In re Ski Train Fire in Kaprun, Austria On Nov. 11
| Decision Date | 08 October 2004 |
| Docket Number | MDL No. 1428(SAS).,No. 03 Civ.6351.,03 Civ.6351. |
| Citation | 342 F.Supp.2d 207 |
| Parties | In re SKI TRAIN FIRE IN KAPRUN, AUSTRIA ON NOVEMBER 11, 2000 This Document Relates To: Defendants Waagner-Biro Binder AG, Waagner-Biro Binder Beteiligungs AG, WB Holding AG, Binder + Co AG. |
| Court | U.S. District Court — Southern District of New York |
Jay J. Rice, Randee M. Matloff, Nagel Rice & Mazie, LLP, Livingston, NJ, Robert A. Swift, Hilary Cohen, Kohn, Swift & Graf, P.C., Philadelphia, PA, Ken Nolan, Christina M. Fry, Speiser, Krause, Nolan & Granito, New York, NY, Edward D. Fagan, New York, N.Y. and Short Hills, NJ, Michael Witti, Witti, Newmann & Partners, for Plaintiffs.
Frederick W. Reif, Debra Tamra, Riker, Danzig, Scherer, Hyland & Perretti LLP, New York, NY, for Defendants.
Plaintiffs, the relatives of Americans who died in a ski train fire on November 11, 2000, in Kaprun, Austria, brought several individual actions against numerous individual and corporate defendants for damages and declaratory and injunctive relief. The Judicial Panel on Multidistrict Litigation ("MDL Panel") consolidated these suits for pretrial purposes before this Court.1 Defendants Binder AG in Abwicklung (as successor in interest to Waagner-Biro Binder Aktiengesellschaft and Waagner-Biro AG) (collectively, "WBB"), Waagner-Biro Binder Beteiligungs AG ("WBBB"), WB Holding AG ("WBH") and Binder + Co AG ("Binder") (collectively, "the Waagner defendants") now move to dismiss for lack of personal jurisdiction and forum non conveniens. For the reasons set forth below, the Waagner defendants' motion to dismiss for lack of personal jurisdiction is granted.2
WBB is an Austrian corporation located in Linz, Austria with administrative headquarters in Vienna, Austria.3 Plaintiffs allege that WBB designed, engineered, and manufactured major parts of the ski train at issue in this litigation.4
WBBB is an Austrian corporation located in Vienna, Austria.5 Founded on June 30, 2001, WBBB is a holding company that acquires majority interests in other companies; it conducts no active operations of any kind.6
WBH is also an Austrian holding company located in Vienna, Austria.7 Although WBH's primary business is the ownership of majority interests in other companies, it also provides consulting services to its subsidiary companies.8
Binder is an Austrian corporation located in Gleisdorf, Austria.9 Binder was founded on September 28, 1999, and is in the business of developing and manufacturing environmental, reprocessing, and packaging technology.10 Binder is a 99.997% owned subsidiary of WBH.11
On or about June 27, 2001, plaintiffs filed a complaint against WBB in the United States District Court for the Central District of California.12 The action was subsequently transferred to this Court by the MDL Panel on November 19, 2001.13 On or about December 21, 2001, plaintiffs filed a Consolidated and Amended Complaint ("Amended Complaint") against WBB and other defendants.14 With this Court's permission, plaintiffs further amended the Amended Complaint to name three additional Waagner entities as defendants.15 Subsequently, the Waagner defendants moved to dismiss on a number of grounds, including lack of personal jurisdiction.16 This Court granted that motion to dismiss for lack of personal jurisdiction in California, transferred the case to the District of Colorado, and ordered jurisdictional discovery concerning the Waagner defendants' Colorado-based contacts.17 The MDL then transferred this action back to this Court.18
Plaintiffs argue that the Waagner defendants' contacts with Colorado are sufficient to confer jurisdiction over defendants. Plaintiffs admit, however, that "the principal basis for establishing jurisdiction over the Waagner defendants is through agency/alter ego."19 Thus, plaintiffs contend that this Court may exercise jurisdiction over the Waagner defendants through Binder subsidiary Packaging Systems International ("PSI"), a Colorado-based manufacturer of industrial packaging equipment, because PSI is the agent of defendants. Finally, plaintiffs argue that the Waagner defendants operate as alter egos of each other, and that this Court should ignore the corporate form and find jurisdiction over defendants through PSI.
