Mukarker v. City of Philadelphia et al

Filing 21

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. For the foregoing reasons, the Court ALLOWS the City's and the Airport's Motion to Dismiss (Docket No. 6 ). (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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Plaintiff,
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v.
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CITY OF PHILADELPHIA; PHILADELPHIA )
INTERNATIONAL AIRPORT; and
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OTIS ELEVATOR CO.,
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Defendants.
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___________________________________)
NICOLA MUKARKER,

Civil Action
No. 16-10355-PBS

MEMORANDUM AND ORDER
April 12, 2016
Saris, C.J.
INTRODUCTION

Plaintiff Nikola Mukarker filed this diversity action

against the City of Philadelphia (the City), the Philadelphia
International Airport (the Airport), and Otis Elevator Company
(Otis), based on premises liability against all Defendants
(Count I), and strict liability against Otis (Count II). The
City and the Airport moved to dismiss for lack of personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2).1
After hearing, the Court ALLOWS the Motion to Dismiss, because
the defendants did not purposefully avail themselves of the
privileges of conducting activities in Massachusetts.

1

The third defendant, Otis, did not join the present motion.
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FACTUAL BACKGROUND
The following facts are taken from the Complaint (Docket
No. 1, Ex. A), and two affidavits Plaintiff submitted in support
of his opposition to the motion (Docket No. 14, Exs. 1-2).
On January 15, 2013, Plaintiff arrived at the Airport from
Punta Cana, Dominican Republic. While traveling between
terminals A and C, en route to a connecting flight to Boston,
the plaintiff stepped onto a moving walkway. The patron directly
ahead of him on the walkway was using a luggage cart provided by
the Airport. The cart became stuck in the comb-plate at the end
of the walkway, blocking its exit. Plaintiff collided with the
stationary luggage cart and fell on his shoulder. He was later
diagnosed with a traumatic massive rotator cuff tendon tear in
his left shoulder. There were no signs to alert Plaintiff to the
hazard or warn patrons against the use of luggage carts on the
moving walkway. Plaintiff alleges that Defendants were aware, or
should have been aware, of the hazard of a luggage cart getting
stuck in the comb-plate at the end of the moving walkway, and
that all Defendants negligently failed in their duty to properly
maintain and supervise the moving walkway.
Mukarker is a resident of Belmont, Massachusetts. The City
is a municipal corporation organized under the laws of
Pennsylvania, and the Airport’s principal place of business is
Philadelphia, Pennsylvania.
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DISCUSSION
On a motion to dismiss for lack of personal jurisdiction
under Federal Rule of Civil Procedure 12(b)(2), Plaintiff bears
the burden of proving that the Court has personal jurisdiction
over Defendants. Daynard v. Ness, Motley, Loadholt, Richardson &
Poole, P.A., 290 F.3d 42, 50 (1st Cir. 2002). “When a district
court rules on a motion to dismiss for lack of personal
jurisdiction without holding an evidentiary hearing, as in this
case, the ‘prima facie’ standard governs its determination.”
United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st
Cir. 2001). The prima facie standard “permits the district court
to consider only whether the plaintiff has proffered evidence
that, if credited, is enough to support findings of all facts
essential to personal jurisdiction.” Daynard, 290 F.3d at 51
(internal quotation marks and citations omitted). The Court
“must accept the plaintiff’s (properly documented) evidentiary
proffers as true,” and “construe them in the light most
congenial to the plaintiff’s jurisdictional claim.” Adelson v.
Hananel, 510 F.3d 43, 48 (1st Cir. 2007) (internal quotation
marks and citations omitted). The facts put forward by the
defendants “become part of the mix only to the extent that they
are uncontradicted.” Id.

