United States District Court, S.D. New York
March 15, 2004.
In re Ski Train Fire in Kaprun, Austria on November 11, 2000, This Document Relates To: Defendant Siemens Corporation
The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
OPINION AND ORDER
Karen Filkil, whose husband and son died in a ski train fire on
November 11, 2000, in Kaprun, Austria, brings this action against
numerous defendants.*fn1 Defendant Siemens Corporation ("Siemens Corp.")
now moves to dismiss this action against it on the following grounds: (1)
lack of personal jurisdiction, (2) failure to state a claim, (3) failure
to comply with the relevant statutes of limitations, and (4) forum non
conveniens.*fn2 For the reasons set forth below, Siemens Corp.'s motion
to dismiss for
lack of personal jurisdiction is granted.*fn3
I. FACTUAL BACKGROUND
A. The Moving Defendant
Siemens Corp. is a U.S. corporation with its principal place of
business in New York, New York. See Plaintiff's First Amended
Complaint ("Complaint") ¶ 8. Siemens Corp. is alleged to have
"designed, manufactured, constructed, supplied, modified and installed
the electrical, communications, control and safety-related systems and
components for use on the train and tunnel." Id. ¶ 40.
B. Jurisdictional Allegations
Filkil argues that this Court has jurisdiction over Siemens Corp. based
on its direct contacts with Texas, i.e., its filing of a "Texas Franchise
Tax Public Information Report" ("Tax Report") and online employee
recruitment. In the alternative, she contends that Siemens Corp. does
business in Texas through its parent, subsidiary, and affiliates.
See Plaintiff's Brief in Opposition to Defendant's Motion to
Dismiss ("Pl. Opp.") at 3-9.
1. Direct Contacts
a. Tax Report
Filkil alleges that Siemens Corp. filed a "Texas Franchise Tax Public
Information Report dated November 22, 2003."
See Pl. Opp. at 7-8. The Tax Report covers the period
from October 1, 2001 through September 30, 2002. See Tax
Report, Ex. 1 to 1/7/04 Declaration of Brant W. Bishop, Counsel for
Siemens Corp. ("Bishop Dec."). Notably, the report indicates that Siemens
Corp. reported no gross receipts, taxable capital, or tax liability in
Filkil avers that the "Siemens USA website allows Texas residents to
apply online for jobs within the Siemens Corporation (See
siemens.usa.com careers*fn4)." Pl. Opp. at 8. The website allows
Internet users to search Siemens Corp.'s job listings and submit resumes
for available positions, and is not restricted to particular states.
s/jobsearch.asp (last visited March 3, 2004).*fn5
3. Indirect Contacts
Filkil also alleges jurisdiction over Siemens Corp. based on the Texas
contacts of its parent company (Siemens AG), subsidiary (Siemens Fund),
a. Siemens AG
Filkil asserts that Siemens AG has "admitted to a presence in all 50
states." Pl. Opp. at 8-9. Not surprisingly, Siemens Corp. denies that its
parent made such a concession, but admits to the existence of online
information describing the members of the "Siemens family of corporation
[s]" as having employees spanning the fifty states. See
Defendant's Reply Brief in Support of the Motion to Dismiss ("Reply") at
b. Siemens Fund
Filkil avers that Siemens Fund "provides funding to large universities
in Texas such as Texas A & M." Pl. Opp. at 8. Neither party has
provided any information tending to prove or disprove this statement.
c. Siemens Corp.'s Affiliates
Filkil identifies four Siemens affiliates whose activities in Texas
purportedly link Siemens Corp. to the forum. First, Filkil alleges that
Siemens Transportation Systems, a Siemens Corp. affiliate, has "recently
contracted for $120 million to build [a] light rail in Houston, Texas."
See Pl. Opp. at 9 (citing John Biundo, The METRO Money
Train, Houston Rev., Mar. 11, 2004,
Second, Filkil produces the Texas Secretary of State
Identification Numbers for three "active" corporations allegedly known as
"Siemens Corporation" that are registered to do business
in Texas. Id. at 6. Each of these "Siemens Corporations"
purportedly has a Texas address, although "the publicly available
information does not establish how long Siemens has been active at these
Texas addresses." See Id. at 6-7.*fn6 Siemens Corp.
concedes that those companies are its affiliates, but notes that they are
not, as Filkil asserts, known as "Siemens Corporation." Rather these
companies file as: (1) Siemens Energy & Automation, Inc.; (2) Siemens
Medical Solutions USA, Inc.; and (3) Electrocom Automation. Reply at 4.
These affiliates only reference Siemens Corp. in connection with the
Iselin, New Jersey corporate addresses provided in their documentation.
See Id.; SOS Direct Results, Exs. 1-3 to Coale Dec.
