Rowland v. Paris Las Vegas et al

Filing 7

ORDER: (1) Granting 3 Defendant Caesars Entertainment Operating Company, Inc.'s Motion to Dismiss; (2) Vacating February 28, 2014 Motion Hearing. Defendant's Motion to Transfer Venue is Denied as Moot. Plaintiff granted thirty (30) days leave to amend the Complaint. Signed by Judge Gonzalo P. Curiel on 2/25/2014. (srm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH ROWLAND, Plaintiff, Case No. 3:13-cv-02630-GPC-DHB 12 ORDER: 13 1) GRANTING DEFENDANT CAESARS ENTERTAINMENT OPERATING COMPANY, INC.’S MOTION TO DISMISS 14 vs. 15 16 17 18 PARIS LAS VEGAS, CAESARS ENTERTAINMENT OPERATING COMPANY, INC., and DOES 1 to 25, inclusive, [Dkt. No. 3.] 2) VACATING MOTION HEARING Defendants. 19 20 INTRODUCTION 21 Presently before the Court is Specially Appearing Defendant Caesars 22 23 24 25 26 27 28 Entertainment Operating Company, Inc.’s (“Defendant”) Motion to Dismiss for lack of personal jurisdiction. (Dkt. No. 3.) The parties have fully briefed the motion. (Dkt. Nos. 5, 6.) The motion is submitted on the papers without oral argument, pursuant to Civil Local Rule 7.1(d)(1). Upon review of the moving papers, admissible evidence, and applicable law, the Court GRANTS Defendants’ Motion. // -1- 3:13-cv-2630-GPC-DHB BACKGROUND 1 2 On September 6, 2013, Plaintiff Elizabeth Rowland (“Plaintiff”) filed a 3 complaint against Paris Las Vegas and Caesars Entertainment Operating Company, Inc. 4 in California Superior Court. (Dkt. No. 1, Ex. 3 “Compl.”) Plaintiff’s Complaint alleges 5 two state causes of action: (1) premises liability; and (2) general negligence. (Compl. 6 at 3.) Plaintiff alleges slipping upon a substance on the tile flooring at the Paris Las 7 Vegas Hotel in Las Vegas, Nevada, on May 16, 2013, causing her to fall and sustain 8 personal injuries. (Compl. at 5.) Plaintiff alleges receiving substantial medical 9 treatment for her injuries in San Diego County. (Compl. at 2.) 10 On October 31, 2013, Defendant Caesars Entertainment Operating Company, 11 Inc. filed a notice of removal, removing the present action to federal court based on 12 diversity jurisdiction. (Dkt. No. 1, Notice of Removal.) On November 7, 2013, 13 Defendant filed the present motion to dismiss or transfer venue pursuant to Federal 14 Rules of Civil Procedure 12(b)(2) and 12(b)(3). (Dkt. No. 3.) LEGAL STANDARD 15 16 The exercise of personal jurisdiction over a nonresident defendant must be 17 authorized under both state and federal law. St. Ventures, LLC v. KBA Assets & 18 Aquisitions, LLC, 1:12-CV-01058-LJO, 2013 WL 1749901 at *3 (E.D. Cal. Apr. 23, 19 2013). California’s long-arm statute is coextensive with the limits of due process set 20 by the United States Constitution. Cal. Civ. Proc. Code § 410.10. Thus, “the 21 jurisdictional analyses under state law and federal due process are the same.” Mavrix 22 Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011), cert. denied, 132 23 S. Ct. 1101 (2012). 24 Due process requires that a defendant “must have ‘certain minimum contacts’ 25 with the relevant forum such that the maintenance of the suit does not offend 26 ‘traditional notions of fair play and substantial justice.’” Mavrix Photo, 647 F.3d at 27 1223 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). 28 The type of minimum contacts required to exercise personal jurisdiction over a -2- 3:13-cv-2630-GPC-DHB 1 nonresident defendant may be “specific” or “general” in nature. A court may have 2 general jurisdiction over a defendant where “the defendant’s contacts with the forum 3 state are so pervasive as to justify the exercise of jurisdiction over the person in all 4 matters.” St. Ventures, 2013 WL 1749901 at *3. Specific jurisdiction, on the other 5 hand, “arises out of the defendant's contacts with the forum giving rise to the subject 6 of the litigation” and only applies to the case at issue. Id. 