The opinion of the court was delivered by: Lawrence E. Kahn United States District Judge
Plaintiffs Brian Hollenbeck ("Plaintiff") and Tisha Hollenbeck commenced the instant action seeking to recover for injuries and losses that resulted from Plaintiff's use of a rolling machine allegedly designed, manufactured, distributed, and sold by Defendants. Presently before the Court is Defendants Luna AB ("Luna"), Bergman & Beving AB, Luna International AB ("Luna International"), Luna Sverige AB ("Luna Sverige"), Luna Verktyg & Maskin AB ("Luna Verktyg"), and Luna ServicePartner AB's (collectively "the Foreign Defendants") motion to dismiss pursuant to FED. R. CIV. P. 12(b)(1), 12(b)(2), and 12(b)(6) on the grounds that: (1) the Court lacks subject matter jurisdiction; (2) the Court lacks personal jurisdiction over the Foreign Defendants; and (3) the Complaint fails to state a claim upon which relief can be granted. See Dkt. No. 60. Also before the Court is the Foreign Defendants' Motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure; or alternatively, Motion for summary judgment pursuant to Rule 56(c) of the Federal Rules. See id.
According to the Second Further Amended Complaint ("Complaint"), on March 28, 2002, Plaintiff was operating a Roundo Rolls Machine Model #110/3 IP Type 8266*fn1 within the scope of his employment when his hand got caught in the rolling machine. See Dkt. No. 35, Compl., ¶¶ 55, 82--85. As a result, Plaintiff sustained certain injuries. Plaintiff contends that those injuries were caused by a defective and hazardous design. See id., ¶¶ 86--89. Plaintiff is employed by Pall Trinity Micro Division of Pall Corporation, which is located in Cortland, New York. Plaintiffs brought suit, first against Roundo AB ("Roundo") and second against Comeq, Inc. ("Comeq"). See Dkt. No. 1, 10. After counsel for Defendant Roundo informed Plaintiffs that Luna was the manufacturer of the rolling machine in question, Plaintiffs amended their Complaint to include Luna. See Pls.' Aff. in Opp'n (Dkt. No. 30,, Ex. A.) Plaintiffs subsequently amended their complaint to further include Hassleholms Mekaniska AB and the affiliates of Luna, namely Bergman & Beving AB, Luna International, Luna ServicePartner AB, Luna Sverige, and Luna Verktyg.
Plaintiffs are citizens and residents of New York. See Amended Complaint (Dkt. No. 35) ¶ 1. Comeq is incorporated in Maryland and maintains its principal place of business in Maryland. See id. Roundo and Hassleholms Mekaniska AB are Swedish Corporations that reside and have their principal places of business in Hassleholm, Sweden. See id., ¶ 2. Luna, Luna Sverige, Luna Verktyg, Luna International, and Luna ServicePartner AB are all Swedish corporations that reside and have their principal places of business in Alingsas, Sweden. See id., ¶¶ 3, 5, 6, 8, 9. Bergman & Beving AB is a Swedish corporation, with its principal place of business in Stockholm, Sweden. See id., ¶ 4.
A. Subject Matter Jurisdiction
"It is a fundamental principle that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). District courts have jurisdiction over civil actions where: (1) the matter in controversy exceeds $75,000, exclusive of interest and costs; and (2) the action is between "citizens of a State and citizens or subjects of a foreign state." 28 U.S.C. § 1332(a).
It is clear the Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332. First, the Complaint shows that Plaintiffs' claims each exceed the "amount in controversy" requirement. Second, diversity exists between Plaintiffs and Defendants. Plaintiffs are citizens and residents of New York. See Dkt. No. 35, Compl., ¶ 1. Defendant Comeq is incorporated and maintains its principal place of business in Maryland. See id. Defendants Roundo and Hassleholms Mekaniska AB are Swedish Corporations that reside and have their principal places of business in Hassleholm, Sweden. See id., ¶ 2. Defendants Luna, Luna Sverige, Luna Verktyg, Luna International, and Luna ServicePartner AB are Swedish corporations that have their principal places of business in Alingsas, Sweden. See id., ¶¶ 3, 5, 6, 8, 9. Defendant Bergman & Beving AB is a Swedish corporation that has its principal place of business in Stockholm, Sweden. See id., ¶ 4.