Although Siemens Corp. was registered to conduct business in Texas, this
status was forfeited in 1966 and withdrawn in 1989. See Coale
Dec. ¶ 7; SOS Direct Result, Ex. 4 to Coale Dec.
II. APPLICABLE LAW
A. Legal Standard
"Personal jurisdiction . . . represents a restriction on judicial power
as a matter of individual liberty." Ruhrgas Ag v. Marathon Oil
Co., 526 U.S. 574, 584 (1999) (quotations and
citation omitted). 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); See also In re Ski
Train Fire in Kaprun, Austria on November 11, 2000 (Siemens
Austria), 230 F. Supp.2d 403, 406 (S.D.N.Y. 2002). 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). 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) (quotations and
citation omitted); See also Koehler v. Bank of Berm.,
Ltd., 101 F.3d 863, 865 (2d Cir. 1996). Plaintiff "can make this
showing through [her] 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) (quotations and citations
omitted). Thus, a court may consider materials outside the pleadings, but
must credit the plaintiff's averments of jurisdictional facts as true.
See Hsin Ten Enter. USA, Inc. v. Clark Enter.,
138 F. Supp.2d 449, 452 (S.D.N.Y. 2000); Metropolitan Life Ins. Co. v.
Robertson-Ceco. Corp., 84 F.3d 560,
567 (2d Cir. 1996).
The determination of whether a federal court has personal jurisdiction
over a defendant is a two-step process. First, the court must
determine whether the plaintiff has shown that the defendant is subject
to personal jurisdiction under the forum state's laws. Met
Life, 84 F.3d at 567. Second, the court must evaluate
whether its assertion of jurisdiction pursuant to the forum state's laws
comports with the requirements of due process. Id. In an MDL
proceeding, the forum state is "the district court where the action was
originally filed, and therefore that state's law must be applied."
In re Ski Train Fire In Kaprun, Austria on November 11, 2000
(Waagner), 257 F. Supp.2d 717, 723 (S.D.N.Y. 2003). "[A] transferee
court can exercise personal jurisdiction only to the same extent as the
transferor court could." In re Sterling Foster & Co. Sec.
Litig., 222 F. Supp.2d 289, 300 (E.D.N.Y. 2002) (citing In re Agent
Orange Prod. Liab. Litig., 818 F.2d 145, 163 (2d Cir. 1987)). Because
this suit was originally filed in the Eastern District of Texas, Texas
law governs the question of whether a Texas court would have personal
jurisdiction over Siemens Corp.
B. Personal Jurisdiction in Texas
1. General Principles
Texas's long-arm statute has been interpreted as providing for
jurisdiction to the extent permitted by the
Constitution. See Electrosource, Inc. v. Horizon
Battery Techs., Ltd., 176 F.3d 867
, 871 (5th Cir. 1999) (citing
Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990)). Thus,
the sole question is whether the exercise of personal jurisdiction in
Texas would offend the Due Process Clause of the Fourteenth Amendment.
Under the Due Process Clause, personal jurisdiction exists over a
defendant "when (1) that defendant has purposefully availed himself of
the benefits and protections of the forum state by establishing `minimum
contacts' with the forum state; and (2) the exercise of jurisdiction over
that defendant does not offend `traditional notions of fair play and
substantial justice.'" Latshaw v. Johnston, 167 F.3d 208, 211
(5th Cir. 1999) (quoting International Shoe Co. v. Washington,
326 U.S. 310, 316 (1945)). The "minimum contacts" between a defendant and
the forum state may give rise to either "specific jurisdiction" or
"general jurisdiction." Mink v. AAAA Dev. LLC, 190 F.3d 333,
336 (5th Cir. 1999). "Specific jurisdiction arises when the defendant's
contacts with the forum arise from, or are directly related to, the cause
of action." Revell v. Lidov, 317 F.3d 467, 470 (5th Cir. 2002)
(quotations and citation omitted). By contrast, "[g]eneral jurisdiction
exists when a defendant's contacts with the forum state are unrelated to
the cause of action but are `continuous and systematic.'" Id.
Circuit has added the requirement that the contacts be
"substantial" as well as "continuous and systematic." See
Religious Tech. Ctr. v. Liebreich, 339 F.3d 369, 374 (5th Cir.
2004); Revell, 317 F.3d at 471.
2. Jurisdiction Based on Websites
"Courts addressing the issue of whether personal jurisdiction can be
constitutionally exercised over a defendant look to the `nature and
quality of commercial activity that an entity conducts over the
Internet.'" Mink, 190 F.3d at 336 (quoting Zippo Mfg. Co.
v. Zippo Dot Com, 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)). In
analyzing websites, courts use a "sliding scale" approach.
Revell, 317 F.3d at 470.
