United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
case returns to the Court on defendant Mabeg Systems
GmbH's second motion to dismiss for lack of personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2).
Dkt. No. 43 (“Motion”). In a previous order, this
Court denied Mabeg's first motion to dismiss for lack of
personal jurisdiction and insufficient service of process and
allowed plaintiff Phelicia Tanner to conduct jurisdictional
discovery. Dkt. No. 38 (“March Order”) at 1.
After discovery closed, Mabeg filed the pending Motion, to
which Tanner-together with defendant and cross-claimant Heath
Graphics LLC-responded. Dkt. Nos. 54 (“Heath
Response”), 56-7 (“Tanner Response”). Mabeg
then filed a reply. Dkt. No. 59-1 (“Reply”). For
the following reasons, the Court grants Mabeg's motion.
is a resident of Corinth, New York. Dkt. No. 1
(“Complaint”) ¶ 1. Heath Graphics is a
corporation organized under the laws of the State of
Washington; its principal place of business is in King
County, Washington. Id. ¶¶ 6, 8. Mabeg is
a foreign corporation organized under the laws of Germany,
and it maintains its principal and sole place of business in
Mörfelden-Walldorf, Germany. Id. ¶¶
16-17; Dkt. No. 19-2 (“Grübel Affidavit”)
¶ 2. Tanner conclusorily asserts that both
Defendants were authorized to and did conduct and transact
business within the State of New York. Compl. ¶¶
was employed at Web/Graphics/Amsterdam Printing (“Web
Graphics”) in Queensbury, New York. Id. ¶
38. On January 30, 2012, Tanner was injured while working
with a Heath Sheet-fed Microcheck Press, which is a device
used to print checks in industrial settings. Id.
¶¶ 35, 39, 41. Tanner was attempting to adjust the
device's air pressure using an air valve located on the
device when her left thumb became caught in a moving part.
Id. ¶¶ 40-41. As a result of the injury,
Tanner's left thumb had to be amputated. Id.
¶ 48. She also suffered disfigurement, nerve damage, and
Complex Regional Pain Syndrome. Id.
Graphics designs, develops, and manufactures the Heath
Sheet-fed Microcheck Press. Id. ¶¶ 26-29.
Heath Graphics is also responsible for the assembly,
inspection, repair, distribution, and sale of its machines.
Id. ¶¶ 30-34. Tanner alleges that Heath
Graphics sold a Heath Sheet-fed Microcheck Press to Web
Graphics. Id. ¶¶ 37-38.
is a German corporation that operates in the “planning,
design, manufacture and sale of machinery, components and
equipment, in particular for the graphic industry and the
general mechanical and plant engineering.” Grübel
Aff., Ex. A. Tanner alleges that Mabeg designed, engineered,
developed, manufactured, assembled, inspected, repaired,
distributed, and/or sold the Heath Sheet-fed Microcheck Press
and/or some component parts thereof. Compl. ¶ 136. In
support of this assertion, Tanner submits a photograph of the
identification plate adhered to the printing press that
caused Tanner's injuries, which shows that the machine
was manufactured by Mabeg Maschinenbau GmbH & Co. KG.
Dkt. No. 29-23. Tanner contends that Mabeg sold, supplied, or
provided the Heath Sheet-fed Microcheck Press or some of its
component parts to Heath Graphics, which then sold the device
to Web Graphics. Compl. ¶ 138.
was founded on February 25, 2010. Grübel Aff. ¶ 3.
Mabeg contends that it has never delivered or sold a
Microcheck Press or a similar product to Heath Graphics in
the State of Washington or to any other state in the United
States. Id. ¶ 6. Mabeg contends that it is
impossible for Mabeg to have manufactured the device at issue
in this case or its component parts because Mabeg was not in
existence at the time when the machine would have had to have
been manufactured prior to Tanner's injury. Id.
¶ 7. But in its response to one of Tanner's
interrogatories, Mabeg stated that it had sold three items to
Heath Graphics since 2010. Dkt. No. 43-1 (“Grogan
Affidavit”) Ex. B, at 8. Mabeg did not say what these
items were. Id.
asserts that he is aware of another company that manufactured
sheet feeders “identical to the product described in
the Complaint” called “Mabeg Maschinenbau GmbH
& Co.KG, ” which was dissolved after undergoing
bankruptcy proceedings in Germany several years ago.
