S. 941, 121 S.Ct. 1402, 149 L.Ed.2d 345 (2001). Casual or occasional activity does not constitute doing business; rather, section 301 requires a showing of "continuous, permanent, and substantial activity in New York." Landoil Res. Corp. v. Alexander & Alexander, Services, Inc., 918 F.2d 1039, 1043 (2d Cir. 1990). "The `doing business' standard is a stringent one because a corporation which is amenable to the Court's general jurisdiction `may be sued in New York on causes of action wholly unrelated to acts done in New York.'" Jacobs, 160 F.Supp.2d at 731 (quoting Ball v. Metallurgie Hoboken-Overpelt S.A., 902 F.2d 194, 198 (2d Cir. 1990)).

C. Analysis

1. Siemens AG's Independent Contacts with New York

Plaintiffs argue that Siemens AG's own contacts with this forum, apart from those of any subsidiary, illustrate that it has a continuous, systematic and permanent presence in New York. The following jurisdictional allegations are derived from the Master Complaint and supporting materials provided by plaintiffs. Siemens AG's stock is traded on the New York Stock Exchange ("NYSE") in the form of American Depository Receipts ("ADRs"). See MC ¶ 43(c). Siemens AG employs an investor relations representative in New York, a "Press Contact" by the name of Bud Grebey, and a contact person "for Siemens AG's SEC filings." Pl. Opp. at 6. It uses the Morgan Guaranty Trust Company of New York as its "ADR Depository Bank," and the New York firm Spear, Leads & Kellog as its "specialist." "Siemens AG—U.S. Listing" Webpage, Ex. 21 to Pl. Opp., at 2. In addition, Siemens AG engages the New York office of Baker Botts LLP on a regular basis to register patents and trademarks in the United States. See 4/25/02 Patent Application No. 20020049514, Ex. 19-B to Pl. Opp. (listing Baker Botts LLP in New York under "Correspondence Name and Address"); 3/12/01 Press Release Entitled "Siemens Lists on New York Stock Exchange" ("3/12/02 Pr. Rel."), Ex. 19-A to Pl. Opp., at 1.

In 1985, Siemens AG sued here to enforce a settlement agreement. See "Search Result Documents" Listing Cases in United States Federal and State Courts in Which Siemens AG, Siemens AG Oesterreich, and Siemens Corporation Were Involved ("Westlaw Caselist"), Ex. 2 to 1/22/02 Pl. Ltr. (citing Siemens AG v. Heather Leasing Corp., No. 85 Civ. 3123, 1986 WL 993, at *1 (S.D.N.Y. Jan. 13, 1986)). On another occasion, a lawsuit brought by Siemens AG in Illinois was transferred to New York. See Pl. Opp. at 11 (citing Siemens AG v. Sonotone, 370 F.Supp. 970, 973 (N.D.Ill.1973)).

Siemens's⁴ "website's opening banner proclaims: Siemens ... the Global Network of innovation." Pl. List Mem. ¶ 4. The website also states that "Siemens has been an integral part of the U.S. economy for almost fifty years" and "[W]e are building on that presence in all fifty states: The American market now generates about 22 percent of Siemens'[s] worldwide revenues and was the company's largest source of new orders in fiscal 2000." Id. ¶ 5(C). In...