Godoy v. Takata Corporation et al
Filing
85
ORDER granting 62 Motion to Dismiss: ZF's motion pursuant to Fed. R. Civ. P. 12(b)(2) to dismiss the amended complaint as against it for lack of personal jurisdiction is granted. See attached Memorandum & Order. Ordered by Judge Denis R. Hurley on 9/25/2018. (Gapinski, Michele)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
—————————————————— X
KIMBERLY GODOY
MEMORANDUM & ORDER
16-CV-5502(DRH)(SIL)
Plaintiff,
-againstBMW OF NORTH AMERICA, LLC; BMW
MANUFACTURING CO., LLC; ZF TRW
AUTOMOTIVE HOLDINGS CORP., and
AUTOLIV INC.
Defendants.
—————————————————— X
APPEARANCES:
For Plaintiff:
AMOROSO & ASSOCIATES, P.C.
43 West 43rd Street, Suite 500
New York, N.Y. 10036
By:
Dino G. Amoroso, Esq.
For Defendant ZF TRW Automotive Holding Corp:
LITTLETON JOYCE UGHETTA PARK & KELLY LLP.
4 Manhattanville Road, Suite 202
Purchase, New York 10577
By:
Brian Keith Gibson, Esq.
James Ughetts, Esq.
WEINSTEIN TIPPETTS & LITTLE LLP
7500 San Felipe, Suite 500
Houston, Texas 77063
By: David. B. Weinstein, Esq.
Deborah Clinebell, Esq.
HURLEY, Senior District Judge:
Plaintiff Kimberly Godoy (“Plaintiff” or Godoy”) commenced this action against BMW
North America, LLC, BMW Manufacturing Co., LLC (collectively “BMW”), ZF TRW
Page 1 of 13
Automotive Holding Corp. (“ZF”), and Autoliv ASP Inc. (“ASP”)1 asserting product liability,
negligence, and failure to warn claims arising out of an accident that occurred in Farmingdale,
New York. According to the amended complaint, in July 2015, as a result of defects in the airbag
system and electronic circuitry of her 2000 BMW, the airbags in the vehicle suddenly deployed
while Plaintiff was driving, resulting in injuries to her. Presently before the Court is ZF’s motion
pursuant to Fed. R. Civ. P. 12(b)(2) to dismiss the amended complaint for lack of personal
jurisdiction. For the reason set forth below, the motion is granted.
BACKGROUND
I.
Jurisdictional Allegations in the Amended Complaint
The Amended Complaint (“AC”) alleges that “[t]he Court has personal jurisdiction over
each and every Defendant pursuant to applicable federal procedural law and New York Civil
Practice Law § 301 and § 302. It further states:
All defendants are either registered to do business in New York or do business in
New York through a subsidiary, and each Defendant does substantial business in
New York, has received substantial benefits from doing business in New York
and has knowingly engaged in activities directed at consumers in New York.
Furthermore, a substantial amount of Defendants’ automobile marketing and sales
occur in New York and the wrongful acts alleged in this lawsuit have affected the
Plaintiff who engaged in transactions with Defendants in New York. The
Defendants committed one or more tortious acts within New York that injured
Plaintiff within New York and lastly, personal jurisdiction is proper under the
Due Process Clauses of the Fifth and Fourteenth Amendments to the Constitution
of the United States.
(AC ¶ 11).
According to the Amended Complaint, ZF, which is incorporated in Delaware and has its
principal place of business in Michigan, markets, sells, and distributes active and passive safety
restraints and technology, including airbags and airbag components, throughout the United States
A motion to dismiss Autoliv ASP Inc. for lack of personal jurisdiction was granted, unopposed, and thus Autoliv
ASP Inc. is no longer a party.
1
Page 2 of 13
to various Original Equipment Manufacturers (“OEM’s”) including BMW Defendants. It is
alleged that ZF (and Autoliv) designed, developed, manufactured and distributed the airbags
contained in the Vehicle that is the subject of this litigation. (AC ¶¶ 20, 22.)