In an MDL proceeding, "the forum state is the district court where the action was originally filed, and therefore that state's law must be applied."20 Although this action was originally filed in the Central District of California, it was transferred to the District of Colorado due to lack of personal jurisdiction in California.21 When a suit is transferred for lack of personal jurisdiction in the forum state of the transferor, the law of the transferee jurisdiction applies.22 Thus, this Court must apply Colorado law to determine whether a Colorado court would have personal jurisdiction over defendants.23
Plaintiffs bear the burden of establishing personal jurisdiction over the defendants.24 "Prior to trial, however, when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing."25 Any conflicts that exist in the pleadings, affidavits, and other materials must be resolved in favor of plaintiffs in determining whether a prima facie showing of personal jurisdiction has been made.26
In transferring this action from the Central District of California to the District of Colorado, this Court stated that plaintiffs made an "initial showing that there may be personal jurisdiction over at least some of the Waagner defendants in Colorado," and ordered jurisdictional discovery concerning defendants' Colorado contacts.27 Plaintiffs argue that they are entitled to additional jurisdictional discovery in order to establish a prima facie case of jurisdiction.28 However, Second Circuit precedent is clear that plaintiffs, having failed to demonstrate a prima facie case of jurisdiction, are not entitled to further jurisdictional discovery.29
To establish jurisdiction in a diversity action in federal court, plaintiffs must show both that jurisdiction is proper under the long-arm statute of the forum state and that the exercise of personal jurisdiction over defendants comports with due process principles of the United States Constitution.30
Colorado courts have determined that the state's long-arm statute authorizes jurisdiction "to the fullest extent permitted by the due process clause of the United States Constitution."31 Thus, the sole inquiry for this Court is whether personal jurisdiction over the defendants accords with constitutional principles of due process.
Under the Due Process Clause of the Fourteenth Amendment, for a court to exercise personal jurisdiction over a nonresident corporate defendant, that defendant must have "certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice."32 A court may exercise "specific jurisdiction" over a defendant who has "purposefully directed his activities at residents of the forum" when "the alleged injuries arise out of or relate to those activities."33 "Even a single act can sometimes support specific jurisdiction."34
When the alleged injuries do not arise out of or relate to defendants' contacts with the forum, a court may exercise "general jurisdiction" over a defendant provided that "continuous and systematic general business contacts" exist between the defendant and the forum state.35 "Generally speaking, the more tenuous the connection between the cause of action sued upon and the defendant's activities in the forum state, the more substantial the defendant's contacts with the forum state must be to render the assertion of jurisdiction reasonable."36 Thus, while" `a minimum of contacts'" is usually sufficient to support specific jurisdiction, an exercise of general jurisdiction requires "`substantial contacts with the state.'"37 In evaluating the sufficiency of a corporation's contacts with the forum state, courts consider such factors as whether the corporation maintains a local office or agents through which it solicits business, the extent to which it holds itself out as doing business in the forum state through advertising, listings, or bank accounts, and the volume of business the corporation conducts in the forum state.38
Plaintiffs argue that the Waagner defendants' own contacts with Colorado, independent of the presence of Binder subsidiary PSI, are sufficient to demonstrate that defendants purposefully availed themselves of the privilege of conducting business in the state of Colorado.39 In support of this contention, plaintiffs offer the following jurisdictional allegations with respect to defendant Binder. Two officials serving on "the Executive Board of Binder and PSI" took twenty-seven trips to Colorado between October 2000 and October 2003.40 Binder's website lists at least forty-eight deliveries of Binder products to the United States between 1998 and 2003.41 Binder sells packaging machines under the PSI name in the United States.42 With respect to defendant WBB, plaintiffs' sole allegation of direct contact between the defendant and the forum state is that WBB sold over $52,000 worth of goods to PSI between June and September 2001.43
The direct contacts plaintiff enumerates between defendants and the forum state are clearly insufficient to establish the "continuous and systematic general business contacts" necessary to exercise general jurisdiction consistent with the principles of due process.44 Plaintiffs make no allegation that the trips to Colorado by Mr. Jorg Rosegger and Mr. Karl Grabner, who served on the...
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