The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiff's timely motion to compel discovery Formosa Plastics Corporation (hereinafter "Formosa") and Formosa Plastics Corporation, USA ("Formosa USA"; collectively "Formosa defendants")*fn1 (Docket No. 105*fn2 ). Responses to this motion were due by January 19, 2012 (Docket No. 106), but later extended to February 21, 2012, with replies due March 7, 2012, and the motion was argued on March 9, 2012 (Docket Nos. 107, 112 (minutes)). Decision was reserved on this motion on March 9, 2012 (Docket No. 112).
This is a removed personal injury action based on diversity jurisdiction, 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, and occupational safety and health regulations of New York and Taiwan from plaintiff's fall from scaffolding in January 2007 (see generally Docket No. 15, Pl. Atty. Affirm. ¶ 3, Ex. A, state Compl.). Plaintiff 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).
Plaintiff sued two foreign entities, PECL and Formosa, 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 PECL and Formosa (Docket Nos. 24 (Report & Recommendation regarding letters rogatory), 27 (Order adopting Report), 15 (plaintiff's motion for issuance of letters rogatory); see Docket Nos. 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*fn3 . Pertinent to the present motion, 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); Formosa also moved to dismiss the Complaint for lack of personal jurisdiction (Docket No. 40).
In order to respond to defendants' then-pending dispositive motions (particularly those arguing jurisdictional defects), plaintiff stated that he needed limited jurisdictional discovery from them (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 status 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 the other defendants, PECL and the Bechtel defendants; the Court set a schedule for such a motion (id.). He filed this first motion to compel (Docket No. 67), later it was granted (Docket No. 84), defendants objected (Docket Nos. 92-94), and their objections were denied (Docket No. 100). Plaintiff's Second Motion to Compel
At a status conference on December 7, 2011, plaintiff reported that he was continuing his jurisdictional discovery but may need to move to compel discovery from the Formosa defendants, while the Formosa defendants indicated their intention to refile their dispositive motions (Docket No. 103). This Court entered a Scheduling Order which had any motion to compel jurisdictional discovery due by December 30, 2011, and renewal of defense dispositive motions by July 20, 2012 (Docket No. 104).
Plaintiff then filed the present timely motion to compel jurisdictional discovery from the Formosa defendants (Docket No. 105). He had sought jurisdictional discovery from Formosa through Interrogatories, document demands, and Requests for Admissions and sought Interrogatories from Formosa USA (id., Pl. Atty. Decl. ¶ 8, Exs. D, E, F, G). Plaintiff asked 27 Interrogatories, exclusive of discrete subparts (id., Exs. D, G), cf. Fed. R. Civ. P. 33(a)(1) (party may serve no more than 25 written interrogatories including all discrete subparts). The Formosa defendants responded (id. ¶ 10, Exs. H, I, J (Formosa), K (Formosa USA)). After reviewing these responses, in August 2010 plaintiff's counsel wrote to Formosa defendants' counsel regarding certain deficiencies (id. ¶ 12, Ex. L).
The Formosa defendants objected to answering questions about their business relationship with plaintiff's employer, Harper International (Docket No. 105, Pl. Atty. Decl. Exs. H, K). Plaintiff then noticed Formosa's deposition but no one was produced (id. ¶ 15). The Formosa defendants announced in August through September 2010 their refusal to engage in further jurisdictional discovery (id. ¶ 14, Ex. N), asserting that plaintiff had not asserted a prima facie case for personal jurisdiction over them (id. Ex. N). Plaintiff now seeks further written discovery and to depose representatives of Formosa (id. ¶¶ 16, 30-32, 33-36). The chart in plaintiff's counsel's affidavit (id. ¶¶ 30, 31, at pages 12-16) lists interrogatories and documents sought, most related to defendants' business with plaintiff's employer and the common ownership of the Formosa corporations.
Plaintiff claims that Formosa USA is a Delaware corporation that regularly does business in New York (see id. ¶ 17, Exs. K, C). The sales contract for the work plaintiff performed contained a choice of law and venue provisions with that contract deemed to have been made in New York, governed by New York law, and any lawsuits under that agreement were to be commenced in Erie County, New York (id. ¶ 18 b.).
Plaintiff has two theories for invoking personal jurisdiction over the Formosa defendants, first, under New York State's long-arm statute, N.Y. CPLR 302(a)(1), and, second, that one defendant is the mere department of the other, where jurisdiction obtained over one also includes jurisdiction over the other (id. Pl. Memo. at 1-2). Thus, he is seeking discovery on these theories and discovery should not conclude until "plaintiff is able to learn all the facts bearing upon the jurisdictional question" (id. at 1). He contends that he meets any threshold burden for obtaining this jurisdictional discovery (id. at 2-5). Plaintiff refutes defendants' contention that purchases made in New York by a non-domiciliary constitutes a jurisdictional basis (id. at 6-7), with defendants purchasing the furnace and the services of plaintiff to supervise its installation (id. at 7).
The Formosa defendants argue against further jurisdictional discovery by plaintiff, complaining that extensive discovery has already been provided to plaintiff (Docket No. 110, Formosa Defs. Memo. at 2). Plaintiff claims jurisdiction under CPLR 302(a)(1), and the Formosa defendants state that "extensive (and excessive) discovery on this issue" has been provided (Docket No. 110, Defs. Memo. at 4). Defendants deny that plaintiff's tort claims arose from the contractual relationship between Harper International and Formosa (id. at 5). As for plaintiff's second jurisdictional basis, the "mere department" theory, defendants contend that there is no common ownership between the Formosa defendants and that discovery to date established that Formosa USA is not a mere department of Formosa (id. at 5, 6-7). They deny that the test for long-arm jurisdiction has been met to warrant further discovery (id. at 7-10) or that Formosa USA was shown to be a "mere department" of Formosa (id. at 10-12). Defendants do not argue the burden of responding to further discovery but rather renew ...