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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

    OPINION AND ORDER

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 denied.

I. BACKGROUND

A. The Moving Defendant

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.

B. Procedural History

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. Legal Standard

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 (S.D.N.Y. 2000).

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 (1967)).

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 Cir. 1990).

C. Analysis

1. Siemens AG's Independent Contacts ...


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