COHEN, Senior Judge:
This personal injury action is before the Court on a motion to dismiss for lack of personal jurisdiction made, pursuant to Fed. R. Civ. P. 12(b)(2), on behalf of the defendant Sherburne Corporation (Sherburne). Alternatively, Sherburne seeks to have this case transferred to the District of Vermont pursuant to 28 U.S.C. § 1404(a). See Schwilm v. Holbrook, 661 F.2d 12, 15 (3d Cir. 1981)(transferor court need not have jurisdiction over the defendant in order to grant a § 1404(a) motion). Although the plaintiff opposes both of these motions, she asserts that transfer of venue would be appropriate as opposed to the outright dismissal of her complaint. Plaintiff's Brief slip op. at 16.
For the reasons provided below, we shall deny defendant's first motion to dismiss, holding that it is amenable to suit in New Jersey, and grant its alternative motion, transferring this case to the District Court in Vermont.
Although they have been characterized in diametrically opposing manners by the parties herein, the facts of this case are not in dispute. Plaintiff, a citizen and resident of New Jersey, was injured on February 26, 1983, while skiing at the Killington Ski Area (Killington) in Killington, Vermont. Apparently, she fell and seriously injured herself when her skis caught hold of the chair lift from which she was disembarking. Emergency surgery was performed on her leg and hip and she remained hospitalized in Rutland, Vermont, until March 4, 1983.
owns and operates Killington. It is a Vermont corporation which presently does not have assets, employees or agents in New Jersey. Thus, its assistant treasurer characterizes it as "a local Vermont business with no significant contact with the State of New Jersey." Affidavit of R. Fenner, para. 3.
Ms. Rutherford portrays the defendant and its contacts quite differently. Her trip to Killington was organized by a ski club and a ski shop located in Cherry Hill, New Jersey. Since 1968, she has taken approximately thirty such trips to the ski area. On the trip in question and apparently on those previous thereto, travel and lodging arrangements were coordinated, for a fee, by the ski club. Similarly, plaintiff purchased her weekend lift ticket from Sherburne at a discount rate extended to her New Jersey group.
Of primary importance to our jurisdictional determination is the question of whether Sherburne has purposefully directed its activities at residents of New Jersey. We must inquire, therefore, into its attempts to attract Garden State skiers.
During the ski season in which plaintiff was injured, Sherburne employed at least one representative, David Alonso, who visited ski shops and clubs in New Jersey to distribute information about Killington. Sherburne routinely purchases advertising space in at least four New Jersey newspapers: the Newark Star Ledger, the Bergen Evening Record, the Asbury Park Press and the Suburban New Jersey News. Additionally, advertisements about Killington appear in at least two national magazines, Ski Magazine and Skiing Magazine, which are distributed in New Jersey. Finally, approximately 13,000 of Sherburne's skiing brochures about Killington were distributed in New Jersey during the 1982-83 season.
Sherburne's solicitations have not been unrequited. Although it does not record the number of its patrons who hale from nearby states, like New Jersey, it does record what it refers to as "car and bus counts," i.e., the number of buses and cars to visit Killington grouped by the states in which the vehicles are registered. It also estimates the total number of its patrons in each ski season. Thus, in the 1982-83 season, when plaintiff was injured, approximately 695,000 people visited Killington. In the next two seasons, this number rose to 784,800 and then to 820,600. Using these figures in conjunction with defendant's car and bus counts, plaintiff estimates that over 100,000 New Jerseyans visit Killington annually and account for more business than the residents of any state other than New York and Massachusetts both of which share common borders with Vermont.
Thus, plaintiff's calculations reveal that New Jersey residents consistently generate more business for Killington than residents from Vermont itself.
Fed. R. Civ. P. 4(e) provides that service on a nonresident defendant may be effected pursuant to the forum's relevant statute or rule. New Jersey's "long arm" provision, Civil Practice Rule 4:4-4(c)(1), directs the Court back to the body of federal law enunciated in International Shoe v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945), and its progeny, by providing that process may be served in accordance with "the uttermost limits permitted by the United States Constitution." Avdel Corp. v. Mecure, 58 N.J. 264, 268, 277 A.2d 207 (1971). The ultimate question presented by this motion, therefore, is whether the exercise of this Court's jurisdiction over the defendant would be consistent with the due process of law.
