Velazquez v. Gator Park, Inc.
Filing
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ORDER granting in part and denying in part 16 Motion to Dismiss for Lack of Jurisdiction. The Court finds it does not have personal jurisdiction over this case and directs the Clerk to transfer the case to the Southern District of Florida. After the transfer, the Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 02/22/2018. (Lee, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOSE VELAZQUEZ,
Plaintiff,
v.
GATOR PARK, INC.,
Defendant.
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No. 3:17-CV-00321 (VLB)
FEBRUARY 22, 2018
MEMORANDUM OF DECISION ON MOTION TO DISMISS OR TRANSFER VENUE
[DKT. 18]
Before the Court is Defendant’s motion to dismiss for lack of personal
jurisdiction under Rule 12(b)(2) of the Federal Rules of Fed. R. Civ. P. 12(b)(2).
See [Dkt. 18].
Plaintiff Jose Velazquez (“Plaintiff” or “Velazquez”) filed this
negligence action in state court and Defendant Gator Park, Inc. (“Defendant” or
“Gator Park”) removed this case based on valid diversity jurisdiction under 28
U.S.C. §§ 1332 and 1441.
This action is based on Plaintiff’s alleged injuries
sustained when he fell off an airboat in the Florida everglades while taking one of
Defendant’s guided airboat tours. For the foregoing, this motion to dismiss is
GRANTED and this case is transferred to the Southern District of Florida.
I.
Facts
The following facts are taken from the complaint unless otherwise stated
and are assumed but not found to be true for purposes of this decision. Gator
Park is a Florida tour guide company that operates airboat tours in the Florida
everglades. [Dkt. 1¶¶ 2, 4]. On or about May 2015, Mr. Velazquez took a group
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airboat tour. Id. ¶ 4. The airboat crashed into an embankment, Mr. Velazquez was
ejected into the water where alligators were known to be present, and he suffered
injuries. Id. ¶ 6. Mr. Velazquez alleges the airboat was driven at a high speed. Id.
¶ 7. It is also alleged Defendant either failed to provide seatbelts or they were not
properly inspected before operating the airboat. Id.
Gator Park operates a website where it sells tickets, and a person in
Connecticut who wants to take an airboat tour can buy the ticket on the website.
Id. ¶ 6. Plaintiff does not indicate whether he purchased a ticket on the online
portal.
II.
Legal Standard
To successfully defeat a Rule 12(b)(2) motion to dismiss for lack of
personal jurisdiction, the plaintiff bears the burden of showing that the Court has
personal jurisdiction over the defendant. Metropolitan Life Insurance Co. v.
Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). “At this stage of the
proceedings, the plaintiffs must make out only a prima facie showing of personal
jurisdiction through their own affidavits and supporting materials and all
affidavits and pleadings must be construed in the plaintiffs’ favor.” Edberg v.
Neogen Corp., 17 F. Supp. 2d 104, 110 (D. Conn. 1998) (citing CutCo Industries,
Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986)).
“[T]he amenability of a foreign corporation to suit in a federal court in a
diversity action is determined in accordance with the law of the state where the
court sits . . . .” Arrowsmith v. United Press Int’l, 320 F.2d 219, 223 (2d Cir. 1963)
(en banc); accord Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.
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1985). Accordingly, this court applies the law of the State of Connecticut. In order
to ascertain whether a court has personal jurisdiction, Connecticut applies a twostep analysis. A court must first look to the forum State’s long-arm statute and
determine whether that statute reaches the foreign corporation. If the long-arm
statute authorizes personal jurisdiction over a defendant, the court must then
decide whether the exercise of jurisdiction over that party offends due process.
Bensmiller v. E.I. Dupont de Nemours & Co., 47 F.3d 79, 81 (2d Cir. 1995) (citing
Greene v. Sha-Na-Na, 637 F. Supp. 591, 59 (D. Conn. 1986)).
III.
Analysis
The facts relevant to personal jurisdiction are largely undisputed, and it is
therefore helpful to discuss them in brief at the outset. It is undisputed that Gator
Park’s website enabled users to purchase tickets online in advance of the tour.
