LOZINSKI et al v. BLACK BEAR LODGE, LLC et al
OPINION. Signed by Judge Kevin McNulty on 4/10/2017. (ld, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JERZY P. LOZINSKI AND JOANNA
Civ. No. 16-7963 (KM) (JBC)
BLACK BEAR LODGE, LLC, THE
BLACK BEAR LODGE-A
CONDOMINIUM ASSOCIATION, JOHN
DOES AND JANE ROES 1-10,
fictitious individuals, and ABC Corp.
and DEF Corp. 1-10, fictitious
KEVIN MCNULTY, U.S.D.J.:
Plaintiffs Jerzy P. Lozinski (“Jerzy”) and Joanna Lozinski (collectively, the
“Lozinskis”) brought this action against Defendants Black Bear Lodge, LLC,
and The Black Bear Lodge
A Condominium Association (collectively “Black
Bear”) for personal injuries. Residents of New Jersey, the Lozinski family rented
a condo unit at Black Bear, a New Hampshire resort, where Mr. Lozinski
unfortunately suffered a slip and fall. Now before the Court is Black Bear’s
motion to dismiss the Lozinskis’ amended complaint (the “Complaint”)
of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).
WaterviUe Company, Inc., (“Waterville”) was erroneously identified in the
original complaint as a defendant. (Nov. 14, 2016 Letter from Plaintiff’s Counsel, ECF
no. 5) On November 14, 2016, Plaintiffs filed an amended complaint to correct the
error (ECF no. 4), and Waterville was terminated as a defendant on November 16,
Record items cited repeatedly will be abbreviated as follows
Amended Complaint (ECF no. 4)
For the reasons stated below, I find that the Lozinskis have failed to
establish this Court’s personal jurisdiction over Black Bear, and I shall deny
the Lozinskis’ request for leave to file a Second Amended Complaint. I will,
however, transfer this case to the United States District Court for the District of
Plaintiffs, the Lozinskis, are New Jersey citizens. (Compl.
Defendants, Black Bear Lodge, LLC, and The Black Bear Lodge
Condominium Association, are both entities organized under New Hampshire
law and have their principal offices or place of business in New Hampshire. (Id.
Motion to Dismiss for Lack of Jurisdiction (ECF no. 8)
Plaintiffs’ Reply Brief in Opposition to Defendant’s Motion to
Dismiss Plaintiffs’ Complaint Claiming Lack of Jurisdiction
and Alternatively, For Leave to File a Second Amended
Complaint (ECF no. 9)
Plaintiffs’ Proposed “Second Amended Complaint” (ECF no.
9, pp. 15—30)
Defendants’ Reply Brief (ECF no. 10)
Black Bear seeks “an Order dismissing the Complaint for lack of personal
jurisdiction and diversity as required pursuant to 28 U.S.C. Section 1332.” (Def. Mot.
1) Black Bear asserts that no brief is necessary because “the Complaint on its face
fails to demonstrate compliance with the requirement of 28 U.S.C. Section 1332.” (Id.;
see also Local Civ. R. 7.1(4) (in an appropriate case, “a party may file a statement that
no brief is necessary and the reasons therefor”).
However, the Complaint does not on its face fail to demonstrate compliance with
28 U.S.C. § 1332(a), the source of a federal district court’s diversity jurisdiction. The
Complaint alleges that “the amount in controversy exceeds seventyfive thousand
dollars ($75,000) and Plaintiffs are citizens of a state, which is different from the state
where Defendants are incorporated and have their principal place of business.”
(Compi. ¶ 7)
Black Bear’s motion can only reasonably be understood as a motion to dismiss
for lack of personal jurisdiction pursuant to Rule 12(b)(2). Both sides’ arguments in
the opposition and reply briefs are solely directed to that issue. (See P1. Opp. 8—11;
Def. Reply 1—3)
In August 2014, the Lozinskis viewed Black Bear’s website (2AC
then reserved a condo unit at Black Bear Lodge for the upcoming Thanksgiving
holiday weekend. (Compi.
