DiMeo v. Minster Machine Co. (225 F. Supp. 569, 1963)

TIMBERS, District Judge.

I

DEFENDANT MINSTER MACHINE’S MOTION TO DISMISS

Defendant Minster Machine Co., Inc. having moved (i) pursuant to Rule 12 (b) (2) and (5), Fed.R.Civ.P., to dismiss the complaint on the ground of lack of jurisdiction over said defendant and to quash service of process because of the insufficiency of service of process on said defendant, and (ii) pursuant to Rule 12(b) (6), Fed.R.Civ.P., to dismiss the second count of the complaint for failure to state a claim upon which relief can be granted; and

Defendant Minster, at the time of oral argument, having withdrawn its motion to dismiss the complaint on the ground of lack of jurisdiction over said defendant and to quash service of process because of insufficiency of service of process on said defendant (motion (i) above); and

With respect to motion (ii) above, the Court, having heard arguments by counsel for the respective parties, having received and considered said defendant’s motion, briefs of the respective parties, pleadings and other papers on file; and being of the opinion that the second count of neither plaintiff DiMeo’s complaint nor intervening plaintiff Cowles’ complaint (2 Moore’s Federal Practice, ¶ 12.14, p. 2266 (2d ed. 1962)) states a cause of action for breach of warranty because of the failure of said counts to allege facts, if there be any, bringing this case within the exception enunciated in Hamon v. Digliani, 148 Conn. 710, 718, 174 A.2d 294 (1961), to the long-standing rule in Connecticut requiring privity of contract as an essential element of a cause of action for breach of warranty (Boruchi v. MacKewzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938)); it is

Ordered that defendant Minster’s motion to dismiss the second count of the complaint be, and the same hereby is, denied, provided that within thirty (30) days from the date of this order am amended complaint and an amended intervening complaint be filed alleging" facts, if there be any, bringing said complaints within the rule of Hamon v. Dig-liani, supra, failing which the Clerk of" this Court is directed to enter an order-dismissing the second count of the complaint and the second count of the intervening complaint.

II

DEFENDANT ROSS OPERATING VALVE’S MOTION TO DISMISS

■ [2-5] Defendant Ross Operating-Valve Co., Inc. having moved, pursuant, to Rule 12(b) (2) and (5), Fed.R.Civ.P.,. to dismiss the complaint on the grounds, of lack of jurisdiction over said defendant and insufficiency of service of process, on said defendant; and

The Court, having heard arguments-by counsel for the respective parties; having received and considered said defendant’s motion and supporting affidavit, briefs of the respective parties,, pleadings and other papers on file; and being of the opinion that the motion by said defendant to dismiss should be-granted for the reasons that

(i) The sole contact of defendant Ross with the State of Connecticut is the presence in this state of its valve (the valve having been manufactured by Ross in Michigan, having been sold to Minster-in Michigan, having been installed in Minster’s press in-Ohio, having been a part of the press sold by Minster to-Cowles and installed by Minster at Cowles’ plant in Connecticut where plaintiff was-injured while in Cowles’ employ) ;

(ii) The presence of such product (the valve) in Connecticut, without more, does not constitute sufficient minimal contacts with the State of Con-neeticut to make Ross amenable to substituted service of process issued by a court of this state (International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 90 L. Ed. 95 (1945); Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Hutchinson v. Chase & Gilbert, Inc., 45 F.2d 139, 141 (2 Cir. 1930); Bomze v. Nardis Sportswear, Inc., 165 F.2d 33, 35 (2 Cir. 1948));