The opinion of the court was delivered by: Kahn, District Judge.
Presently before the Court is defendant Cuprum's motion to amend and,
in the alternative, to dismiss. For the following reasons, defendant
Cuprum's motion is DENIED.
Plaintiff received a six-foot aluminum ladder as a gift in the spring
of 1997. That ladder was purchased at an outlet store of defendant
Hechinger's successor corporation, Builder's Square, located in Colonie,
New York. Defendant Cuprum manufactured the ladder in Mexico.
Two years after receiving the ladder, Plaintiff alleges that it
unexpectedly collapsed beneath him, causing serious head injuries. He
filed suit on August 27, 1999 against both defendants claiming they
violated New York's product liability law and breached the ladder's
warranty. On February 7, 2000, defendant Cuprum filed a letter brief
seeking leave of the Court to amend its answer and raise certain
affirmative defenses that its former counsel failed to raise. In that
letter, defendant Cuprum also argued on the basis of these new defenses
that dismissal of all claims against it was proper. The Court will
address these matters in turn.
Defendant Cuprum seek leave of this Court to amend its answer. After
the filing of a responsive pleading, a party may amend a pleading only by
leave of the court, which leave "shall be freely given when justice so
requires." Fed.R.Civ.P. 15(a). This Court has held that leave to amend
shall be freely given absent any reason to the contrary, such as bad
faith, undue delay, or futility of amendment. See Stetz v. Reeher
Enters., Inc., 70 F. Supp.2d 119, 121 (N.D.N.Y. 1999).
There is no evidence of bad faith or undue delay on the part of
defendant Cuprum. Rather, it appears on the basis of the papers submitted
that defendant Cuprum changed law firms in late 1999 and its new law firm
did not receive this case file from defendant Cuprum's old law firm until
December 16, 1999. On that date, defendant Cuprum's new law firm reviewed
the file and immediately contacted Magistrate Judge Ralph W. Smith to
request an extension of time to amend its answer in order to assert
various affirmative defenses that the prior law firm failed to raise.
Magistrate Judge Smith directed the parties to file the letter briefs
presently before the Court and then, because the briefs raised dispositive
issues, directed this Court to decide them on the merits.
Plaintiff asserts that defendant Cuprum waived its right to assert
these defenses because it failed to raise them in its initial answer. The
Court rejects this assertion. Under Federal Rule of Civil Procedure
12(h)(1), a defense of lack of jurisdiction over the person,
insufficiency of process, or insufficiency of service of process is
waived if, in part, the party seeking to assert the defense does not
include it in a responsive pleading or move to amend its pleading under
Rule 15(a). See Fed.R.Civ.P. 12(h)(1).
Here defendant Cuprum moved to amend its pleading under Federal Rule of
Civil Procedure 15(a)(1), bringing it within the waiver exception to
Federal Rule 12(h)(1). Significantly, this motion was made less than
three months after defendant Cuprum's original counsel filed its initial
answer and before either defendant Cuprum's original counsel or new
counsel filed any other motions with this Court. Given the confusion
Cuprum's change in counsel and the speediness in which defendant Cuprum's
new counsel made its request to amend the original answer, the Court
holds that defendant Cuprum did not waive its ability to assert the
affirmative defenses of insufficient service of process and lack of
personal jurisdiction. Thus, unless defendant Cuprum's motion to amend is
not futile, a matter which the Court will now address, it should be
B. Lack of Personal Jurisdiction
Personal jurisdiction over a defendant in a diversity action is
determined by the law of the forum state. See CutCo Indus., Inc. v.
Naughton, 806 F.2d 361, 365 (2d Cir. 1986). Plaintiff maintains, and
defendant Cuprum disputes, that § 302(a)(3) of New York's long arm
statute provides the Court with personal jurisdiction over defendant
Cuprum. Defendant Cuprum also argues that Plaintiff's attempt to "hale"
it into court in this country, pursuant to that statute, runs afoul of
its constitutional right to due process.
1. New York's Long Arm Statute
Under § 302(a)(3) of New York's long arm statute,
(a) a court may exercise personal jurisdiction over
any non-domiciliary . . . who in person ...