Buck Construction, LLC v. Murray Corporation
MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Plaintiff's # 17 cross-motion to amend its complaint and to join Howland Pump as a Defendant is GRANTED. The Court further ORDERS that Plaintiff shall file and serve its amended comp laint within 10 days of the date of this Memorandum-Decision and Order. The Court further ORDERS that Defendant's # 11 motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure is D ENIED. The Court further ORDERS that, after Plaintiff files its amended complaint, which will, among other things, name as a Defendant to this action, a non-diverse party, i.e., Howland Pump, this action shall be REMANDED to state court because this Court will no longer have subject matter jurisdiction over this action. The Court further ORDERS that the Clerk of the Court shall, at the appropriate time, mail a certified copy of this Memorandum-Decision and Order to the Clerk of New York Supreme Court, Oneida County, as 28 U.S.C. § 1447(c) requires. Signed by Senior Judge Frederick J. Scullin, Jr. on 9/8/2017. (nmk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BUCK CONSTRUCTION, LLC,
BOWITCH & COFFEY, LLC
17 Elk Street
Albany, New York 12207
Attorneys for Plaintiff
DANIEL W. COFFEY, ESQ.
LAW OFFICES OF THERESA
Salina Meadows Office Park
301 Plainfield Road, Suite 210
Syracuse, New York 13212
Attorneys for Defendant
MICHELLE M. DAVOLI, ESQ.
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
Pending before the Court are Defendant's motion to dismiss Plaintiff's complaint for lack of
personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, see Dkt. No.
11, and Plaintiff's cross-motion to amend its complaint, join a non-diverse party, and remand this
action to state court or, in the alternative, for an order permitting limited discovery regarding the
issue of personal jurisdiction, see Dkt. No. 17.
Plaintiff is a New York LLC operating out of Whitesboro, New York. Defendant is a
corporation registered in Maine with its principal place of business in Maryland and manufacturing
operations in Ontario, Canada.
Defendant designs, manufactures, and sells clamps and fasteners for industrial and
commercial hose applications. See Dkt. No. 2, Complaint, at ¶ 7. One such product is the Murray
PEX 233 pinch clamp, which is intended to be used to seal a hose onto a fitting. See id. at ¶¶ 9-10.
Plaintiff asserts that it purchased a Murray PEX 233 from Utica Plumbing Supply, installed it for its
intended purpose, and that, shortly thereafter, the Murray PEX 233 failed, causing water damage to
Plaintiff's property. See Dkt. No. 17-6 at ¶¶ 20-23. Plaintiff claims that the Murray PEX 233 was
defective as designed and at the time it was distributed. See Dkt. No. 2 at ¶¶ 15-16. Based on these
allegations, Plaintiff asserts products liability, breach of warranty, and negligence claims against
Defendant. See id. at ¶¶ 22-27.
Plaintiff commenced this action on February 9, 2017, in New York Supreme Court, Oneida
County. See Dkt. No. 2. On February 28, 2017, Plaintiff served Defendant with a Summons and
Complaint. Subsequently, on March 9, 2017, Defendant filed a notice of removal to this Court,
relying on this Court's diversity jurisdiction because Plaintiff is a citizen of New York and
Defendant is a citizen of Maryland and Maine. See id. After removal, Defendant filed the pending
motion to dismiss Plaintiff's complaint for lack of personal jurisdiction. See Dkt. No. 11.
In response to Defendant's motion, Plaintiff cross-moved to amend its complaint and to join
Howland Pump and Supply Company, Inc. ("Howland Pump") as a defendant.1 See Dkt. No. 17.
Howland Pump is a New York Corporation. Therefore, if the Court were to grant Plaintiff's crossmotion to join Howland Pump as a defendant, the Court would lack diversity jurisdiction over this
case and would have to remand this action to state court.
Plaintiff's cross-motion to amend its complaint to assert additional factual allegations
A court should grant leave to amend a pleading "when justice so requires." Fed. R. Civ. P.