The Foreign Defendants move to dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction. Luna denies that it is the manufacturer of the rolling machine at issue by claiming that the company was neither founded nor registered prior to February 2003. See Dkt. No. 29, First Aff. of Ulf Carlsson, July 12, 2004, ¶ 3. The remaining Foreign Defendants contend that they have (1) not transacted business or derived substantial revenue from business transacted in New York; (2) not engaged in a persistent course of conduct within New York; (3) never registered or sought authorization to do business in New York; (4) never owned any real property or maintained a place of business in New York; and (5) not stationed employees in New York. See Maloney Aff. in Supp. of Mot. to Dismiss (Dkt. No. 60, Attach. 2) ¶¶ 9, 12.
"On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant." Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996) (citing Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994)). "In deciding a pretrial motion to dismiss for lack of personal jurisdiction a district court has considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion." Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981) (citations omitted). "In the absence of a full-blown hearing on the merits, plaintiff need make only a prima facie showing that the court has jurisdiction under a long-arm statute." Visual Sciences, Inc. v. Integrated Communications Inc., 660 F.2d 56, 58 (2d Cir. 1981) (citation omitted). When a court's jurisdiction is challenged prior to full discovery on the issue of personal jurisdiction, the plaintiff is only required to make a prima facie showing of in personam jurisdiction by pleading in good faith legally sufficient allegations. See Nascimentos v. Fox Lorber Associates, Inc., 1993 WL 183685, at *2 (S.D.N.Y. 1993) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990), cert. denied, 498 U.S. 854 (1990)). "A plaintiff can make this showing through his 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 quotation marks and citations omitted); see also Yellow Page Solutions, Inc. v. Bell Atl. Yellow Pages Co., 2001 WL 1468168, at *1 (S.D.N.Y. Nov. 19, 2001); Pilates, Inc. v. Pilates Inst., Inc., 891 F. Supp. 175, 178, n. 2 (S.D.N.Y. 1995). The Court must resolve all doubts and construe all pleadings, affidavits, and other supporting materials in the light most favorable to Plaintiff, as the non-moving party. See CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986). In the Second Circuit, district courts have allowed jurisdictional discovery where a plaintiff has made "a sufficient start toward establishing personal jurisdiction." Uebler v. Boss Media, 363 F. Supp.2d 499, 506 (E.D.N.Y. 2005) (internal quotation marks and citation omitted); see also Smit v. Isiklar Holding A.S., 354 F. Supp.2d 260, 263 (S.D.N.Y. 2005) ("[A] court may order limited discovery targeted at the missing jurisdictional elements, if plaintiff has shown that such an exercise would serve to fill any holes in its showing.") (emphasis in original) (internal quotation marks and citation omitted).
"'[T]he amenability of a foreign corporation to suit in a federal court in a diversity action is determined in accordance with the law of the state where the court sits.'" Ball, 902 F.2d at 198 (quoting Arrowsmith v. United Press International, 320 F.2d 219, 233 (2d Cir. 1963) (en banc)) (alteration in original). Plaintiffs have specifically invoked New York Civil Practice Law and Rules § 302(a)(3) as the basis for personal jurisdiction over the Foreign Defendants. See Amended Complaint (Dkt. No. 35) ¶¶ 3--6, 8--9. Section 302(a)(3) gives a court personal jurisdiction over a non-domiciliary if it "commits a tortious act without the state causing injury to person or property within the state . . . ." N.Y. C.P.L.R. § 302(a)(3). To satisfy § 302(a)(3), a plaintiff must demonstrate: (1) a tortious act outside of New York; (2) injury in New York; and either (3)(i) that a defendant regularly does or solicits business, engages in persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in New York; or (3)(ii) that a defendant expected or reasonably should have expected its acts to have consequences in New York and the defendant derives substantial revenue from interstate or international commerce. Id.
First, Plaintiffs allege that the Foreign Defendants committed a tortious act outside of New York (the manufacture of a defective or unreasonably dangerous rolling machine) that caused injury to Plaintiffs within New York.*fn2 See Amended Complaint (Dkt. No. 35) ¶¶ 3--6, 8--9. There is some confusion ...