7 When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff 8 has the burden of establishing that jurisdiction is proper. Washington Shoe Co. v. A-Z 9 Sporting Goods Inc., 704 F.3d 668, 671-72 (9th Cir. 2012). However, in the absence 10 of an evidentiary hearing, the plaintiff need only make a “‘prima facie showing of 11 jurisdictional facts to withstand the motion to dismiss.’” Id. (quoting Pebble Beach Co. 12 v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006)). Uncontroverted allegations in the 13 complaint must be taken as true. AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 14 586, 588 (9th Cir. 1996). However, the court may not assume the truth of such 15 allegations if they are contradicted by affidavit. Data Disc, Inc. v. Sys. Tech. Assocs., 16 Inc., 557 F.2d 1280, 1284 (9th Cir. 1977). All disputed facts must be resolved in favor 17 of the plaintiff. Washington Shoe, 704 F.3d at 671-72. DISCUSSION 18 19 I. Requests for Judicial Notice and Objections to Evidence 20 The Federal Rules of Evidence provide that judicial notice may be taken of 21 adjudicative facts. See Fed. R. Evid. 201(a). A judicially noticed fact must be one not 22 subject to reasonable dispute in that it is either (1) generally known within the 23 territorial jurisdiction of the trial court or (2) capable of accurate and ready 24 determination by resort to sources whose accuracy cannot be reasonably questioned. 25 See Fed. R. Evid. 201(b). "Since the effect of taking judicial notice under Rule 201 is 26 to preclude a party from introducing contrary evidence and in effect, directing a verdict 27 against him as to the fact noticed, the fact must be one that only an unreasonable person 28 would insist on disputing." United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) -3- 3:13-cv-2630-GPC-DHB 1 (citing 21 C. Wright & K. Graham, Federal Practice & Procedure: Evidence § 5104 at 2 485 (1977 & Supp. 1994)). 3 a. Plaintiff's request for judicial notice 4 Plaintiff requests judicial notice of two documents: (1) the California Secretary 5 of State Business Entity Detail for Caesars Entertainment Operating Company, Inc.; 6 and (2) the U.S. District Court opinion in Day v. Harrah's Hotel & Casino Las Vegas, 7 2010 U.S. Dist. LEXIS 116817. (Dkt. No. 5-5.) The content of records of 8 administrative bodies are proper subjects for judicial notice under Rule 201(d), 9 Interstate Natural Gas Co. v. S. Cal. Gas Co., 209 F.2d 380, 385 (9th Cir. 1953), as are 10 court filings and other matters of public record, Reyn’s Pasta Bella, LLC v. Visa USA, 11 Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). Since Defendant does not dispute judicial 12 notice of Plaintiff’s documents, and the documents are properly subject to judicial 13 notice, the Court GRANTS Plaintiff’s request for judicial notice. 14 b. Defendant's requests for judicial notice 15 Defendant requests judicial notice of two documents in support of its motion to 16 dismiss: (1) Plaintiff's Complaint; and (2) a declaration executed by Duane Holloway 17 and filed in the matter of Florida Girmai v. Rincon Band of Luiseno Indians, et al., No. 18 11-cv-2567 JLS (POR) (S.D. Cal.). Defendant further submits a supplemental request 19 for judicial notice in support of its reply brief seeking judicial notice of orders in six 20 cases before district courts in California. (Dkt. No. 6-1.) 