15(a)(2). However, "undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party . . . [or] futility of amendment" will serve as a ground to deny an amendment prior to trial.
Foman v. Davis, 371 U.S. 178, 182 (1962).
In its proposed amended complaint, Plaintiff seeks to add several allegations regarding the
issue of personal jurisdiction.2 Defendant mostly ignores Plaintiff's cross-motion to amend in its
response, instead, arguing, in general terms, that Plaintiff's cross-motion to amend is impermissible
forum shopping. See Dkt. No. 18-2 at 12.
As an initial matter, the Court notes that, because Defendant has moved to dismiss Plaintiff's
complaint for lack of personal jurisdiction, it would be futile to allow Plaintiff to amend its
complaint if, in its proposed amended complaint, Plaintiff has failed to plead facts sufficient to
Howland Pump is the corporate owner of Utica Plumbing Supply, the retailer from
which Plaintiff purchased the allegedly defective clamp. See Dkt. No. 17-6 at ¶ 15.
Plaintiff also seeks to add Howland Pump as a Defendant in this action. The Court will
discuss the joinder of a non-diverse party separately.
establish a prima facie showing that personal jurisdiction over Defendant exists. Therefore, to
determine whether to grant Plaintiff's cross-motion to amend its complaint, the Court will review
the proposed amended complaint in light of Defendant's motion to dismiss for lack of personal
1. Standard of review
"'[T]o survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a
prima facie showing that jurisdiction exists.'" Belabbas v. Inova Software Inc., No. 16 Civ. 7379,
2017 WL 3669512, *2 (S.D.N.Y. Aug. 24, 2017) (quoting Eades v. Kennedy, PC Law Offices, 799
F.3d 161, 167-68 (2d Cir. 2015) (quoting Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732
F.3d 161, 167 (2d Cir. 2013))). Furthermore, this "prima facie showing 'must include an averment
of facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over the
defendant.'" Id. (quoting In re Terrorist Attacks on Sept. 11, 2011, 714 F.3d 659, 673 (2d Cir. 2013)
(citation omitted)). Finally, when "'deciding a pretrial motion to dismiss for lack of personal
jurisdiction,' a district court has 'considerable procedural leeway' and 'may determine the motion on
the basis of affidavits alone.'" Id. (quoting Dorchester, 722 F.3d at 84). "Where a court relies on
pleadings and affidavits, it 'construe[s] the pleadings and affidavits in the light most favorable to
plaintiff, resolving all doubts in [its] favor.'" Id. (quotation omitted).
2. Plaintiff's proposed amended complaint
In its proposed amended complaint, Plaintiff alleges that Defendant "committed a tortious
act outside of New York causing injury to property within the state," see Dkt. No. 17-6 at ¶ 6;
"should reasonably expect its tortious act to have consequences in the state[,]" see id. at ¶ 7, "derives
substantial revenue from interstate or international commerce[,]" see id. at ¶ 8, "regularly solicits
business in New York[,]" see id. at ¶ 9, "engages in persistent conduct in New York[,]" see id. at
¶ 10, and "transacts business in New York[,]" see id. at ¶ 11. Plaintiff also alleges that Defendant
"markets its clamps and fasteners for use across the worldwide agriculture, automotive, heavy-duty
truck, off highway, municipal, marine, irrigation, beverage, and plumbing markets, including
customers in the State of New York." See id. at ¶ 13. Moreover, Plaintiff asserts that Defendant
"marketed in New York State and/or knew, or should have known that the products [it] designed,
manufactured and/or distributed would be sold and/or used in New York State." See id. at ¶ 16.
Finally, Plaintiff contends that Defendant "manufactured and/or designed" its Murray PEX 233
pinch clamp for use in New York. See id. at ¶ 17.
