Palmer v. Cora Italian Specialties, Inc.

• Docket Number: 1:20-CV-398 (FJS/DJS)
• Decision Date: 07 March 2022
• Parties: TABITHA M. PALMER, Plaintiff, v. CORA ITALIAN SPECIALTIES, INC.; CORA IMPORTS, LTD; BOTTENE F.LLI S. N.C., an Italian Business and/or Corporate entity; and ABC CORP., a Fictitious name, true identity unknown, representing any No. of businesses and/or corporate entities, Defendants. CORA IMPORTS, LTD; and CORA ITALIAN SPECIALTIES, INC., Third-party Plaintiffs v. UNIQUE CATERING OF ALBANY, INC. d/b/a Milano Restaurant, Third-party Defendant.
• Court: U.S. District Court — Northern District of New York

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TABITHA M. PALMER, Plaintiff, v. CORA ITALIAN SPECIALTIES, INC.; CORA IMPORTS, LTD; BOTTENE F.LLI S. N.C., an Italian Business and/or Corporate entity; and ABC CORP., a Fictitious name, true identity unknown, representing any No. of businesses and/or corporate entities, Defendants.

CORA IMPORTS, LTD; and CORA ITALIAN SPECIALTIES, INC., Third-party Plaintiffs v. UNIQUE CATERING OF ALBANY, INC. d/b/a Milano Restaurant, Third-party Defendant.

No. 1:20-CV-398 (FJS/DJS)

United States District Court, N.D. New York

March 7, 2022

CAPEZZA, HILL LLP, BENJAMIN W. HILL, ESQ. Attorneys for Plaintiff

MARSHALL DENNEHEY WARNER HAROLD L. MOROKNEK, ESQ. COLEMAN & GOGGIN EPHRAIM J. FINK, ESQ. Attorneys for Defendants/Cross-Claimants and Third-party Plaintiffs Cora Italian Specialties, Inc. and Cora Imports, Ltd.

FITZPATRICK & HUNT, PAGANO, JOHN M. SOCOLOW, ESQ. AUBERT LLP Attorneys for Defendant and Cross-Defendant Bottene F.lli S. N.C.

BAXTER SMITH & SHAPIRO, P.C. ARTHUR J. SMITH, ESQ. SIM R. SHAPIRO, ESQ. And Attorneys for Third-party Defendant Unique Catering of Albany, Inc. d/b/a/ Milano Restaurant

MEMORANDUM-DECISION AND ORDER

SCULLIN, Senior Judge

I. INTRODUCTION

Plaintiff brings this action against Defendants to recover for the personal injuries she sustained in the course of her work at Milano Restaurant on or about May 19, 2018, while using a pasta machine that Defendant Bottene F.lli S. N.C. ("Defendant Bottene") manufactured. Specifically, Plaintiff asserts claims against Defendants sounding in negligence, strict products liability, and breach of warranties based on Defendants' defective design, manufacture, testing, assembly, sale, distribution, in section, labeling, maintenance, warning and/or marketing of the pasta machine that caused her serious and permanent injuries.

Pending before the Court are Defendant Bottene's motion to dismiss all claims and causes of action against it for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, see Dkt. No. 28, and Plaintiff's cross-motion for jurisdictional discovery, see Dkt. No. 35.

II. DISCUSSION

A. Preliminary matter

Together with her opposition to Defendant Bottene's motion to dismiss, Plaintiff filed an amended complaint. See Dkt. No. 35-2, Amended Complaint. In its reply, Defendant Bottene argued that the Court should not consider the amended complaint because it was untimely. See Dkt. No. 38, Defendant Bottene's Reply Memorandum of Law ("Bottene Reply MOL"), at 6.^[1]After receiving the Court's permission to do so, Plaintiff submitted a Sur-reply to respond to this argument. See Dkt. No. 42, Plaintiff's Sur-reply Memorandum of Law ("Plaintiff Sur-reply MOL"), at 2-4.

After considering the parties' arguments, the Court finds that it was reasonable for Plaintiff to conclude that, because the parties had stipulated to a briefing schedule that extended her time to respond to Defendant Bottene's motion, that agreed upon extension encompassed the time in which Plaintiff could file an amended complaint. Furthermore, it is not unusual for a plaintiff to file an amended complaint in response to a motion to dismiss. Finally, the equities of the situation favor the Court's consideration of the Amended Complaint, particularly in light of the fact that Plaintiff graciously agreed to Defendant Bottene's request to extend its time to respond to her original complaint even though Defendant Bottene made that request after its time to file a response to that complaint had expired. Accordingly, for all these reasons, the Court concludes that Plaintiff timely filed her Amended Complaint; and, therefore, it is the extant complaint in this action.

B. Defendant Bottene's motion to dismiss Plaintiff's complaint for lack of personal jurisdiction and Plaintiff's cross-motion for jurisdictional discovery

Defendant Bottene's motion and Plaintiff's cross-motion are inextricably intertwined. Therefore, the Court will address the two motions together.