21 Judicial notice of court records is routinely accepted. See, e.g., Reyn’s Pasta 22 Bella, LLC, 442 F.3d at 746 n.6; Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635, 23 n. 1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir.). Accordingly, the Court GRANTS 24 Defendant’s requests for judicial notice. However, although the Court "may take 25 judicial notice of the existence of unrelated court documents . . . it will not take judicial 26 notice of such documents for the truth of the matter asserted therein." In re Bare 27 Escentuals, Inc. Sec. Lit., 745 F. Supp. 2d 1052, 1067 (N.D. Cal. 2010) (in considering 28 defendant's motion to dismiss, the court noticed the existence of unrelated court -4- 3:13-cv-2630-GPC-DHB 1 documents, but would not take judicial notice of the documents for the truth of the 2 matter asserted therein); see also McMunigal v. Bloch, No. C 10-02765 SI, 2010 WL 3 5399219, *2 n. 1 (N.D. Cal. Dec. 23, 2010) (granting judicial notice of documents filed 4 in another lawsuit for purposes of noticing the existence of the lawsuit, claims made 5 in the lawsuit, and that various documents were filed, but not for the truth of the 6 matters asserted therein). 7 Here, Defendant seeks to introduce the declaration of Duane Holloway, filed in 8 an unrelated case, to support Defendant's claims that Caesars Entertainment Operating 9 Company, Inc. does not have contacts with California. (See Dkt. No. 3-1 at 3, 8, 10, 10 13.) Holloway’s declaration discusses the relationship between the Rincon San Luiseno 11 Band of Mission Indians and the Caesars Entertainment Corporation. (Dkt. No. 3-4.) 12 Similarly, Defendant requests judicial notice of orders in six cases before California 13 state and federal courts that purportedly “evidence that Harrah’s Rincon Casino & 14 Resort is owned and operated by the Rincon Band of San Luiseno Indians - a tribal 15 sovereign nation.” (Dkt. No. 6 at 4.) Although the Court takes notice that the Holloway 16 declaration and miscellaneous court orders were filed in their respective cases, the 17 Court declines to take judicial notice of the declaration or orders for the truth of the 18 relationship, or lack thereof, between Harrah’s Rincon Casino and Resort, the Rincon 19 Band of San Luiseno Indians, or the Caesars Entertainment Corporation. See In re Bare 20 Escentuals, Inc. Sec. Lit., 745 F. Supp. 2d at 1067. 21 c. Defendant's objections to evidence 22 Defendant raises numerous objections to Plaintiff’s declarations and supporting 23 exhibits, and moves to strike the declarations and exhibits in their entirety. The Court 24 has reviewed Defendant’s evidentiary objections and declines to discuss each objection 25 individually. Except as specifically discussed below, the Court overrules the objections 26 and denies Defendant’s motions to strike. (Dkt. Nos. 6-4, 6-5, 6-6.) 27 // 28 // -5- 3:13-cv-2630-GPC-DHB 1 II. Motion to Dismiss 2 Plaintiff asserts the Court may exercise both general and specific jurisdiction 3 over each Defendant, whereas Defendants contend personal jurisdiction does not exist 4 under either standard. For the reasons set forth below, the Court finds that Plaintiff has 5 not met her burden of making a prima facie showing of jurisdiction. Accordingly, the 6 Court GRANTS Defendant’s motion to dismiss. 7 a. General Jurisdiction 8 General personal jurisdiction enables a court to hear cases unrelated to the 9 defendant's forum activities if the defendant has "substantial" or "continuous and 10 systematic" contacts with the forum state. Fields v. Sedgwick Associated Risks, Ltd., 11 796 F.2d 299, 301 (9th Cir. 1986). Ordinarily, “[t]he existence of a relationship 12 between a parent company and its subsidiaries is not sufficient to establish personal 13 jurisdiction over the parent on the basis of the subsidiaries’ minimum contacts with the 14 forum.” Doe v. Unocal Corp., 248 F.3d 915, 925 (9th Cir. 2001). However, a 15 subsidiary’s contacts may be imputed to the parent where the subsidiary acts as either 16 the “alter ego” or “general agent” of the parent. See Bauman v. DaimlerChrysler Corp., 17 644 F.3d 909, 920 (9th Cir. 2011), cert. granted, 133 S. Ct. 1995 (2013); Unocal, 248 18 F.3d at 926-28. 