The opinion of the court was delivered by: COHEN
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 616 F. Supp.]
This matter having come before the Court on a motion by the defendant, SHERBURNE CORPORATION, for dismissal for lack of personal jurisdiction and for, in the alternative, transfer, pursuant to 28 U.S.C. § 1404, to the District of Vermont; and
For the reasons set forth in the Court's opinion filed this day;
It is on this 4th day of September, 1985 ORDERED that only defendant's motion for a change of venue be and the same is hereby GRANTED. Defendant's motion for dismissal for lack of personal jurisdiction is hereby DENIED with prejudice.
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 ...