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EXTON v. OUR FARM

September 10, 1996

CASEY EXTON d/b/a OUTLAW BIKER STABLE, Plaintiff,
v.
OUR FARM, INC., Defendant.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 This is an action by Casey Exton d/b/a Outlaw Biker Stable ("Exton") against Our Farm, Inc. ("Our Farm"). Exton filed a complaint (the "Complaint") on 22 April 1996. The Complaint alleges subject matter jurisdiction under 28 U.S.C. § 1332, Complaint, P 5; it does not allege Federal question jurisdiction nor does it allege venue is proper in the District Court for the District of New Jersey.

 Currently before the court is a motion by Our Farm to dismiss the Complaint for lack of personal jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2), and for improper venue, pursuant to Federal Rule of Civil Procedure 12(b)(3). *fn1" Our Farm alternatively seeks an order transferring the instant action to the United States District Court for the Eastern District of Pennsylvania, pursuant to 28 U.S.C. §§ 1404 and 1406. *fn2" For the reasons set forth below, the instant action is transferred to the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1631.

 Facts

 A. Parties

 Exton is a citizen domiciled in the State of New Jersey. Complaint, P 1. Exton conducts his business under the name "Outlaw Biker Stable." Id., P 1. During the time relevant to the Complaint, Exton was the owner of a racehorse named Distinctive Hat ("Distinctive Hat"). Id., P 6.

 Our Farm is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal place of business in Worcester, Pennsylvania. Gambone Aff., P 5.

 B. Background

 As indicated, Exton owned a racehorse named Distinctive Hat. Complaint, P 6. Distinctive Hat was allegedly a "superior race horse" which "raced a substantial part of its racing career in New Jersey." Id., P 8. Distinctive Hat's "last start was in a $ 200, 000.00 'Grade 3' Turf Stake." Id. In 1995, prior to its last race, Distinctive Hat had nine starts with five first place, three second place and one third place finishes. Id., P 9. Distinctive Hat's lifetime earnings were allegedly $ 220,000.00. Id. Exton alleges Distinctive Hat was a valuable racehorse and had "unlimited future racing potential." Id., P 10.

 Our Farm operates a horse farm in Worcester Pennsylvania and provides "facilities and services involving the boarding, breeding, training, treatment of and rehabilitation of thoroughbred, quarterhorses and other horses." Gambone Aff., P 4.

 Exton entrusted Distinctive Hat and at least seven other horses to Danny Lopez ("Lopez"), a racehorse trainer whose business is located in New Jersey. Exton Decl., P 5. Exton describes Lopez as a "fixture on the New Jersey racing scene." Opposition Brief at 1. Exton allowed Lopez to make the arrangements for the stabling of the horses. Exton Decl. P 5.

 In late November or early December 1995, Lopez placed Distinctive Hat in the care of Our Farm at its farm in Pennsylvania. Complaint, P 12. Lopez made the arrangements with Our Farm to stable Distinctive Hat and seven other of Exton's horses without Exton's knowledge. *fn3" Exton Decl., P 5. "All meetings, communications and instructions concerning the care and treatment of 'Distinctive Hat' occurred in Pennsylvania." Gambone Aff., P 12. Lopez gave all "orders and instructions" concerning the care and treatment of Distinctive Hat directly to Our Farm at its facility in Pennsylvania. Id., P 14.

 While Distinctive Hat was at Our Farm, Raymond Gambone ("Gambone"), the owner of Our Farm, applied a "red mercury blister" mixed with "reducine" to the horse's "hocks." Gambone Aff., P 11. Exton describes the procedure performed by Gambone as placing a splint "on the inside of the joint of the horse's rear legs." Opposition Brief at 1. Lopez purchased the reducine used in the procedure. Exton Decl., P 7. After Gambone applied the "red mercury blister," Distinctive Hat allegedly "developed a loss of skin and an infection that became so extensive the horse had to be destroyed." Opposition Brief at 1.

 C. Our Farm's Contacts with New Jersey

 Exton argues personal jurisdiction may be asserted over Our Farm because "Our Farm entered into a business relationship with a New Jersey resident." Opposition Brief at 4. Exton further argues:

 
Our Farm has a substantial pattern of using New Jersey facilities in connection with other areas of its horse business. It races his (sic) horses extensively at New Jersey tracks, uses the services of New Jersey trainers for those races, does a substantial amount of boarding business with at least one New Jersey trainer ... and advertises its services in racing magazines of general circulation which can reasonably be expected to generate New Jersey business. These facts demonstrate a systematic series of contacts concerning both the running and boarding of horses that the defendant has in New Jersey.

 Opposition Brief at 5.

 Exton submitted a clipping from the 15 May 1995 issue of The Blood-Horse ("The Blood-Horse"), a weekly publication of the Thoroughbred Owners and Breeders Association. Exton Decl., Exhibit C. The Blood-Horse is a racing magazine of "general circulation," having some magazine subscribers who are New Jersey residents. Exton Decl., P 8 & Exhibit C. Our Farm advertised its business in The Blood-Horse including, boarding, breaking and training and sales preparation. Id. It also advertised its racing stable, "stallions," "Hunters/Jumpers" and that it could provide "Layups." Id.

 Exton also argues Our Farm regularly races its racehorses in New Jersey. Opposition Brief at 5. He states that between January 1, 1992 and June 16, 1996, Our Farm raced its horses fifty-nine times at race parks in New Jersey. Exton Decl., P 3 & Exhibit A (Racing History for Our Farm from 1 January 1992 to 16 June 1996 (the "Racing History"), prepared by Bloodstock Research Information Services, Inc.). The ...


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