Archbold et al v. Landry's Gaming, Inc. et al
Filing
10
MEMORANDUM and ORDER granting 5 Motion to Dismiss for Lack of Jurisdiction / Transfer; Clerk of Court is directed to TRANSFER this case to the United States District Court for the District of Nevada.Signed by Honorable James M. Munley on 4/24/13 (sm) [Transferred from Pennsylvania Middle on 4/26/2013.]
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SARAH ARCHBOLD, DONALD L.
MARVIN and DONALD MARVIN,
Plaintiffs
:
No. 3:12cv2429
:
:
(Judge Munley)
:
v.
:
:
LANDRY’S GAMING, INC., GOLDEN :
NUGGET, INC. and DOES 1-10,
:
inclusive,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is defendants’ motion to dismiss or
transfer the pending action to the United States Court for the District of
Nevada. (Doc. 5). For the following reasons, the court will grant defendants’
motion.
Background
Plaintiffs Sarah Archbold, Donald L. Marvin and Donald Marvin
(collectively “plaintiffs”) are adult individuals residing in Monroe County,
Pennsylvania. (Doc. 1, Ex. A, Compl. (hereinafter “Compl.”) ¶ 17).
Defendants Landry’s Gaming, Inc. and Golden Nugget, Inc. (collectively
“defendants”) are the owners and operators of the Golden Nugget Casino
located in Las Vegas, Nevada. (Compl. ¶ 18; Doc. 5-1, Decl. of Lauren Ware
(hereinafter “Ware Decl.”) ¶¶ 2-4).
In January, February and May 2011, plaintiffs each performed electronic
fund transfers at automated teller machines “ATMs” inside defendants’
casino. (Compl. ¶¶ 21-22). Plaintiffs were charged a $3.50 transaction fee.
(Id. ¶ 23). Plaintiffs contend defendants failed to provide notice of the $3.50
transaction fee in violation of the Electronic Fund Transfer Act (“EFTA”), 15
U.S.C. §§ 1693-1693r.
On November 6, 2012, plaintiffs filed a pro se single-count complaint in
Monroe County, Pennsylvania. Plaintiffs seek $3,000 in actual damages
pursuant to 15 U.S.C. § 1693m(a)(1), $3,000 in statutory damages in
accordance with15 U.S.C. § 1693m(a)(2) and attorney’s fees and costs
pursuant to 15 U.S.C. § 1693m(a)(3). Defendants subsequently removed the
action to this court (Doc. 1) and filed a motion to dismiss or transfer the case
to the District of Nevada (Doc. 5). The parties briefed the issues bringing the
case to its present posture.
Standard of Review
In determining whether personal jurisdiction is proper, a federal district
court sitting in diversity applies the law of the forum state–here Pennsylvania.
FED. R. CIV. P. 4(e); North Penn Gas Co. v. Corning Natural Gas Corp., 897
2
F.2d 687, 689 (3d Cir. 1990). The Pennsylvania Long Arm Statute permits a
court to exercise jurisdiction over non-resident defendants “to the fullest
extent allowed under the Constitution of the United States and [jurisdiction]
may be based on the most minimum contacts with this Commonwealth
allowed under the Constitution of the United States. 42 PA. CONS. STAT. ANN.
§ 5322(b); Vetrotex Certainteed Corp. v. Consol. Fiber Glass Prods. Co., 75
F.3d 147, 150 (3d Cir. 1996). The Pennsylvania Long Arm Statute is
coextensive with the Due Process clause of the Fourteenth Amendment of the
United States Constitution. Mellon Bank (East) PSFS v. Farino, 960 F.2d
1217, 1221 (3d cir. 1992) (citations omitted).
When deciding a motion to dismiss for lack of personal jurisdiction, we
accept the plaintiff’s allegations as true. Miller Yacht Sales, Inc. v. Smith,
384 F.3d 93, 97 (3d Cir. 2004); see also Carteret Sav. Bank, FA v. Shushan,
954 F.2d 141, 142 n.1 (3d Cir. 1992). Once a defendant files a motion to
dismiss pursuant to Rule 12(b)(2), however, the plaintiff bears the burden of
proving, either by sworn affidavits or other competent evidence, that the
defendant has sufficient contacts with the forum state to establish personal
jurisdiction. North Penn Gas, 897 F.2d at 689 (3d Cir. 1990); see also Time
Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984).
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Discussion
In the present case, defendants argue that the court lacks personal
jurisdiction over them. Plaintiffs counter that we may exercise specific
personal jurisdiction over defendants because defendants accessed their
Pennsylvania bank accounts.1 After a careful review of the record, we agree
with defendants.
A. Specific Personal Jurisdiction
Plaintiffs allege that the court has specific personal jurisdiction over
defendants under 42 PA. CONS. STAT. ANN. § 5322(b) (hereinafter “Section
5322(b)”).2 Section 5322(b) permits Pennsylvania courts to exercise specific
personal jurisdiction over non-resident defendants “to the fullest extent
allowed under the Constitution and may be based on the most minimum
contact with the Commonwealth allowed under the Constitution.” 42 PA.
CONS. STAT. ANN. § 5322(b). To assert specific jurisdiction on the basis of
minimum contacts in this case, we must find that defendants purposefully
1
Plaintiffs do not argue that the court has general personal jurisdiction
over the moving defendants and a review of the record does not indicate
otherwise.
2
Plaintiffs fail to cite any statutory authority that would allow this court to
exercise specific jurisdiction over defendants. A fair reading of plaintiffs’
complaint and brief in opposition, however, reveals Section 5322(b) is the
appropriate jurisdictional basis for the present case.
