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March 30, 2001


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.


A. Motion to Amend

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 surrounding defendant 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 granted.

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 ...

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