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IN RE SKI TRAIN FIRE IN KAPRUN

September 19, 2002

IN RE SKI TRAIN FIRE IN KAPRUN, AUSTRIA ON NOVEMBER 11, 2000 THIS DOCUMENT RELATES TO: DEFENDANT SIEMENS AG OESTERREICH


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

OPINION AND ORDER

Nearly two years ago, a ski train in Kaprun, Austria caught fire, killing 155 passengers and crew members. Plaintiffs, parents and grandparents of six Americans*fn1 who died in the fire, have sued train and train part manufacturers and operators alleging negligence and strict liability.*fn2 Their actions against the various defendants have been consolidated before this Court by the Judicial Panel on Multidistrict Litigation ("MDL Panel").*fn3 Defendant Siemens AG Oesterreich ("Siemens Austria") now moves to dismiss this action for lack of personal jurisdiction, and on the ground of forum non conveniens. For the reasons stated below, the motion to dismiss for lack of personal jurisdiction is granted.*fn4

I. BACKGROUND

A. Procedural History

On July 19, 2001, plaintiffs Suzanne and John Habblett, Rudolf and Angela Kern, and Carol and Dick Baker,*fn5 filed their original complaint in the Southern District of New York against Siemens Austria among other defendants, including Siemens AG ("Siemens Germany"), the parent corporation of Siemens Austria. On December 12, 2001, plaintiffs filed a Consolidated and Amended Complaint in the MDL action naming John Habblett as a proposed class representative. See Plaintiffs' Consolidated and Amended Complaint ("MC").

In March 2002, Siemens Germany and Siemens Corporation, its New York subsidiary, moved to dismiss the action against them.*fn6 Siemens Austria did not join that motion as it had not yet been served with process. On June 26, 2002, Siemens Austria was finally served, see 7/2/02 Letter from Christopher Landau, Siemens defendants' attorney, to the Court, after which time it filed this motion to dismiss. On August 8, 2002, the Court denied the other Siemens defendants' motion to dismiss for lack of personal jurisdiction and, in the alternative, on the ground of forum non conveniens. See In re Ski Train Fire in Kaprun, Austria on November 11, 2000, MDL No. 1428, 2002 WL 1822741, at *14 (S.D.N.Y. Aug. 8, 2002) ("Kaprun I") (holding that the Court has personal jurisdiction over Siemens Germany, and that defendants failed to overcome the presumption in favor of plaintiffs' choice of forum). The Court did not order jurisdictional discovery in Kaprun I because it was unnecessary; plaintiffs had already met their burden of showing by a preponderance of the evidence that the Court has personal jurisdiction over Siemens Germany. The situation with respect to Siemens Austria is quite different.

B. Facts and Jurisdictional Allegations

Siemens Austria is a wholly-owned subsidiary of Siemens Germany. See MC ¶ 44; Plaintiffs' Opposition to Siemens Austria's Motion to Dismiss at 9 n. 6 ("Pl. Opp.") (citing "Siemens AG 2001 Annual Report Subsidiary List," Ex. 7 to Pl. Opp.). Siemens Austria manufactures and sells a broad range of electrical and electronic equipment products, systems and services under the Siemens brand name and other brand names. See Declaration of Hans Wehsely, Head of Corporate Affiliations Department for Siemens Austria ("Wehsely Decl."), Ex. A to Def. Mem., ¶ 2. Its principal place of business is Vienna. See MC ¶ 37. Its parent corporation, Siemens Germany, is a German corporation that has its principal place of business in Munich. See id. ¶ 36. Siemens Germany is one of the world's largest electrical engineering and electronics companies, 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' 5/14/02 Brief in Opposition to Siemens Germany's Motion to Dismiss Based on Personal Jurisdiction, at 2. Siemens Austria is Siemens Germany's largest subsidiary in Europe, and is a market leader in the electrical and electronic industries in Austria and several Eastern European countries. See 2/29/00 Press Release "Softbook Press and Siemens Austria Develop Joint Electronic Book Pilot Project for Education Market," Ex. 8 to Pl. Opp.

Plaintiffs allege that Siemens Austria is the alter ego of Siemens Germany because the latter "exercises exclusive dominion and control over defendant Siemens-Austria," "the finances of Siemens-Germany [and] Siemens-Austria . . . are dependent upon one another," and "Siemens-Austria . . . fail[s] to observe proper corporate formalities." MC ¶¶ 40, 45. Plaintiffs also allege that Siemens Germany and its many subsidiaries around the world "are part of a multi-national enterprise with common objectives. By pursuing global purposes, defendants seek to generate large assets and operate as a single economic group." Id. ¶ 53. Plaintiffs' specific allegations are discussed below.*fn7

II. PERSONAL JURISDICTION

Plaintiffs argue that Siemens Austria's direct contacts with New York are sufficient to confer jurisdiction over it. In the alternative, they contend that Siemens Austria does business in New York through its parent, Siemens Germany, of which it is a mere department.

A. Legal Standard

Upon motion, a court is obligated to dismiss an action against a defendant over which it has no personal jurisdiction. See Fed. R. Civ. P. 12(b)(2); Laborers Local 17 Health and Benefit Fd. v. Philip Morris, Inc., 26 F. Supp.2d 593, 597 (S.D.N.Y. 1998). "Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith legally sufficient allegations of jurisdiction, i.e. by making a "prima facie showing of jurisdiction." Jazini v. Nissan Motor Co., 148 F.3d 181, 184 (2d Cir. 1998) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). In doing so, "plaintiffs may rely entirely on allegations of fact, and they will prevail even if the moving party makes contrary allegations which controvert their prima facie case." Cornell v. Assicurazioni Generali S.p.A. et al., Nos. 98 Civ. 9186, 97 Civ. 2262, 2000 WL 284222, at *1 (S.D.N.Y. Mar. 16, 2000) (citations omitted). A court may also consider materials outside the pleadings. See Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001). In reviewing a motion to dismiss for lack of personal jurisdiction, a court must view all of the pleadings in the light most favorable to plaintiffs, resolving any doubts in plaintiffs' favor. See Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985).

"The amenability of a foreign corporation to suit in a federal court in a diversity action is determined in accordance with the law of the state where the court sits. . . ." Jazini, 148 F.3d at 183-84 (quoting Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir. 1963)) (alterations, quotation marks omitted). Accordingly, this Court looks to New York law ...


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