The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiff's timely motion to compel discovery from certain defendants*fn1 regarding this Court's jurisdiction over this action (Docket No. 67*fn2 ). On October 13, 2010, the Court held a status conference in this case, as scheduled plaintiff to file his motion to compel by October 22, 2010 (Docket No. 66). After granting defendants' motion (Docket No. 68; cf. Docket No. 66 (responses originally due November 15, 2010)) to extend the briefing schedule, responses to this motion were due by November 22, 2010, and the motion initially was deemed submitted (without oral argument) on November 22, 2010. Plaintiff later sought leave to reply and the Court granted him until December 15, 2010, to do so, with the motion deemed submitted on this latest date (Docket No. 77).
This is a removed diversity personal injury action, arising from personal injuries suffered by plaintiff when he worked at a job site in Taiwan (see Docket No. 1, Notice of Removal). The Complaint, filed in New York State Supreme Court, Erie County, alleges negligence, violations of provisions of the New York State Labor Law, occupational safety and health regulations of New York and Taiwan from plaintiff's fall from scaffolding in Taiwan in January 2007 (see generally Docket No. 15, Pl. Atty. Affirm. ¶ 3, Ex. A, state Compl.). Plaintiff alleges that he was employed by Harper International. Harper International entered into a contract to install a furnace in Taiwan and plaintiff was working there during the installation when the scaffolding allegedly caused him to fall (see id. Compl. ¶¶ 1, 178; Docket No. 20, Bechtel Memo. at 2). This furnace was installed on property owned by defendant Formosa (Docket No. 15, Pl. Atty. Affirm.
¶ 3, Ex. A, Compl. ¶ 94; see Docket No. 20, Bechtel Memo. at 2). Plaintiff alleges that PECL was the general contractor of the construction site where the accident occurred (Docket No. 15, Pl. Atty. Affirm. ¶ 4).
Defendants Formosa and Formosa USA did not respond to this motion.
Plaintiff sued two foreign entities, PECL and Formosa (hereinafter collectively the "foreign defendants"), as well as domestic companies Formosa USA and the Bechtel defendants. Formosa USA removed this action to this Court (Docket No. 1). The Bechtel defendants (Docket No. 5) and Formosa USA (Docket No. 8) each answered the Complaint. After resolving service issues surrounding the foreign defendants (Docket Nos. 24 (Report & Recommendation regarding letters rogatory), 27 (Order adopting Report), 15 (plaintiff's motion for issuance of letters rogatory); see Docket No. 16 (minute entry), 26 (referral Order granting dispositive matters for report)), Formosa (Docket No. 30) and PECL (Docket No. 31) each answered.
Defendants then filed separate dispositive motions. Formosa USA moved for summary judgment (Docket No. 36) denying any involvement in this incident (see generally Docket No. 39, Formosa USA Memo. at 5; Docket No. 37, Nightingale*fn3 Aff.). Formosa moved to dismiss the Complaint for lack of personal jurisdiction (Docket No. 40). PECL also moved to dismiss for lack of personal jurisdiction (Docket No. 47). The Bechtel defendants moved to dismiss for lack of personal jurisdiction or alternatively for summary judgment (Docket No. 52). PECL and the Bechtel defendants rely upon their moving papers in opposing plaintiff's present discovery motion (see Docket Nos. 71, 73).
Plaintiff's Motion to Compel
In order to respond to defendants' then-pending dispositive motions (particularly those arguing jurisdictional defects), plaintiff stated that he needed limited jurisdictional discovery (see Docket Nos. 61, 62). Defendants then withdrew their motions without prejudice to renew at the conclusion of this jurisdictional discovery (Docket No. 62). The Court monitored progress in this case in a series of status conferences (Docket Nos. 61, 62, 66). At the last conference on October 13, 2010 (Docket No. 66), plaintiff indicted his intention to file the present pending motion for an Order compelling responses to his discovery from PECL and the Bechtel defendants (Docket No. 67). Plaintiff contends that PECL is a "mere department" of Bechtel Corporation or its immediate parent American Bechtel, Inc., which is, in turn, a "mere department" of Bechtel Corporation (Docket No. 67, Pl. Memo. at 1).
PECL argues that, under New York law, personal jurisdiction over a parent corporation exists when its New York subsidiary is a "mere department" of the parent, Volkswagenwerk v. Beech Aircraft Corp., 751 F.2d 117, 120-22 (2d Cir. 1984) (discussing factors for determining whether subsidiary is "mere department"of parent) (Docket No. 74, PECL Memo. at 2). PECL concludes that plaintiff wholly failed to make a prima facie case that PECL is a "mere department" of defendant Bechtel Corporation (id. at 2-3, 6-16), and plaintiff's motion to compel discovery should be denied (id. at 3-6). PECL, a Taiwanese corporation, denies any contacts with New York State (Docket No. 73, PECL Atty. Decl., Ex. A, Decl. of Edward H.C. Lee, president of PECL, ¶¶ 2, 5, 10-23). PECL is a subsidiary of American Bechtel Inc. (id. ¶ 24), but PECL claims that American Bechtel, as with Bechtel Group, Inc., and Bechtel Corporation, "do not direct, control or otherwise intervene in the day to day management or operations" of PECL (id. ¶ 25).
The Bechtel defendants argue that further jurisdictional discovery here should be allowed only if plaintiff makes a prima facie showing of personal jurisdiction, here evidence that PECL is a "mere department" of the Bechtel defendants (Docket No. 72, Bechtel Defs. Memo. at 1-2, 7- 9). They fault plaintiff's assertions on this point (allegations made upon only information and belief, pointing out common officers for these corporations) as being insufficient to establish a prima facie case to warrant further inquiry (id. at 2, 9-13), see Jazini v. Nissan Motor Co., 148 F.3d 181, 185-86 (2d Cir. 1998). They contend that plaintiff would need to pierce the corporate veils of three entities (PECL, American Bechtel, its parent, and non-party Bechtel International Corporation) in order to reach a party that this Court has personal jurisdiction over, defendant Bechtel Corporation (id. at 3)*fn4.
The Bechtel defendants produced to plaintiff evidence that shows that PECL is not a "mere department" of the Bechtel defendants (id. at 14-19; Docket No. 71, ...