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December 5, 2002


The opinion of the court was delivered by: Frederick J. Scullin, Jr., Chief District Judge



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 permanent injuries.


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 omitted).

In the present case, Plaintiff relies upon New York's long-arm statute, N.Y. 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 . . . [1] transacts any business within the state or [2] 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 omitted).

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 omitted).

To determine whether a non-domiciliary has transacted business in New York within the meaning of § 302(a)(1), "the court must consider the totality of the circumstances surrounding the contract action." Great Northern Ins. Co. v. Constab Polymer-Chemie GMBH & Co, No. 5:01-CV-882, 2002 WL 31084727, *4 (N.D.N.Y. Sept. 17, 2002) (citation omitted). In making this determination, the court may consider the following factors:

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.

Id. (citation omitted).

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.

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