In support of its cross-motion to amend its complaint, Plaintiff submitted the affidavit of
Steven Buck, its Managing Member, in which he states that Defendant
holds itself out as a worldwide leader for PEX clamping. A look at
[its] website shows that [Defendant] holds itself out as an
international company with manufacturing facilities across the world
(US, Canada, India and China). It offers it's [sic] website in four
different languages, and through the "contact us" tab, customers all
over the world, including those in Whitesboro[,] New York can
contact and purchase [Defendant's] products directly . . . . [Defendant]
also offers a sophisticated electronic catalog offering for sale
hundreds of [its] products. Also, through [Defendant's] website, it is
possible to order [its] products directly and ship them into New York.
See Dkt. No. 17-1, "Buck Aff.," at ¶ 8.
Mr. Buck avers that Plaintiff purchased the defective clamp from Utica Plumbing Supply on
February 12, 2015, for a project at 783 Merrick Road in Whitesboro, New York. See id. at ¶¶ 5-6.
Mr. Buck also states that Plaintiff "purchased two hundred of these clamps for this project, and they
were picked up by the plumbing subcontractor for the job." See id. at ¶ 6. The invoice that shows
that Plaintiff purchased the allegedly defective clamp also indicates that Plaintiff purchased several
other Murray clamps. See id. & Exhibit "A" attached thereto.
Mr. Buck also states that he had used Defendant's clamps and products previously and
recognized the "Murray" trade name written on each clamp. See id. at ¶ 9. According to Mr. Buck,
Defendant's "incorporation of the 'Murray' tradename into [its] product design is one part of
[Defendant's] prolonged and successful campaign to advertise and sell its products across the world
and in New York State." See id. Mr. Buck further asserts that Plaintiff "has used thousands of
[Defendant's] products since [Plaintiff] was founded in 1963 and all of [its] projects have been in
New York State." See id. at ¶ 10.
In support of its motion to dismiss for lack of personal jurisdiction, Defendant submitted the
affidavit of Thomas Branch, its Operations and Purchasing Manager. See Dkt. No. 11-7. In his
affidavit, Mr. Branch states that Defendant "is in the business of manufacturing various types of
clamps, including the PEX clamp at issue in this matter, for use in plumbing systems." See id. at
¶ 5. According to Mr. Branch, "[t]he clamps were originally designed by Oetiker Corporation in
Europe." See id. Thereafter, the clamps "were redesigned to meet standards set by the American
Society for Testing and Materials[.]" See id. The clamps were originally manufactured in
Defendant's processor in Ontario and then shipped to Defendant's plant in Maryland for any final
adjustments. See id. Mr. Branch avers that "[e]ach clamp is stamped with a machine and date code,
inspected, and verified in Hunt Valley, Maryland." See id.
Furthermore, Mr. Branch states that, "[a]lthough clamps may be sold individually to a
distributor, the clamps are usually sold as a component part in a pipe kit." See id. at ¶ 6. According
to Mr. Branch, "[o]nce a clamp is sold to a distributor, [Defendant] does not have any role in sale to
the end user. The end user could purchase the clamp or pipe kit from any retailer selling plumbing
materials." See id. at ¶ 9. Mr. Branch explains that, "[f]rom January 1, 2010 through the present,
[Defendant] never advertised products in the State of New York." See id. at ¶ 19. Moreover, Mr.
Branch avers that Defendant has never sold clamps directly to Plaintiff nor has it ever conducted any
business directly with Plaintiff. See id. at ¶¶ 7-8.
Mr. Branch also claims that Defendant "was not authorized, licensed or registered to do
business in the State of New York." See id. at ¶ 10. Furthermore, according to Mr. Branch, "[p]rior
to September 24, 2010, [Defendant] employed one salesperson in New York" and has not had any
employees in New York since that time. See id. at ¶ 14. Mr. Branch also contends that, "[b]etween
January 1, 2010 and December 31, 2016, [Defendant] made 65,535 total shipments of all of its
products nationwide. Of those 65,535 shipments, only 1,755 were made to a New York entity for a
total of 2.68% of the total shipments." See id. at ¶ 22. Moreover,
[f]rom January 1, 2010 through December 31, 2016, only 2.78% of
[Defendant's] total revenue for those seven years was derived from
any New York entity. [Defendant's] actual sales for the seven year
time period totaled $67,976,293.00, only $1,894,395.00 of which was
derived from a New York entity. This works out to an average of only
$270,627.86 of total revenue derived from a New York entity per
See id. at ¶ 23.
