Filing 7

OPINION filed. Signed by Judge Anne E. Thompson on 9/11/2017. (km)

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REcEIV£o NOT FOR PUBLICATION UNITED S1TATES DISTRICT COURT DISTRICT OF NEW JERSEY SEP 11 2017 AT 8:3o WILLJAM T WALSH-M CLERK BARBARA CARNEY, Plaintiff, Civ. No. 17-3133 v. OPINION LENNAR CORPORATION, Defendant.· THOMPSON, U.S.D.J. This matter comes before the Court upon the motion by Defendant Lennar Corporation ("Defendant") to dismiss the complainj under Federal Rule of Civil Procedure 12{b)(2) for lack of personal jurisdiction. (ECF No. 4.) raintiff Barbara Carney ("Plaintiff") opposes. (ECF No. 5.) The Court has issued the opinion b~low based upon the written submissions of the parties and without oral argument pursuant to LocL Civil Rule 78.1 (b). For the reasons stated herein, Defendant's Motion to Dismiss will bj granted. BACKGROUND This is an action in tort arising out of a slip and fall at a recently constructed development in Jackson, New Jersey. Plaintiff's alljgations are summarized as follows: Plaintiff is an I . individual citizen of the State ofNew 1iersey. (Compl., ECF No. 1, 1.) Defendant is a foreign I corporation with its principal place ofbusiness in the State of Florida. (Id., 2.) On June 8, 2016, I Defendant was the developer and builder of a development oftownhomes in Jackson, New Jersey, whose purview included buildilg the roads in that development. (Id. ~ 5.) Defendant created, managed, maintained, operatl, and controlled the property while supervising its 1 construction and maintenance, by and through its agents, servants, or employees. (Id. ~~ 6-11.) I On or about June 18, 2016, Plaintiff, while lawfully present on the aforementioned Jackson, New Jersey property, was injured by a slip , extent. (Id. ~~ ld fall (id. 1 4), sustaining injuries of as-of-yet unknown I 13-16.) Plaintiff alleges her injuries were due to Defendant's recklessness or I ·· · . . . . · · · ior negl1gence m mspectmg, mamta1mng, and repamng the property J:'. h omeowners, busmess invitees, patrons, and guests. (Id. W 12l 1s). Plaintiff alleges damages exceeding $75,000 (id. 1 I I 3) stemming from unspecified ittjuries i'reasonably certain to be permanent in nature." (Id. 117.) On May 4, 2017, Plaintiff filed ie p~ent tort action seeking damag~, ~s~s, interest, and counsel fees for Defendant's alleged negligence or recklessness, whether md1v1dual or vicarious. (ECF No. 1.) Defendant thj filed a motion to dismiss the action for lack of personal jurisdiction. (ECF No. 4.) This motioJs presently before the Court. I LiEGAL STANDARD When a defendant moves to diliss a complaint for lack of personal jurisdiction, "the . I . plaintiff bears the burden of establishing with reasonable particularity sufficient contacts between the defendant and the forum slte to support jurisdiction." Provident Nat'/ Bankv. Cal. Fed. Sav. & Loan Ass 'n, 819 F.2d 434, 437 (3d Cir. 1987); Marten v. Godwin, 499 F.3d 290, 1 295-96 (3d Cir. 2007). The plaintiff cL meet its burden by either presenting its case for personal jurisdiction in an evidentiary hearing J by pointing out facts and allegations in the complaint that, if taken as true, would establish Jat the court has jurisdiction over the defendant. See Miller I I Yacht Salves, Inc. v. Smith, 384 F.3d 96, 97 (3d Cir. 2004). Where the court does not hold an evidentiary hearing, the plaintiff need bnly present a prima facie case for the exercise of personal jurisdiction. Toys "R " Us, Inc. v. Step Two, S.A., 318 F .3d 446, 456 (3d Cir. 2003 ). 2 I A federal court typically must donduct a two-step analysis to ascertain whether personal jurisdiction exists: first, whether the fol state· s long arm statute permits jurisdiction and second, whether assertion of personal jLsdiction violates due process. IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cirj 1998); Vetrotex Certaineed Corp. v. Consol. Fiber Glass Prods. Co., 75 F.3d 147, 150 (3d Cir. J996). New Jersey's long arm statute permits the exercise of personal jurisdiction "to the utterm1st limits permitted by the United States Constitution," and thus, the typical two-part inquiry may be collapsed into a single step addressing due process requirements. Mesalic v. Fiberfloat C,rp., 897 F.2d 696, 698 (3d Cir. 2002). The Fourteenth Amendment permits a state to exercise jurisdiction over an out-of-state defendant only where "the defendant Jurposefully avails itself of the privilege of conducting j activities within the forum State, thus invoking the benefits and protections of its laws." Burger I King Corp. v. Rudzewicz, 471U.S.462, 475 (1985) (quoting Hanson v. Denckla, 357 U.S. 235 (1958)). There are two types of persJal jurisdiction: general and specific. General jurisdiction exists where the defendant has "conJuous and systematic" contacts with the forum, whether or not those contacts are related to the plltifPs cause of action. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 1416 (1984); BP Chems. Ltd. V. Formosa Chem. & Fibre I Corp., 229 F.3d 254, 259 (3d Cir. 2001). Specific jurisdiction exists when the defendant purposely directs its activities at the forum such that the defendant "should reasonably anticipate being haled into court in that forum," be litigation arises out ofat least one of those activities; and the exercise ofjurisdiction would "comport with 'fair play and substantial justice.'" Remnick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001) (quoting World Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297 (1980)); O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 317 (3d Cir. 2007) (quoting Burger King, 471 U.S. at 463). I 3 A defendant may be dismissed from a lawsuit if the court cannot assert personal I jurisdiction over the defendant pursuan~ to these standards. See Fed. R. Civ. P. 12(b)(2). ANALYSIS I. General Personal Jurisdiction Over Defendant, a Foreign Corporation A foreign corporation is subjj to general personal jurisdiction where "their affiliations with the State are so 'continuous and sistematic' as to render them essentially at home in the forum State." Daimler AG v. Bauman, 1134 S. Ct. 746, 754 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011); Int'/ Shoe Co. v. Washington, 326 U.S. 310, 317 (1945)). A corporation Jaradigrnatically is "at home" in the "forum where it is incorporated or has its principal place lfbusiness ... ."Id. at 760--61. I Plaintiff concedes in her Com~laint that Defendant is a foreign corporation with its _ principal place ofbusiness in Florida. lcompl., ECF No. 1-,i2; see also Def.'s Mot. to Dismiss, I . ECF No. 4-1at2; Aff. of Mark Sustada, ECF No. 4-2, 2.) Defendant is incorporated in Delaware and its principal place ofbJiness is in Miami, Florida. (Def.'s Mot. to Dismiss at 2; Aff. of Mark Sustana -,i 2.) Although ~laintiff ''bears the burden of proving by affidavits or other competent evidence that jurisdiction it proper," DayhoffInc. v. HJ. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996), Plaintiffhas not introduced any evidence showing that Defendant is properly "at home" in the State ofNl Jersey. 1 Since the forum state is neither Defendant's I principal place of business nor state of incorporation, and since Defendant otherwise lacks any 1 I Based on Defendant's submissions, Defendant otherwise lacks sufficient contacts with New Jersey to establish general jurisdictiorl since it does not conduct business, have employees, have accounts, or own property in New Jer~ey. (Def.'s Mot. to Dismiss at 7-8; Aff. of Mark Sustana ,, 3-7.) However, the Court must "cobstrain[] its analysis to those [documents] that are provided by the Plaintiff for the Court's revie.J." Tier v. Equifax Info. Sys., L.L.C., 2013 WL 3872097, at *2 (D.N.J. July 25, 2013). 4 "continuous and systematic" contacts lth the forum state, Defendant is not "at home" within the I State of New Jersey, and the Court ca.1*ot exercise general personal jurisdiction over Defendant. II. Specific Personal Jurisdiction dver Defendant. a Foreign Corporation I Plaintiff alleges that Defendant has independent contacts purposely directed toward New Jersey because Lennar Corporation wj the builder of the road related to the property where she was injured. (Pl.'s Opp'n to Def.'s Mo~. to Dismiss, ECF No. 5 ~ 5; ECF No. 5-2.) Plaintiff relies I - on the allegations in the Complaint and the Application for Warranty form for her private home at 29 Mason Drive, I ackson, New I ersly, which lists "Lennar Corporation" as the builder. (ECF I No. 5-2.) Even accepting as true Plaintiffs allegations, in light of the other evidence Plaintiff . adduces suggesting that other corporatl entities sold her the property in question, see infra, Plaintiff has not established a prima fle cas.e that Defendant has the necessary "minimum contacts" evidencing purposeful avaiJent such that Defendant could anticipate being haled into I I court in New Jersey or that exercising jurisdiction would comport with fair play and substantial justice. The Court cannot find specific ~urisdiction based on Defendant's independent contacts. I III. Specific Personal Jurisdiction (])ver Defendant Under an Agency or Alter Ego Theory Plaintiff alleges in the altematit that the Court has jurisdiction over Defendant through · · · · - · its representatives or corporate subs1.d. I · When determmmg whether a corporate parent 1s 1anes. subject to jurisdiction based on the cojtacts of its corporate subsidiary, the Third Circuit considers three factors: "whether the slbsidiary corporation played any part in the transactions at issue, whether the subsidiary was merlly the alter ego or agent of the parent, and whether the independence of the separate corporatl entities was disregarded." Lucas v. Gulf & W. Indus., Inc., 666 F.2d 800, 806 (3d Cir. 198l)j abrogated on other grounds by EF Operating Corp. v. I I I Am. Bldgs., 993 F.2d 1046 (3d Cir. 1993). The Third Circuit is reticent to find specific 5 I J . . 