Davis v. Villa Services et al
ORDER granting 30 Motion for Leave to conduct jurisdictional discovery and granting 46 Motion to Strike index 45 . A telephonic conference with the undersigned magistrate judge will be held on November 18, 2014 at 9:00 a.m. to discuss a discovery schedule and the schedule for further briefing on the pending motions to dismiss. Counsel for plaintiff shall place the call. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEMORANDUM AND ORDER
VILLA SERVICES, et. al;
The defendants have filed motions to dismiss for lack of personal jurisdiction.
(Filing Nos. 13 & 17). The plaintiff has moved for leave to conduct jurisdictional
(Filing No. 30).
For the reasons stated below, the motion to conduct
discovery will be granted, and the plaintiff’s deadline for responding to the motions to
dismiss will be stayed pending completion of that discovery.
The plaintiff’s complaint alleges the defendants failed to provide a vacation rental
property in St. Martin with the amenities required by contract. Henry Davis, the plaintiff,
is a Nebraska resident. Defendant Wachs is the owner of Villa Belle Etoile, the St.
Martin property rented by Davis, and defendant Carimo Real Estate & Villa Services
markets the property for Wachs. Davis communicated with defendant Rental Butler to
rent the property. Rental Butler is a citizen of Canada, and is incorporated under Ontario
law with its principal place of business in Ontario, Canada.
Rental Butler states it has no presence in Nebraska, and Davis is its only past or
present client from Nebraska. Filing No. 20, p. 11. It further claims Davis initiated
contact with Rental Butler and, as such, Rental Butler did not subject itself to Nebraska’s
jurisdiction. Wachs and Carimo claim they have no presence in Nebraska and have made
no contacts with Nebraska regarding Davis’ rental of the St. Martin property. As such,
the defendants each argue that a Nebraska court cannot exercise personal jurisdiction
Based on the evidence of record, the plaintiff contacted Rental Butler to rent the
Villa Belle Etoile property and thereafter, the contract was created, questions were
answered, and trip information was exchanged through emails between Rental Butler in
Ontario and Davis (or his daughter) in Nebraska. (Filing No. 21-1). The plaintiff has
submitted evidence that Rental Butler’s website allows visitors to engage in a “Live
Chat” with Rental Butler representatives, and submit their name, contact information,
reservation details, and flight arrival information to Rental Butler. (Filing No. 47).
The plaintiff argues that as to Davis’ rental of the St. Martin property, Rental
Butler’s contacts with Nebraska are imputed to Carimo and Wachs; that is, Rental Butler
served as the agent of Carimo who, in turn, was acting on behalf of Wachs. In support of
his argument, the plaintiff cites the defendants’ evidence in support of the pending
motions to dismiss. Specifically, Carimo marketed Wachs’ Villa Belle Etoile property in
St. Martin, (Filing No. 19-2, at CM/ECF p. 3, ¶ 22), and this property was thereby rented
either directly by Carimo or through third-party wholesalers such as Rental Butler.
(Filing No. 19-2, at CM/ECF pp. 3-4). As to Davis’ rental, Rental Butler contacted
Carimo regarding renting the property, (Filing No. 19-2, at CM/ECF p. 4, ¶ 34), and
Rental Butler sent Davis the information needed to reserve the rental. In return, both
Rental Butler and Carimo received a commission from the rent paid by Davis while
Wachs, the owner, received 70% of the rent. (Filing Nos. 19-1, at CM/ECF p. 5 & 19-2,
at CM/ECF p. 4, ¶ 35).
The plaintiff argues the evidence of record supports personal jurisdiction over
each of the defendants, but to buttress his jurisdictional claim, Davis requests an
opportunity to perform discovery before the court rules on the motions to dismiss. The
plaintiff seeks discovery regarding the agency relationship between Rental Butler and
Carimo and between Carimo and Wachs; the extent of the defendants’ contacts with
Nebraska; and the level of interaction with customers available through Rental Butler’s
website. Lakin v. Prudential Securities, Inc., 348 F.3d 704, 710 (8th Cir. 2003)(holding
that when a user can exchange information with a host computer over a website, “the
exercise of jurisdiction is determined by examining the level of interactivity and
commercial nature of the exchange of information that occurs on the Web site.”)
The plaintiff has submitted evidence of the defendants’ contacts or imputed
contacts with Nebraska regarding the contract at issue. Any additional evidence relevant
to the jurisdictional issue is available from only the defendants.
circumstances, the plaintiff will be permitted to perform jurisdictional discovery before
the court rules on the pending motions to dismiss. See Lakin, 348 F.3d at 713 (finding
the failure to permit jurisdictional discovery was an abuse of discretion); Marolf v. AyA
Aguirre & Aranzabal S.A., No. 4:09CV3221, 2010 WL 964956, at *2 (D.Neb. March 10,
2010) (Kopf, J) (“When the plaintiff offers documentary evidence, and not merely
speculations or conclusory allegations, about a defendant’s contacts with the forum, a
district court should not dismiss the action for lack of personal jurisdiction over the
defendant without permitting him to take some jurisdictional discovery to establish
whether general personal jurisdiction would be justified.”).
IT IS ORDERED:
The plaintiff’s motion to perform jurisdiction discovery, (Filing No. 30), is
granted, and the plaintiff’s deadline for responding to the pending motions
to dismiss is stayed pending completion of that discovery.
The plaintiff’s motion to strike the Filing No. 45 index of evidence, (Filing
No. 46), is granted.
A telephonic conference with the undersigned magistrate judge will be held
on November 18, 2014 at 9:00 a.m. to discuss a discovery schedule and
the schedule for further briefing on the pending motions to dismiss.
Counsel for plaintiff shall place the call.
November 13, 2014.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
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