8) On November 27, 2014, the Lozinskis and their
three children arrived at Black Bear’s premises. (Id.
11) The following
evening, Jerzy used the elevated outdoor hot tub located near the Lozinskis’
condo unit. (Id.
13) Upon exiting the hot tub, Jerzy observed ice on the top
step of the hot tub staircase, and he leaned on a hand railing for support. The
complaint alleges that the railing collapsed and that, as a result, Jerzy fell
down the staircase and was injured. (Id.
On October 27, 2016, the Lozinskis filed suit here in the United States
District Court for the District of New Jersey, asserting various causes of actions
in tort against Black Bear.
LEGAL STANDARDS AND DISCUSSION
A. Personal Jurisdiction Standard
Once a defendant files a motion to dismiss for lack of personal
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), the plaintiff bears the burden
of establishing sufficient facts to show that jurisdiction exists. Marten u.
God win, 499 F.3d 290, 295—96 (3d Cir. 2007). Initially, a court must accept the
The Lozinskis’ opposition brief provides additional details:
In the summer of 2014, plaintiffs decided to take their family to New
England ski country for the upcoming Thanksgiving holiday. Plaintiff,
Joanna, went on the internet to a website known as
“www.ownerdirect.com.” Said website, advertises “vacation rentals” by
country and in the case of the U.S., by state. Plaintiff, Joanna, chose the
link provided for New Hampshire, where she was presented with
numerous rental opportunities, including offerings in Waterville Valley,
New Hampshire. In the course of reviewing the rentals presented,
including some offered by defendant, Black Bear. She proceeded to go to
defendant, Black Bear Lodge’s, website “www.blackbearlodge.com,”
which provided detail about this condominium resort facility.
In August of 2014, Plaintiff, Joanna. called defendant Black Bear, on the
telephone, reserved one of Black Bear’s rental units for the Thanksgiving
holiday and paid the required deposit.
(P1. Opp. 4)
plaintiff’s allegations as true and construe disputed facts in favor of the
plaintiff. Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 368 (3d Cir. 2002).
Where factual allegations are disputed, however, the court must examine any
evidence presented. See, e.g., Eurofins Pharma U.S. Holdings v. BioAlliance
Pharma SA, 623 F.3d 147, 155—56 (3d Cir. 2010) (examining the evidence
supporting the plaintiff’s allegations); Patterson v. FBJ 893 F.2d 595, 603—04
(3d Cir. 1990) (“A Rule 12(b)(2) motion, such as the motion made by the
defendants here, is inherently a matter which requires resolution of factual
issues outside the pleadings, i.e. whether in personam jurisdiction actually
lies. Once the defense has been raised, then the plaintiff must sustain its
burden of proof in establishing jurisdictional facts through sworn affidavits or
other competent evidence.”’) (quoting Time Share Vacation Club v. Ati. Resorts,
Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984)).
The plaintiff “need only establish a prima facie case of personal
jurisdiction.” Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004).
However, a plaintiff may not “rely on the bare pleadings alone” in order to
withstand a motion to dismiss for lack of personal jurisdiction. “Once the
motion is made, plaintiff must respond with actual proofs, not mere
allegations.” Patterson, 893 F.2d at 604 (internal citations omitted); Time Share
Vacation Club, 735 F.2d at 66 n.9.
To assess whether it has personal jurisdiction over a defendant, a district
court must undertake a two-step inquiry. IMO Indus., Inc. v. Kiekert, AG, 155
F.3d 254, 259 (3d Cir. 1998). First, the court is required to use the relevant
state’s long-arm statute to see whether it permits the exercise of personal
jurisdiction. Id.; Fed. R. Civ. P. 4(k). “Second, the court must apply the
principles of due process” under the federal Constitution. WorldScape, Inc. v.
Sails Capital Mgmt., Civ. No. 10—4207, 2011 WL 3444218 (D.N.J. Aug. 5, 2011)
(citing IMO Indus., 155 F.3d at 259).
