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IN RE SKI TRAIN FIRE IN KAPRUN

August 14, 2002

IN RE SKI TRAIN FIRE IN KAPRUN, AUSTRIA ON NOVEMBER 11, 2000
V.
DEFENDANTS BOSCH REXROTH AG, BOSCH REXROTH CORPORATION



The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge

  OPINION AND ORDER

I. BACKGROUND

BRC is a United States corporation with its principal place of business in Bethlehem, Pennsylvania. See Amended and Consolidated Complaint ("Consolidated Complaint" or "Consol. Compl.") ¶ 17 (referring to "Bosch Rexroth Hydraulics USA"). Bosch Rexroth AG is a multinational corporation with its principal place of business in Lohr am Main, Germany. See id. ¶ 16. Robert Bosch GmbH, headquartered in Stuttgart, Germany, which owns "Bosch Group" or "Bosch," is a holding company and the ultimate parent company of Bosch Rexroth AG. See Plaintiffs' Opposition to Defendants' Motions to Dismiss ("Pl. Opp.") at 3 (citing Undated Website, November News: Control Engineering Online ("Engineering Online"), Ex. 3 to Pl. Opp. at 2). It is unclear whether Robert Bosch GmbH or Bosch Rexroth AG, or some other entity, owns or has a controlling interest in BRC.*fn1

II. WHETHER PLAINTIFFS STATE A CLAIM

The defendants move to dismiss the case against them on the ground that plaintiffs fail to state a claim upon which relief can be granted. See BRC's Memorandum in Support of Its Motion to Dismiss ("BRC Mem.") at 5; Bosch Rexroth AG's Memorandum in Support of Its Motion to Dismiss ("BR AG Mem.") at 8.

A. Legal Standard

A motion to dismiss should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (quotation marks and citation omitted). "At the Rule 12(b)(6) stage, `[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). The task of the court in ruling on a Rule 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."' Sims, 230 F.3d at 20 (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quotation marks omitted)). When deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "take as true all of the allegations contained in plaintiff's complaint and draw all inferences in favor of plaintiff." Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001).

B. The Governing Complaint

There is some dispute as to which complaint governs this case. Defendant Bosch Rexroth AG argues that the Original Complaint filed by plaintiffs in the Eastern District of Pennsylvania controls. See BRC Mem. at 3 n. 1; B.R. AG Mem. at 14-15; BRC's Reply Memorandum in Further Support of Its Motion to Dismiss ("BRC Reply") at 1-4. Plaintiffs argue, in turn, that the Court must look to the Consolidated Complaint to decide these motions. See Pl. Opp. at 1-2.

On December 21, plaintiffs filed their Consolidated Complaint in the MDL proceeding before this Court. The Consolidated Complaint has never been filed in the Eastern District of Pennsylvania, nor did plaintiffs seek to amend their claims against BRC in that action. See BRC Reply at 2-3. On November 19, 2001, the MDL Panel transferred several actions to this Court and conditionally transferred others, including this action. On January 9, 2002, BRC filed a Notice of Opposition to the MDL Panel's Conditional Transfer Order, which BRC contends "automatically stayed the effect of the Conditional Transfer Order[, meaning] that this Court's jurisdiction over plaintiffs' claims against BRC had not yet attached. On April 17, 2002, the MDL Panel issued a Transfer Order denying BRC's motion to vacate the Conditional Transfer Order. The Transfer Order sent plaintiffs' claims to this Court "`for inclusion in the coordinated or consolidated pre-trial proceedings occurring [here]in.'" Id. (quoting 4/17/02 Transfer Order). On May 2, 2002, plaintiffs served BRC with a copy of the Consolidated Complaint. See 5/02/02 Letter from Robert A. Swift to Arthur Liederman (stating that he was serving the Consolidated Complaint on Bosch Rexroth AG, and also on BRC).

Defendant BRC argues, incorrectly, that the Original Complaint has never been amended. A party may amend "once as a matter of course before a responsive pleading is served . . . Fed. R. Civ. P. 15(a). Here, this Court granted plaintiffs leave to amend their complaints in the MDL proceeding on December 13, 2001, whereas BRC first moved to dismiss in the Pennsylvania action on December 21, 2001. However, BRC was not a party to the MDL action at that time; hence, plaintiffs' argument that they amended their pleading with respect to BRC before a responsive pleading was served, see Pl. Opp. at 2, is erroneous. Nevertheless, "a party may amend the party's pleading . . . by leave of court or by written consent of the adverse party; and leave shall be freely given." Fed. R. Civ. P. 15(a). District courts have great discretion when deciding whether or not to grant leave to amend. See Foman v. Davis, 371 U.S. 178, 182 (1962). Courts have agreed in some cases to consider an amended complaint served without judicial permission as long as the court would have granted leave to amend if it had been sought and none of the parties would be prejudiced by allowing the change. See, e.g., American Angus Ass'n v. Sysco Corp., 865 F. Supp. 1174, 1175 (W.D.N.C. 1993); Hicks v. Resolution Trust Corp., 767 F. Supp. 167, 170 (N.D. Ill. 1991). Here, the Court granted plaintiffs leave to file the Consolidated Complaint in the MDL proceeding, which now includes BRC and Bosch Rexroth AG. To the extent that plaintiffs' service of the Consolidated Complaint on BRC was served without judicial permission, this Court would have granted leave to amend the Complaint had it been sought. Neither defendant shows it has been prejudiced by this amendment.

BRC's remaining arguments are without merit. It argues that the claims against BRC were "certainly not transferred to the MDL proceeding for trial under the Consolidated and Amended Complaint which had been filed in only the MDL proceeding." Id. BRC also argues that the Master Complaint "seeks to circumvent the MDL Panel's clear and unambiguous directive that the matter be sent to this Court only for `pretrial proceedings,'" id. (quoting 4/17/02 Transfer Order). This Court will not try the cases transferred to it, but rather will make all pretrial decisions in accordance with the 4/17/02. Transfer Order. This includes determining whether the parties have successfully amended ...


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