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Greaney v. Nitech Polysystems

October 31, 2008

MICHELE GREANEY, PLAINTIFF-APPELLANT,
v.
NITECH POLYSYSTEMS, LTD., F/K/A NITECH POLYSYSTEMS, INC., 1343081 ONTARIO, LTD., AMERI-CAN MACHINERY, LTD., FRANK SANGUILIANO, GN GEAR & MACHINE MANUFACTURING, LTD. AND 1072510 ONTARIO, INC., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1372-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 2, 2008

Before Judges Stern and Lyons.

Plaintiff, Michele Greaney, appeals an order dismissing her complaint for lack of personal jurisdiction against defendants, Nitech Polysystems, Ltd. (Nitech), its successor company, 1343081 Ontario, Ltd., Ameri-Can Machinery, Ltd., Frank Sanguiliano (president of Nitech, 1343081 Ontario, Ltd., and Ameri-Can Machinery, Ltd.) and GN Gear & Machine Manufacturing, Ltd. (GN Gear). The motion judge found that defendants lacked the required minimum contacts with New Jersey to support jurisdiction. We agree and therefore affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

Plaintiff, a resident of Hudson County and an employee of Cantar Polyair Corporation (Cantar), was injured in a work related accident on March 24, 2003. Cantar is a wholly owned subsidiary of Polyair Interpac, Inc., which is a publicly traded corporation headquartered in Toronto, Canada. Cantar is headquartered in Youngstown, Ohio and has several facilities throughout Canada and the United States, including a location in New Jersey.

Plaintiff's injury occurred when her hand and arm were caught in a winding machine used to manufacture plastics at Cantar's Carlstadt, New Jersey, manufacturing site. The winding machine is very large, measuring approximately twelve-feet wide by sixteen-feet long.

Cantar's Ontario facility custom ordered this winding machine from defendant Nitech,*fn1 a Canadian corporation located in Ontario. It is undisputed that the machine was ordered from Ontario and not New Jersey.

Nitech has never had any offices, real estate, agents, or employees in New Jersey. Furthermore, it has never advertised or otherwise attempted to solicit business from New Jersey residents nor registered to do business in this State.

The winding machine was the only one of its type that Nitech ever sold. After Nitech received a deposit of $59,000 from Cantar, it ordered the machine from GN Gear, a company that specializes in designing and constructing manufacturing equipment. GN Gear is also a Canadian corporation located in Ontario. It does not do any business in the United States.

There is a dispute as to who actually designed the winding machine. Frank Sanguiliano, the president of Nitech, claims that GN Gear was solely responsible for the machine's design, while GN Gear contends that it received all the specifications from Nitech.

It is undisputed that the winder was eventually installed at Cantar's Carlstadt, New Jersey site. However, there is no information in the record explaining how the machine got there. All evidence indicates that Nitech was to ship the winder to a Cantar facility in Ontario upon completion. For example, Nitech's packing slip and invoices for the winder listed the shipping address for delivery as "Cantar/Polyair Ltd. 195 Rexdale Blvd. Toronto, ON." Both of Nitech's invoices to Cantar state that the winder was sold to "Cantar/Polyair Ltd. Paul Cornigan 195 Rexdale Blvd. Toronto, Ontario."

Based on Nitech's purchase order to GN Gear, it appears that GN Gear agreed to ship the finished machine back to Nitech, who would then arrange for delivery to Cantar. However, it is not clear that this actually occurred. Sanguiliano testified in his deposition that individuals employed by Cantar went to GN Gear's facility in Ontario to inspect the machine upon its completion. He stated that those employees then transported the machine to a Cantar facility. Sanguiliano did not elaborate as to whether those individuals were from Ontario or New Jersey. GN Gear contends that it never had any contact with Cantar and dealt exclusively with Nitech. However, GN Gear does not provide any proof of how the winder left its possession.

Cantar paid for the winder by check in two installments. Both checks show that the payor is "Cantar/Polyair Corporation, 495 Meadow Lane Parkway, Carlstadt, New Jersey, 07072." The checks are drawn on the Hongkong Bank of Canada, located in Toronto. The identity of the individual who signed the checks was not provided in the record. When plaintiff's counsel deposed Sanguiliano and questioned him about these checks, Sanguiliano stated "The check is drawn on a Toronto bank and delivered by a Toronto company. We didn't look at the check." Plaintiff did not present any proofs showing that Cantar actually sent the checks from New Jersey. Furthermore, both of Nitech's invoices to Cantar state that the winder was sold to Cantar's Ontario facility.

On March 15, 2006, plaintiff filed a third amended complaint naming Nitech, 1343081 Ontario, Ltd., Ameri-Can Machinery, Ltd. and Frank Sanguiliano as defendants.*fn2 Shortly after defendants filed their answer, plaintiff requested leave to file an amended complaint to add GN Gear as a direct defendant. Plaintiff joined GN Gear on December 11, 2006.

On November 17, 2006, Nitech, 1343081 Ontario, Ltd., AmeriCan Machinery, Ltd. and Frank Sanguiliano filed a motion to dismiss for lack of personal jurisdiction. The motion judge entered an order allowing plaintiff to take discovery only on the issue of personal jurisdiction until December 31, 2006. Defendants' motion to dismiss was adjourned until January 5, 2007. Plaintiff's subsequent motion to extend discovery was denied.

On January 17, 2007, the motion judge, treating the motion to dismiss as a motion for summary judgment, dismissed plaintiff's complaint against Sanguiliano, Ameri-Can Machinery, Ltd., Nitech, and 134081 Ontario, Ltd., without prejudice for lack of personal jurisdiction.

Meanwhile, GN Gear failed to answer and the court entered a default on March 20, 2007. Plaintiff waived the default and GN Gear filed its answer on August 6, 2007. On August 15, 2007, GN Gear filed a motion to dismiss for lack of personal jurisdiction. Plaintiff ...


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