In New Jersey, the first step collapses into the second because “New
Jersey’s long-arm statute provides for jurisdiction coextensive with the due
process requirements of the United States Constitution.” Miller Yacht Sales,
384 F.3d at 96 (citing N.J. Ct. R. 4:4-4(c)). Accordingly, personal jurisdiction
over a non-resident defendant is proper in this Court if the defendant has
“‘certain minimum contacts with [New Jersey] such that the maintenance of
the suit does not offend traditional notions of fair play and substantial justice.”
Provident Nat’l Bank v. Cal. Fed. Say. & Loan Ass’n, 819 F.2d 434, 437 (3d Cir.
1987) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154
There are two kinds of personal jurisdiction that allow a district court to
hear a case involving a non-resident defendant: general and specific. A court
may exercise general jurisdiction over a foreign corporation where “the
defendant’s contacts with the forum are so ‘continuous and systematic’ as to
render them essentially ‘at home’ in the forum state.” Senju Pharmaceutical
Co., Ltd. v. Metrics, Inc., 96 F. Supp. 3d 428, 435 (D.N.J. 2015) (citing Daimler
AG v. Bauman,
134 5. Ct. 746, 754 (2014); Goodyear Dunlop
Tires Operations, S.A. v. Brown,
131 S. Ct. 2846, 2851 (2011);
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S. Ct.
In contrast to general jurisdiction, specific jurisdiction relies on the
defendant’s forum-related activities that give rise to the plaintiffs’ claims. See
Helicopteros, 466 U.S. at 414 n.8, 104 S. Ct. 1872. Establishing specific
jurisdiction requires a three-part inquiry: (1) whether the defendant
purposefully directed its activities at the forum; (2) whether the litigation arises
out of or relates to at least one of the contacts; and (3) whether the exercise of
jurisdiction otherwise comports with traditional notions of fair play and
substantial justice. O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 317
(3d Cir. 2007). The defendant need not be physically located in the state while
committing the alleged acts. Burger King Corp. v. Rudzewicz, 471 U.S. 462,
476, 105 S. Ct. 2174 (1985). Nor is specific jurisdiction defeated merely
because the bulk of harm occurred outside the forum. Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 780, 104 S. Ct. 1473 (1984). A single act may
satisfy the minimum contacts test if it creates a substantial connection with
the forum. Burger King, 471 U.S. at 476 n. 18, 105 S. Ct. 2174.
B. Personal Jurisdiction in this Case
Here, the Lozinskis have not established that this Court possesses
general or specific personal jurisdiction over Black Bear. The Lozinskis first rely
on the contractual relationship itself: the contract with New Jersey citizens
formed when the Lozinskis reserved and then paid for the condo unit, they say,
establishes the necessary minimum contacts with New Jersey. (P1. Opp. 9—10)
Alternatively, the Lozinskis rely on Black Bear’s internet presence. Because
Black Bear markets its lodging accommodations across state lines to anyone
with an internet connection, they say, it is reasonable to require Black Bear to
defend itself against a lawsuit in any jurisdiction where it has “extract[ed} some
commercial benefit from a citizen.” (Id. at 10)5 Both of the Lozinskis’ arguments
First, the bare fact that a defendant contracted with an out-of-state
plaintiff does not meet the first part of the three-part specific jurisdiction
inquiry: the existence of a contract does not demonstrate that the defendant
purposefully directed its activities at the out-of-state forum. Metcafe v.
Renaissance Marine, Inc., 566 F.3d 324, 338 (3d Cir. 2009) (“[Ijt is well
that a nonresident’s contracting with a forum resident, without
more, is insufficient to establish the ‘minimum contacts’ required for an exercise
The facts about Black Bear’s internet presence are not alleged in the complaint.
The Lozinskis have attached a proposed Second Amended Complaint to their brief in
which they allege that Black Bear operates a commercial website (2AC ¶j 4, 6) and
that the Lozinskis made their reservation after reviewing that website. (Id. ¶ 8) They
ask that, should the Court dismiss the Complaint, they be granted leave to file the
Second Amended Complaint. I consider the internet argument on this motion, and find
it legally inadequate. Amendment would therefore be futile.
of personal jurisdiction over the nonresident.”) (emphasis in original) (quoting
Sunbelt Corp. v. Noble, Denton & Assoc., Inc., 5 F.3d 28, 32 (3d Cir. 1993)).