Furthermore, Mr. Branch asserts that Defendant "does not have any records of any sales
made to Utica Plumbing Supply." See Dkt. No. 18-1 at ¶ 3.3 Mr. Branch also states that Defendant
"sells its products to various large scale distributors throughout the country, including in the
Northeast Region." See id. at ¶ 4. Thus, according to Mr. Branch, "Utica Plumbing Supply could
have purchased the PEX clamp at issue from any of [Defendant's] large scale distributors." See id.
Finally, Mr. Branch acknowledges that Defendant "does have a website in which customers can
place inquiries for quotes . . . [h]owever, the website does not allow customers to place orders or
purchase products[; and the] website has not derived any revenue from New York." See id. at ¶¶ 56.
"'In assessing whether personal jurisdiction is authorized, "the court must look first to the
[long-arm] statute of the forum state, in this instance New York."'" Eastboro Found. Charitable
Trust v. Penzer, 950 F. Supp. 2d 648, 654 (S.D.N.Y. 2013) (quoting Whitaker v. Am. Telecasting,
Inc., 261 F.3d at 208 (quoting Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997)))
(footnote omitted). "'"If the exercise of jurisdiction is appropriate under that statute, the court must
decide whether such exercise comports with the requisites of due process."'" Id. (quoting Whitaker
v. Am. Telecasting, Inc., 261 F.3d at 208) (footnote omitted).
In pertinent part, New York's long-arm statute authorizes personal jurisdiction over a nondomiciliary where the non-domiciliary "3. commits a tortious act without the state causing injury to
person or property within the state, . . . if [it] . . . (ii) expects or should reasonably expect the act to
have consequences in the state and derives substantial revenue from interstate or international
Mr. Branch does not state whether Defendant made any sales to Howland Pump and
Supply Company, Inc., the purported owner of Utica Plumbing Supply and the entity that would
likely be the company that made all purchases related to products that Utica Plumbing Supply
commerce; . . ." N.Y. C.P.L.R. § 302(a)(3)(ii). A plaintiff must satisfy five elements to establish
personal jurisdiction under § 302(a)(3)(ii).
First, that defendant committed a tortious act outside the State;
second, that the cause of action arises from that act; third, that the act
caused injury to a person or property within the State; fourth, that
defendant expected or should reasonably have expected the act to
have consequences in the State; and fifth, that defendant derived
substantial revenue from interstate or international commerce.
LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 214 (2000) (emphasis added).
With regard to the first three elements, Plaintiff has alleged that Defendant designed and
manufactured the defective clamp outside New York and that the clamp malfunctioned in New
York, causing extensive damage to Plaintiff's property in Whitesboro, New York. Based on these
allegations, the Court finds that Plaintiff has satisfied these three elements.
"The fourth element – contemplating 'in-State consequences' -- is met when '[t]he
nonresident tortfeasor . . . expect[s], or ha[s] reason to expect, that [its] tortious activity in another
State will have direct consequences in New York[.]'" Id. (quoting Ingraham v Carroll, 90 NY2d
592, 598 [(1997)]). As the New York Court of Appeals has discussed, this "element 'is intended to
ensure some link between a defendant and New York State to make it reasonable to require a
defendant to come to New York to answer for tortious conduct committed elsewhere[.]'" Id. at 215
(quoting Ingraham v. Carroll, 90 NY2d, at 598). "Moreover, the defendant need not foresee the
specific event that produced the alleged injury. The defendant need only reasonably foresee that any
defect in its product would have direct consequences within the State[.]" Id. (citations omitted); see
also Schaadt v. T.W. Kutter, Inc., 169 A.D.2d 969, 970 (3d Dep't 1991) (stating that foreseeability
requires "a discernible effort to directly or indirectly serve the New York market" (citations
omitted)). "'The test of whether a defendant expects or should reasonably expect [its] act to have
consequences within the State is an objective rather than subjective one.'" Kernan v. Kurz-Hastings,
Inc., 175 F.3d 236, 241 (2d Cir. 1999) (quotation omitted). In sum, "the foreseeability requirement
is not satisfied unless there are '"tangible manifestations" showing that the nondomiciliary defendant
. . . either should have known where [its product was] destined or "was attempting to reach a New
York market."'" Capitol Records, LLC v. VideoEgg, Inc., 611 F. Supp. 2d 349, 363-64 (S.D.N.Y.
