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GLEASON WORKS v. KLINGELNBERG-OERLIKON GEARTEC

July 27, 1999

THE GLEASON WORKS, PLAINTIFF,
v.
KLINGELNBERG-OERLIKON GEARTEC VERTRIEBS-GMBH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Larimer, Chief Judge.

DECISION AND ORDER

INTRODUCTION

Klingelnberg and Oerlikon have each moved to dismiss the complaint pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure on the ground of lack of personal jurisdiction. After Klingelnberg filed its motion, Gleason and Klingelnberg entered into a stipulation whereby plaintiff voluntarily dismissed Klingelnberg from the action, based on certain representations made by Klingelnberg in support of its motion to dismiss, but retained leave to reinstate Klingelnberg in the event that later-discovered facts revealed a basis for personal jurisdiction. Thus, only Oerlikon's motion is now pending before the court.

BACKGROUND

The relevant facts are largely undisputed. Oerlikon manufactures the allegedly infringing gear-cutting machine, which is known as Model C-28. In the United States, all of Oerlikon's machines are sold exclusively through Liebherr, an independent distributor.

One particular machine is at issue here. In October 1997, Oerlikon sent a C-28 machine to Liebherr, which accepted it on consignment for sale. The arrangement between Oerlikon and Liebherr was that if the machine were sold, Liebherr would purchase it from Oerlikon and then sell it to the customer.

Liebherr displayed the machine at a tradeshow in Michigan in October 1997. Representatives of Oerlikon attended the show to operate the machine and answer spectators' questions.

After the show ended, the machine was placed at Liebherr's facilities in Saline, Michigan, where it was used as a demonstration machine for customers. In December 1997, Liebherr received a purchase order to place the machine in a Buffalo, New York facility of American Axle & Manufacturing, Inc. ("AAM") for demonstration and testing. The machine was sent there in March 1998, and remained there for at least several months, during which time AAM compared it against a Gleason machine that had been sent by Gleason to AAM, also for testing purposes. Again, Oerlikon personnel went to AAM on several occasions to provide technical support.*fn1

DISCUSSION

I. Legal Standards

"A plaintiff facing a Fed.R.Civ.P. 12(b)(2) motion to dismiss made before any discovery need only allege facts constituting a prima facie showing of personal jurisdiction." PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997). Since there has been no discovery in this case, then, plaintiff may defeat Oerlikon's motion "based on legally sufficient allegations of jurisdiction." Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.), cert. denied, 519 U.S. 1006, 117 S.Ct. 508, 136 L.Ed.2d 398 (1996); accord Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). In deciding the motion, the court must also "construe the pleadings and affidavits in plaintiff's favor at this early stage." PDK Labs, 103 F.3d at 1108.

In addition, on a motion of this type, the court "has considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion." Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). While plaintiff has the ultimate burden of establishing jurisdiction by a preponderance of the evidence, prior to an evidentiary hearing or trial "a prima facie showing suffices, notwithstanding any controverting presentation by the moving party, to defeat the motion." Id.; accord Benjamin Sheridan Corp. v. Benjamin Air Rifle Co., 827 F. Supp. 171, 174 (W.D.N.Y. 1993).

I do not believe that discovery or a hearing is necessary for the court to decide Oerlikon's motion. Most of the relevant facts are undisputed, and the only real issue is their legal significance, specifically whether those facts ...


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