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IN RE SKI TRAIN FIRE IN KAPRUN

May 5, 2004.

In re Ski Train Fire in Kaprun, Austria on November 11, 2000; This document relates to: Defendant Siemens AG Osterreich


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

On November 11, 2000, a ski train in Kaprun, Austria caught fire, killing 155 passengers and crew members. Plaintiffs, the parents, spouses, and grandparents of eight Americans who died in the fire,*fn1 have sued train and train part manufacturers and operators alleging negligence and strict liability. Their actions against the various defendants have been consolidated before this Court by the Judicial Panel on Multidistrict Litigation ("MDL"). On September 19, 2002, this Court granted defendant Siemens AG Osterreich's motion to dismiss for lack of personal jurisdiction in New York. See In re Ski Train Fire in Kaprun, Austria on November 11, 2000, 230 F. Supp.2d 403 (S.D.N.Y. 2002) ("September 2002 Decision"). That dismissal has not been made final under Rule 54(b) of the Federal Rules of Civil Procedure. Plaintiffs now bring a renewed motion to: (1) sever defendant Siemens AG Osterreich ("Siemens Austria") from this action pursuant to Rule 21; (2) amend the Complaint as to Siemens Austria pursuant to Rule 15(a) to allege facts showing personal jurisdiction in California; and (3) transfer the action against Siemens Austria to the Northern District of California pursuant to the federal removal statutes. For the reasons stated below, plaintiffs' motion is denied in its entirety.

 I. BACKGROUND

  On July 19, 2001, plaintiffs Suzanne and John Habblett, Rudolf and Angela Kern, and Carol and Dick Baker,*fn2 filed their original complaint in the Southern District of New York against Siemens Austria among other defendants, including Siemens AG ("Siemens Germany"), the parent corporation of Siemens Austria, and Siemens Corporation, its New York subsidiary.*fn3 On December 12, 2001, plaintiffs filed a Consolidated and Amended Complaint in the MDL action naming John Habblett as a proposed class representative.*fn4 See Consolidated Amended Complaint ("Complaint"). On September 19, 2002, this Court granted Siemens Austria's motion to dismiss for lack of personal jurisdiction after finding that the foreign corporation lacked sufficient contacts with New York and that it was not a mere alter-ego of parent company Siemens Germany. See September 2002 Decision.

  On May 5, 2003, plaintiffs wrote a letter to the Court requesting reconsideration of the September 2002 Decision in light of new information plaintiffs had uncovered about Siemens Austria's business contacts in the United States, including in California. See 5/5/03 Letter to the Court from Edward Fagan, plaintiffs' counsel. At a conference on May 12, 2003, I indicated that a motion for reconsideration was not timely but encouraged plaintiffs to promptly follow through on their expressed intent to file an action against Siemens Austria in California. See 5/12/03 Transcript ("Tr.") at 12-13. Instead, on September 18, 2003, plaintiffs filed a Rule 60(b) motion asking the Court to vacate its dismissal of Siemens Austria on the basis of new evidence of the defendant's ties to the United States, including New York. See Plaintiffs' Notice of Motion for Relief Pursuant to Rule 60. During a conference on October 9, 2003, I advised plaintiffs that the motion, as submitted, was inadequate and instructed plaintiffs to file a new motion showing "newly discovered evidence that Siemens Austria is in New York." 10/9/03 Tr. at 15-16.

  On October 22, 2003, rather than refiling their Rule 60 motion, plaintiffs filed their first motion to: (1) sever Siemens Austria from the action; (2) file an amended complaint to allege jurisdictional facts relating to Siemens Austria's presence in California; and (3) transfer the action against Siemens Austria to the Northern District of California. See Plaintiffs' Notice of Motion for Severance, Leave to Amend the Complaint, and Transfer of the Action. In a conference call with the parties on January 26, 2004 and by Order dated January 27, 2004, I directed plaintiffs to file a renewed motion with supplemental briefing addressing whether claims filed against Siemens Austria in California would be time-barred. Plaintiffs filed this renewed motion to sever, amend, and transfer on February 6, 2004.*fn5

  Plaintiffs' motion alleges that after I dismissed Siemens Austria, plaintiffs did further research on the defendant's jurisdictional ties to the United States and determined that it conducts regular business in California through its PSE Techlab division ("PSE") in San Jose, California. See Plaintiffs' Memorandum in Support of Renewed Motion for Severance, Leave to Amend, and Transfer ("Pl. Mem.") at 2. Plaintiffs claim that because Siemens Austria is engaged in business in California through its PSE operation, it is subject to personal jurisdiction in the Northern District of California. See Plaintiffs' Proposed Amended Complaint, Ex. B to Pl. Mem. ("Prop. Am. Compl."), ¶¶ 8-10. Plaintiffs also assert that a new action filed in California may be time-barred by California's one-year statute of limitations on wrongful death and injury. See Pl. Mem. at 2.

 II. LEGAL STANDARD

  A. Revision of a Non-final Ruling Under Rule 54(b)

  Pursuant to Rule 54(b), the Court has authority to revise decisions entered before the entry of a final judgment. The Rule provides:
[W]hen multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the . . . parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Fed.R.Civ.P. 54(b) (emphasis added). The district court's discretion to reconsider a non-final ruling is, however, limited by the law of the case doctrine and "subject to the caveat that `where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.'" Official Comm. of the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand ("Color Tile"), 322 F.3d 147, 167 (2d Cir. 2003) (quoting Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964)). The Second Circuit explained in Color Tile that an earlier decision in ongoing litigation "may not usually be changed unless there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent a manifest injustice." Id. (quotations and citation omitted).

  B. Severance Under Rule 21

  Rule 21 provides:
Misjoinder of parties is not a ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.
Fed.R.Civ.P. 21. "The decision whether to grant a severance motion is committed to the sound discretion of the trial court." New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1082 (2d Cir. 1988). Severance is proper where it will "serve the ends of justice and further the prompt and efficient disposition of litigation." T.S.I. 27, Inc. v. Berman Enters., Inc., 115 F.R.D. 252, 254 (S.D.N.Y. 1987). Rule 21 has been used, for example, to sever claims against a party as to whom venue is improper or personal jurisdiction is lacking in conjunction with the court's transferring those claims to a district where they could have been brought originally. See Wyndham Assocs. v. Bintliff, 398 F.2d 614, 620 (2d Cir. 1968); Hallwood Realty Partners v. Gotham Partners, 104 F. Supp.2d 279, 287 (S.D.N.Y. 2000).

  C Leave to Amend Under Rule 15(a)

  Rule 15(a) provides that after having once amended a pleading, a party may amend its pleading "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The decision whether to grant leave to amend rests within the sound discretion of the district court. See Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990). The Supreme Court has held that:
In the absence of any apparent or declared reason — such as undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave sought should, as the rules require, be "freely given."
F ...

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