United States District Court, N.D. New York
March 24, 2004.
LAWRENCE G. TRAVER, SR., Plaintiff,
OFFICINE MECCANICHE TOSCHI, SpA, Defendant
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
defendant voluntarily and purposefully availed
itself of the privilege of transacting business in
Great Northern Ins. Co., 2002 WL 31084727, at *4 (citation
Jurisdiction under § 302(a)(3)(ii) requires that a plaintiff
establish five elements: (1) "the defendant committed a tortious act
outside the State," (2) "the cause of action arises from that act," (3)
"the act caused injury to a person or property within the State," (4) the
"defendant expected or should reasonably have expected the act to have
consequences in the State," and (5) the "defendant derived substantial
revenue from interstate or international commerce." LaMarca v.
Pak-Mor Mfg. Co., 95 N.Y.2d 210, 214 (2000); see also N.Y.
C.P.L.R. § 302(a)(3)(ii). "New York courts have looked to both the
absolute amount and percentage of a defendant's interstate income in
determining whether that income is substantial." Barricade Books,
Inc. v. Langberg, No. 95 CIV. 8906, 2000 WL 1863764, *6 (S.D.N.Y.
Dec. 19, 2000) (citations omitted); see also Vecchio v. S
& T Mfg. Co., 601 F. Supp. 55, 57 (E.D.N.Y. 1984).
Defendant contends that Plaintiff has not come forward with any
evidence that Defendant transacted business in New York or had any
expectation that its actions would have consequences in New York.
According to Defendant, it refused to answer several of Plaintiff's
interrogatories because they were outside the scope of this Court's
limited discovery Order, and instead relate to the merits of the case.
In turn, Plaintiff contends that Defendant has now admitted that from
1999 onward, it derived well over half of its revenue each year from
sales outside Italy. Plaintiff argues that this
fact helps him make his prima facie showing of
jurisdiction under § 302(a)(3)(ii), which requires a plaintiff to
show that a defendant derived "substantial revenue from interstate or
international commerce." N.Y. C.P.L.R. § 302(a)(3)(ii). Furthermore,
Plaintiff contends that he was unable to obtain other facts supporting
jurisdiction because of Defendant's bad faith failure to answer most of
Since the Court now has an indication that Defendant derives
substantial revenue from international commerce, Plaintiff's prima
facie showing of personal jurisdiction is somewhat stronger,
although the question of whether Defendant "expected or should reasonably
have expected the act to have consequences in the State" remains
unanswered. LaMarca, 95 N.Y.2d at 214. However, the discovery
that the parties conducted pursuant to the Court's Order has been
deficient. Some of Defendant's objections, such as its objection to
Plaintiff's request that it disclose whether it repaired the machine
after its shipment to New York, are unfounded because such information
would help resolve the jurisdictional issues under the fourth and fifth
elements of § 302(a)(3)(ii) of the long-arm statute. On the other
hand, although Defendants have been less than forthcoming in their
interrogatory responses, some of Plaintiff's interrogatories are outside
the scope of the Court's Order. For instance, any of Plaintiff's
interrogatories about safety warnings or the design of the rewinder are
improper because they seek information that goes to the merits of the
case rather than to any jurisdictional issues.
Since neither party has fully complied with its December 5, 2002 Order,
the Court directs the parties to engage in further discovery as to the
following issues only:
1) whether Defendant transacted business in
New York within the meaning of
2) whether Defendant contracted to supply
goods or services to ATC in New York;
3) information about the terms of the
contract between ATC and Defendant
regarding the sale and installation of
the rewinder, as well as any training
that Defendant was to provide to ATC
Accordingly, the Court denies Defendant's motion to dismiss with leave
to renew and remands this case to Magistrate Judge Treece for this and
any other pre-trial discovery matters.
After carefully considering the file in this matter and the parties'
submissions, as well as the applicable law, and for the reasons stated
herein, the Court hereby
ORDERS that Defendant's motion to dismiss is DENIED
with leave to renew; and the Court further
ORDERS that Plaintiff's motion for sanctions pursuant to
Rule 37 of the Federal Rules of Civil Procedure is DENIED; and the
ORDERS that this case is remanded to Magistrate Judge
Randolph J. Treece for all further pre-trial discovery matters.
IT IS SO ORDERED.