Plaintiff asserts that this Court has specific personal jurisdiction over Defendant Bottene under both N.Y. C.P.L.R. § 302(a)(1) and § 302(a)(3)(ii).^[2]

In pertinent part, New York C.P.L.R. § 302(a) confers specific jurisdiction over a non-domiciliary defendant when one of the following is met:

(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or

* * * * * * * * * *

3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

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

N.Y. C.P.L.R. § 302(a)(1), (a)(3)(ii).

"If plaintiffs have at least 'made a sufficient start toward establishing personal jurisdiction,' '[a] district court may order jurisdictional discovery even where [they have] not made a prima facie showing of jurisdiction.'" Bacon v. Fabio Perini S.p.A., No. 1:16-CV-1218 (BKS/CFH), 2017 WL 4861489, *10 (N.D.N.Y. July 7, 2017) (quoting JGB Enters. v. Beta Fluid Sys., 135 F.Supp.3d 18, 26-27 (N.D.N.Y. 2015) (citing, inter alia, Texas Int'l Magnetics, Inc. v. BASF Aktiengesellschaft, 31 Fed.Appx. 728, 730 (2d Cir. 2002))). A court "'should take care to "give the plaintiff ample opportunity to secure and present evidence relevant to the existence of jurisdiction."'" Jerusalem NY Enters. LLC v. Huber Erectors & Hoisting, LLC, No. 21-CV-376 (MKB), 2021 U.S. Dist. LEXIS 195428, *19 (E.D.N.Y. Oct. 9, 2021) (quoting APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) (quoting Phoenix Consulting v. Republic of Angola, 216 F.3d 36, 40, 342 U.S.App.D.C. 145 (D.C. Cir. 2000))). "The bar for granting 'jurisdictional discovery' is low, . . ., and it is appropriately granted where a plaintiff's allegations make a 'sufficient start' toward establishing personal jurisdiction, . . ." Id. (internal quotations omitted). Furthermore, "'[i]f a plaintiff has identified a genuine issue of jurisdictional fact, jurisdiction[al] discovery is appropriate even in the absence of a prima facie showing as to the existence of jurisdiction.'" Id. at 20 (quoting Daventree Ltd. v. Republic of Azer., 349 F.Supp.2d 736, 760 (S.D.N.Y. 2004)); (citing Tex. Int'l Magnetics, Inc. v. Auriga-Aurex, Inc. (In re Magnetic Audiotape Antitrust Litig.), 334 F.3d 204, 207-08 (2d Cir. 2003) (per curiam)).

1. New York C.P.L.R. § 302(a)(1)

"'To establish personal jurisdiction under [N.Y. C.P.L.R. §] 302(a)(1), two requirements must be met: (1) [t]he defendant must have transacted business within the state; and (2) the claims asserted must arise from that business activity.'" Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 168 (2d Cir. 2013) (quoting Sole Resort, 450 F.3d at 103). "[W]hether a defendant has purposefully availed itself of the New York forum is a fact-intensive inquiry inasmuch as it requires the trial court, in the first instance, to 'closely examine the defendant's contacts for their quality.'" Id. (quoting [Licci III, 20 N.Y.3d] at 338, 984 N.E.2d at 899-900, 960 N.Y.S.2d at 701-02). However, "the 'arising from' prong of section 302(a)(1) does not require a causal link between the defendant's New York business activity and a plaintiff's injury." Id. "Instead, it requires 'a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former, regardless of the ultimate merits of the claim.'" Id. at 168-69 (quoting [Licci III, 20 N.Y.3d] at 339, 984 N.E.2d at 900, 960 N.Y.S.2d at 702); see also Sole Resort, S.A. de C.V. v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d Cir. 2006) (noting that "New York courts have held that a claim 'aris[es] from' a particular transaction when there is 'some articulable nexus between the business transacted and the cause of action sued upon,' McGowan, 52 N.Y.2d at 272, 437 N.Y.S.2d 643, 419 N.E.2d 321, or when 'there is a substantial relationship between the transaction and the claim asserted,' Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467, 527 N.Y.S.2d 195, 522 N.E.2d 40 (1988). A connection that is 'merely coincidental' is insufficient to support jurisdiction." Johnson v. Ward, 4 N.Y.3d 516, 520, 797 N.Y.S.2d 33, 829 N.E.2d 1201 (2005)").

Furthermore, "[t]his inquiry is a fact-specific one, and when the connection between the parties' activities in New York and the claim crosses the line from 'substantially related' to 'mere coincidence' is not always self-evident." Sole Resort, 450 F.3d at 103. "In fact, '[w]hile there has been much discussion of what amounts to transacting business under section 302(a)(1), there has been little analysis of when a cause of action "arises" out of business so transacted.'" Id. (quoting Fontanetta v. Am. Bd. of Internal Med., 421 F.2d 355, 357 (2d Cir. 1970) (footnote omitted))."

A non-domiciliary defendant transacts business when it "'purposefully avails [itself] of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws.'" Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 166 (2d Cir. 2005) (quoting Cutco Indus., Inc v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986) (internal quotation marks and citations omitted) (second and third alterations in the original) (emphasis added)). "Section 302 'is a single-act statute requiring but one transaction...