We are the beneficiaries, in this regard, of a recent review of the due process personal jurisdiction inquiry by the Supreme Court. In Burger King v. Rudzewicz, 471 U.S. 462, 53 U.S.L.W. 4541, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985) reversing Burger King v. Macshara, 724 F.2d 1505 (11th Cir. 1984), the Court held that a Florida court could permissibly exercise jurisdiction over a Michigan resident who had allegedly breached a franchise agreement with a Florida corporation by failing to make required payments in Florida. Justice Brennan, writing for a six member Court majority,
emphasized the need for a "highly realistic" approach. Id. at 4546. He noted that the Court had long ago rejected the notion that personal jurisdiction "might turn on "mechanical" . . . or on 'conceptualistic . . . theories of the place of contracting or of performance.'" Id. (citations omitted). Similarly, in this case, we are not only concerned with the sometimes illusive place of injury, see, e.g., Schwilm v. Holbrook, 661 F.2d 12, 15 (3d Cir. 1981), but, instead, with the defendant's conduct toward New Jersey residents in general and its effect on the plaintiff in particular.
"The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful 'contacts, ties, or relations.'" Burger King, 53 U.S.L.W. at 4544. The Clause preserves "traditional notions of fair play and substantial justice," see International Shoe, 326 U.S. at 316, by providing defendants "with some minimum assurance as to where [their] conduct will and will not render them liable to suit." World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980). Thus, a court cannot exert jurisdiction over a defendant unless his "conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there." Id. In short, the Due Process Clause requires that a defendant have "fair warning" of his amenability to the jurisdiction of a foreign sovereign. Burger King, 53 U.S.L.W. at 4544.
A potential defendant may be said to have been fairly warned in two situations. First, a court may permissibly exercise what has been referred to as its "general jurisdiction" over any defendant who has "maintained continuous and substantial forum affiliations" even if the plaintiff's claim does not arise out of or is unrelated to those forum affiliations. Dollar Sav. Bank v. First Sec. Bank of Utah, 746 F.2d 208, 211-12 (3d Cir. 1984) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S. Ct. 1868, 1872 nn. 8 & 9, 80 L. Ed. 2d 404 (1984)). Second, a court's specific jurisdiction may be invoked "when [plaintiff's] claim is related to or arises out of the defendant's contacts with the forum." Id. Only in the latter instance is minimum contacts analysis appropriate. Dollar Sav. Bank, 746 F.2d at 212.
"Case law reveals an occasional failure to distinguish between the requirements for specific, as contrasted with general jurisdiction." Id. It is uncertain, however, whether this failure is occasionally unavoidable. In many cases, the specific-general distinction seems clear. For example, in Keeton v. Hustler Magazine, 465 U.S. 770, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984), the plaintiff's alleged defamation injury was purportedly caused by photographs and comments that appeared in the very magazines which constituted the defendant's contacts with the forum. Similarly, in World -Wide Volkswagen, the plaintiff's personal injuries were related to an allegedly unsafe vehicle which itself constituted the nonresident defendant's forum contacts. 444 U.S. at 289. Thus, mininum contacts analysis was appropriate in both cases. Again, in Burger King, 53 U.S.L.W. at 4544, a "specific jurisdiction" inquiry was appropriate because the claim, for breach of contact, obviously, arose out of the defendant's contacts (contract negotiations) with the forum.
The circumstances under which a general jurisdiction inquiry is required seem less clear. For example, in Helicopteros, the parties conceded that the plaintiff's wrongful death claim was unrelated to and did not arise out of the defendant's forum activities (contract negotiations). 104 S. Ct. at 1872-73. Nevertheless, in dissent, Justice Brennan stated unequivocally that although the cause of action did not "formally 'arise out of'" the defendant's forum contacts, it was " significantly related" thereto. Id. at 1878 (emphasis supplied). In response, Justice Blackman, writing for all of the Court's other members, suggested that the majority had merely relied on the plaintiff's concessions regarding the question of whether her claim was related to the defendant's contacts. Cf. Fed. R. Civ. P. 12(h)(1) (personal jurisdiction requirement is a waivable right). In fact, the Court noted specifically that it had not decided
the questions (1) whether the terms "arising out of" and "related to," describe different connections between a cause of action and a defendant's contact with a forum, and (2) what sort of tie between a cause of action and a defendant's contacts with a forum is necessary to a determination that either connection exists. Nor do we reach the question whether, if the two types of relationship differ, a forum's exercise of personal jurisdiction in a situation where the cause of action "relates to," but does not "arise out of," the defendant's contacts with the forum should be analyzed as an assertion of specific jurisdiction.