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For this Court to exercise specific jurisdiction, as
Plaintiff contends,2 Plaintiff “must meet the requirements of
both the Massachusetts long-arm statute and the Due Process
Clause of the Fourteenth Amendment.” Cossart v. United Excel
Corp., 804 F.3d 13, 18 (1st Cir. 2015). The Due Process Clause
requires nonresident defendants to have sufficient minimum
contacts with Massachusetts “such that the maintenance of the
suit does ‘not offend traditional notions of fair play and
substantial justice.’” A Corp. v. All Am. Plumbing, Inc., 812
F.3d 54, 59 (1st Cir. 2016) (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)). For specific
jurisdiction, the minimum contacts analysis is divided into
three parts:
First, the claim underlying the litigation must directly
arise out of, or relate to, the defendant’s forum-state
activities. Second, the defendant’s in-state contacts
must represent a purposeful availment of the privilege
of conducting activities in the forum state, thereby
invoking the benefits and protections of that state’s
laws and making the defendant’s involuntary presence
before the state’s courts foreseeable. Third, the
exercise of jurisdiction must, in light of the Gestalt
factors, be reasonable.
Adelson, 510 F.3d at 49 (internal quotation marks and citations
omitted). The plaintiff “must succeed on all three prongs in
order to establish personal jurisdiction.” C.W. Downer & Co. v.

2

Plaintiff concedes that this Court does not have general
jurisdiction over Defendants.  
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Bioriginal Food & Sci. Corp., 771 F.3d 59, 65 (1st Cir. 2014).
If the plaintiff fails to satisfy the first two prongs, the
Court need not reach the issue of reasonableness. Sawtelle v.
Farrell, 70 F.3d 1381, 1394 (1st Cir. 1995) (noting “the gestalt
factors come into play only if the first two segments of the
test for specific jurisdiction have been fulfilled”).
The relatedness prong is a “flexible, relaxed standard,”
which “requires the plaintiff to show a demonstrable nexus
between its claims and the defendant’s forum-based activities,
such that the litigation itself is founded directly on those
activities.” C.W. Downer, 771 F.3d at 66 (internal quotation
marks, citations, and alterations omitted). “The purposeful
availment prong represents a rough quid pro quo: when a
defendant deliberately targets its behavior toward the society
or economy of a particular forum, the forum should have the
power to subject the defendant to judgment regarding that
behavior.” Id. (internal quotation marks, citations, and
alterations omitted).
Here, with respect to the first two prongs, Plaintiff
contends that Defendants purposefully availed themselves of the
privileges of conducting activities in Massachusetts because
“Philadelphia has voluntarily permitted extensive travel
directly between its facilities and Massachusetts,” including
the plaintiff’s flight, and the Airport maintains a website
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accessible to Massachusetts residents. Docket No. 14 at 7.
Plaintiff highlights that Boston is the fourth most frequent
destination for flights from the Airport, from which Defendants
allegedly “obtain substantial revenue.” Docket No. 14 at 4.
Between December 2014 and November 2015, 643,000 passengers
traveled from the Airport to Boston. Docket No. 14, Ex. 2, at 3.
Defendants respond that they have insufficient contacts with
this forum because all of their suit-related conduct took place
in Pennsylvania. They emphasize that the Airport’s website is
passive and merely provides information.
Plaintiff provides no evidence that the Airport
deliberately targeted Massachusetts through its website or
otherwise. Cf. Patrick v. Mass. Port Auth., 141 F. Supp. 2d 180,
184-85 (D.N.H. 2001) (rejecting argument that New Hampshire had
general jurisdiction over Massport, even though Massport had
advertised in New Hampshire and Logan Airport was used by a
large number of New Hampshire residents, because the contacts
were “tangential”). The First Circuit has held that “the mere
availability of a passive website . . . cannot, standing alone,
subject a defendant to personal jurisdiction in the forum.” A
Corp., 812 F.3d at 61; see also, Edvisors Network, Inc. v. Educ.
Advisors, Inc., 755 F. Supp. 2d 272, 282 (D. Mass. 2010)
(utilizing a “sliding scale test” to distinguish between
passive, interactive, and commercial websites with respect to
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whether they give rise to personal jurisdiction); Zippo Mfg. Co.
v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)
(stating that passive websites do “little more than make
information available to those who are interested in it,” and
are “not grounds for the exercise of personal jurisdiction”).
Although the Airport’s website is accessible in Massachusetts,
it “affords no mechanism for Massachusetts residents to order
any goods or services.” A Corp., 812 F.3d at 60. Therefore,
Plaintiff has failed to meet his burden to prove that the Court
has personal jurisdiction over Defendants.
ORDER
For the foregoing reasons, the Court ALLOWS the City’s and
the Airport’s Motion to Dismiss (Docket No. 6).

/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge

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