In re Ski Train Fire in Kaprun, Austria, 02 Civ. 3101.

• Citation: 230 F.Supp.2d 392
• Decision Date: 14 August 2002
• Docket Number: MDL No. 1428(SAS).,No. 02 Civ. 3101.,02 Civ. 3101.
• Parties: In re SKI TRAIN FIRE IN KAPRUN, AUSTRIA ON NOVEMBER 11, 2000.
• Court: U.S. District Court — Southern District of New York

230 F.Supp.2d 392

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

No. 02 Civ. 3101.

MDL No. 1428(SAS).

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

August 14, 2002.

COPYRIGHT MATERIAL OMITTED

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

Arnd N. von Waldow, Patricia E. Antezana, Reed Smith LLP, Pittsburgh, PA, for Defendant BRC.

Arthur J. Liederman, Matthew B. Anderson, Morrison, Mahoney & Miller, LLP, New York City, for Defendant Bosch Rexroth AG.

OPINION AND ORDER

SCHEINDLIN, District Judge.

Plaintiffs filed several actions against numerous defendants, alleging that they caused a ski train fire that killed plaintiffs' children and grandchildren on November 11, 2000 in Kaprun, Austria. The Judicial Panel on Multidistrict Litigation consolidated these suits for pretrial purposes before this Court. Defendants Bosch Rexroth Corporation ("BRC") and Bosch Rexroth Aktiengesellschaft ("Bosch Rexroth AG") now move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, and pursuant to the doctrine of forum non conveniens. Bosch Rexroth AG also moves to dismiss for lack of personal jurisdiction. For the reasons set forth below, the motions are denied in their entirety.

I. BACKGROUND

BRC is a United States corporation with its principal place of business in Bethlehem, Pennsylvania. See Amended and Consolidated Complaint ("Consolidated Complaint" or "Consol. Compl.") ¶ 17 (referring to "Bosch Rexroth Hydraulics USA"). Bosch Rexroth AG is a multinational corporation with its principal place of business in Lohr am Main, Germany. See id. ¶ 16. Robert Bosch GmbH, headquartered in Stuttgart, Germany, which owns "Bosch Group" or "Bosch," is a holding company and the ultimate parent company of Bosch Rexroth AG. See Plaintiffs' Opposition to Defendants' Motions to Dismiss ("Pl.Opp.") at 3 (citing Undated Website, November News: Control Engineering Online ("Engineering Online"), Ex. 3 to Pl. Opp. at 2). It is unclear whether Robert Bosch GmbH or Bosch Rexroth AG, or some other entity, owns or has a controlling interest in BRC.¹

II. WHETHER PLAINTIFFS STATE A CLAIM

The defendants move to dismiss the case against them on the ground that plaintiffs fail to state a claim upon which relief can be granted. See BRC's Memorandum in Support of Its Motion to Dismiss ("BRC Mem.") at 5; Bosch Rexroth AG's Memorandum in Support of Its Motion to Dismiss ("BR AG Mem.") at 8.

A. Legal Standard

A motion to dismiss should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir.2000) (quotation marks and citation omitted). "At the Rule 12(b)(6) stage, `[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.2000) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998)). The task of the court in ruling on a Rule 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Sims, 230 F.3d at 20 (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir.1984) (quotation marks omitted)). When deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "take as true all of the allegations contained in plaintiff's complaint and draw all inferences in favor of plaintiff." Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir.2001).

B. The Governing Complaint

There is some dispute as to which complaint governs this case. Defendant Bosch Rexroth AG argues that the Original Complaint filed by plaintiffs in the Eastern District of Pennsylvania controls. See BRC Mem. at 3 n. 1; BR AG Mem. at 14-15; BRC's Reply Memorandum in Further Support of Its Motion to Dismiss ("BRC Reply") at 1-4. Plaintiffs argue, in turn, that the Court must look to the Consolidated Complaint to decide these motions. See Pl. Opp. at 1-2.

