This matter comes before the Court on the motion of the
defendant, Circus Circus Hotel, to dismiss the complaint of
Janice and Robert Decker for lack of personal jurisdiction and
for improper venue pursuant to Federal Rules of Civil Procedure
12(b)(2), 12(b)(3), and to quash service of process, or, in the
alternative, to transfer this action to the United States
District Court for the District of Nevada pursuant to 28 U.S.C. § 1404(a).
The Court decides this motion without oral argument
pursuant to Rule 78 of the Federal Rules of Civil Procedure. This
action will be transferred to the District of Nevada pursuant to
28 U.S.C. § 1406(a).
The plaintiffs, Janice and Robert Decker, are New Jersey
residents who have brought a personal injury action against the
defendant Circus Circus Hotel, a Nevada corporation with its only
place of business in Las Vegas, Nevada, for injuries arising from
an alleged negligent condition on the defendant's premises. This
complaint was originally filed in the Superior Court of New
Jersey, Law Division, Morris County alleging negligence and
seeking recovery for personal injuries. However, the defendant
removed the action to this Court. In lieu of answering the
complaint the defendant filed a motion to dismiss the complaint
for lack of personal jurisdiction, pursuant to Federal Rules of
Civil Procedure 12(b)(2) and 12(b)(3), and to quash or, in the
alternative, to transfer venue to the United States District
Court for the District of Nevada.
A. Applicable Law
Pursuant to Federal Rule of Civil Procedure 4(e), federal
"district courts have personal jurisdiction over non-resident
defendants to the extent authorized under the law of the forum
state in which the district court sits." See Sunbelt Corp. v.
Noble, Denton & Associates, Inc., 5 F.3d 28, 31 (3d Cir. 1993).
New Jersey's long arm statute provides for personal jurisdiction
as far as is permitted by the Fourteenth Amendment to the United
States Constitution. See N.J. Ct. R. 4:4-4; Carteret Savings
Bank, FA v. Shushan, 954
746 F.2d 141, 145 (3d Cir. 1992); DeJames v. Magnificence Carriers,
Inc., 654 F.2d 280, 284 (3d. Cir. 1981). Therefore, the question
of whether this Court has jurisdiction over the defendant is
determined by federal constitutional law. See Mesalic v.
Fiberfloat Corp., 897 F.2d 696, 698 (3d. Cir. 1990).
The Fourteenth Amendment permits a state to exercise
jurisdiction over an out-of-state defendant only where "the
defendant purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the
benefits and protections of its laws." Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2184, 85 L.Ed.2d
528 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78
S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958)). It is the burden of the
plaintiff to prove that the defendant has purposefully availed
himself of the forum state. See Burke v. Quartey, 969 F. Supp. 921,
924 (D.N.J. 1997).
To prove that the defendant has purposefully availed himself
of that state, a plaintiff may rely upon a defendant's specific
contacts with the forum state. Personal jurisdiction pursuant to
such contacts is known as specific jurisdiction. Specific
jurisdiction is invoked when a claim is related to or arises of
out the defendant's contacts with the forum. See, Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104
S.Ct. 1868, 1873, 80 L.Ed.2d 404 (1984); Dollar Sav. Bank v.
First Security Bank of Utah, 746 F.2d 208, 211 (3d Cir. 1984). A
court must first determine whether the defendant had the minimum
contacts with the forum necessary for the defendant to have
"reasonably anticipate[d] being haled into court there."
World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 297,
100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (citations omitted). What
constitutes minimum contacts varies with the "quality and nature
of defendant's activity." Hanson, 357 U.S. at 253, 78 S.Ct. at
1240. In assessing the sufficiency of minimum contacts for
personal jurisdiction, the court must focus on the "relationship
among the defendant, the forum and the litigation." Keeton v.
Hustler, 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984).
Otherwise stated, there must be at least "a single deliberate
contact" with the forum state that relates to the cause of
action. United States Golf Ass'n v. United States Amateur Golf
Ass'n, 690 F. Supp. 317, 320 (D.N.J. 1988). The unilateral acts of
the plaintiff, however, will not amount to minimum contacts.
Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868; Hanson, 357 U.S.
at 253, 78 S.Ct. at 1240.
