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IN RE SKI TRAIN FIRE IN KAPRUN

April 3, 2003

IN RE: SKI TRAIN FIRE IN KAPRUN, AUSTRIA ON NOVEMBER 11, 2000. THIS DOCUMENT RELATES TO: DEFENDANT VERBUND-AUSTRIAN HYDRO POWER AG.


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

OPINION AND ORDER

Plaintiffs, the parents and grandparents of six Americans who died in a ski train fire on November 11, 2000 in Kaprun, Austria, brought several individual actions against numerous defendants. The Judicial Panel on Multidistrict Litigation ("MDL Panel") consolidated these suits for pretrial purposes before this Court. Defendant Verbund-Austrian Hydro Power AG ("AHP") now moves to dismiss this action on four grounds: (1) lack of personal jurisdiction; (2) improper service of process; (3) forum non conveniens; and (4) foreign sovereign immunity.*fn1 For the reasons set forth below, AHP's motion to dismiss for lack of personal jurisdiction is granted.*fn2

I. BACKGROUND

A. The Moving Defendant AHP is a subsidiary of Oesterreichische Elektrizitaetswirtschafts AG ("OEAG"), an Austrian holding corporation whose subsidiaries own and operate the vast majority of Austria's electric generation and distribution system. See 11/26/02 Declaration of Dr. Robert Kobau, Head of the Office of the Management Board of AHP ("Kobau Dec."), ¶ 2. AHP is Austria's largest electricity producer; it operates 89 power plants and accounts for approximately 40% of Austria's domestic power generation. See id. ¶ 4. As part of its hydro-electric power generation, AHP operates the high-altitude Wasserfallboden and Mooserboden reservoirs.*fn3

B. Procedural History

On December 26, 2001, this Court issued an order requesting that the judicial authorities of Austria effect service of process on AHP through the execution of letters rogatory. See 12/26/01 Order, Ex. 15 to Pl. Br. On May 24, 2002, the District Court for the Inner City of Vienna ("Vienna Court") delivered to AHP a copy of the Complaint in this litigation, together with an uncertified German translation of that document. See Kobau Dec. ¶ 20. AHP applied to the Vienna Court for an order declaring the attempted service invalid and ineffective under Austrian law because the translation did not comport with Austrian legal requirements.*fn4 See id. The order was granted on June 10, 2002. See English Translation of Vienna Court Order, Ex. 3 to Kobau Dec.

On August 29, 2002, this Court directed during a telephone conference that service be made pursuant to Fed.R.Civ.P. 4(f) by regular mail. On or about September 4, 2002, AHP received by ordinary mail at its offices in Vienna a copy of the Complaint in this litigation and the same uncertified translation that the Vienna Court had held to be invalid under Austrian law. See Kobau Dec. ¶ 21.

II. PERSONAL JURISDICTION

Plaintiffs contend that the pleadings and affidavits submitted on this motion are sufficient to make out a prima facie showing that this Court has personal jurisdiction over AHP pursuant to New York Civil Practice Laws and Rules § 301 (McKinney 2002) ("CPLR § 301"). See Pl. Br. at 14. Plaintiffs argue, in the alternative, that they should be permitted to take jurisdictional discovery to demonstrate the existence of personal jurisdiction.*fn5 See id. at 14-15.

A. Legal Standard

A court is obligated to dismiss an action against a defendant over whom it has no personal jurisdiction. See Fed.R.Civ.P. 12(b)(2); Laborers Local 17 Health and Benefit Fund v. Philip Morris, Inc., 26 F. Supp.2d 593, 597 (S.D.N.Y. 1998). Plaintiffs bear the ultimate burden of establishing, by a preponderance of the evidence, that the court has jurisdiction over the defendant. See Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 240 (2d Cir. 1999); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). However, "[p]rior 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) (internal citations and quotation marks omitted); Koehler v. Bank of Bermuda, Ltd., 101 F.3d 863, 865 (2d Cir. 1996). Plaintiffs "can make this showing through [their] own affidavits and supporting materials, containing an averment of facts that, if credited . . ., would suffice to establish jurisdiction over the defendant." Whitaker v. American Telecasting Inc., 261 F.3d 196, 208 (2d Cir. 2001) (internal citations and quotation marks omitted). Thus, the court may consider materials outside the pleadings. See Hsin Ten Enter. USA, Inc. v. Clark Enter., 138 F. Supp.2d 449, 452 (S.D.N.Y. 2000). In so doing, the court must view all of the allegations in the light most favorable to plaintiffs and resolve all doubts in plaintiffs' favor. See A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993).

B. New York Law on Personal Jurisdiction

New York subjects a foreign corporation to general jurisdiction if it is "doing business" in the state. See CPLR § 301 (codifying caselaw that utilizes "doing business" standard); Aerotel Ltd. v. Sprint Corp., 100 F. Supp.2d 189, 191 (S.D.N.Y. 2000) (interpreting CPLR § 301). Under this test, "a foreign corporation is amenable to suit in New York if it is `engaged in such a continuous and systematic course' of `doing business' here as to warrant a finding of its `presence' in this jurisdiction." Aerotel, 100 F. Supp.2d at 191-92 (quoting Frummer v. Hilton Hotels Int'l Inc., 19 N.Y.2d 533, 536 (1967)). "[T]he term `doing business' is used in reference to foreign corporations to relate to "the ordinary business which the corporation was organized to do . . . It is not the occasional contact or simple collateral activity which is included." Bryant v. Finnish Nat'l Airline, 253 N.Y.S.2d 215, 219-20 (1st Dep't 1964) (internal citation omitted), rev'd on other grounds, 15 N.Y.2d 426 (1965). "The doing business standard is a stringent one because a corporation which is amenable to the Court's general jurisdiction may be sued in New York on causes of action wholly unrelated to acts done in New York. " Jacobs v. Felix Bloch Erben Verlag Fur Buhne Film Und Funk KG, 160 F. Supp.2d 722, 731 (S.D.N.Y. 2001) (internal quotation marks omitted).

To determine whether a foreign corporation is doing business in New York, courts have focused on a traditional set of indicia: (1) whether the company has an office in the state; (2) whether it has any bank accounts or other property in the state; (3) whether it has a phone listing in the state; (4) whether it does public relations work there; and (5) whether it has individuals permanently located in the state to promote its interests. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 98 (2d Cir. 2000) (citations omitted). No one contact is determinative. See Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 570 (2d Cir. 1996) ("[C]ontacts with the forum state should not be examined separately or in isolation. There is no talismanic significance to any one contact or set of contacts that a defendant may have with a forum state; courts should assess the defendant's contacts as a whole."); Landoil Res. Corp. v. Alexander & Alexander, Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1990) ("The Court must therefore analyze a defendant's ...


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