The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District
MEMORANDUM-DECISION AND ORDER
On February 19, 2002, Plaintiff filed a personal injury suit in this
Court enumerating causes of action in negligence, breach of warranty and
strict products liability against Defendant, an Italian corporation with
its principal place of business in Italy.
Presently before the Court is Defendant's renewed motion for dismissal
of the complaint under Federal Rule of Civil Procedure 56(c) and
Plaintiff's request for an order pursuant to
Federal Rule of Civil Procedure 37.
According to Plaintiff, during March, 1999, he was an employee at
American Tissue Corporation ("ATC") at its mill in Greenwich, New York.
While at work, Plaintiff was walking along the floor of a dump station of
the Tissue Slitter Rewinder ("rewinder"), a machine which Defendant
designed, manufactured, and distributed. Plaintiff contends that he
stepped into a depression in the machine, fell forward, and trapped his
right hand and arm in the rewinder. He sustained permanent and severe
personal injuries. Plaintiff contends that his injury resulted from
Defendant's improper design, manufacture, and installation of the
On September 30, 2002, Defendant moved to dismiss the complaint on the
grounds that this Court lacks personal jurisdiction over Defendant, or,
alternatively, on the grounds of'forum non conveniens.
See Dkt. No. 12. On December 5, 2002, the Court denied the
motion to dismiss without prejudice and with leave to renew and issued a
Memorandum-Decision and Order permitting Plaintiff to engage in limited
discovery*fn1 in order to determine whether the Court had
personal jurisdiction over Defendant under New York's long arm
statute, N.Y. C.P.L.R. § 302(a)(1) or § 302(a)(3)(ii).*fn2
See Dkt. No. 19. The Court also denied the motion for dismissal
on the grounds of forum non conveniens.
Defendant renewed its motion to dismiss for lack of personal
jurisdiction on June 27, 2003. Plaintiff opposes the motion and requests
sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure,
contending that this Court has personal jurisdiction over Defendant and
that Defendant failed to answer several of the interrogatories Plaintiff
sent pursuant to the Court's December 5, 2002 Order.
A. Personal jurisdiction under New York's long-arm statute
Section 302(a)(1) of New York's long-arm statute "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); see also N.Y. C.P.L.R. § 302(a)(1).
Under the transaction-of-business prong, a "party need not be physically
present in the state at the time of service." Id. at 787
(citation omitted). Rather, the statute extends the jurisdiction of New
York state courts to a nonresident who "`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)
The second prong of § 302(a)(1) "captures cases where there are
minimal contacts in New York, and, for example, a contract is made
elsewhere for goods to be delivered or services to be performed in New
York." Bank Brussels Lambert, 171 F.3d at 789 (citation
omitted). In applying this provision,
courts may consider whether the purchase orders
and other documents provide for shipment to New
York; whether the defendant collected New York
sales tax in connection with the
transaction; whether the defendant solicited the
contract in New York; whether the defendant
entered New York for the purposes of performing
the contract; and any other factor showing that