Second, assuming minimum contacts have been established, a
court may inquire whether "the assertion of personal jurisdiction
would comport with `fair play and substantial justice.'" Burger
King Corporation v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174,
85 L.Ed.2d 528 (1985) (quoting International Shoe Company v.
Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed. 95 (1945));
Pennzoil Products Co. v. Colelli & Assoc., Inc., 149 F.3d 197,
201 (3d Cir. 1998). For personal jurisdiction to comport with
"fair play and substantial justice," it must be reasonable to
require the defendant to defend the suit in the forum state. See
World-Wide Volkswagen, Corp. v. Woodson, 444 U.S. 286, 292, 100
S.Ct. 559, 564, 62 L.Ed.2d 490 (1980). To determine
reasonableness, a court considers the following factors: the
burden on the defendant, the forum state's interest in
adjudicating the dispute, the plaintiff's interest in obtaining
convenient and effective relief, the interstate judicial system's
interest in obtaining the most efficient resolution of
controversies, and the shared interest of the several States in
furthering substantive social policies. Id. (internal quotation
marks omitted). Only in "rare cases [do the] minimum requirements
inherent in the concept of fair play and substantial justice . .
. defeat the reasonableness of jurisdiction even [though] the
defendant has purposefully engaged in forum activities." Asahi
Co., Ltd. v. Superior Court of Cal., Solano County, 480 U.S. 102,
116, 107 S.Ct. 1026, 1034, 94 L.Ed.2d 92 (1987) (internal
quotation marks omitted).
If the plaintiff cannot establish specific jurisdiction, a
court may exercise general jurisdiction over the defendant if the
defendant has maintained "continuous and systematic contacts"
with the forum state. Helicopteros, 466 U.S. at 416, 104 S.Ct. at
1873. To establish general jurisdiction the plaintiff must show
significantly more than mere minimum contacts with the forum
state. Provident Nat'l Bank v. California Fed. Sav. & Loan Ass'n,
819 F.2d 434, 437 (3d Cir. 1987). Moreover, the facts required to
establish general jurisdiction must be "extensive and
persuasive." Reliance Steel Prods. v. Watson, Ess, Marshall,
675 F.2d 587, 589 (3d Cir. 1982).
B. Personal Jurisdiction.
Plaintiffs allege that the defendant Circus Circus Hotel has
sufficient contacts with New Jersey to allow this Court to
exercise in personam jurisdiction over the defendant and points
to the following facts: (1) the defendant has had one television
advertisement which consisted of a single spot that aired on a
national cable network in the New York-New Jersey metropolitan
area; (2) the defendant advertises in national magazines and
newspapers such as USA Today, People Magazine, and various other
travel magazines which are distributed nationwide; (3) the
defendant mails promotional material to former guests in New
Jersey and those New Jersey citizens who directly request
information from it; (4) the defendant has an Internet site where
customers can make reservations; (5) the defendant's sister
corporation, Circus Circus New Jersey, Inc. has filed for a
gaming license with the New Jersey Casino Control Commission; and
(6) the defendant's parent corporation, Circus Circus
Enterprises, Inc., has filed a breach of contract suit in New
Jersey. The defendant claims that these contacts are too tenuous
for this Court to exercise specific or general personal
jurisdiction over the defendant. The defendant further argues
that specific jurisdiction over it is unwarranted because this
cause of action did not arise out of nor is it related to any of
the defendant's tenuous contacts to New Jersey. General
jurisdiction is also unwarranted, the defendant contends, because
the actions of the defendant's parent or subsidiary are wholly
irrelevant, and because a national media campaign, an Internet
site, and informational mailings to former customers do not
amount to systematic and continuous contacts.
1. General Jurisdiction
Initially, this Court rejects the plaintiffs' contention that
the actions of the defendant's parent or sister corporation could
be the basis for personal jurisdiction in this matter. It is
irrelevant that Circus Circus Enterprises, Inc. has engaged in
litigation in New Jersey. It is also irrelevant to our analysis
that Circus Circus New Jersey, Inc. has applied for a gaming
license from the New Jersey Casino Control Commission. This Court
will not disregard the existence of separate corporate entities
save some evidence that the defendant subsidiary is dominated or
controlled by the parent corporation — no such evidence exists
in the record. The Third Circuit has advised that "a rule which
imposes liability on a corporation which never exercised its
general authority over its subsidiary . . . may unduly penalize
the corporation . . ." Lansford-Coaldale Joint Water Authority v.
Tonolli Corp., 4 F.3d 1209, 1221 (3d Cir. 1993); see also,
Culbreth v. Amosa (Pty) Ltd., 898 F.2d 13, 14 (3d Cir. 1990)
(holding that party seeking to pierce corporate veil must
establish that controlling corporation wholly ignored separate
status of controlled corporation and so dominated and controlled
its affairs that separate existence was a mere sham).
Personal jurisdiction can be exercised over a defendant which
maintains an Internet site where customers can transact
business. See, CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th
Cir. 1996); Weber v. Jolly Hotels, 977 F. Supp. 327 (D.N.J. 1997);
Zippo Mfg. Co. v. Zippo Dot Com, Inc. 952 F. Supp. 1119 (W.D.Pa.
