De Leon v. Radisson Hotels International, Inc. et al

Filing 72

///ORDER denying 47 Motion for Default Judgment; claims against Ocean Motion Watersports, Ltd. are dismissed for lack of personal jurisdiction. Clerk of court to enter judgment and close the case. So Ordered by Judge Steven J. McAuliffe.(dae)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Shannon N. De Leon,
Plaintiff
v.
Case No. 13-cv-218-SM
Opinion No. 2016 DNH 115
Ocean Motion Watersports, Ltd.,
Defendant

O R D E R

Plaintiff brought this action against Ocean Motion
Watersports and several other defendants, seeking damages for
injuries she sustained while vacationing on Grand Bahama Island.
She subsequently settled her claims against those other
defendants, so only the claims against Ocean Motion remain.

According to the amended complaint, “Upon information and
belief, Ocean Motion is a corporation organized and existing
under the laws of Lucaya, Grand Bahama Island, with its
principal place of business located in Lucaya, Grand Bahama
Island.”

Amended Complaint (document no. 23) at para. 7.

Although plaintiff claims to have properly served Ocean Motion

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under the terms of the Hague Convention, Ocean Motion failed to
file an answer or dispositive pleading.
moved for entry of default.

Accordingly, plaintiff

That motion was granted.

In due

course, plaintiff moved for default judgment against Ocean
Motion.

That motion is pending.

Prior to granting plaintiff’s motion for default judgment,
the court issued an order in which it noted its independent
obligation to ensure that it may properly exercise personal
jurisdiction over Ocean Motion.

The court also observed that

plaintiff’s amended complaint contains, at best, only sparse
allegations concerning Ocean Motion’s contacts with this forum allegations that, even if fully credited as true, are plainly
insufficient to warrant the conclusion that Ocean Motion has
adequate contacts with this forum to permit the court to
properly exercise either general or specific personal
jurisdiction over it.

Accordingly, the court directed plaintiff

to show cause why her claims against Ocean Motion should not be
dismissed for want of personal jurisdiction.

In her response, plaintiff acknowledges that she bears the
burden to establish personal jurisdiction.

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See Plaintiff’s

Response (document no. 71) at 1.

See generally, Negron-Torres

v. Verizon Communications, Inc., 478 F.3d 19, 24 (1st Cir. 2007)
(noting that when personal jurisdiction is challenged, “it is
plaintiff’s burden to demonstrate the existence of every fact
required to satisfy both the forum’s long-arm statute and the
Due Process Clause of the Constitution.”) (quoting United States
v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001)).
And yet, plaintiff offers not a single new allegation concerning
Ocean Motion’s contacts with this forum.

Instead, she relies

exclusively upon the factual claims set forth in paragraph 12 of
her amended complaint, which state:

Upon information and belief, at all times material,
Radisson International, Radisson Property, Radisson
Hospitality, Radisson Management, Radisson Worldwide
and/or Ocean Motion, through the internet and other
advertising methods, which include purchasing and
placing advertisements in major publications
distributed and/or available in this district,
solicited and received substantial business for the
Radisson Our Lucaya Resort located on Grand Bahama
Island and other properties that it/they operated,
manage, maintain and/or control.

Amended Complaint at para. 12 (emphasis supplied).

Plaintiff

has submitted no copies of the alleged “advertisements in major
publications” that Ocean Motion allegedly purchased, nor has she
provided a link to any website(s) through which Ocean Motion

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allegedly “solicited and received substantial business” from
residents of this forum, nor has she even alleged that the
referenced website is “interactive.”

And, as the court of

appeals has noted:

It is clear that the mere existence of a website that
is visible in a forum and that gives information about
a company and its products is not enough, by itself,
to subject a defendant to personal jurisdiction in
that forum. Given the omnipresence of internet
websites, such a rule would eviscerate the limits on
personal jurisdiction over out-of-state defendants.
Instead, for website activity to support the exercise
of personal jurisdiction, something more is necessary,
such as interactive features which allow the
successful online ordering of the defendant’s
products.

Cossaboon v. Maine Medical Ctr., 600 F.3d 25, 35 (1st Cir. 2010)
(citations and internal punctuation omitted).

In short, plaintiff has done nothing to substantiate the
minimal assertions that she makes “upon information and belief”
in her amended complaint.

See generally Negron-Torres, 478 F.3d

at 23 (“The prima facie showing of personal jurisdiction must be
based on evidence of specific facts set forth in the record.

In

other words, the plaintiff must go beyond the pleadings and make
affirmative proof.”) (citation and internal punctuation
omitted).

Instead, plaintiff asserts that because Ocean Motion

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failed to appear, she has been deprived of the opportunity to
engage in jurisdictional discovery (and, at least implicitly,
acknowledges that she cannot meet her prima facie burden).
Consequently, she says her “venue choice and the allegations
supporting it should be taken as true and in the light most
favorable to Plaintiff.”
71) at para. 12.

Plaintiff’s memorandum (document no.

She then concludes by asserting that the

“presumption in favor of Plaintiff’s choice of forum,” combined
with her inability to conduct jurisdictional discovery, should
relieve her of the burden to produce any additional facts
relevant to the court’s jurisdictional analysis.

Id. at para.

13.

Looking beyond the fact that plaintiff appears to confuse
and conflate the concepts of venue and personal jurisdiction,
her memorandum lacks a critical element: she fails to allege
what jurisdictional facts she reasonably expected to obtain
through such discovery - facts to which she otherwise would not
have access; facts that could only be obtained from Ocean
Motion; and facts that would have demonstrated its minimum
contacts with this forum.

Instead, plaintiff speaks only in

confusing generalities: “However, allegations could reasonably

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have led to discovery and requisite jurisdiction ties, given an
opportunity to do so.

Defendant’s default prevented the

Plaintiff from conducting such discovery.”
Plainly, more is needed to carry her burden.

Id. at para. 14.
See generally Boit

v. Gar-Tec Products, Inc., 967 F.2d 671, 675 (1st Cir. 1992)
(noting that a “prima facie showing of personal jurisdiction
must be based on evidence of specific facts set forth in the
record,” and observing that “it has long been the rule of this
circuit, however, that plaintiffs may not rely on unsupported
allegations in their pleadings to make a prima facie showing of
personal jurisdiction.”).

See also Phillips v. Prairie Eye

Ctr., 530 F.3d 22, 26 (1st Cir. 2008) (“In order to make a prima
facie showing of jurisdiction, ‘the plaintiff ordinarily cannot
rest upon the pleadings but is obliged to adduce evidence of
specific facts.’”) (quoting Foster-Miller, Inc. v. Babcock &
Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995)).

Conclusion
Despite having been afforded the opportunity to do so,
plaintiff has failed to carry her burden of making a prima facie
showing that Ocean Motion is subject to personal jurisdiction in
this proceeding. Accordingly, her motion for default judgment

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(document no. 47) is denied and her claims against Ocean Motion
Watersports, Ltd. are dismissed for lack of personal
jurisdiction.

As all of plaintiff’s other claims have been resolved by
reason of settlement, the Clerk of Court shall enter judgment in
accordance with this order and close the case.

SO ORDERED.

___________________________
Steven J. McAuliffe
United States District Judge
July 13, 2016
cc:

Glenn J. Holzberg, Esq.
John E. Brady, Esq.
Phillip S. Bixby, Esq.

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