Id. ¶¶ 8-9. He contends that although
Mabeg has used “the historically valuable name
‘Mabeg'” since 2010, it has not assumed by
contract or otherwise the liabilities of Mabeg Maschinenbau
GmbH & Co.KG or any other company. Id. ¶
states that Mabeg has never been incorporated or authorized
to do business in New York, nor has it sought the privilege
of doing so. Id. ¶¶ 11-12. Mabeg does not
maintain any offices, warehouses, or places of business, nor
does it lease, rent, or control any real estate in New York.
Id. ¶¶ 13, 25. Mabeg does not employ any
officers or agents in New York. Id. ¶ 14.
Grübel further states that Mabeg does not solicit
business, advertise, or otherwise participate in the sale,
purchase, distribution, resale, or service of any goods in
New York State. Id. ¶¶ 15-17; Grogan Aff.
Ex. B, at 6. Mabeg has never contracted with any New York
entity to complete any work or project in New York.
Grübel Aff. ¶ 18. Additionally, Mabeg does not have
a mailing address, telephone listing, or bank account in New
York, nor has it ever paid any taxes in New York.
Id. ¶¶ 20-21, 23-24.
entered into an exclusive agency agreement with TM Design
& Engineering, LLC (“TMDE”) in April 2011.
Dkt. No. 29-15 (“Alio Affidavit Exhibit H”) at 1.
TMDE is based in Wisconsin, id. at 2, and under the
agreement, which became effective on May 1, 2011, TMDE would
serve as the exclusive distributor of Mabeg's products in
the United States, id.; Heath Resp. at 14. TMDE
would also “advertis[e] Mabeg products, mak[e] calls on
potential clients, [and] support customer service for
specific products as requested by Mabeg.” Heath Resp.
at 14. In responding to one of Tanner's interrogatories,
Mabeg said it had “sold numerous items to TM Design and
Engineering since its inception in 2010.” Grogan Aff.
Ex. B, at 9. Mabeg did not describe these items. Id.
has international reach. In 2012, Mabeg's sales to the
United States accounted for 1.72% of total sales, 61.55% of
sales involved German, Swiss, or Austrian entities, and the
remainder involved thirty-eight other countries. Id.
at 13. In 2013, Mabeg's United States sales accounted for
3.44% of total sales, its German, Swiss, and Austrian sales
accounted for 55.65%, and the remainder went to forty-five
other countries. Id. at 14. In 2014, 7.58% of
Mabeg's sales were made in the United States, 72.08% were
made in Germany and Switzerland, and the remainder went to
forty-four other countries. Id. at 15. Finally, in
2015, Mabeg's United States sales accounted for 1.74% of
total sales, 76.18% of sales went to German and Swiss
entities, and the remainder involved forty-six other
countries. Id. at 17.
origins of the machine (or its component parts) that injured
Tanner remain unclear. Tanner notes that she “is unable
to produce facts to ascertain the chain of sale of the
subject machine press; if it was manufactured specifically
for [Tanner's] former employer in New York State; and how
it made its way into New York.” Tanner Resp. at 7. She
blames Mabeg for this, suggesting that its discovery
responses on this and other points were inadequate.
Id. at 6. As noted above, Tanner's Complaint
alleges that Mabeg sold the machine (or its component parts)
to Heath Graphics, which then sold it to Web Graphics. Compl.
¶ 138. It is at least possible that Mabeg instead sold
the relevant item to TMDE, which then sold it to Heath
Graphics, which finally sold it to Web
Graphics. In any event, aside from the item that
injured Tanner, there is no evidence (or allegation) that any
Mabeg products have ended up in New York, though Mabeg's
sales figures indicate that a not insubstantial portion of
its products ended up somewhere in the United States from
2012 to 2015. Grogan Aff. Ex. B, at 13-17.
party moves to dismiss an action for lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(2), the plaintiff bears the burden of showing that the
court has jurisdiction over the defendant. Metro. Life
Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d
Cir. 1996). When ruling on a motion to dismiss under Rule
12(b)(2) for lack of personal jurisdiction, a court is not
limited to considering “the four corners of the
complaint.” Phillips v. Reed Grp., Ltd., 955
F.Supp.2d 201, 225 (S.D.N.Y. 2013). “[T]he Court may
also rely on submitted affidavits and other supporting
materials submitted in relation to the motion.”
Id. Where a court relies only upon the pleadings and
supporting affidavits, a plaintiff need only make a ...