See [Dkt. 1 ¶ 5 (alleging defendant sells tickets through an online portal, which is
available to Connecticut residents); Dkt. 18 (Reply) at 4 (“The defendant concedes
that it is possible to purchase advance tickets, for rides in the Miami area,
online.”)]. Plaintiff does not, however, allege he purchased the ticket online. See
[Dkt. 16-1 at 5-6]. It also is undisputed Plaintiff sustained injuries in Florida. See
[Dkt. 1 ¶ 6; Dkt. 16-1 at 4]. The parties dispute whether these facts are sufficient
to give rise to personal jurisdiction in Connecticut.
The Court must first determine whether Connecticut’s long-arm statute
reaches Gator Park. A foreign corporation is subject to personal jurisdiction in
Connecticut pursuant to Conn. Gen. Stat. § 33–929(f). Plaintiff claims personal
jurisdiction is valid under subsection (f)(2), which makes a foreign corporation
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subject to suit in Connecticut for any action arising “out of any business solicited
in this state by mail or otherwise if the corporation has repeatedly so solicited
business, whether the orders or offers relating thereto were accepted within or
without the state. . . .” Conn. Gen. Stat. 33-929(f)(2).1
Connecticut law has two methods for establishing personal jurisdiction:
specific jurisdiction and general jurisdiction.
Specific jurisdiction is valid
“whenever the defendant has purposefully directed [its] activities at residents of
the forum and the litigation [has] result[ed] from alleged injuries that arise out of
or relate to those activities.” Thomason v. Chemical Bank, 234 Conn. 281, 288
(1995) (internal quotation marks and citations omitted); see Am. Wholesalers
Underwriting, Ltd. v. Am. Wholesale Ins. Grp., Inc., 312 F. Supp. 2d 247, 254 (D.
Conn. 2004) (stating Connecticut law defines specific jurisdiction as “generally
speaking, [where] the defendant purposefully directs certain enumerated
activities at the forum state, and those activities actually caused the harm
complained of”). Specific jurisdiction is inapplicable here because Plaintiff was
not injured in Connecticut and does not allege he took Gator Park’s tour in
response to a solicitation he received in Connecticut.
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Plaintiff does not claim that jurisdiction is proper under § 33-929(f)(1), which
subjects a foreign corporation to suit on a cause of action arising “[o]ut of any
contract made in this state or to be performed in this state.” The Complaint does
not indicate the location where Plaintiff bought his airboat ticket. Indeed, it is the
plaintiff’s burden to establish personal jurisdiction when it has been challenged
on a motion to dismiss. See Cogswell v. Am. Transit Ins. Co., 282 Conn. 505, 515
(2007) (“If the defendant challenging the court's personal jurisdiction is a foreign
corporation or a nonresident individual, it is the plaintiff's burden to prove the
court’s jurisdiction.”). Therefore, the Court will not address this subsection.
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General jurisdiction, in contrast, does not require a causal connection
between the solicitation and the injury.
See Thomason, 234 Conn. at 296
(addressing § 33-929(f)’s predecessor statute, Conn. Gen. Stat. § 33-411(c));
Centennial Helicopters, Inc. v. Sterling Corp., No. CV0504002666, 2005 WL
3508575, at *3 (Conn. Super. Ct. Nov. 22, 2005) (identifying § 33-411(c) as the
predecessor statute to § 33-929(f)). Rather, in Connecticut it requires “proof that
a particular plaintiff's cause of action is similar to a cause of action that could
have been brought here by a person whose business the defendant did solicit.”
Thomason, 234 Conn. at 297; Am. Wholesalers, 312 F. Supp. 2d at 256
(recognizing that Connecticut law requires only that plaintiff demonstrate the
defendant “could reasonably have anticipated being hauled into court” by a
person solicited in Connecticut and that the cause of action is not materially
different from a possible action resulting from the solicitation) (quoting
Thomason, 234 Conn. at 296); F&F Screw Products, Inc. v. Clark Screw Machine
Prods. Co., No. CV000500360S, 2002 WL 31894843, at *3 (Conn. Super. Ct. Dec.
10, 2002).
In order to satisfy general jurisdiction, the defendant must have specifically
targeted Connecticut residents.