1997). A court may exercise personal jurisdiction over a
defendant based on the existence of an Internet site in two
situations: (1) where the site is used to actively transact
business; and (2) where a user can exchange information with the
host computer. In the first situation, the court will exercise
personal jurisdiction because the defendants are "enter[ing] into
contracts with residents of a foreign jurisdiction that involve
the knowing and repeated transmission of computer files over the
Internet." CompuServe, 89 F.3d at 1264, quoted in, Zippo, 952
F. Supp. at 1124. In the second circumstance, the exercise of
personal jurisdiction is determined by "examining the level of
interactivity and commercial nature of the exchange of
information that occurs on the Web site." Zippo, 952 F. Supp. at
1124 (citing Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328
With regard to the defendant's Internet site, the plaintiffs'
attorney attached a copy of printed pages from that site to his
affidavit in this matter. From those pages it is clear that any
customer can reserve a room through the Web site. This activity
is certainly commercial in nature. Moreover, by making
reservations available on the Internet, the defendants have
effectively placed their hotel and its services into an endless
stream of commerce. Under the "stream of commerce" theory, a
forum state may exercise jurisdiction over a non-resident
corporation "that delivers its product into the stream of
commerce with expectation that they will be purchased by
consumers in the forum state." World-Wide Volkswagen, 444 U.S. at
298, 100 S.Ct. 559.
However, the defendant's Internet site contains a forum
selection clause requiring that by making a reservation over the
Internet, customers agree to have their disputes settled in
Nevada state and federal courts. This forum selection clause
ought to be enforced. See Carnival Cruise Lines v. Shute,
499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). "A clause
establishing ex ante the forum for dispute resolution has the
salutary effect of dispelling any confusion about where suits
arising from the contract must be brought and defended, sparing
litigants the time and expense of pretrial motions to determine
the correct forum and conserving judicial resources that
otherwise would be devoted to deciding those motions." Carnival,
499 U.S. at 593-94, 111 S.Ct. 1522 (citing Stewart Organization,
Inc. v. Ricoh Corp., 487 U.S. 22, 33, 108 S.Ct. 2239, 2246, 101
L.Ed.2d 22 (concurring opinion)). This Court will not exercise
personal jurisdiction over the defendant based on the maintenance
of its Internet site.
What remains to establish the requisite contacts to the forum
state are (1) a television advertisement which consisted of a
single spot that aired on a national cable network in the
tri-state area, (2) advertisements in national magazines and
newspapers such as USA Today, People Magazine, and other travel
magazines, and (3) the mailing of promotional material to former
guests in New Jersey and New Jersey citizens who directly request
information from the defendant.
National advertising and the mailing of information to former
guests and those who request it, without more, is not enough to
establish minimum contacts to the forum state. See Gehling v. St.
George's School of Medicine Ltd., 773 F.2d 539, 542 (3d Cir.
1985); Scheidt v. Young, 389 F.2d 58, 60 (3d Cir. 1968); cf.
Giangola v. Walt Disney World Co. 753 F. Supp. 148, 156 (D.N.J.
1990)(denying personal jurisdiction even where defendant placed
advertisements in local newspapers and plaintiff relied on those
ads); Rutherford v. Sherburne Corp., 616 F. Supp. 1456 (D.N.J.
1985)(finding personal jurisdiction where defendant advertised in
newspapers and where a "substantial number" of patrons haled from
the forum state). In the instant case, the record does not
reflect that the defendant ever specifically targeted New Jersey
for its advertisements. The defendant maintains no offices in New
Jersey, does not own any property in New Jersey, has no phone
book or yellow page listings in New Jersey, and has no bank
accounts in New Jersey. Nor does it incur or pay taxes in New
Jersey. Additionally, defendant does not have any agents in New
Jersey authorized to receive service of process on its behalf.
Defendant does not, and is not authorized to, conduct business in
New Jersey — defendant has no plans to obtain such
authorization; defendant has never advertised in any local New
Jersey newspaper or publication. Defendant has never advertised
on local television stations in New Jersey.
Our Third Circuit has refused to find personal jurisdiction
even when the contacts to the forum state are much stronger than
those here. In Gehling, the Third Circuit refused to exercise
personal jurisdiction over a West Indies medical school for a
negligence and breach of contract claim even when the defendant
college had placed advertisements in non-Pennsylvania newspapers
circulated throughout Pennsylvania, six percent of the college's
students came from Pennsylvania, Pennsylvania residents annually
paid several hundreds of thousands of dollars in tuition, and
even where the college directly sent a letter of acceptance to a
prospective student. Gehling, 773 F.2d at 542-43. Furthermore, it
has been clearly held by this Circuit that advertising in
national or international newspapers or magazines does not
constitute "continuous and substantial" contacts with the forum
state. See Reliance Steel Products v. Watson, Ess, Marshall &
Enggas, 675 F.2d 587, 589 (3d Cir. 1982).