2009) (quotation omitted).
In this case, it is undeniable that Defendant runs an interstate business that knowingly ships
its products to New York. Indeed, Defendant admits to $1,894,395.00 in sales and 1,755 individual
shipments to New York since 2010. Furthermore, Defendant admits that it sells a significant
amount of its products to other distributors that create pipe-kits that are then distributed throughout
the country, including New York. Although Defendant argues that its New York sales and
shipments represent just a tiny fraction of its overall numbers, i.e., 2.78% of total revenue and
2.68% of total shipments, Defendant is clearly aware that its products enter New York and are being
used in New York. Furthermore, Defendant's website provides at least some interactivity with
customers who could be located in New York.4 Based on this record, the Court finds that Plaintiff
Defendant contends that it does not have the requisite contacts with New York because
its "website does not facilitate the sale of goods to anyone." See Dkt. No. 18-2 at 6. In
particular, Defendant asserts that "[n]o merchandise is sold on the website," but rather "an entity
can make inquiries . . . as to pricing and other product information." See id. Thus, Defendant
argues that its website's existence "cannot form the basis of imputing long arm jurisdiction onto
[D]efendant." See id. To support this position, Defendant relies on Pyramid Co. of Onondaga v.
Land Co. of Osceola Cty., LLC, No. 5:08-CV-00392, 2008 WL 11335073 (N.D.N.Y. Oct. 22,
2008), wherein the court determined "'that the level of interactivity and commercial nature of the
exchange of information that occurs on the Web site does not rise to the level of conferring
personal jurisdiction over the defendants.'" Id. at *7 (quotation omitted).
has established that Defendant should have foreseen that its products could cause injury in New
The fifth element "is designed to narrow 'the long-arm reach to preclude the exercise of
jurisdiction over nondomiciliaries who might cause direct, foreseeable injury within the State but
"whose business operations are of a local character[.]"'" LaMarca, 95 N.Y.2d at 215 (quoting
Ingraham v Carroll, 90 NY2d, at 599). In this case, Defendant effectively admits to running an
interstate business, thus satisfying this element.
In sum, for the above-stated reasons, the Court concludes that Plaintiff has alleged sufficient
facts in its proposed amended complaint to make a prima facie showing of personal jurisdiction
over Defendant based on New York's long-arm statute, specifically § 302(a)(3)(ii).
The Court must next determine whether its exercise of personal jurisdiction would comport
with the requirements of due process. There are two components to the due process analysis, "the
'minimum contacts' test and the 'reasonableness' inquiry." Bank Brussels Lambert v. Fiddler
Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d Cir. 2002) (citing Metro. Life Ins. Co. v. RobertsonCeco Corp., 84 F.3d 560, 567 (2d Cir. 1996)).
