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March 30, 2001


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




A principal element of defendants' motion for summary judgment is their contention that neither of them manufactured the machine plaintiff was operating when he was injured. Instead, they contend that they had no relationship to TMG, the German entity that manufactured the machine. A brief review of the nature and history of these entities is, therefore, appropriate.

TMG was founded in 1969, and based in Sontra, Germany. Defendants maintain that TMG produced only manufacturing mills and calenders. In 1994, it terminated business operations, was dissolved and liquidated, and, according to defendants, ceased to exist as a legal entity under German law. Defendants further submit that at the same time, TMG's real estate and "nearly all" of its production machines were sold to third parties, but certain raw materials, two or three used machines and certain furniture were purchased by PTM. The proceeds from the liquidation of TMG's assets were utilized to satisfy its debts, and the remaining balance was distributed to TMG's partners.

PTM has been a partnership based in Hanover, Germany since 1892. Between 1969 and 1994, during TMG's existence, PTM manufactured only vulcanizing plants, rubber extruders, plastic extruders and complete production lines. Defendants maintain that there is no legal relationship between PTM and TMG, and PTM is not the successor-in-interest to TMG. They maintain that PTM is a "completely separate, unrelated and distinct company from TMG." Dkt. # 17, ¶ 13. At the same time, defendants concede that "some, but not all, of TMG's former partners, management and/or shareholders now serve as partners and/or in management of PTM." Id., ¶ 15. Defendants also concede that since 1994, PTM has produced two calender machines, but they consider them different in design and operation from those previously produced by TMG. PTM further asserts that it never assumed TMG's tort liabilities or any of its debts.

TML was established as an Ohio corporation in 1995 for the sole purpose of selling rubber and plastic extrusion machines in the United States. It has never manufactured any products. TML's management, personnel, assets and partners are all different from TMG.

Plaintiffs maintain that Troester is a trade name used by a partnership that has produced various machines for use in the manufacture of gaskets since 1892. They also assert that the machine involved in the accident was assembled pursuant to a cooperation agreement between TMG and PTM, and that "various kinds of calenders" were among the machines that TMG and PTM manufactured together. The manufacture of the machine in question was performed under the engineering, technical, and design direction of Hans Johzhim Golish, who was the technical director of both TMG and PTM and a PTM employee for 23 years. Moreover, all partners of TMG were partners in PTM. See Dkt. # 24, Plaintiffs' Ex. 8.

Plaintiffs also assert that prior to 1970 the KD-IT-45/15 calender machine was produced at PTM's location in Hannover. During TMG's existence, the same model calender machine was produced by TMG in Sontra. Upon its dissolution in 1994, all of TMG's patents, design drawings, drafts, technical information, engineering plans, histories of modifications, customer lists and sales information were transferred to PTM. Finally, plaintiffs assert that since TMG's dissolution, PTM continues to service TMG's former customers.


I. Summary Judgment-General Standards

Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). However, the burden of demonstrating the absence of any genuine issue of material fact rests on the moving party, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and, in ruling on a motion for summary judgment, the Court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." McKelvie v. Cooper, 190 F.3d 58, 61 (2d Cir. 1999).

To defeat summary judgment, the nonmoving party must go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists only if the record, taken as a whole, could lead a reasonable trier of fact to find in favor of the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On a motion for summary judgment, "a court's responsibility is to assess whether there are any factual issues to be tried." Coach Leatherware Co. v. AnnTaylor, Inc., 933 ...

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