The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is a diversity action involving claims, under New York law, for strict products liability, negligence, and breach of warranty. Now before the Court are two motions: 1) A motion [#11] by Saint-Gobain Containers, Inc. ("S-GCI") to vacate entry of default and to dismiss the complaint; and 2) a motion [#20] by Ahold NV ("ANV") to dismiss the complaint. For the reasons that follow, S-GCI's application is granted in part and denied in part, and ANV's application is denied.
Plaintiff is suing to recover damages for injuries that he allegedly sustained in August, 2003, when a glass bottle of iced tea broke in his hands. On August 22, 2006, Plaintiff commenced this action. Plaintiff alleges that "Saint Gobain Containers" manufactured the bottle that injured him, and that ANV owns the Sugar Creek Convenience Store which sold him the bottle of iced tea. Specifically, Plaintiff's complaint contains, inter alia, the following allegation regarding "Saint Gobain Containers":
Defendant SAINT GOBAIN is a New Jersey corporation with its principal place of business located at 184 Buckhorn Drive, Washington, New Jersey 07882. Upon information and belief, Defendant, SAINT GOBAIN, is a bottle manufacturer who . . . [bottled] the beverage product which was sold to and ultimately injured the Plaintiff herein. (Complaint ¶ 3). As for ANV, the complaint alleges, in relevant part, that Defendant, [ANV], is an Amsterdam, Netherlands, business entity with its principal place of business located at Piet Heinkade 167-173, 1019 GM Amsterdam, The Netherlands. [ANV] is a consumer retail foodservice operator with holdings and operations in the United States including among others the Sugar Creek Stores. Upon information and belief, during such relevant times as set forth herein, Defendant, [ANV], was contractually involved with . . . the . . . retailing and/or selling the bottled beverage product which was sold to, and ultimately injured, the Plaintiff herein. (Id. ¶ 5). The complaint further alleges that the defendants were negligent with regard to the design, manufacture, and handling of the product; that the product was in an unreasonably dangerous condition when sold; and that the product was not in a condition fit for its ordinary purpose.
Plaintiff subsequently arranged to have the summons and complaint served on the defendants pursuant to New York Business Corporation Law ("BCL") § 306(b)(1).*fn1 In attempting to effect service on the manufacturer of the defective bottle, Plaintiff's process server requested the New York Secretary of State to serve ""Saint Gobain Incorporated [sued as] Saint Gobain Containers."*fn2 According to the New York Secretary of State's records, "Saint Gobain Incorporated" was a Delaware corporation, which had been granted authority to do business in New York State in 1963. In 1995, however, such authority was annulled, as a result of which, Saint Gobain Incorporated was "no longer authorized to do business under the Laws of the State of New York." (Saint-Gobain Motion [#11] Ex. F). Nevertheless, upon receiving the summons and complaint, the New York Secretary of State mailed copies, by certified mail, return receipt requested, to "Saint Gobain Incorporated," at the following address, which Saint Gobain Incorporated had previously provided to the Secretary of State for such service: "Saint Gobain Incorporated % Euroglass Corporation 405 Park Ave. New York, NY 10022." The mailing, though, was returned to the Secretary of State, by the U.S. Postal Service, as undeliverable. Still, on October 24, 2006, Plaintiff filed an affidavit of service, indicating that "Saint Gobain Incorporated [sued as] Saint Gobain Containers" was served in accordance with Business Corporation Law § 306(b)(1) on October 4, 2006. Plaintiff also made arrangements to have ANV served pursuant to BCL § 306(b)(1), and on October 24, 2006, Plaintiff filed an affidavit indicating that "Ahold U.S.A. Inc. [sued as] Ahold NV" had been served. To reiterate, the entity served was, apparently, "Ahold U.S.A. Inc.," not ANV. Ahold U.S.A., Inc., which is apparently a subsidiary of ANV, is not a named party in this action.
Nevertheless, on October 25, 2006, ANV filed and served an answer to the complaint. The answer included eleven separate affirmative defenses, including statute of limitations and contributory negligence defenses. However, ANV did not include any affirmative defense involving personal jurisdiction or service of the summons and complaint. Subsequently, on March 6, 2007, counsel for ANV participated in a scheduling conference conducted by the Honorable Marian W . Payson, United States Magistrate Judge.