19 The alter ego test is predicated upon a showing of parental control over the 20 subsidiary, and is satisfied when (1) “there is such a unity of interest and ownership 21 that the separate personalities of the two entities no longer exist,” and (2) “failure to 22 disregard their separate identities would result in fraud or injustice.” Bauman, 644 23 F.3d at 920. 24 The agency test, on the other hand, is predicated upon the subsidiary’s special 25 importance to the parent corporation. Unocal, 248 F.3d at 928. “Our starting point for 26 the sufficient importance prong is that a subsidiary acts as an agent if the parent would 27 undertake to perform the services itself if it had no representative at all to perform 28 them.” Bauman, 644 F.3d at at 921 (emphasis in original). The agency test also -6- 3:13-cv-2630-GPC-DHB 1 requires the parent corporation to maintain a level of control over its subsidiary. Id. at 2 922-23. However, the parent corporation need not actually exercise control over its 3 subsidiary, as long as the parent corporation has the right to do so. Id. 4 Here, the parties agree that Defendant Caesars Entertainment Operating 5 Company is a Delaware Corporation with its principal place of business in Las Vegas, 6 Nevada. (Dkt. No. 3-1 at 8; Dkt. No. 5-4, Notice of Lodgment Ex. 1.) To support her 7 claim that Defendant is subject to the Court’s general jurisdiction, Plaintiff seeks to 8 introduce exhibits to the Declaration of Daniel J. Williams containing images of 9 various websites and brochures downloaded from the internet. (Dkt. No. 5-3; Dkt. No. 10 5-4 Exs. 2-13.) The exhibits purportedly establish Defendant’s “ownership, 11 management, and operational control over the Harrah’s Rincon hotel and casino in 12 Valley Center, California.” (Dkt. No. 5 at 4.) 13 However, the web pages provided by Plaintiff supply only unauthenticated 14 hearsay. Plaintiff has not established that the websites from which the screenshots and 15 reports were taken are owned or maintained by Defendant, nor that the information 16 from the websites is accurate. See Century 21 Real Estate LLC v. San Vicente Real 17 Estate Services, Inc., No. 11cv2381WQH(WVG), 2012 WL 6161969, *2 (S.D. Cal. 18 Dec. 11, 2012) (Hayes, J.). Accordingly, Plaintiff has not established that Caesars 19 Entertainment Operating Company owns, manages, or operates the Harrah’s Rincon 20 hotel and casino in Valley Center, California to justify the assertion of general 21 jurisdiction over Defendant. 22 b. 23 Plaintiff also claims this Court may exercise specific jurisdiction over Defendant 24 Caesars Entertainment Operating Company, Inc. (Dkt. No. 5 at 5.) The Ninth Circuit 25 employs a three-part test to determine whether a defendant has sufficient minimum 26 contacts to be subject to specific personal jurisdiction: 27 28 Specific Jurisdiction (1) The non-resident defendant must [a] purposefully direct his activities or consummate some transaction with the forum or resident thereof; or [b] perform some act by which he purposefully avails -7- 3:13-cv-2630-GPC-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Washington Shoe, 704 F.3d at 672. In analyzing whether the assertion of specific jurisdiction over a given defendant would be justified, the plaintiff has the burden of satisfying the first two prongs of the test. CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1076 (9th Cir. 2011). If the plaintiff does so, the burden then shifts to the defendant to present a “compelling case” that the exercise of jurisdiction would not be reasonable. Id. The Court finds that Plaintiff has not made a prima facie showing to establish that Caesars Entertainment Operating Company, Inc. is subject to this Court’s specific jurisdiction. Under the first prong of the specific jurisdiction test, Plaintiff must establish that Defendant either purposefully availed themselves of the privilege of conducting activities in California or purposefully directed their activities toward California. Schwarzeneggar v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). Although contacts must be more than random, fortuitous, or attenuated, contacts that are “isolated” or “sporadic” may support specific jurisdiction if they create a “substantial connection” with the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 461, 472-73 (1985). “[I]f the defendant directly solicits business in the forum state, the resulting transactions will probably constitute the deliberate transaction of business invoking the benefits of the forum state's laws.