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February 9, 1998

KURZ-HASTINGS, INC., Defendant. KURZ-HASTINGS, INC., Third-Party Plaintiff, v. FORBES PRODUCTS CORPORATION and NAVITAS CO., LTD., Third-Party Defendants.

The opinion of the court was delivered by: HECKMAN

 In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including trial and entry of final judgment. Third-party defendant Navitas Co., Ltd. ("Navitas") has moved to dismiss the action against it for lack of personal jurisdiction. For the following reasons, Navitas' motion is denied.


 On September 20, 1995, plaintiffs commenced this action in New York State Supreme Court, Allegany County, against Kurz-Hastings, Inc. ("Kurz-Hastings") for damages arising out of personal injuries allegedly sustained by plaintiff Lillian Kernan on October 15, 1992, while she was operating a hot stamping press during the course of her employment at Forbes Products Corporation ("Forbes") in Dansville, New York. On October 20, 1995, Kurz-Hastings (a Pennsylvania corporation) removed the action to this court on the basis of diversity jurisdiction.

 On March 11, 1997, Navitas filed an answer to the third-party complaint asserting several affirmative defenses, including lack of personal jurisdiction (Item 18). In its answer, Navitas "admits that it manufactured, partially designed, and assembled a product called HT-10L-PL Vertical Hot Stamping Press" (Item 18, P "Sixth").

 On April 3, 1997, in order to determine the factual basis for plaintiffs' jurisdictional allegations, Navitas served Kurz-Hastings with the following "Request for Admission:"

REQUEST FOR ADMISSIONS 1. Neither Defendant/Third-Party Plaintiff KURZ-HASTINGS, INC., nor its attorneys have any evidence in admissible or potentially admissible form demonstrating that Third-Party Defendant NAVITAS CO. LTD. knew or reasonably should have known that the product which is alleged to be defective in this lawsuit was, or would be, sold in New York State.

 Item 24, Ex. D). On May 19, 1997, Kurz-Hastings replied to this request as follows:

Denied as stated. For some years prior to the sale of the equipment which is the subject of this lawsuit, Third-Party Defendant Navitas . . . had maintained a relationship with Third-Party Plaintiff, Kurz-Hastings . . . whereby Navitas authorized Kurz-Hastings to resell and distribute stamping foil machines such as the one at issue in this litigation throughout the United States and Canada, and on a number of occasions, Navitas in fact sold products to Kurz-Hastings for the purpose of such resale and distribution. Navitas had no reason to believe that the equipment it sold and delivered to a Pennsylvania corporation would remain in Pennsylvania, but rather knew or should have known that it could and would ultimately be delivered to and used in other states, including New York.

 Id., Ex. E).

 On October 31, 1997, Navitas moved to dismiss the third-party complaint against it for lack of personal jurisdiction. According to the supporting affidavit of Navitas' corporate president Nubuo Arita, Navitas is a Japanese corporation with no significant contacts in New York (Arita Aff., attached to Item 24). Mr. Arita states that Navitas has never transacted or solicited business or provided any services in New York, and is not licensed or registered to do so. According to Mr. Arita, Navitas does not maintain an office, pay taxes, own property, or otherwise engage in any conduct in New York to show that it anticipated that it would be subject to the personal jurisdiction of a court in New York State. Mr. Arita states that Navitas had an oral agreement with Kurz-Hastings to manufacture the Model HT-10L-PL press (Arita Aff., P 23), but "had no knowledge of what would become of the subject press machine after it was sold to Kurz-Hastings in Pennsylvania, beyond the general knowledge that Kurz-Hastings would resell it somewhere in Pennsylvania or one of the other 49 states in the United States" (id., P 26).

 In response, Kurz-Hastings has submitted the affidavit of its vice president of sales Joseph D. McNamara (Item 26, Ex. A). Mr. McNamara states that the machine in question was sold to Forbes by Kurz-Hastings in January, 1979 (see id., Ex. B). He further states that, on April 22, 1976, Kurz-Hastings entered a contract with Taihei Industries Co., Ltd., Navitas' corporate predecessor, under which Taihei granted Kurz-Hastings an exclusive right to sell and promote Taihei's products in the United States (see id., Ex. C). Mr. McNamara also states that Navitas services its products sold in the United States by providing a credit for parts replaced up to 10 days after sale.

 Oral argument of the motion to dismiss was held before the undersigned on January 15, 1998. What follows is the court's ruling on Navitas' motion.


 A. Motion to Dismiss for Lack of Personal Jurisdiction.

 In Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560 (2d Cir.), cert. denied, U.S. , 117 S. Ct. 508, 136 L. Ed. 2d 398 (1996), the Second Circuit reviewed the analytical framework governing a motion to dismiss for lack of personal jurisdiction. Id. at 566-67; see also Jones v. LaBofa A/S, 1997 U.S. Dist. LEXIS 16147, 1997 WL 642468, at *3 (N.D.N.Y. October 15, 1997). First, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). Where--as in this case--the parties have conducted discovery regarding the defendant's contacts with the forum state, but no evidentiary hearing has been held, "the plaintiff's prima facie showing, necessary to defeat a jurisdiction testing motion, must include an averment of facts that, if credited by [the ultimate trier of fact], would suffice to establish jurisdiction over the defendant." Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 112 L. Ed. 2d 116, 111 S. Ct. 150 (1990), quoted in Metropolitan Life, supra at 568. The court must accept the averment of facts in the pleadings and motion papers as true, and resolve all doubts in the plaintiff's favor. Cutco Industries, Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986).

 Substantively, "the amenability of a foreign corporation to suit in a federal court in a diversity action is determined in accordance with the law of the state where the court sits, with 'federal law' entering the picture only for the purpose of deciding whether a state's assertion of jurisdiction contravenes a constitutional guarantee." Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir. 1963), quoted in Metropolitan Life, supra, 84 F.3d at 567. "Thus, in resolving questions of personal jurisdiction in a diversity action, a district court must conduct a two-part inquiry. First, it must determine whether the plaintiff has shown that the defendant is amenable to service of process under the forum state's laws; and second, it must assess whether the court's assertion of jurisdiction under these laws comports with the requirements of due process." Metropolitan Life, supra, 84 F.3d at 567; see also Chaiken v. W Publishing Corp., 119 F.3d 1018, 1025 (2d Cir. 1997). It is to this inquiry that the court now turns.

 B. New York's Long-Arm Statute.

 In this case, the parties agree that C.P.L.R. § 302(a)(3)(ii) provides the only basis for "long-arm" jurisdiction over Navitas in New York. That section provides:

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:
* * *
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 ...

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