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TRAVER v. OFFICINE MECCANICHE TOSHCI SPA
December 5, 2002
LAWRENCE G. TRAVER, SR. PLAINTIFF,
OFFICINE MECCANICHE TOSHCI SPA, DEFENDANT.
The opinion of the court was delivered by: Frederick J. Scullin, Jr., Chief District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff's complaint asserts the following six causes of action: (1)
negligence, (2) negligent design, (3) negligent manufacture, (4) failure
to warn, (5) breach of warranty, and (6) strict products liability.
Plaintiff seeks damages in the amount of $10,000,000 on each of his
claims, for a total of $60,000,000. This Court's jurisdiction is premised
upon the diversity of the citizenship of the parties. Plaintiff is a
citizen of New York, and Defendant is incorporated in and has it
principal place of business in Italy.
Presently before the Court is Defendant's motion to dismiss the
complaint based upon (1) lack of personal jurisdiction and (2) the
doctrine of forum non conveniens. The Court heard oral argument in
support of, and in opposition to, this motion on November 21, 2002, and
reserved decision at that time. The following constitutes the Court's
written determination with respect to the pending motion.
According to Plaintiff's complaint, on or about March 30, 1999, he was
an employee of American Tissue Corporation ("ATC") at its mill in
Greenwich, New York. See Complaint at ¶ 5. While performing his duties at
the mill, he was walking along the floor of the dump station of the
Tissue Slitter Rewinder ("rewinder"), which Defendant designed,
manufactured, and distributed. See id. at ¶¶ 6-7. Plaintiff contends
that, due to the negligent design, manufacture, and installation of the
rewinder, lack of proper and necessary safety equipment, safety devices,
warning and alarm systems, shut-off systems and other safety mechanisms
and safeguards, and non-compliance with OSHA requirements, his foot went
into a depression in the machine causing him to fall forward and trapping
his right hand and arm in the rewinder. See id. at ¶ 8. As a result of
this incident, Plaintiff claims that he suffered severe, debilitating and
A. Personal jurisdiction under New York's long-arm statute
"`When responding to a Rule 12(b)(2) motion to dismiss for lack of
personal jurisdiction, the plaintiff bears the burden of establishing that
the court has jurisdiction over the defendant.'" United Computer Capital
Corp. v. Secure Prods., L.P., 218 F. Supp.2d 273, 277 (N.D.N.Y. 2002)
(quoting Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez,
171 F.3d 779, 784 (2d Cir. 1999)). However, where "a court relies on
pleadings and affidavits, rather than having a `full blown evidentiary
hearing,' the plaintiff need only make a prima facie showing that the
court possesses personal jurisdiction over the defendant." Id. (citation
In the present case, Plaintiff relies upon New York's long-arm
C.P.L.R. § 302(a), as a basis for this Court's exercise
of personal jurisdiction over Defendant.*fn1 Plaintiff claims that,
although he has come forward with sufficient evidence to demonstrate that
jurisdiction may exist under any of the five prongs of § 302(a), he
needs further discovery to show that jurisdiction, in fact, does exist
under at least one of these prongs. To the contrary, Defendant asserts
that none of the bases for long-arm jurisdiction are present.
At oral argument, Plaintiff's counsel focused primarily upon §
302(a)(3)(ii) as a basis for long-arm jurisdiction. However, he also
argued that personal jurisdiction was probable under § 302(a)(1) and
possible under § 302(a)(2). The Court's review of the record
demonstrates that Plaintiff has not produced any evidence to support a
finding of personal jurisdiction under § 302(a)(2), §
302(a)(3)(i) or § 302(a)(4). Thus, the Court will address only §
302(a)(1) and § 302(a)(3)(ii).
1. Section 302(a)(1) — transacting business
Section 302(a)(1) states that "a court may exercise personal
jurisdiction over any non-domiciliary . . . who in person or through an
agent . . .  transacts any business within the state or  contracts
anywhere to supply goods or services in the state. . . ." N.Y. C.P.L.R.
§ 302(a)(1) (emphasis added). "This subsection thus has two prongs,
either of which can form a basis for the exercise of personal
jurisdiction over a non-domiciliary." Bank Brussels Lambert v. Fiddler
Gonzalez & Rodriguez, 171 F.3d 779, 786 (2d Cir. 1999) (citations
a. Transaction of business prong of § 302(a)(1)
"[F]or a court to obtain personal jurisdiction over a party under the
`transaction of business' prong of § 302(a)(1), the party need not be
physically present in the state at the time of service." Id. at 787
(citation omitted). Instead, "§ 302(a)(1) extends the jurisdiction of
New York state courts to any nonresident who has `purposely availed
[himself] of the privilege of conducting activities within New York and
thereby invoked the benefits and protections of its laws. . . .'" Id.
(quotation omitted). "`[A] "single transaction would be sufficient to
fulfill this requirement,"' . . ., so long as the relevant cause of
action also arises from that transaction." Id. (citation and footnote
whether the defendant has an ongoing contractual
relationship with a New York business; whether the
contract was negotiated or executed in New York;
whether the defendant visited New York to meet with
the parties to the contract regarding performance
thereof after the execution of the contract; and
whether the contract required the defendant to send
notices and payments into New York or otherwise
perform in New York.
Applying these factors, courts have found that "transaction of
business" existed when "a foreign corporation used a New York distributor
to ship substantial quantities of goods into the state, the sales of
which were produced by means of solicitations and advertisements in the
state." See Bank Brussels Lambert, 171 F.3d at 787 (citing Singer v.
Walker, 15 N.Y.2d 443, 466-67, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965)).
However, "[w]here a plaintiff's cause of action is based upon a
contract, negotiation of the contractual terms by phone, fax or mail with
the New York party is generally insufficient to support a finding of the
transaction of business in New York."
United Computer Capital Corp., 218 F. Supp.2d at 278 (citation
omitted); see also Ferrante Equip. Co. v. Lasker-Goldman Corp.,
26 N.Y.2d 280, 284 (1970) (finding that there was no transaction of
business when the defendant was a non-domiciliary who conducted his
personal business activities out of state, had no office, bank account or
telephone listings in New York, and neither solicited business in the
state nor "entered th[e] State in connection with his dealings"); C-Life
Group Ltd. v. Generra Co., 235 A.D.2d 267, 267 (1st Dep't 1997) (finding
that parties' initial 45-minute meeting in New York, which was clearly
exploratory in nature and which led to nothing more than a proposal that
was itself the subject of further negotiations over the phone, by mail,
and in meetings outside New York, did not constitute the transaction of
business within the meaning of § 302(a)(1)).
Defendant contends that § 302(a)(1) is inapplicable because there
is no evidence that it transacted any business within New York to supply
goods or services in New York.*fn2 To support this argument, Defendant
notes that the invoice for the rewinder that it sold to ATC specifically
stated that the rewinder would be shipped to and located in Canada.
Moreover, Defendant contends that at the time of the sale it had no
knowledge that ATC planned to ship the rewinder to New York.