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 840 (9th Cir.1986) Here, Plaintiff submits a declaration stating that she has been a member of the Harrah’s “Total Rewards program” for “several years.” (Dkt. No. 5-1, “Rowland Decl.” ¶ 3.) Plaintiff declares she and Carol Holcombe periodically stay and/or gamble at Harrah’s Rincon Hotel and Casino in Valley Center, California. (Rowland Decl. ¶ 2.) 28 -8- 3:13-cv-2630-GPC-DHB 1 In addition, Plaintiff submits the declaration of Carol Holcombe, stating that Holcombe 2 also earned Total Reward “points” primarily by gambling in Valley Center. (Dkt. No. 3 5-2, “Holcombe Decl.” ¶¶ 3-4.) Holcombe further declares that her “executive casino 4 host” at Harrah’s Rincon Hotel and Casino arranged for the complimentary room for 5 Plaintiff and herself at the Paris Las Vegas hotel and casino. (Holcombe Decl. ¶ 5.) 6 Plaintiff argues this case is similar to Day v. Harrah’s Hotel & Casino, No. 7 10cv1746-WQH-JMA, 2010 WL 4568686 (S.D. Cal. Nov. 2, 2010) (Hayes, J.), in 8 which the court found that the defendant Las Vegas hotel had purposefully availed 9 itself of California markets. In Day, the plaintiffs offered affidavits stating that the 10 defendant Harrah’s Hotel and Casino Las Vegas had actively participated in a Total 11 Rewards program with Harrah’s Rincon Hotel and Casino in Valley Center, California. 12 2010 WL 4568686 at * 5. However, the plaintiffs in Day also submitted affidavits 13 stating that the defendant Las Vegas hotel also: (1) encouraged California customers 14 to play in California in order to earn points that could be redeemed in Las Vegas; and 15 (2) advertised the “hot stone massage” that injured the plaintiff in that case at the 16 California Rincon hotel. 17 Here, neither the Complaint nor Plaintiff’s submitted declarations link 18 Defendant’s participation in the Total Rewards program to the complimentary room in 19 which Plaintiff was injured in Las Vegas. Furthermore, Plaintiff does not allege 20 Defendant advertised in California or solicited California customers. See Day, 2010 21 WL 4568686. Although the Court takes the allegations in Plaintiff’s Complaint and 22 declarations as true at this stage of the litigation, AT & T v. Compagnie Bruxelles 23 Lambert, 94 F.3d 586, 588 (9th Cir. 1996), the Court finds that Plaintiff has not met her 24 burden of demonstrating that Defendant has purposefully directed its activities in 25 California nor purposefully availed itself of California markets. Accordingly, Plaintiff 26 has not demonstrated that Defendant Caesars Entertainment Operating Company, Inc. 27 is subject to the general or specific jurisdiction of this Court. 28 // -9- 3:13-cv-2630-GPC-DHB CONCLUSION 1 2 For the foregoing reasons, the Court hereby ORDERS: 3 1. Defendants’ Motion to Dismiss is GRANTED. (Dkt. No. 3.) 4 2. Defendant’s Motion to Transfer Venue is DENIED AS MOOT. (Dkt. No. 3.) 5 3. Plaintiff is granted LEAVE TO AMEND the Complaint within thirty (30) 6 7 8 9 10 days from the date this Order is electronically docketed. 4. The hearing date for this motion scheduled for Friday, February 28, 2014 is VACATED. IT IS SO ORDERED. DATED: February 25, 2014 11 12 HON. GONZALO P. CURIEL United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 - 3:13-cv-2630-GPC-DHB

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