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