"The minimum contacts inquiry requires that the court determine whether a defendant has
sufficient minimum contacts with the forum to justify the court's exercise of personal jurisdiction
over the defendant." Waldman v. Palestine Liberation Org., 835 F.3d 317, 331 (2d Cir. 2016)
(citations omitted). Courts "'focus on the relationship among the defendant, the forum, and the
This case is clearly distinguishable from Pyramid Co., which dealt with a website that
had far fewer interactive features, e.g., the website at issue in Pyramid Co. did not have a fillable
contact form or an online catalog to view products. Moreover, Defendant ignores all of the other
contacts it has with New York.
litigation. For a State to exercise jurisdiction consistent with due process, the defendant's suitrelated conduct must create a substantial connection with the forum State.'" Id. at 335 (quoting
Walden v. Fiore, --- U.S. ---, 134 S. Ct. 1115, 1121, 188 L. Ed. 2d 12 (2014)).5 Moreover, "the
relationship between the defendant and the forum 'must arise out of contacts that "defendant [it]self"
creates with the forum.'" Id. (quoting [Walden, 134 S. Ct.] at 1122 (citing Burger King, 471 U.S. at
475, 105 S. Ct. 2174)). In other words, "however significant the plaintiff's contacts with the forum
may be, those contacts cannot be 'decisive in determining whether the defendant's due process rights
are violated.'" Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014) (quoting Rush, 444 U.S., at 332, 100
S. Ct. 571). Accordingly, for example, the Supreme Court has
upheld the assertion of jurisdiction over defendants who have
purposefully "reach[ed] out beyond" their State and into another by,
for example, entering a contractual relationship that "envisioned
continuing and wide-reaching contacts" in the forum State, . . ., or by
circulating magazines to "deliberately exploi[t]" a market in the forum
State, . . . . And although physical presence in the forum is not a
prerequisite to jurisdiction, . . ., physical entry into the State – either
by the defendant in person or through an agent, goods, mail, or some
other means – is certainly a relevant contact. . . .
Id. (internal quotations and citations omitted).
In this case, as discussed above, Defendant has initiated multiple contacts with New York
State. In that regard, by its own admission, it has earned nearly two million dollars in revenue from
New York, and it has made 1,755 individual shipments over the last several years to customers in
New York, all related to its sale of its clamps and other products.
This case only implicates specific jurisdiction, which "depends on an 'affiliatio[n]
between the forum and the underlying controversy[.]'" Goodyear Dunlop Tires Operations, S.A.
v. Brown, 564 U.S. 915, 919 (2011) (quotation and other citation omitted). In contrast, "'general'
jurisdiction . . . permits a court to assert jurisdiction over a defendant based on a forum
connection unrelated to the underlying suit[.]" Walden, 134 S. Ct. at 1121 n.6.
Furthermore, the Court rejects Defendant's argument that it does not have the requisite
minimum contacts to establish personal jurisdiction because it merely placed the defective clamp
into the stream of commerce and "had no say in the end user of the clamp." See Dkt. No. 11-8 at 14
(citing Asahi Metal Indus. Co. v. Superior Court of CA, Solano Cty., 480 U.S. 102, 116 (1987)).
Defendant oversimplifies its contacts with New York. By its own admission, Defendant has done
far more than merely place its products in the stream of commerce. Rather, it has actively sent
many shipments to New York, as result of which, it has derived significant income. See WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98 (1980) (stating that "[t]he forum State
does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a
corporation that delivers its products into the stream of commerce with the expectation that they will
be purchased by consumers in the forum State" (citation omitted)); see also J. McIntyre Mach., Ltd.
v. Nicastro, 564 U.S. 873, 882 (2011) (stating that "[t]he defendant's transmission of goods permits
the exercise of jurisdiction only where the defendant can be said to have targeted the forum"). In
this case, Defendant's products arrived in New York, not because of the fortuitous current of the
stream of commerce but because Defendant actually made shipments to New York and to
distributors that serviced New York. See, e.g., Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d
158, 171 (2d Cir. 2010) (concluding that, "[i]n actually sending items to New York, there can be no
doubt that [the defendant's] conduct was 'purposefully directed toward the forum State'" (quotation
Based on this record, the Court finds that Plaintiff has made a prima facie showing that
Defendant has sufficient minimum contacts with New York to justify this Court's exercise of
personal jurisdiction over Defendant.