A "passive" website, one that merely allows the
owner to post information over the internet, is at
one end of the scale. It will not be sufficient to
establish jurisdiction. At the other end are sites
whose owners engage in repeated online contacts
with the forum residents over the internet, and in
those cases personal jurisdiction may be proper.
In between are those sites with some interactive
elements, through which a site allows for
bilateral information exchange with its visitors.
Here, we find more familiar terrain, requiring
that we examine the extent of interactivity and
the nature of the forum contacts.
Id. The Fifth Circuit, in Revell, additionally
cautioned that the sliding scale approach "is not well adapted to the
general jurisdiction inquiry, because even repeated contacts with forum
residents by a foreign defendant may not constitute the requisite
substantial, continuous, and systematic contacts required . . .
"Id. at 471.
3. Jurisdiction Based on Corporate Relationships
"Texas law presumes that two separate corporations are indeed distinct
entities. . . . To `fuse' the parent company and its subsidiary for
jurisdictional purposes, the plaintiffs must prove that the parent
controls the internal business operations and affairs of the subsidiary."
BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 799 (Tex.
2002) (citing Conner v. ContiCarriers & Terminals. Inc.,
944 S.W.2d 405, 418-19 (Tex.App. 1997)). Furthermore, "the evidence must
show that the two entities cease to be separate so that the corporate
fiction should be disregarded to prevent fraud or injustice."
Id. Evidence such as "100% stock ownership and commonality of
officers and directors are not alone sufficient to establish an alter ego
relationship between two corporations." Hargrave v. Fibreboard
Corp., 710 F.2d 1154, 1160 (5th Cir. 1983) (citing Walker v.
Newgent, 583 F.2d 163, 167 (5th Cir. 1978)); See also
BMC Software, 83 S.W.3d at 799.
As an initial matter, Filkil argues that the motion to dismiss for lack
of personal jurisdiction is not ripe for decision. See Pl. Opp.
at 4-5. Filkil asserts that because she has opted into a class action on
the issue of liability, and
because the case will only be transferred back to the Eastern
District of Texas if liability is found, the issue of personal
jurisdiction in Texas is not ripe. Id. However, as discussed
earlier, this Court only has personal jurisdiction to the extent that it
exists in Texas. The Supreme Court has clearly stated that "[t]he
requirement that jurisdiction be established as a threshold matter . . .
is inflexible and without exception." Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 94 (1998) (quotations and citation
omitted). "Personal jurisdiction . . . is an essential element of the
jurisdiction . . . without which the court is powerless to proceed to an
adjudication." Marathon Oil Co., 526 U.S. at 583 (quotations
and citation omitted). Once a court has found jurisdiction is lacking,
"the only function remaining to the court is that of announcing that fact
and dismissing the case." Steel Co., 523 U.S. at 94. Thus, this
Court cannot avoid deciding the Rule 12(b)(2) motion based on a claim
that the issue is not yet ripe.
B. Personal Jurisdiction
Because her claims do not arise from Siemens Corp.'s contacts with
Texas, Filkil concedes that there is no specific jurisdiction over
Siemens Corp. See Pl. Opp. at 6 n.2. Accordingly, she must
allege facts that, if true, would justify the exercise of general
jurisdiction over Siemens Corp. in Texas. Specifically, she must aver
facts sufficient to establish a prima
facie showing Siemens Corp. has substantial, continuous, and
systematic contacts with Texas.
1. Direct Contacts
a. Siemens Corp.'s Franchise Tax Report
Filkil argues that the filing of the Tax Report is evidence that
Siemens Corp. conducts business in Texas. See Pl. Opp. at 7-8.
But the Siemens Corp. Tax Report reflects zero gross receipts, taxable
capital, or tax liability in Texas. Id. Accordingly, it fails
to establish any contacts between Siemens Corp. and Texas and further
suggests that Siemens Corp. lacks continuous and systematic contacts with
b. Siemens's Website Activity
Filkil alleges that Siemens Corp.'s online employment recruitment
constitutes a basis for the exercise of general jurisdiction.
See Pl. Opp. at 8. Under the framework set forth in Mink.
Siemens Corp.'s website appears to fall in the middle spectrum of
interactivity, as it permits Internet users to transmit information
online to Siemens Corp. See 190 F.3d at 336. In this "middle
ground," a court's jurisdictional inquiry is guided by the commercial
nature of the information exchanged and the degree to which the website
is interactive. Id. Filkil makes no allegations that Siemens
Corp. conducted business over the Internet by entering into contracts or
otherwise engaging in business transactions with Texas residents. Nor
does she suggest
that the website permits consumers to order or purchase products
and services online. The website merely permits users to (1) search a
nationwide employment database and (2) submit their resumes and cover
letters electronically. Because Filkil's allegations regarding the
Siemens website do not demonstrate that Siemens Corp. does business over
the Internet or interacts with Texas residents, the exercise of personal
jurisdiction over Siemens Corp. based on its website activity is
2. Indirect Contacts
Filkil also seeks to establish jurisdiction over Siemens Corp. in Texas
through the contacts of its parent company, a subsidiary, and affiliates.
a. Siemens AG
Filkil argues that Siemens Corp. is subject to jurisdiction in Texas by
virtue of the alleged "presence" of its parent company, Siemens AG, in
Texas. But Filkil's argument fails for at least two reasons.