II.
Facts Offered by ZF in Support of Its Motion
ZF argues it is not subject to either general or specific jurisdiction in this Court. ZF
alleges that it is neither “at home” in New York nor has it “purposefully directed” its activities at
New York. In support of its motion to dismiss for lack of personal jurisdiction, ZF offers
admissible evidence supporting the following facts:
(1) ZF’s principal place of business is in Michigan and it is incorporated in
Delaware;
(2) ZF does not, and is not required to, maintain a registered agent for service of
process in New York;
(3) ZF does not conduct business in New York and does not have any personal or
real property in New York;
(4) ZF did not supply any content for the subject model 2000 BMW Model 328i;
(5) ZF does not design or manufacture any products and it is a holding company
that is corporate layers above any entity that designs or manufacture products.
(6) TRW Automotive U.S. LLC (“LLC”), (a different entity from defendant ZF),
is a limited liability company, organized under the laws of Delaware with its
principal place of business in Michigan. Its sole member is TRW Automotive Inc.
a Delaware Corporation with its principal place of business in Michigan;
(7) LLC has eight manufacturing facilities in the United States, only one of which
is located in New York; but, LLC’s facility in New York manufactures remote
Page 3 of 13
keyless entry systems, tire pressure monitoring systems, and passive entry
systems. LLC’s New York facility does not design, manufacture, distribute, or
sell any seat weight sensors, seat position sensors, seat belt pretensioners, seat belt
buckle switches, airbag crash sensors, airbag control units, airbag warning lamps,
airbag power supply wires, airbag communication wires, airbag inflators, airbag
modules, or any other airbag system components.
(8) LLC did not produce components for the airbags that are the basis for this
litigation and did not design, manufacture, distribute, or sell any components of
the subject 2000 BMW 528i.
(9) A photograph supplied by Plaintiff’s counsel demonstrates that the “TRW”
entity that made the airbag inflators for the rear of the vehicle was “TRW Airbag
Systems GmbH.”
(Simons Declar. ¶¶ 4-6; Goodman Declar. ¶¶ 5-8; Ex. B to Weinstein Declar.)
III.
Allegations Offered by Plaintiff in Support of Jurisdiction
Preliminarily, the Court is constrained to note that absent from Plaintiff’s papers is a
cohesive presentation of the facts that it relies upon for its jurisdictional argument. Instead,
“facts” are scattered throughout her memorandum of law, the sources of which are, for the most
part, unidentified. Even where the “general” source of information is set forth2, no supporting
documentation is provided to the Court.3 Adding to the difficulties engendered by Plaintiff’s
failure to provide a cogent set of jurisdictional facts, is the similarity of the names of the entities
2
For example, Plaintiff’s brief references “public filings” without setting forth the type of public filing, its date, or
even whether the filing was by defendant ZF or some allegedly related entity. See, e.g., Pl.’s Opp. Mem. at 3.
3
What was submitted was an affirmation from Plaintiff’s counsel baldly asserting that he is “personally acquainted
with the facts set forth in my brief based on my review of facts and information developed during my prosecution of
this litigation.” (DE 64-1).
Page 4 of 13
referenced and Plaintiff’s failure to be consistent in how each entity is referenced. The
information set forth below is that which the Court has been able to discern from Plaintiff’s
presentation.