On December 7, 2006, Plaintiff applied to this court for entry of default against "SaintGobain Containers," and on December 8, 2006, the Clerk of the Court entered default. Plaintiff did not, however, proceed to seek entry of default judgment.
On July 11, 2007, S-GCI filed the subject motion [#11] to vacate entry of default, pursuant to Federal Rule of Civil Procedure ("FRCP") 55(c), and to dismiss the complaint for lack of personal jurisdiction, pursuant to FRCP 12(b)(2). S-GCI's argument, in support of both applications, is, simply, that it was never served with process in this case. Specifically, S-GCI maintains that it is not "Saint Gobain Incorporated," whom the New York Secretary of State allegedly served. S-GCI avers, for example, that its principal place of business is Muncie, Indiana, not Washington, New Jersey. Further, S-GCI indicates that, unlike "Saint Gobain Incorporated," it remains a registered foreign corporation with the State of New York, and that its registered agent, for service of process, is CT Corporation System, 111 8th Avenue, New York, NY 10011. S-GCI states, in fact, that it is "not related" in any way to the "Saint Gobain Incorporated."
On October 16, 2007, ANV, which, as already discussed, had answered the complaint almost a year earlier, also filed a motion [#20] to dismiss the complaint, alleging failure to effect service of process as required by FRCP 4(h), lack of personal jurisdiction pursuant to FRCP 12(b)(2), insufficiency of process pursuant to FRCP 12(b)(4), insufficiency of service of process pursuant to FRCP 12(b)(5), and failure to state a claim upon which relief can be granted pursuant to FRCP 12(b)(6). ANV's argument, basically, is that it conducts business only in the Netherlands, and that it did not conduct business as Sugar Creek Stores at the relevant time. ANV contends, instead, that Sugar Creek Stores were owned by Tops Markets, LLC, which, in 2003, when Plaintiff was injured, was a wholly-owned subsidiary of Tops Holdings, LLC. ANV further maintains that Tops Holdings, LLC, was a subsidiary of Ahold U.S.A. Holding, Inc., which is now known as Ahold U.S.A., Inc., and that Ahold U.S.A., Inc. is a "legally distinct entity." (Rowell Affidavit ¶ 4).
Plaintiff opposes both motions. W ith regard to S-GCI's motion, Plaintiff contends, first, that "Saint Gobain Containers" had notice of Plaintiff's injury as early as December 2005. On this point, Plaintiff relies on a letter, sent by Broadspire Insurance, to Plaintiff and to "Saint Gobain Containers," in December 2005. (Bullard Affidavit [#15] Exhibit E).*fn3 As indicated on Broadspire's letter, a copy of the correspondence was sent to "Cc: Saint Gobain Containers ATTN: Patrick Beha 184 Buckhorn Drive Washington, NJ 07882." Plaintiff suggests that it properly relied on this information in suing "Saint Gobain Containers" as the bottle manufacturer. (Bullard Affidavit [#15] ¶ 12) ("W e properly sued Saint Gobain Containers based on the third party liability insurer's representation of its co-defendant." [sic]). Furthermore, Plaintiff contends that "Saint Gobain Incorporated, a New York Corporation is, in fact, the same business entity or predecessor of [S-GCI]." (Id. at ¶ 18). Plaintiff purportedly bases this assertion on information taken off the "saint-gobain.com" website, attached as Exhibit H to Attorney Bullard's affidavit (Document [#15]). That exhibit, however, contains no mention of "Saint Gobain Incorporated."
With regard to ANV's motion, Plaintiff contends that ANV has waived any affirmative defenses under FRCP 12(b)(2), (4), and (5), because it failed to make a Rule 12 motion prior to answering the complaint, and failed to include such affirmative defenses in its answer. As further evidence of ANV's alleged waiver, Plaintiff points to ANV's participation in the Court's pretrial scheduling conference. Moreover, Plaintiff contends that ANV is a proper party to this action, because it exercised control over Tops Markets and Sugar Creek Stores. At least, Plaintiff maintains, it is entitled to investigate ANV's connection to the Sugar Creek Stores during discovery.
Counsel for the parties appeared before the undersigned on November 8, 2007. The Court, having thoroughly considered the parties' written submissions and the arguments of counsel, now denies ANV's motion, ...