"The second stage of the due process inquiry asks whether the assertion of personal
jurisdiction comports with 'traditional notions of fair play and substantial justice' -- that is, whether
it is reasonable under the circumstances of the particular case." Metro. Life Ins. Co. v. RobertsonCeco Corp., 84 F.3d 560, 568 (2d Cir. 1996) (citation omitted). In making this determination, the
court must analyze the following factors:
(1) the burden that the exercise of jurisdiction will impose on the
defendant; (2) the interests of the forum state in adjudicating the case;
(3) the plaintiff's interest in obtaining convenient and effective relief;
(4) the interstate judicial system's interest in obtaining the most
efficient resolution of the controversy; and (5) the shared interest of
the states in furthering substantive social policies.
Id. (citations omitted).
"Where a plaintiff makes the threshold showing of the minimum contacts required for the first test, a
defendant must present 'a compelling case that the presence of some other considerations would
render jurisdiction unreasonable.'" Bank Brussels, 305 F.3d at 129 (quotation omitted).
Defendant generally argues that the costs associated with litigating this case in New York are
burdensome; New York has no interest in this matter; and there is no public policy reasons to
support personal jurisdiction. See Dkt. No. 11-8 at 15-16. Undoubtedly litigating this case in a
forum distant from the state in which Defendant's corporate headquarters is located would cost more
than doing so in Defendant's home state; however, this argument cuts both ways because most of the
evidence and the witnesses in this case are located in New York. Defendant's other arguments are
vague and conclusory. Therefore, the Court finds that Defendant has not presented a "compelling"
reason that would render the authorization of personal jurisdiction over Defendant unreasonable.
Accordingly, the Court concludes that exercising personal jurisdiction over Defendant does not
offend the traditional notions of fair play and substantial justice.
In sum, because the Court finds that Plaintiff has alleged sufficient facts in its proposed
amended complaint to make a prima facie showing of personal jurisdiction sufficient to withstand
Defendant's motion to dismiss, the Court grants Plaintiff's cross-motion to amend its complaint and
denies Defendant's motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of
the Federal Rules of Civil Procedure.
Plaintiff's cross-motion to join a non-diverse party
Pursuant to 28 U.S.C. § 1447(e), "[i]f after removal, the plaintiff seeks to join additional
defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or
permit joinder and remand the action to the State court." Id. The court uses a two-step process to
determine whether to permit joinder and remand the case to state court. First, the court must
consider whether Rule 20 of the Federal Rules of Civil Procedure allows joinder. "If joinder is
permissible, the second step requires the Court to conduct a 'fundamental fairness' analysis to
'ascertain whether the balancing of certain relevant considerations weighs in favor of joinder and its
necessarily attendant remand.'" Durstenberg v. Electrolux Home Prods., Inc., No. 15 Civ. 9277,
2016 WL 750933, *1 (S.D.N.Y. Feb. 23, 2016) (quoting McGee v. State Farm Mut. Auto Ins. Co.,
684 F. Supp. 2d 258, 262 (E.D.N.Y. 2009)).
Rule 20 provides, in pertinent part, that
[p]ersons . . . may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in
the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in
Fed. R. Civ. P. 20(a)(2).
Plaintiff alleges that Howland Pump is the corporate owner of Utica Plumbing Supply, the
retailer that sold Plaintiff the defective clamp. Furthermore, Plaintiff seeks relief jointly and
severally against Defendant and Howland Pump. See, e.g., Durstenberg, 2016 WL 750933, at *1
(finding "no serious question" regarding whether adding a retailer to a products liability case
complied with Rule 20).6 For these reasons, the Court concludes that joinder of Howland Pump as a
Defendant to this action comports with Rule 20.
"'District courts in this Circuit . . . permit a joinder which destroys diversity only when
consistent with principles of fundamental fairness as appraised using the following factors: (1) any
delay, as well as the reason for delay, in seeking joinder; (2) resulting prejudice to defendant; (3)
likelihood of multiple litigation; and (4) plaintiff's motivation for the amendment." Nazario v.