4
availed themselves of the privileges and protections of Pennsylvania law by
doing business in the Commonwealth. See Pennzoil Prods. Co. v. Colelli &
Assocs. Inc., 149 F.3d 197, 203 (3d Cir. 1998) (discussing application of the
minimum contacts doctrine). Additionally, “a plaintiff must show that the
defendant has minimum contacts with the state ‘such that the defendant
should reasonably anticipate being haled into court there.’” North Penn Gas,
897 F.2d at 690 (quoting World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297 (1980)).
Plaintiffs argue that defendants have minimum contacts with
Pennsylvania because defendants accessed their Pennsylvania bank
accounts by withdrawing the $3.50 transaction fee.3 Plaintiffs’ allegations,
however, do not support the conclusion defendants ever withdrew money
3
In support of their position, plaintiffs rely on Savrnoch v. First Am.
Bankcard, Inc, No. 07-CV-0241, 2007 WL 3171302 (E.D. Wis. Oct. 26, 2007)
(finding that the imposition of the transaction fee, by itself, imposed actual
damages under the EFTA). The court finds Savrnoch unpersuasive for two
reasons. First, specific personal jurisdiction was not an issue in Savrnoch
because it was not challenged by the defendant. Second, the underlying
holding of Savrnoch, that the imposition of the fee by itself imposes actual
damages under the EFTA, has been rejected by a subsequent reported
opinion for the Eastern District of Wisconsin. See Voeks v. Pilot Travel Ctrs.,
560 F. Supp. 2d 718, 724 (E.D. Wis. 2008) (finding that the Savrnoch court
conflated liability and damages by holding that the imposition of the fee was
required for actual damages, and that a plaintiff must plead and prove
detrimental reliance to obtain actual damages).
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from plaintiffs’ Pennsylvania bank accounts. Rather, plaintiffs withdrew $3.50
form their Pennsylvania bank accounts to pay defendants the $3.50
transaction fee. (See Doc. 8-3, Certification of Sarah Archbold ¶ 4; Doc. 8-4,
Certification of Donald Marvin ¶ 4). Additionally, this alleged contact is the
very definition of “random, isolated or fortuitous” and is far from sufficient to
establish the minimum contacts necessary for specific personal jurisdiction.
See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984); Pennzoil
Prods., 149 F.3d at 203.
Moreover, defendants are corporations organized under the laws of the
State of Nevada. (Doc. 5-1, Decl. of Lauren Ware ¶¶ 3-4). Defendants do
not own or lease any property within Pennsylvania. (Id. ¶ 5). They do not pay
income or property taxes in Pennsylvania. (Id. ¶ 6). Defendants do not
maintain offices or any physical assets in Pennsylvania nor employ
Pennsylvania residents. (Id. ¶ 7-9). Thus, the court cannot assert specific
personal jurisdiction on the basis of minimum contacts because defendants
have not purposefully availed themselves of the privileges and protections of
Pennsylvania law by doing business in the Commonwealth. We are unable,
therefore, to exercise jurisdiction over defendants pursuant to Section
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5322(b).4
B. Transfer Under 28 U.S.C. § 1631
Having found a lack of personal jurisdiction, the court chooses not to
dismiss the case. Instead, the court will transfer this action to the United
States District Court for the District of Nevada. When “the court finds that
there is a want of jurisdiction, the court shall, if it is in the interest of justice,
transfer such action . . . to any other such court in which the action or appeal
could have been brought at the time it was filed or noticed . . . .” 28 U.S.C. §
1631; see also D’Jamoos, 566 F.3d at 109-11 (finding that Section 1631
permits transfer for lack of personal jurisdiction); Island Insteel Sys., Inc. v.
Waters, 296 F.3d 200, 218 n.9 (3d Cir. 2002) (same); Nolt & Nolt, Inc. v. Rio
Grande, Inc., 738 F. Supp. 163, 166 (E.D. Pa. 1990) (same).
In the present case, jurisdiction and venue are proper in the District
Court of Nevada because defendants’ principal place of business and the
events giving rise to plaintiffs’ claims occurred in Nevada. See NEV. REV.
STAT. § 14.065; 28 U.S.C. 1391; see also Island Insteel, 296 F.3d 200 at 218
n.9; Brock v. Harrah’s Atl. City Propco, LLC,, No: 12-CV-5055, 2013 WL
4
The court does not address defendants arguments under Federal
Rules of Civil Procedure 12(b)(3) & (5) as it is unnecessary to do so in light of
the finding that the court lacks personal jurisdiction over defendants.
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820596 at *6 (E.D. Pa. Mar. 6, 2013). Additionally, the interests of justice are
served by transferring this action because it obviates the need for plaintiffs to
refile their case.5 Thus, the court will transfer this action to the District Court
of Nevada.
Conclusion
For the stated reasons, we find the court lacks personal jurisdiction over
defendants. The court, however, finds that transferring this action to the
District Court of Nevada, where it could have been originally filed, serves the
interests of justice. An appropriate order follows.
5
The court notes plaintiffs also request the court transfer their case in
lieu of outright dismissal. (Doc. 8, Pls.’ Br. in Opp’n to Mot. to Dismiss at 1-2,
4-5).
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SARAH ARCHBOLD, DONALD L.
MARVIN and DONALD MARVIN,
Plaintiffs
:
No. 3:12cv2429
:
:
(Judge Munley)
:
v.
:
:
LANDRY’S GAMING, INC., GOLDEN :
NUGGET, INC. and DOES 1-10,
:
inclusive,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 24th day of April 2012, Defendants Landry’s
Gaming, Inc., Golden Nugget, Inc. and Does 1-10’s motion to dismiss or
transfer (Doc. 5) is hereby GRANTED to the extent that the Clerk of Court is
DIRECTED to transfer this case to the United States District Court for the
District of Nevada.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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