On December 21, plaintiffs filed their Consolidated Complaint in the MDL proceeding before this Court. The Consolidated Complaint has never been filed in the Eastern District of Pennsylvania, nor did plaintiffs seek to amend their claims against BRC in that action. See BRC Reply at 2-3. On November 19, 2001, the MDL Panel transferred several actions to this Court and conditionally transferred others, including this action. On January 9, 2002, BRC filed a Notice of Opposition to the MDL Panel's Conditional Transfer Order, which BRC contends "automatically stayed the effect of the Conditional Transfer Order[, meaning] that this Court's jurisdiction over plaintiffs' claims against BRC had not yet attached." On April 17, 2002, the MDL Panel issued a Transfer Order denying BRC's motion to vacate the Conditional Transfer Order. The Transfer Order sent plaintiffs' claims to this Court "`for inclusion in the coordinated or consolidated pre-trial proceedings occurring [here]in.'" Id. (quoting 4/17/02 Transfer Order). On May 2, 2002, plaintiffs served BRC with a copy of the Consolidated Complaint. See 5/02/02 Letter from Robert A. Swift to Arthur Liederman (stating that he was serving the Consolidated Complaint on Bosch Rexroth AG, and also on BRC).

Defendant BRC argues, incorrectly, that the Original Complaint has never been amended. A party may amend "once as a matter of course before a responsive pleading is served ...." Fed.R.Civ.P. 15(a). Here, this Court granted plaintiffs leave to amend their complaints in the MDL proceeding on December 13, 2001, whereas BRC first moved to dismiss in the Pennsylvania action on December 21, 2001. However, BRC was not a party to the MDL action at that time; hence, plaintiffs' argument that they amended their pleading with respect to BRC before a responsive pleading was served, see Pl. Opp. at 2, is erroneous. Nevertheless, "a party may amend the party's pleading ... by leave of court or by written consent of the adverse party; and leave shall be freely given." Fed.R.Civ.P. 15(a). District courts have great discretion when deciding whether or not to grant leave to amend. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Courts have agreed in some cases to consider an amended complaint served without judicial permission as long as the court would have granted leave to amend if it had been sought and none of the parties would be prejudiced by allowing the change. See, e.g., American Angus Ass'n v. Sysco Corp., 865 F.Supp. 1174, 1175 (W.D.N.C.1993); Hicks v. Resolution Trust Corp., 767 F.Supp. 167, 170 (N.D.Ill.1991). Here, the Court granted plaintiffs leave to file the Consolidated Complaint in the MDL proceeding, which now includes BRC and Bosch Rexroth AG. To the extent that plaintiffs' service of the Consolidated Complaint on BRC was served without judicial permission, this Court would have granted leave to amend the Complaint had it been sought. Neither defendant shows it has been prejudiced by this amendment.

BRC's remaining arguments are without merit. It argues that the claims against BRC were "certainly not transferred to the MDL proceeding for trial under the Consolidated and Amended Complaint which had been filed in only the MDL proceeding." Id. BRC also argues that the Master Complaint "seeks to circumvent the MDL Panel's clear and unambiguous directive that the matter be sent to this Court only for `pretrial proceedings,'" id. (quoting 4/17/02 Transfer Order). This Court will not try the cases transferred to it, but rather will make all pretrial decisions in accordance with the 4/17/02 Transfer Order. This includes determining whether the parties have successfully amended any pleadings they purport to have amended. The Original Complaint filed in the Eastern District of Pennsylvania is hereby deemed amended by the Consolidated Complaint.²

C. The Allegations

Bosch Rexroth AG is alleged to have negligently "designed, constructed, modified, recommended, installed and/or tested the hydraulic[s] system of the [ski train involved in the accident (`Train')]." Consol. Compl. ¶19. Plaintiffs allege that BRC was "involved in the [negligent] design, manufacture, installation and/or modification of the hydraulics system in the Train." Id. ¶27. That hydraulics system is alleged to have been dangerously defective because it contained "plastic pipes, connectors and hydraulic oil that were highly flammable and unsafe." Id. ¶¶ 28, 32 (citing various reports made by Austrian criminal investigators).

Defendants do not argue that these allegations fail to state a claim under Austrian law or the law of any other state.³ Rather, BRC complains that (1) "plaintiffs do not identify and/or differentiate the role or involvement of BRC and Bosch Rexroth AG with respect to the Kaprun accident"; and (2) "plaintiffs have not identified a single product or component of the ski train at issue that BRC has in any way designed, manufactured, supplied or serviced [or] identified any specific act of omission and/or commission by BRC giving rise to plaintiffs' decedents' deaths." BRC Mem. at 4. Similarly, Bosch Rexroth AG contends that plaintiffs have not identified a "single product or component" of the Train that has been manufactured or designed and/or tested by it. BR AG Mem. at 8. Thus, defendants seem to argue that plaintiffs fail to satisfy Rule 8 of the Federal Rules of Civil Procedure.⁴

If plaintiffs provide a "short and plain statement," Fed.R.Civ.P. 8(a)(2), that gives the...