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Wilson v. Paradise Village Beach Resort and Spa

August 10, 2007

ESSIE WILSON, PLAINTIFF-APPELLANT,
v.
PARADISE VILLAGE BEACH RESORT AND SPA, PARADISE VACATION CLUB, IMPULSORA CANAMEX, S.A., DE C.V., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5926-02.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted January 17, 2007

Before Judges Skillman, Lisa and Grall.

The primary question presented by this appeal is whether a Mexican resort's participation in advertisements placed by airlines and travel agencies in newspapers distributed in New Jersey and the resort's maintenance of websites that can be accessed by New Jersey residents constitute sufficient contacts with New Jersey for our courts to exercise jurisdiction over a claim that does not arise out of those contacts. We conclude that such promotional activity does not establish the continuous and substantial presence within New Jersey required to establish the general jurisdiction of the New Jersey courts over a non-resident defendant.

On September 11, 2000, plaintiff was injured in a slip and fall accident while at a timeshare resort in Nuevo Vallarta, Mexico, called Paradise Village Beach Resort and Spa (Paradise Village), which is managed by defendant Conjunto Desarrollo Marina Mar S.A. de C.V. (Conjunto), a Mexican corporation. Plaintiff was at the resort as a guest of her daughter, a timeshare owner.

Upon the purchase of a timeshare, an owner automatically becomes a member of defendant Paradise Vacation Club (PVC), a non-profit corporation established to maintain the timeshare and manage reservations for timeshare owners. As a member, plaintiff's daughter has received correspondence from PVC mailed from its California office at her New Jersey address, including maintenance statements, a certificate of membership, and an irrevocable proxy document.

Two years after her accident, plaintiff filed this personal injury action against Conjunto (described in the complaint as "S.A. De C.V.") and other alleged affiliated companies in the Law Division. Before any discovery was conducted, defendants moved to dismiss plaintiff's complaint on the ground that the New Jersey courts lack jurisdiction. In support of this motion, defendants argued that they did not have the continuous and substantial contacts with New Jersey required for the New Jersey courts to exercise jurisdiction over them. In the alternative, defendants argued that plaintiff had signed a registration form when she checked into Paradise Village that contained a forum selection clause under which she agreed to submit any claim against defendants to the jurisdiction of a state in Mexico. The trial court accepted both arguments and dismissed plaintiff's complaint.

On appeal, we reversed in an unreported opinion on the ground that the trial court should have allowed plaintiff to conduct "jurisdictional discovery" before ruling on defendants' motion and remanded for such discovery. Wilson v. Paradise Village Beach Resort & Spa, No. A-5753-02T5 (decided July 13, 2004).

On remand, plaintiff propounded interrogatories and made a request for the production of documents. In their answers to interrogatories, defendants stated that they do not own any real estate or other property in New Jersey and that none of their officers, directors, agents or employees reside in New Jersey or the New York/New Jersey metropolitan area. Defendants also relied upon their representatives' certifications, filed in support of the original motion to dismiss, which asserted that they do not maintain offices or employees in New Jersey, are not qualified to do business in New Jersey, do not pay any taxes to New Jersey, and have not designated any agent for service of process in New Jersey.

In response to an interrogatory which asked, "During the years 2000-present, what time share exchange programs [have] the defendants belonged to?", defendants responded:

Defendants do not belong to a time share exchange program. Rather, the resort has contracted with Interval International to offer its timeshare members the ability to trade their timeshares with others in the Interval International network. Interval International is an independent company that is not owned or controlled by Defendants.

Defendants' answers to interrogatories also contained statements regarding their participation in advertisements placed in New Jersey newspapers, maintenance of websites, and other contacts with New Jersey, ...


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