The opinion of the court was delivered by: Larimer, Chief Judge.
Plaintiff, The Gleason Works ("Gleason"), commenced this action
for patent infringement against defendants Klingelnberg-Oerlikon
Geartec Vertriebs-GmbH
("Klingelnberg"), Oerlikon Geartec AG ("Oerlikon"), and Liebherr
America, Inc. ("Liebherr"). Klingelnberg, a German corporation
with its principal place of business in Germany, and Oerlikon, a
Swiss corporation with its principal place of business in
Switzerland, are allegedly related companies, although at this
stage the precise nature of their relationship is not clear. The
complaint alleges that Klingelnberg and Oerlikon manufacture
gear-making machines that infringe a patent held by Gleason for a
computer-controlled gear-generating machine. Gleason alleges that
Liebherr, a Virginia corporation with its principal place of
business in Virginia, sells the infringing products on behalf of
Klingelnberg and Oerlikon in the United States.
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.
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
"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 ...