ZF is a holding company that holds stock in various subsidiaries owned by its parent, ZF
Friedrichshafen AG (“Parent”). These subsidiaries were allegedly acquired by Parent in 2015
through its purchase of TRW Automotive Inc. (“Automotive”).4 At that time Automotive
operated manufacturing plants and R&D facilities throughout the United States, including New
York. Plaintiff asserts that Automotive produced, among other things, passive and active safety
restraint, such as air bags, for motor vehicles. The nature of the Automotive’s operations in New
York, however, are not identified. Rather, Plaintiff maintain that Automotive’s products were
“sold throughout New York State,” either as original in a vehicle manufactured by an unrelated
entity or as replacement equipment sold through an unaffiliated retailer. (Pl.’s Opp. Mem. at 45.) After the purchase, Parent created seven business divisions, including the “Active & Passive
Safety Technology” division which continues the business activities of TRW Automotive,
acquired in May 2015. That division includes TRW Automotive U.S. LLC (“LLC”), which has a
facility in Auburn, New York, and which Plaintiff asserts is a “wholly owned subsidiary” of
Parent. (Pl.’s Opp. Mem. at 5.)5 According to Plaintiff, Parent controls both LLC and Defendant
ZF because (1) it has the capacity to influence their major business decisions; (2) one of Parent’s
board members is the CEO of Defendant ZF, as well as the head of the operating division that
4
According to Plaintiff, TRW Inc. was renamed TRW Automotive Holding Corp. in 2004 after its purchase by the
Blackstone Group LP from Northrup Grumman in 2002. (Pl.’s Opp. Mem. at 6.) She further asserts that after its
purchase by Parent, TRW Automotive Holding Corp. was “renamed” defendant ZF, although nothing to support that
assertion is provided.
5
At another point in her brief, Plaintiff states , without support, that ZF operates as a holding company for Parents’s
“American based operations.” (Pl.’s Opp. Mem. at 5.)
Page 5 of 13
included all North America Facilities; (3) the finances of both ZF and LLC are intertwined with
that of Parent; and (4) Parent has created a single corporate image that subsumes its subsidiaries.
Finally, the Court notes that although Plaintiff asserts that the entity “TRW Inc.”
manufactured the airbags that caused her injuries (see, e.g, DE 64 at 1; see also DE 80 at 1
(asserting that “TRW Automotive Inc. manufactured the airbags and its components)) and that
the airbags in the rear of the vehicle were “clearly stamped and bore the markings of Defendant
ZF” (DE 80 at 1), nothing to support that assertion has been provided to the Court. Indeed, the
record before this Court demonstrates only that an airbag inflator was supplied by “TRW Airbag
Systems GmbH,” a German entity that is not discussed in Plaintiff’s submission.
DISCUSSION
I.
Standard – Rule 12(b)(2) Motion
On a motion to dismiss under Rule 12(b)(2), the plaintiff bears the burden of establishing
jurisdiction over the defendant. See Metro. Life Ins. Co. v. Robertson–Ceco Corp., 84 F.3d 560,
566 (2d Cir. 1996). Courts may rely on additional materials outside the pleading when ruling on
a 12(b)(2) motion. Minnie Rose LLC v. Yu, 169 F. sup.3d 504, 510 (S.D.N.Y. 2016). Where, as
here, the parties have not yet conducted discovery, a plaintiff may defeat a defendant’s Rule
12(b)(2) motion “by making a prima facie showing of jurisdiction by way of the complaint’s
allegations, affidavits, and other supporting evidence.” Mortg. Funding Corp. v. Boyer Lake
Pointe, L.C., 379 F. Supp. 2d 282, 285 (E.D.N.Y.2005). Moreover, given the early stage of the
proceedings here, the Court must view the pleadings in the light most favorable to the plaintiff,
see Sills v. The Ronald Reagan Presidential Found., Inc.,2009 WL 1490852, *5 (S.D.N.Y. May
27, 2009), and when evidence is presented, “doubts are resolved in the plaintiff's favor,
notwithstanding a controverting presentation by the moving party,” A.I. Trade Fin., Inc. v. Petra
Page 6 of 13
Bank, 989 F.2d 76, 80 (2d Cir. 1993). A court need not, however, “draw argumentative
inferences in the plaintiff's favor,” nor “accept as true a legal conclusion couched as a factual
allegation.” In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013) (quoting
Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994) and Jazini v. Nissan
Motor Co., 148 F.3d 181, 185 (2d Cir. 1998)). Thus, the plaintiff “may not rely on conclusory
statements without any supporting facts, as such allegations would ‘lack the factual specificity
necessary to confer jurisdiction.’ ” Art Assure Ltd., LLC v. Artmentum GmbH, 2014 WL
5757545, at *2 (S.D.N.Y. Nov. 4, 2014) (quoting Jazini 148 F.3d at 185); accord Cont’l Indus.