As said, a party must have purposefully availed itself of the
laws of the forum state. See Burger King Corp., 471 U.S. at 475,
105 S.Ct. 2174; Keeton, 465 U.S. at 774, 104 S.Ct. 1473;
World-Wide Volkswagen Corp., 444 U.S. at 299, 100 S.Ct. 559.
Also, the plaintiffs must show with reasonable particularity, the
nature and extent of the defendant's contacts with the forum
state so as to permit this Court to exercise its in personam
jurisdiction over the defendant. Gehling, 773 F.2d at 542. The
plaintiffs have not met their burden. The facts here do not meet
this constitutionally required standard for a finding of in
personam jurisdiction. From the present record, it appears as
though plaintiffs assert that their unilateral act of going to
Nevada is enough to invoke jurisdiction: the unilateral acts of
the plaintiffs will not amount to minimum contacts. Helicopteros,
466 U.S. at 414, 104 S.Ct. 1868; Hanson, 357 U.S. at 253, 78
S.Ct. at 1240. This Court constitutionally cannot exercise
general personal jurisdiction over the defendant in this matter
because the plaintiffs have not shown that the defendant has the
requisite contacts with New Jersey.
2. Specific Jurisdiction
To establish specific jurisdiction, we must, initially,
determine if this cause of action arose out of or is related to
the defendant's above contacts with New Jersey. The record does
not reflect precisely how the plaintiffs came to know of the
Circus Circus Hotel in Las Vegas or how they came to make their
vacation reservations. Plaintiffs have not alleged that they
received promotional mailings from defendant, that they viewed
defendant's television, newspaper, or magazine advertisements, or
that they communicated to defendant through its Internet site.
However, assuming that this litigation is related to one of the
defendant's aforementioned contacts to the forum state, this
Court cannot exercise its in personam jurisdiction because the
defendant lacks the requisite minimum contacts with New Jersey.
Plaintiffs have failed to demonstrate facts sufficient for
this Court to exercise personal jurisdiction. The burden to
produce actual evidence of the defendant's contacts with the
forum state rests on the plaintiffs. Time Share Vacation Club v.
Atlantic Resorts, Ltd., 735 F.2d 61, 67 (3d. Cir.); see also
Stranahan Gear Co., Inc. v. NL Industries, Inc., 800 F.2d 53, 58
(3d. Cir.)(cursory allegation reiterated in a sworn affidavit is
insufficient to satisfy the plaintiff's burden of proof). The
plaintiffs have not met this burden.
Plaintiffs have not established that defendant has the minimum
contacts with New Jersey necessary for specific
personal jurisdiction. As stated, defendant's national
advertising was not purposefully directed at New
Jersey. The forum selection clause in defendant's Web
site demonstrates that it could not reasonably
anticipate being haled into court in New Jersey.
Moreover, plaintiffs have not alleged that their action
arises out of any of defendant's tenuous contacts with
this state. This Court has neither general nor specific
jurisdiction over the defendant.
C. Transfer of Venue to the District of Nevada
Finding a lack of personal jurisdiction, this matter will be
transferred to the District of Nevada pursuant to 28 U.S.C. § 1406(a).
Dismissal would be burdensome and worthless in light of
the inevitable re-filing of this action in Nevada where
jurisdiction and venue clearly lie. Even without personal
jurisdiction over the defendant, this Court transfers this action
to the Federal District Court for the District of Nevada. See
Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465, 82 S.Ct. 913, 8
L.Ed.2d 39 (1962); Gehling v. St. George's School of Medicine,
773 F.2d 539, 542, 544 (3d. Cir. 1985).
The Court finds that it may not exercise personal jurisdiction
over the defendant in this matter. This matter is hereby
transferred to the District of Nevada pursuant to 28 U.S.C. § 1406(a).
This matter comes before the Court on the motion of the
defendant, Circus Circus Hotel, to dismiss the complaint of for
lack of personal jurisdiction and for improper venue pursuant to
Federal Rules of Civil Procedure 12(b)(2), 12(b)(3), and to quash
service of process, or, in the alternative, to transfer this
action to the United States District Court for the District of
Nevada. Upon consideration of the submissions of the parties, and
for the reasons stated in the accompanying opinion,
It is on this day of May, 1999,
ORDERED that this action be transferred to the District of
Nevada as this Court does not have personal jurisdiction over the
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