Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
IN RE SKI TRAIN FIRE IN KUPRUN
August 8, 2002
IN RE SKI TRAIN FIRE IN KAPRUN, AUSTRIA ON NOVEMBER 11, 2000. THIS DOCUMENT RELATES TO: DEFENDANT SIEMENS AG.
The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge
Plaintiffs Angela and Rudolf Kern, John and Suzanne Habblett, Dick and
Carol Baker, and Clair Goodridge, are the parents and grandparents of six
Americans killed in a ski train accident on November 11, 2000 in Kaprun,
Austria. Their individual actions alleging that a total of seventeen
defendant train and train part manufacturers, ski resort operators, and
marketing companies were negligent and/or should be held strictly
liable, have been consolidated before this Court by the Judicial Panel on
Multidistrict Litigation ("MDL Panel").*fn1 Defendant Siemens AG now
moves to dismiss the action against it pursuant to Federal Rule of Civil
Procedure 12(b)(2) for lack of personal jurisdiction,*fn2 and, in the
alternative, pursuant to the doctrine of forum non conveniens. See
3/28/02 Siemens AG's Memorandum in Support of Its Motion to Dismiss
("Def. Mem."). For the reasons set forth below, Siemens AG's motion is
Siemens AG is a German corporation that has its principal place of
business in Munich. See MC ¶ 36. It is one of the world's largest
electrical engineering and electronics manufacturers, and employs
approximately 443,000 people in 193 countries. See 4/24/00 "Press
Release: Siemens Completes Acquisition of ENTEX IT Services, Inc.,"
Siemens Website ("4/00 Press Rel."), Ex. 17 to Plaintiffs' Brief in
Opposition to Defendant's Motion to Dismiss Based on Personal Jurisdiction
("Pl. Opp."), at 2. Siemens AG owns 100% of Siemens Corporation, a New
York corporation with its principal place of business in New York City.
See MC ¶ 38.
Siemens AG originally moved to dismiss on December 10, 2001, but
subsequently withdrew that motion because it had not been served with
process, see 2/28/02 Letter from James Basile, Attorney for Siemens
defendants, to the Court. On March 28, 2002, after having been served,
defendant moved again to dismiss this action. Rather than oppose the
motion, plaintiffs sought to compel jurisdictional discovery, see 4/3/02
Letter from Robert Swift to the Court ("4/3/02 Pl. Ltr."), and submitted
several memoranda purporting to list Siemens AG's contacts with this
forum, see Ex. C to 4/3/02 Pl. Ltr.; 1/23/02 Memorandum ("Pl. List
Mem."), Ex. 1 to 1/22/02 Letter from Edward Fagan, Robert Swift and Jay
Rice, Plaintiffs' Attorneys, to the Court ("1/22/02 Pl. Ltr."). On May
8, 2002, this Court directed plaintiffs to respond to defendant's motion
so that the issue would be fully briefed. See 5/8/02 Order.
II. PERSONAL JURISDICTION
Plaintiffs argue that Siemens AG's contacts with New York are
sufficient to confer jurisdiction over it. In the alternative, they
contend that this Court has jurisdiction over Siemens AG by virtue of the
New York presence of its New York subsidiary, Siemens Corporation.
A court is obligated to dismiss an action against a defendant over whom
it has no personal jurisdiction. See Fed. R. Civ. P. 12(b)(2); Laborers
Local 17 Health and Benefit Fund v. Philip Morris, Inc., 26 F. Supp.2d 593,
597 (S.D.N.Y. 1998). Plaintiffs bear the ultimate burden of
establishing, by a preponderance of the evidence, that this Court has
jurisdiction over the defendant. See Kernan v. Kurz-Hastings, Inc.,
175 F.3d 236, 240 (2d Cir. 1999); Robinson v. Overseas Military Sales
Corp., 21 F.3d 502, 507 (2d Cir. 1994). At the pretrial stage, however,
plaintiffs may carry this burden by pleading in good faith sufficient
allegations of jurisdiction. See Jazini v. Nissan Motor Co., 148 F.3d 181,
184 (2d Cir. 1998); Koehler v. Bank of Bermuda, Ltd., 101 F.3d 863, 865
(2d Cir. 1996). Plaintiffs can make this showing through their own
affidavits and supporting materials, containing an averment of facts
that, if credited, would suffice to establish jurisdiction over the
defendant. See Whitaker v. Am. Telecasting Inc., 261 F.3d 196, 208 (2d
Cir. 2001) (citations, quotation marks omitted). The court may thus
consider materials outside the pleadings in ruling on this motion. See
Hsin Ten Enter. USA, Inc. v. Clark Enter., 138 F. Supp.2d 449, 452
B. New York Law on Personal Jurisdiction
A court may exercise personal jurisdiction over any defendant "who
could be subjected to the jurisdiction of a court of general jurisdiction
in the state in which the district court is located," Fed. R. Civ. P.
4(k)(1)(a), provided that the exercise of jurisdiction comports with the
Fifth Amendment's Due Process Clause. See Mario Valente Collezioni, Ltd.
v. Confezioni Semeraro Paolo, S.R.L., 264 F.3d 32, 36 (2d Cir. 2001).
Thus, "[i]n assessing whether personal jurisdiction is authorized, `the
court must look first to the long-arm statute of the forum state, in this
instance New York.'" Whitaker, 261 F.3d at 208 (quoting Bensusan Rest.
Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997)). "If the exercise of
jurisdiction is appropriate under that statute, the court must decide
whether such exercise comports with the requisites of due process." Id.
(citing Bensusan, 126 F.3d at 27). New York subjects a foreign
corporation to general jurisdiction if it is "doing business" in the
state. See N.Y. C.P.L.R. § 301 (McKinney 2002) ("CPLR § 301")*fn3;
Aerotel Ltd. v. Sprint Corp., 100 F. Supp. 2d 189, 191 (S.D.N.Y. 2000)
(interpreting CPLR § 301). Under this test, "a foreign corporation is
amenable to suit in New York if it is `engaged in such a continuous and
systematic course of `doing business' here as to warrant a finding of its
`presence' in this jurisdiction." Aerotel, 100 F. Supp.2d at 191-92
(quoting Frummer v. Hilton Hotels Int'l Inc., 19 N.Y.2d 533, 536
To determine whether a foreign corporation is doing business in New
York, courts have focused on a traditional set of indicia: (1) whether
the company has an office in the state; (2) whether it has any bank
accounts or other property in the state; (3) whether it has a phone
listing in the state; (4) whether it does public relations work there;
and (5) whether it has
individuals permanently located in the state to
promote its interests. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88,
98 (2d Cir. 2000) (Leval, J.) (citing Hoffritz, 763 F.2d at 58; Frummer,
19 N.Y.2d at 537), cert. denied, 532 U.S. 941 (2001). Casual or
occasional activity does not constitute doing business; rather, section
301 requires a showing of "continuous, permanent, and substantial
activity in New York." Landoil Res. Corp. v. Alexander & Alexander,
Inc., 918 F.2d 1039, 1043 (2d Cir. 1990). "The `doing business' standard
is a stringent one because a corporation which is amenable to the Court's
general jurisdiction `may be sued in New York on causes of action wholly
unrelated to acts done in New York.'" Jacobs, 160 F. Supp.2d at 731
(quoting Ball v. Metallurgie Hoboken-Overpelt S.A., 902 F.2d 194, 198 (2d
1. Siemens AG's Independent Contacts ...