See Thomason, 234 Conn. at 298 (finding
personal jurisdiction established where “[t]he advertisements specifically
encouraged Connecticut residents to place a wide variety of banking business
with the trustee bank”); Am. Wholesalers, 312 F. Supp. 2d at 257 (“Without
deliberate targeting, or at least a more substantial subscription base in
Connecticut, there can be no purposeful availment of the laws of the State of
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Connecticut, and therefore long-arm jurisdiction cannot be proper.”); West World
Media, LLC v. Ikamobile Ltd., 809 F. Supp. 2d 26, 30 (D. Conn. 2011)
(acknowledging Connecticut’s “broad interpretation of solicitation” under § 33929(f)(2) that focuses on activities intended to increase the general consumer
base, while still requiring the activities to “specifically target Connecticut
consumers”).
This rule holds true where the internet is a method for advertising. Indeed,
Connecticut trial courts have routinely held that personal jurisdiction is improper
when a defendant’s internet advertising does not specifically solicit Connecticut
residents, even if the website itself is active (rather than passive). Compare RJM
Aviation Assocs., Inc. v. London Aircraft Serv. Ctr., Inc., No. HHBCV065000572S,
2008 WL 2745574, at *6 (Conn. Super. Ct. June 17, 2008) (“The plaintiff has not
shown, nor even claimed, that during the time in question, any products were
offered or sold over the internet to any Connecticut persons or that the defendant
in any way targeted its website to Connecticut.”); Centennial Helicopters, 2005
WL 3508575, at *6 (“Regardless of whether the activity necessary for a
Connecticut consumer to be solicited by the defendant’s internet advertising in
the present case is considered active or passive, there is no evidence that the
internet advertising of the defendant here specifically targeted Connecticut
residents.”); F&F Screw Products, 2002 WL 31894843, at *4 (“Even though Turret
holds out on its website that it serves all of North America, it does not direct its
advertising to Connecticut specifically or offer any special service, product,
pricing, or other advantage to Connecticut residents.”); with Szollosy v. Hyatt
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Corp., No. 399CV870 CFD, 2000 WL 1576395, at * 4 (D. Conn. Sept. 14, 2000)
(finding jurisdiction appropriate under § 33-929(f)(2) because “[a]s a result of its
in-state travel agency promotions and brochure circulation, as well as its
availability to Connecticut customers over the Internet, the network is likely to
prompt a significant number of Connecticut residents to utilize the services that it
offers.”) (internal quotation marks omitted); Prout v. Mukul Luxury Hotel & Spa,
CV 156029341S, 2017 WL 1240047, at *4-5 (Feb. 28, 2017) (finding personal
jurisdiction appropriate under § 33-929(f)(2) where defendants operated a website
linking viewer to third party that booked hotel reservations, plaintiff made a
reservation after viewing advertisement in magazine he received at his home, and
defendants received revenue from Connecticut residents from 2014 through
2016).
Here, the Complaint merely alleges there existed a website with the
capabilities of selling tickets online. See [Dkt. 1 ¶ 5]. There is no indication any
Connecticut residents, including Plaintiff, received advertisements in Connecticut
or were specifically targeted on the website.
Therefore, because both the
Complaint and the evidence are devoid of any facts establishing Defendant
specifically
solicited
Connecticut
residents,
personal
jurisdiction
is
not
appropriate under § 33-929(f)(2). The Court need not address the second prong
of the personal jurisdiction analysis because Plaintiff has failed to establish the
first.
IV.
Conclusion
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For the aforementioned reasons, the Court finds that personal jurisdiction is
improper in the District of Connecticut. Because Plaintiff has failed to establish
personal jurisdiction is proper in the District of Connecticut, the Court must
either dismiss case or transfer it under 28 U.S.C. § 1631. The Court finds that the
interest of justice warrant transfer to the Southern District of Florida. The Clerk is
directed to transfer and then close this case.
IT IS SO ORDERED
VANESSA BRYANT
Digitally signed by VANESSA BRYANT
DN: cn=VANESSA BRYANT, o, ou,
email=VANESSA_BRYANT@CTD.USCOURTS.GOV,
c=US
Date: 2018.02.21 17:37:55 -05'00'
______________________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: February 22, 2018
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