The opinion of the court was delivered by: Hon. Jerome B. Simandle
The present action arises out of the tragic deaths of Jean and Billy Hunt in Cancun, Mexico on October 1, 2007. Plaintiffs, relatives and beneficiaries of the deceased and all residents of Texas, brought suit against Defendant Global Incentive & Meeting Management, SA DE CV, ("GIM"), a Mexican corporation, and GIM's president, Armando R. Ortiz, a United States citizen domiciled in Mexico. Plaintiffs subsequently dismissed Defendant Ortiz from the action.*fn1 Plaintiffs allege that Defendant's negligence caused the driving accident that killed the Hunts, who were also residents of Texas. Defendant has moved to dismiss pursuant to Rule 12(b)(2), Fed. R. Civ. P., for lack of personal jurisdiction, and Rule 12(b)(3), Fed. R. Civ. P., for improper venue and on the grounds of forum non conveniens. [Docket Item 14.] Upon consideration of these issues, the Court, acknowledging the tragic circumstances surrounding this litigation, finds that it does not have personal jurisdiction over Defendant GIM. However, the Court additionally finds that Plaintiffs have made a prima facie showing that the United States District Court for the Northern District of Texas could exercise personal jurisdiction over Defendant GIM under an "alter ego" theory. The Court will, consequently, transfer the action to the U.S. District Court for the Northern District of Texas.
This case begins in July, 2007, when Billy and Jean Hunt purchased an all-inclusive vacation package to a resort in Playa del Carmen, Mexico, through CheapCaribbean.com. (Compl. ¶ 3.1.) Included in the package was transport to and from the airport, to be provided by an entity called "Global Incentive Management." (Id.) On October 1, 2007, the Hunts departed from Dallas/Fort Worth International Airport and arrived in Cancun International Airport, where a CheapCaribbean.com representative took their ground transfer vouchers and directed the Hunts to a van that would take them to their hotel. (Id. ¶ 3.2.) The van, driven by Pedro Guivari Castro, and carrying the Hunts along with Patrick and Elizabeth Caldwell, left the airport. (Id. ¶ 3.3.) Castro did not have a license to drive a motor vehicle. (Id.) Soon after leaving the airport, Castro lost control of the van, so that it left the roadway, overturned several times, and ejected Billy and Jean Hunt and Patrick Caldwell. (Id. ¶ 3.4.) Billy Hunt and Patrick Caldwell died at the scene, while Jean Hunt died several hours later at a Cancun hospital. (Id.)
On September 25, 2009, Plaintiffs brought suit in the United States District Court for the District of New Jersey, alleging that Defendant's negligence led to the deaths of both Billy and Jean Hunt. Shortly thereafter, Defendant submitted the present motion to dismiss for lack of personal jurisdiction, improper venue, and forum non conveniens. [Docket Item 14.] The parties completed briefing on the pending motions and the Court then permitted Plaintiffs to engage in jurisdictional discovery. Plaintiffs submitted supplemental evidence, along with argument, to which Defendants responded, and on July 30, 2010, the record closed as to Defendant's instant motion to dismiss.
Defendant GIM is a Mexican corporation with its principal place of business in Cancun, Mexico. (Compl. ¶ 1.9.) Plaintiffs personally served GIM (through Armando Ortiz as its president) with process in Arlington, Texas [Docket Item 36].
To support their claim that the Court has personal jurisdiction over GIM, Plaintiffs offer competent evidence which, if construed in the light most favorable to Plaintiffs and resolving all factual disputes in their favor, shows the following contacts with New Jersey: (1) Sometime in 2005, Ortiz became a signatory, along with Albert Lacle, to a bank account with Wachovia Bank numbered 6890 and located in Pomona, New Jersey for a fictitious entity called "Beacon Hospitality Services" (Bank Records, Pls. Exh. 4 at 0001-02; Ortiz 1st Aff. ¶ 24 (Dec. 23, 2009)); (2) another Wachovia account exists for Beacon Hospitality Services (Bank Records, Pls. Exh. 4 at 00003-64) and Ortiz has two Wachovia bank accounts in his own name whose records suggest the accounts are located in Pomona, New Jersey (Bank Records, Pls. Exh. 4 at 412-21, 492; Ortiz Dep. at 31); (3) GIM uses the 6890 bank account for a substantial amount of business*fn2 (Bank Records, Pls. Exh. 4; Ortiz Dep. at 35, 41; Sloman Dep. at 35, 38-39; GIM Website, Pls. Exh. F-1), though it maintains its own bank account in Mexico (Ortiz Dep. at 14, 25; Ortiz 2nd Aff. ¶ 7); (4) GIM uses the 6890 account because some GIM customers prefer to use a United States bank, rather than a Mexican bank (Sloman Dep. at 20-21, 35); (5) the agreement between CheapCaribbean.com's parent company, COMM Group, and GIM to provide transportation services required that COMM Group pay GIM through a wire transfer to the 6890 account (Ground Tour Operation/Transportation Agreement, Pls. Exh. 1); (6) Mr. Lacle in New Jersey, Ortiz's sister in New Jersey, and Ortiz's brother-in-law in Florida, all provided mailing addresses for the Wachovia bank accounts, including the 6890 account, and received those bank statements, forwarded mail, and on approximately six occasions Mr. Lacle deposited funds into one of these accounts (Ortiz 2nd Aff. ¶ 9; Ortiz Dep. at 23, 25-26, 28-29, 44); and (7) within the past five years, Ortiz has attended two trade shows as president of GIM (Ortiz 1st Aff. ¶¶ 6-8.) II. DISCUSSION
The plaintiff bears the burden of establishing personal jurisdiction. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009). Once a defendant raises a jurisdiction defense "the plaintiff must 'prove by affidavits or other competent evidence that jurisdiction is proper.'" Metcalfe, 556 F.3d at 330 (quoting Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996)). In the absence of an evidentiary hearing only a prima facie showing is required and plaintiffs are "'entitled to have their allegations taken as true and all factual disputes drawn in their favor.'" D'Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009).