Deere & Co., 295 F. Supp. 2d 360, 363 (S.D.N.Y. 2003) (citations omitted). Accordingly, a court
will permit joinder of a non-diverse party only when these factors weigh in the moving party's favor.
See id. (citation omitted).
The first factor, delay, is measured from the date of removal. See id. Defendant removed
this action to this Court on February 28, 2017; and Plaintiff cross-moved to join Howland Pump and
to remand on July 23, 2017, nearly five months later. In addition, Plaintiff filed its cross-motion to
join and remand in response to Defendant's motion to dismiss. Plaintiff explains that it did not
name Howland Pump as a defendant earlier because Plaintiff's counsel did not know that Plaintiff
The Court notes that, in response to Plaintiff's cross-motion to join Howland Pump,
Defendant did not address whether joinder would comport with Rule 20.
had purchased the PEX clamp from Howland Pump at the time Plaintiff commenced this law suit.
See Dkt. No. 17-16 at 7.
Despite the seven months between the removal and Plaintiff's cross-motion to join Howland
Pump, the Court finds that there was a legitimate reason for the delay and that the delay was not
unduly long. Therefore, the Court finds that this factor weighs in favor of allowing joinder.
With regard to the issue of prejudice, Defendant only complains that Plaintiff made its crossmotion "solely to force this Maine defendant with operations in Maryland and Canada to be dragged
through New York State Court for no reason." See Dkt. No. 18-2. As discussed above, based on
Defendant's contacts with New York, it is not unreasonable or prejudicial to expect Defendant to
litigate in New York when one of its products allegedly malfunctioned and caused injury in this
state. Therefore, the Court finds that this factor weighs in favor of allowing joinder.
With regard to the third factor, i.e., the likelihood of multiple litigations, the Court finds that
this factor weighs in favor of joinder because denying joinder would force Plaintiff to file a separate
law suit in state court against Howland Pump.
Finally, with regard to Plaintiff's motivation to join Howland Pump as a party, Defendant
contends that this is "blatant forum shopping, and should not be permitted[.]" See Dkt. No. 18-2 at
12. In light of the fact that Plaintiff originally filed this action in state court and, at that time, was
not aware of Howland Pump's existence, as well as the fact that Plaintiff seeks to join Howland
Pump as a Defendant because Howland Pump is the corporate owner of the retailer from which
Plaintiff purchased the allegedly defective clamp, the Court finds Defendant's argument that
Plaintiff is forum shopping without merit.
Accordingly, weighing all of the relevant factors, the Court concludes that the principles of
fundamental fairness weigh in favor of allowing Plaintiff to join Howland Pump as a Defendant in
this action. Therefore, the Court grants Plaintiff's cross-motion to join Howland Pump as a
Defendant and, as a consequence of such joinder, remands this case to state court.
After reviewing the entire file in this matter, the parties' submissions, and the applicable law,
and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's cross-motion to amend its complaint and to join Howland Pump as
a Defendant, see Dkt. No. 17, is GRANTED; and the Court further
ORDERS that Plaintiff shall file and serve its amended complaint within ten (10) days of
the date of this Memorandum-Decision and Order; and the Court further
ORDERS that Defendant's motion to dismiss for lack of personal jurisdiction pursuant to
Rule 12(b)(2) of the Federal Rules of Civil Procedure, see Dkt. No. 11, is DENIED; and the Court
ORDERS that, after Plaintiff files its amended complaint, which will, among other things,
name as a Defendant to this action, a non-diverse party, i.e., Howland Pump, this action shall be
REMANDED to state court because this Court will no longer have subject matter jurisdiction over
this action; and the Court further
ORDERS that the Clerk of the Court shall, at the appropriate time, mail a certified copy of
this Memorandum-Decision and Order to the Clerk of New York Supreme Court, Oneida County, as
28 U.S.C. § 1447(c) requires.
IT IS SO ORDERED.
Dated: September 8, 2017
Syracuse, New York
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