Second, the Third Circuit has specifically rejected arguments nearly
identical to the Lozinskis’ contention that this Court has specific personal
jurisdiction over Black Bear because it, “conduct[s] business, in part, by
making rental units available to New Hampshire citizens and out of state
citizens, including Plaintiffs, as citizens of New Jersey, through advertising and
offerings posted on internet websites, availing itself of the opportunity to
benefit from the solicitation of anyone in possession of a personal computer.”
6) As the Third Circuit has observed:
the mere operation of a commercially available web site should not
subject the operator to jurisdiction anywhere in the world. Rather,
there must be evidence that the defendant “purposefully availed”
itself of conducting activity in the forum state, by directly targeting
its web site to the state, knowingly interacting with residents of the
forum state via its web site, or through sufficient other related
Toys “R” Us Inc. v. Step Two, S.A., 318 F.3d 446, 452—53 (3d Cir. 2003)).
Further, in a recent non-precedential case, a Third Circuit panel held that
maintaining even an “interactive website
fails to qualify as purposeful
contact.” Rocke v. Pebble Beach Co., 541 F. App’x 208, 211 (3d Cir. 2013)
Nothing in this record suggests that Black Bear’s website directly
targeted New Jersey, or that Black Bear knowingly interacted with New Jersey
residents through the website. In fact, Joanna Lozinski made the reservation
by phone rather than through the website. (P1.
Under the circumstances—whether as alleged in the Complaint or the
proposed Second Amended Complaint—Black Bear did not purposefully direct
its activities toward New Jersey and its citizens. Accordingly, this Court lacks
personal jurisdiction over the defendants.
Although the Lozinskis have not raised the possibility of transfer, the
Court may sua sponte cure a jurisdictional defect by transferring the case
under 28 U.S.C.
§ 1631. See Faulkenburg v. Weir, 350 Fed. Appx. 208, 209
(10th Cir. 2009); see also Island Insteel Sys., Inc. v. Waters, 296 F.3d 200, 218
n.9 (3d Cir. 2002) (pointing out that district court “had authority, if it found
that it lacked in personam jurisdiction,” to transfer action to another district
court with personal jurisdiction over defendants, and recognizing that district
court had ability to do so sua sponte).
If a “court finds that there is a want of jurisdiction, the court shall, if it is
in the interest of justice, transfer such action or appeal to any other such court
in which the action or appeal could have been brought at the time it was filed.”
§ 1631. I find that it is in the interest of justice to transfer this case
to a district where a court may properly exercise personal jurisdiction over
Black Bear, “rather than dismiss the case and force the [p]laintiffs to refile and
restart in another jurisdiction.” Farber v. Tennant Truck Lines, Inc., 84 F. Supp.
3d 421, 435 (E.D. Pa. Feb. 9, 2015). Both defendants are entities organized
under New Hampshire law and have their principal offices or place of business
in New Hampshire; as such, they are subject to general personal jurisdiction
there. See DaimlerAG v. Bauman,
134 5. Ct. 746, 760 (2014)
(“With respect to a corporation, the place of incorporation and principal place of
business are paradig[m]
bases for general jurisdiction.” (internal quotation
marks and citation omitted)). Accordingly, I will transfer this case to the United
States District Court for the District of New Hampshire.
For the foregoing reasons, I conclude that the Lozinskis have failed to
allege facts which, if true, would establish that this Court has personal
jurisdiction over the defendants. I shall deny the Lozinskis’ request for leave to
file a Second Amended Complaint on grounds of futility, because the proposed
amendments would not cure the jurisdictional defects. I will however, in the
interest of justice, transfer this case to the District of New Hampshire.
An appropriate Order follows.
Dated: April 10, 2017
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