2. Personal Jurisdiction in New Jersey
"'A federal district court may assert personal jurisdiction over a nonresident of the state in which the court sits to the extent authorized by the law of that state.'" D'Jamoos, 566 F.3d at 102 (quoting Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 436 (3d Cir. 1987)). The New Jersey long-arm statute permits the exercise of personal jurisdiction over a nonresident defendant to the extent permitted by the United States Constitution. N.J. Sup. Ct. R. 4:4-4(c)(1); Nicastro v. McIntyre Mach. Am., Ltd., 987 A.2d 575, 596 (N.J. 2010). As a consequence, the Court must determine whether, consistent with the Fourteenth Amendment, Defendants have "certain minimum contacts with [New Jersey] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted).
There are two types of personal jurisdiction, general jurisdiction and specific jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 & n.9 (1984). "If the defendant[s] maintain continuous and substantial forum affiliations, then general jurisdiction exists. If the defendant[s'] contacts fall short of that standard, then at least one contact must give rise or relate to the plaintiff's claim." O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 321 (3d Cir. 2007) (internal citations omitted). In the present case, Plaintiffs claim that the Court has both general and specific jurisdiction over GIM, and so the Court will address each in turn.
Plaintiffs argue that the Court has general jurisdiction over GIM on two separate grounds: (1) because of the presence of a bank account in New Jersey through which "substantial" funds pass, and (2) because of the presence of several "agents" of GIM in New Jersey. Defendant makes three responses: (1) disputing the suggestion that the Wachovia bank accounts can be considered New Jersey accounts, (2) arguing that even if the accounts are based in New Jersey they are not sufficient to justify general jurisdiction, and (3) pointing out that there is no evidence that Ortiz's sister and friend are "agents" of GIM. For the reasons expressed below, the Court agrees with Defendants and concludes that the Court does not have general jurisdiction over GIM.
General jurisdiction permits the forum state to exercise jurisdiction over non-resident defendants even for claims arising from non-forum related activities. As a consequence, "the plaintiff must show significantly more than mere minimum contacts to establish general jurisdiction." Provident Nat'l Bank, 819 F.2d at 437. General jurisdiction is only permitted where the defendant has "continuous and systematic" contacts with the forum state. Helicopteros, 466 U.S. at 415-16. "Obviously this is a much higher threshold to meet for the facts required to assert this 'general' jurisdiction must be 'extensive and persuasive.'" Reliance Steel Products Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir. 1982) (quoting Compagnie des Bauxites de Guinea v. Insurance Co. of North America, 651 F.2d 877, 890 (3d Cir. 1981)).
(i) The "New Jersey" Bank Accounts
The Court agrees with Defendant that the existence of the identified Wachovia bank accounts are insufficient to establish general jurisdiction. The Court will assume for the purposes of this motion that all four Wachovia accounts -- the two under Beacon Hospitality Services and the two in Ortiz's name -- can be considered located in New Jersey. The Court will further assume that at least the 6890 bank account can be attributed to GIM and not simply Ortiz. While the existence of bank accounts in a state is often one factor a court considers when determining whether general jurisdiction is appropriate, see, e.g., D'Jamoos, 566 F.3d at 107,*fn3 the presence of bank accounts in New Jersey, without more, does not amount to the sort of continuous and systematic presence in the forum to justify general jurisdiction. See Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1362 n.5 (11th Cir. 2006) ("While [defendant] is correct in noting that the bank accounts alone are insufficient to sustain a finding of personal jurisdiction, they are one indication of minimum contacts."); American Express Int'l, Inc. v. Mendez-Capellan, 889 F.2d 1175, 1179-1180 (1st Cir. 1989) (the presence of two bank accounts in the forum, along with training employees in the forum, insufficient for personal jurisdiction); see also Nat'l Sun Indus. v. Dakahlia Commercial Bank, No. 95-761, 1997 U.S. App. LEXIS 9662, at *2-5 (2d Cir. May 2, 1997) ("The maintenance of an active correspondent bank account in New York does not, without more, demonstrate a foreign corporation's 'presence' in New York.").
A defendant who resides outside the forum, who does not solicit significant business from the forum, and who does not conduct business within the forum, cannot be sued in a state simply because the defendant opened several bank accounts in the state (and receives a not-insignificant amount of funds into these accounts). Generally, holding funds in a bank account in a particular state -- to the extent a bank account with a national bank can be considered tied to the state where it was opened*fn4 --does not suffice, because the location where a business or businessman holds some portion of his money is a relatively minimal, passive, and fortuitous (particularly when using a national bank) relationship to the forum, with a tenuous connection to the business itself. ...