Grp. V. Equate Petrochemical Co., 586 F. App’x 768, 769 (2d Cir. 2014) (A plaintiff “must
make allegations establishing jurisdiction with some factual specificity and cannot establish
jurisdiction through conclusory assertions alone.”) (internal quotation marks omitted).
II.
Personal Jurisdiction Generally
In a diversity case, a federal district court exercises personal jurisdiction over a party in
accordance with the law of the forum state, subject to the requirements of due process under the
United States Constitution. See Whitaker v. American Telecasting, Inc., 261 F.3d 196, 208 (2d
Cir. 2001). Due process requires that the defendant have certain “minimum contacts” with the
forum state; such minimum contacts assure that a defendant “will only be subjected to the
jurisdiction of a court where the maintenance of a lawsuit does not offend traditional notions of
fair play and substantial justice.” Waldman v. Palestine Liberation Org., 835 F.3d 317 (2d Cir.
2016) (internal quotation marks omitted). In assessing a defendant’s contact with the forum state
for due process purposes, “the crucial question is whether the defendant has purposefully availed
itself of the privilege of conducting activities within the forum Sate, thus invoking the benefits
and protects of its laws,” and therefore “should reasonably anticipate being haled into court
Page 7 of 13
there.” Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242-32 (2d Cir. 2007). (internal citations
and quotation marks omitted).
In New York, courts may exercise either general or specific jurisdiction over defendants.
A.
General Jurisdiction
“In New York, general jurisdiction is governed by N.Y. CPLR § 301. Section 301
preserves the common law notion that a court may exercise general jurisdiction over a
nondomiciliary defendant if that defendant is engaged in such a continuous and systematic
course of doing business here to warrant a finding of its presence in this jurisdiction.”
Thackurdeen v. Duke Univ., 130 F. Supp. 3d 792, 798 (S.D.N.Y. 2015); see Sonera Holding B.V.
v. Cukorova Holding, A.S., 750 F.3d 221, 224 (2d Cir. 2014). “Defendant’s ‘continuous activity
of some sort[ ] within a state ... is not enough to support the demand that the corporation be
amendable to suits unrelated to that activity.’ Rather, a corporation’s ‘affiliations with the State’
must be ‘so continuous and systematic’ as to render it essentially at home in the forum State.”
Mali v. British Airways, 2018 WL 3329858, at *5 (S.D.N.Y., July 6, 2018) (quoting Goodyear
Dunlop Tires Ops. v. Brown, 564 U.S. 915, 919, 927 (2011). The Supreme Court has made clear
that, consistent with due process, a corporate defendant is subject to general jurisdiction only in
its (i) place of incorporation and (ii) principal place of business, unless (iii) the “exceptional
case” exists in which the foreign defendant’s contacts with the forum state is “so substantial and
of such a nature as to render the corporation ‘at home’ in” the forum state. SPV OSUS Ltd. v.
UBS AG, 114 F. Supp. 3d 161, 168 (S.D.N.Y. 2015), aff'd, 882 F.3d 333 (2d Cir. 2018) (quoting
Daimler AG v. Bauman, 571 U.S. 117, 134 S. Ct. 746, 761 n.19, (2014). If general jurisdiction
exists, courts in New York can adjudicate all claims against an individual or a corporation, even
Page 8 of 13
those unrelated to its contacts with the state. Sonera Holding B.V. v. Cukurova Holding A.S.,
750 F.3d 221, 225 (2d Cir. 2014).
B.