First, the mere allegation of "presence," without additional
explanation fails to establish that Siemens AG itself has substantial,
systematic contacts in Texas. Second, even assuming, arguendo, that
Siemens AG is doing business in Texas, Filkil does not adequately allege
that Siemens AG exerts such dominance and control over Siemens Corp. that
the two companies should be deemed the same corporation for purposes of
jurisdiction. Indeed, Filkil fails to suggest that Siemens AG influences,
much less controls, the business affairs of Siemens Corp. As such,
Siemens Corp. cannot be deemed to be Siemens AG's alter ego.
b. Siemens Fund
In a single, unsubstantiated sentence in her memorandum of law, Filkil
alleges that Siemens Fund "provides funding to large universities in
Texas." Pl. Opp. at 8. She argues that this is sufficient to support a
finding of jurisdiction over Siemens Corp. This argument lacks merit for
several reasons. First, Filkil does not allege facts as to the
timing, frequency, or amount of the donations. The act of "provid[ing]
funding," Id. without more, cannot support a finding of general
jurisdiction. Second, even if Filkil had sufficiently alleged
that Siemens Fund has significant contacts with Texas, she fails to
demonstrate that Siemens Corp. controls the business operations of the
Siemens Fund. She offers no reason for this Court to disregard the
presumption that Siemens Corp. and Siemens Fund are two separate
corporate entities. As such, there is no basis for ascribing Siemens
Fund's purported contacts to its
parent company, Siemens Corp.
c. Siemens Corp.'s Affiliates
Filkil argues that the contacts of the Siemens affiliates in Texas
should be attributed to Siemens Corp. for jurisdictional purposes. Here
too, her argument fails. First, Filkil's vague allegations that
Siemens Transportation Systems has entered into a contract to build a
light rail in Texas are insufficient to establish its continuous presence
in Texas. Even if the contract could serve as a basis for general
jurisdiction over Siemens Transportation Systems, Filkil alleges no facts
suggesting that Siemens Corp. has control over or is controlled by this
affiliate. Filkil thus fails to offer any basis upon which to conflate
the two companies for jurisdictional purposes.
Second, with respect to Siemens Energy & Automation,
Inc.; Siemens Medical Solutions USA, Inc.; and Electrocom Automation,
Filkil fails to allege facts tending to suggest that any of these
entities conduct business in Texas. Moreover, even if they do conduct
business in Texas, their status as Siemens affiliates does not rebut the
presumption that they are separate corporate entities, distinct from
Siemens Corp. As with her allegations regarding Siemens AG and Siemens
Fund, Filkil fails to provide any reason to disregard the formal
distinction between the affiliates and Siemens Corp. Accordingly, Filkil
has provided no basis upon which to impute these affiliates' Texas
contacts to Siemens Corp. for purposes of testing jurisdiction.
C. Jurisdictional Discovery
Filkil argues that she is entitled to Jurisdictional discovery prior to
dismissal. See Pl. Opp. at 5-6. The availability of such
discovery is an issue of federal procedural law, requiring the
application of Second Circuit precedents.*fn8 The Second Circuit has
generally refused to allow Jurisdictional discovery where a plaintiff has
failed to make a prima facie showing of personal jurisdiction.
See Jazini, 148 F.3d at 185-86.*fn9 Additionally, it
is unlikely that discovery will yield any useful information. Defendant
has no revenue or capital in Texas and its business status in Texas has
been forfeited and withdrawn. Filkil has pointed to no evidence even
direct control by Siemens Corp. over its affiliates. Because Filkil
has failed to aver facts sufficient to establish a prima facie
showing of jurisdiction, her request for jurisdictional discovery is
E. Summary of Personal Jurisdiction Issues
In sum, whether jurisdiction over Siemens Corp. can be properly
asserted is "ripe" for decision. Filkil has failed to make the required
prima facie showing that Siemens Corp. has the required
substantial, continuous, and systematic contacts with Texas. Accordingly,
there is no basis upon which this Court can exercise general
jurisdiction,*fn10 nor is jurisdictional discovery warranted.
For the foregoing reasons, Siemens Corp.'s motion to dismiss for lack
of personal jurisdiction is granted. The Clerk of the Court is directed
to close this motion [docket #4] and dismiss Filkil's suit against