The opinion of the court was delivered by: WEXLER
WEXLER, LEONARD D., U. S. DISTRICT JUDGE
Plaintiffs Edwin Munsell and his wife Elsie commence this action for personal injuries against Jean Rouleau and La Brasserie Molson Du Quebec, Limitee (La Brasserie), which plaintiff demoninate as "doing business as Molson Breweries." Plaintiffs are citizens of New York, and presumably the United States. La Brasserie and Mr. Rouleau are alleged to be citizens of Canada.
In November 1983 Mr. Rouleau, an employee of La Brasserie, was operating a towmotor hilo lift vehicle on the premises of La Brasserie in Montreal, Quebec, Canada. At that time Mr. Munsell was employed as a truck driver for Claire Rose, Inc., and was at La Brasserie picking up a truckload of beer. During Mr. Munsell's visit to La Brasserie on November 14, 1983 Mr. Rouleau allegedly ran over Mr. Munsell's right ankle and foot with the hilo lift vehicle.
In November 1984 plaintiffs commenced this lawsuit, serving both defendants in Montreal, Canada. Defendants now move this Court for dismissal of the action for lack of personal jurisdiction over the defendants, Rule 12(b)(2), Fed.R.Civ.P., and forum non conveniens.
This is a tort claim not arising under federal law and before this Court because of diversity of citizenship between the parties. 28 U.S.C. § 1332(a)(2). Therefore, this Court must look to the New York long-arm statutes
to sustain personal jurisdiction over the defendants. Arrowsmith v. United Press International, 320 F.2d 219 (2d Cir. 1953).
The Court first addresses personal jurisdiction over Mr. Rouleau. Defendant Rouleau is undisputedly a citizen of Canada and not found within the state of New York. The parties also agree that the events that caused Mr. Munsell's injuries occurred exclusively in Canada. Clearly, there is no basis for in personam jurisdiction over Mr. Rouleau based on the "doing business" provision of the long-arm statute. N.Y. CPLR § 301 (McKinney 1972). Nor is there any showing that Mr. Rouleau transacts any business, owns property, or committed a tort within New York. N.Y. CPLR § 302(a)(1-2, 4). While it is alleged that Mr. Rouleau committed a tortious act outside the state causing injury to a New York citizen, that is not enough for long-arm jurisdiction under § 302(a)(3). For in addition to the fact that defendant has not been shown to derive revenue from New York state, interstate, or international commerce, strictly speaking the injury to plaintiff was not suffered in New York, but in Canada. And Mr. Munsell's New York citizenship alone does not suffice to establish in personam jurisdiction under § 302(a) (3). Black v. Oberle Rentals, Inc., 55 Misc.2d 398, 285 N.Y.S.2d 225 (Sup.Ct. 1967).
Accordingly, the Court concludes that it lacks personal jurisdiction over defendant Rouleau and dismisses the action as to him.
Personal jurisdiction over defendant La Brasserie is a more difficult question. According to defendant's counsel, La Brasserie is a brewery incorporated in Quebec, Canada with its only place of business in Montreal. It is also a wholly-owned subsidiary of the Molson Companies, Limited (Molson Companies). Molson Companies has ten breweries in Canada, including La Brasserie. Another Canadian corporation, Molson Breweries of Canada, Limited (Molson Breweries) is also a wholly-owned subsidiary of Molson Companies. Finally, Oron, Inc. is an indirectly wholly-owned subsidiary of Molson Companies incorporated in Delaware. In turn, Martlet Importing Company (Martlet) is a New York corporation and wholly owned by Oron.
Martlet imports Molson-brand ale and beer to New York and the New England states. It does this by placing orders with Molson Breweries. Molson Breweries fills the orders for imports to New York from La Brasserie. As noted earlier, plaintiffs served the summons and a complaint on La Brasserie in Montreal. They now seek to base personal jurisdiction on Martlet's New York presence and incorporation.
Under N.Y. CPLR § 301 (McKinney 1972) a New York court may sustain personal jurisdiction over a foreign corporation if that corporation is doing business within the state, as interpreted by a large body of case law. This is in contrast to the principle of acquiring in personam jurisdiction over non-domiciliaries based on their acts as provided in § 302. Fundamentally, § 301 is presence test requiring business activity with a fair measure of permanence and continuity. CPLR § 301 Practice Commentaries C301:2 (McKinney 1972). For purposes of § 301, an out-of-state corporation may be deemed to be doing business within New York through an affiliate. This is the theory proferred by the plaintiffs to support in personam jurisdiction over La Brasserie.
There are two recognized bases for establishing personal jurisdiction over a foreign corporation through the presence of an affiliate within New York. In essence these are analytical frameworks for attributing or imputing the business activities of the in-state affiliate to the out-of-state corporation. The first basis is termed piercing the corporate veil. Under this analysis personal jurisdiction is established by showing that the subsidiary is merely an instrumentality of the parent corporation, which controls its day-to-day operations, management, and finances. In short, when the subsidiary does not have a genuinely separate corporate identity, but more accurately functions as a division ...