Specific Jurisdiction
Specific jurisdiction in New York is governed by CPLR § 302. The existence of specific
jurisdiction “depends on an affiliation between the forum [state] and the underlying controversy,
principally, activity or an occurrence that takes place in the forum State and is therefore subject
to the State's regulation.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919
(2011) (internal quotation marks and citations omitted); see Powell v. Monarch Recovery
Management, Inc., 2016 WL 8711210, at *6 (E.D.N.Y. 2016) (New York’s long-arm statute
requires that the claim asserted arise from the activity asserted). New York’s “long-arm” statute,
allows for specific jurisdiction over non-domiciliaries “ who, in person or through an agent . . .
(i) transacts business within the state or contracts anywhere to supply goods or services in the
state, (ii) commits a tortious act within the state . . . [or] (iii) commits a tortious act without the
state causing injury to person or property within the state” if the claim arises from those
transactions. N.Y. CPLR ¶ 302.
II.
Plaintiff has not Demonstrated General Jurisdiction Exists over Defendant ZF6
In considering whether a foreign corporation is “doing business” in New York so as to be
subject to general jurisdiction, courts look at indicia such as whether the company has an office in
the state; whether there is other property in the state such as a bank account; whether it has
permanent employees or a phone listing in the state. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d
88, 98-99 (2d Cir. 2000). None of these indicia are present here. ZF is a Delaware corporation with
Although not free from doubt, Plaintiff’s consistent reference to “transacting business” would seem to indicate that
it is asserting the existence of only specific jurisdiction. For completeness, the Court addresses the existence of both
general and specific jurisdiction.
6
Page 9 of 13
its principal place of business is in Michigan and it does not conduct business in New York or have
any personal or real property in New York. Thus personal jurisdiction under CPLR 301 does not
lie against ZF by virtue of its own New York directed activities. Moreover, assuming arguendo
that Automotive sold vehicle products to vehicle manufacturers or retailers throughout the United
States, such does not provide a basis for jurisdiction. See McIntyre Mach. Ltd. v. Nicastro, 564
U.S. 873, 879, 881 (2011) (rejecting idea that a manufacturer is subject to personal jurisdiction in
a specific state because its products are distributed nationwide). Finally, even if LLC is a subsidiary
of ZF, “that does not render [ZF] essentially at home” in New York. Jensen v. Cablevision Sys.
Corp., 2017 WL 4325829 (E.D.N.Y. Sept. 17, 2017) (citing Hecklerco, LLC v. YuZoo Corp Ltd.,
2017 WL 2294606, at *5 (S.D.N.Y. May 11, 2017)).
To the extent Plaintiff argues that ZF is subject to general jurisdiction on the basis that
LLC is a mere department or agent of ZF, see,e.g., Volkswagenwerk Aktiengesellschaft v. Beech
Aircraft Corp., 751 F.2d 117 (2d Cir. 1984) (setting forth the factors for determining whether a
subsidiary is a mere department) and Cutco Indus. Inc. v. Naughton, 806 F.2d 361, 366 (2d Cir.
1986) (setting forth analysis for agency), her argument is underwhelming. Among other things,7
her argument is premised on the relationship between Parent and ZF and Parent and LLC and not
on ZF’s relationship to LLC. (See Pl.’s Opp. Mem. at 7-9.) Cf. Letom Mgmt. Inc. v. Centaur
Gaming LLC, 2017 WL 4877426, at *4 (rejecting general jurisdiction based on activities of
defendant’s affiliate where plaintiff did not provide facts indicating the importance of the
affiliate to the defendant, the nature of the business transacted for the benefit of defendant, and
defendant’s control over affiliate.)
The Court notes that it is unclear whether agency as a basis for general jurisdiction survives the Supreme court’s
decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014). See Sonera, 750 F.3d at 225.
