The opinion of the court was delivered by: GRIESA
This is an action against an Austrian company and other defendants, involving a contract granting an American company exclusive rights to sell certain machinery in the United States. All defendants are domiciled outside the State of New York. Jurisdiction over them is claimed under the New York "long arm" statute.
Plaintiffs are American Edelstaal, Inc. ("Edelstaal") and Ralph A. Heineman, the principal of Edelstaal. Edelstaal is a New York corporation, having its principal place of business in New Jersey. Heineman is a resident of New Jersey.
Defendant Maier & Co. is a sole proprietorship organized under the laws of Austria having its principal place of business in Austria. Defendant EMCO is not a separate entity, but appears to be simply a trade name which Maier & Co. uses. Defendant Karl Maier is the owner of Maier & Co., and is a citizen of Austria. I will occasionally refer hereafter to these three defendants as "the Maier defendants."
Defendant Emil Lux GmbH is a company located in West Germany. Defendant Emco-Lux Corporation is a Delaware corporation, having its principal place of business in Ohio. Emco-Lux Corporation is a wholly-owned subsidiary of Emil Lux GmbH. Defendant Harald Lux is a resident of Massachusetts or Ohio. Harald Lux is a member of the Board of Directors of Emil Lux GmbH, and is the president and chief operating officer of Emco-Lux. I will occasionally refer hereafter to defendants Emil Lux GmbH, Emco-Lux Corporation, and Harald Lux as "the Lux defendants."
All defendants have moved to dismiss the action for lack of personal jurisdiction. In addition, the Maier defendants have moved to dismiss for lack of subject matter jurisdiction. The Maier defendants have moved to dismiss the action for failure to state a claim upon which relief can be granted, which must be treated as a motion for summary judgment because of reliance on matters outside the pleadings. All defendants have moved for certain protective orders regarding discovery.
The motions to dismiss for lack of personal jurisdiction are granted as to the Maier defendants, and denied as to the Lux defendants at the present time, subject to renewal after discovery and further briefing. I do not reach the motions of the Maier defendants to dismiss for lack of subject matter jurisdiction and for summary judgment. Limited discovery will be permitted against the Lux defendants, as specified later in this opinion.
The Maier defendants have never maintained any office or other facility in New York. They have no resident agent here, nor do they regularly send any representative to New York to solicit business or for any other purpose. The same is true regarding the Lux defendants.
Plaintiffs attempt to assert jurisdiction over the defendants on the basis of the New York long-arm statute, C.P.L.R. § 302(a), which provides:
"(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 nondomiciliary, or his executor or administrator, who in person or through an agent:
1. transacts any business within the state; or
2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; 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
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from the interstate or international commerce; or
4. owns, uses or possesses any real property situated within the state."
Plaintiffs have the burden of demonstrating a sufficient factual basis to sustain jurisdiction under the long-arm statute. Lehigh Valley Industries, Inc. v. Birenbaum, 527 F.2d 87 (2d Cir. 1975).
Plaintiffs claim that a jurisdictional basis exists over defendants under each of the first three provisions in C.P.L.R. § 302(a) that is, that the causes of action arise from defendants' transaction of business in New York, or from tortious acts committed by defendants in New York, or from tortious acts committed by ...