7
Page 10 of 13
III.
Plaintiff Has Not Demonstrated Specific Jurisdiction over Defendant ZF
As noted above, specific jurisdiction requires that the claim asserted arise from the
activity asserted. That requirement is fatal to plaintiff’s position that specific jurisdiction exists.
Assuming that LLC transacts business in New York and that that activity can be
imputed to ZF because LLC is the agent of ZF, LLC’s activity in New York are unrelated
to the claim at issue. The uncontroverted evidence is that LLC’s New York facility does
not design, manufacture, distribute, or sell any seat weight sensors, seat position sensors,
seat belt pretensioners, seat belt buckle switches, airbag crash sensors, airbag control
units, airbag warning lamps, airbag power supply wires, airbag communication wires,
airbag inflators, airbag modules, or any other airbag system components. Additionally,
LLC did not produce components for the airbags that are the basis for this litigation and
did not design, manufacture, distribute, or sell any components of the subject 2000 BMW
528i. See Brown v. Lockheed Martin Corp.¸814 F.3d 619, 625 (2d Cir. 2016). (“Specific
jurisdiction is available when the cause of action sued upon arises out of the defendant’s
activities in the state.”) See generally Best Van Lines, Inc. v. Walker, 490 F.3d 239, 249
(2d Cir. 2007) (“New York courts have held that a claim ‘aris[es] from a particular
transaction when there is some ‘articuable nexus between the business transacted and the
cause of action sued upon,’ or when ‘there is a substantial relationship between the
defendant and the claim asserted.’” (quoting Sole Resort, S.A. de C.V. v. Allure Resorts
Mgmt., 450 F.3d 100, 103 (2d Cir 2006)).
Moreover, as there is no information to support an inference that TRW Airbag
Systems GmbH has any presence in New York or is an agent of ZF, subsection 2 and 3 of
Page 11 of 13
CPLR 302 (regarding torts committed in the state and those committed outside the state
having an effect therein) do not apply.
IV.
Jurisdictional Discovery is Denied
Plaintiff requests that the motion be denied so that he may take jurisdictional discovery.
The Court recognizes that it has discretion to order jurisdictional discovery. See, e.g., Leon v.
Shmukler, 992 F. Supp. 2d 179, 194-96 (E.D.N.Y.2014). However, jurisdictional discovery is
only appropriate when Plaintiff has asserted “specific, non-conclusory facts that, if further
developed, could demonstrate substantial state contacts.” Leon, 992 F. Supp. 2d at 195 (quoting
Texas Int’l Magnetics, Inc. v. BASF Aktiengesellschaft, 31 F. App’x. 738, 739 (2d Cir. 2002)
(unpublished opinion); see also Manhattan Life Ins. Co. v. A.J. Stratton Syndicate (No. 782), 731
F. Supp. 587, 593 (S.D.N.Y.1990) (“[P]laintiffs are entitled to discovery regarding the issue of
personal jurisdiction if they have made a sufficient start, and shown their position not to be
frivolous”).
Here, Plaintiff has not made a “sufficient start” in showing that this Court has personal
jurisdiction over Defendant ZF. Plaintiff has not provided the Court with any reason to infer that
an opportunity to develop the record would be anything other than frivolous. Moreover, the
request for jurisdictional discovery is incongruous given that Plaintiff agreed to stay discovery
against ZF during the pendency of this motion. (See DE 70.) Accordingly, Plaintiff’s request for
jurisdictional discovery is denied.
Page 12 of 13
CONCLUSION
For the reasons set forth above, ZF’s motion pursuant to Fed. R. Civ. P. 12(b)(2) to
dismiss the amended complaint as against it for lack of personal jurisdiction is granted.
Dated: Central Islip, New York
September 25, 2018
s/ Denis R. Hurley
Denis R. Hurley
United States District Judge
Page 13 of 13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?