1ction C; • • . "d" Junsd" . over a 1ore1gn corporation uased exc1us1ve1y. on ownership of a corporate sub st 1ary which has relevant contacts with the fo~ state. See, e.g., Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290, 301 (3d Cir. 2008) (citing EsJude Cruz v. Ortho Pharm. Corp., 619 F.2d 902, 905 (1st I Cir.1980) (''The mere fact that a subsidiary company does business within a state does not confer I jurisdiction over its nonresident parent, even if the parent is sole owner of the subsidiary.")); Lucas, 666 F.2d at 805-06 ("Generally, '(a) foreign corporation is not subject to the jurisdiction of the forum state merely because of itj ownership of the shares of stock of a subsidiary doing business in the state.'" (citation ·Omitted)). Plaintiffs must justify why the Court should "ignore the corporate separateness of these two entities ...." Kehm Oil Co., 537 F.3d at 301. Plaintiff alleges the Court has jurisdiction over Defendant through two other entities: (1) U.S. Home Corporation and (2) WIP Llnnar OHB, LLC. (Pl.'s Opp'n to Def.'s Mot. to Dismiss . I ifif 6-7.) U.S. Home Corporation is a d~rect corporate subsidiary of Defendant Lennar Corporation. (ECF No. 5-3.) U.S. Hoje Corporation is incorporated in Delaware, (ECF No. 54), and has its principal place ofbusinls in Houston, Texas, (ECF No. 5-3). U.S. Home Corporation was listed as doing businls as "Lennar'' with regard to the 29 Mason Drive I . property in Jackson, New Jersey. 2 (ECF No. 5-4.) WIP Lennar OHB, LLC is a New Jersey I limited liability company and is listed Lthe "Grantor" of the 29 Mason Drive property on the I "Corporate Resolution to Sell." (ECF lo. 5-4.) "U.S. Home Corporation d/b/a Lennar'' is the sole member of WIP Lennar OHB, LUC. (Id.) Plaintiff thus alleges that regardless of whether the 2 Based on Defendant's submissions, it appears U.S. Home Corporation is formally registered to do business in New Jersey and has re~stered "Lennar" as a fictitious name in New Jersey. (Def.'s Reply to Pl.'s Opp'n to Def.'s /Mot. to Dismiss, ECF No. 6 at 3-4; ECF No. 6-1.) Moreover, Defendants provided the Court with a declaration from Robert Calabro, Vice President of U.S. Home Corporation, ~tating that Lennar Corporation is the sole shareholder of I U.S. Home Corporation. (ECF No. 6-1, if 5.) 6 road associated with the property in question was properly built, maintained, and operated by WIP Lennar OHB, LLC, U.S. Home coboration, or Lennar Corporation, any of the contacts related to the property are attributable J Lennar Corporation as the corporate parent of U.S. Home Corporation which, in tum, is thj sole member of WIP Lennar OHB, LLC. Accepting as true Plaintiff's alljgations and competent evidence, both subsidiaries have sufficient contacts related to the prop~ on which Plaintiff was injured to satisfy the first factor. Based on Plaintiffs Exhibit 4, the "Corborate Resolution to Sell" the 29 Mason Drive property to Plaintiff, both WIP LennarOHB, L~C and U.S. Home Corporation were involved in the sale of the property where Plaintiff was injci'ed-WIP Lennar OHB as the "Grantor" and U.S. Home Corporation as the authorizer. (ECF NJ 5-4.) This document also suggests that the corporate formalities and independence of these to entities was disregarded and that WIP Lennar OHB, LLC was operating as the alter ego or igent of U.S. Home Corporation, given that it was solely owned by U.S. Home Corporation and U.S. Home Corporation's corporate officers were authorized to execute a deed on behalfofWIP Lennar OHB, LLC. (Id.) However, Plaintiff's evidence il insufficient to show that the subsidiaries were merely the alter ego or agent of parent Lennar Co~ration or that the independence of Defendant and these separate corporate entities was disregaked. Lennar Corporation's ownership interest in the subsidiary entities and the entities' us1 of the word "Lennar" either as a fictitious name to do IU business in New Jersey (in the case of .S. Home Corporation) or in the official name registered in New Jersey (in the case of WIP Lennar OHB, LLC), without more, is insufficient to establish 7 an agency theory of personal jurisdictioi over Defendant Lennar Corporation. Therefore, Plaintiff has not established a prima facie case of personal jurisdiction over Defendant. 3 CONCLUSION For the foregoing reasons, Defendant's motion to dismiss will be granted in accordance I - with this Opinion. A corresponding , e r will follow. Dated: '1/11 / /1 ~--+.---~~~~~~ Even if the Court were satisfied that ~he contacts of U.S. Home Corporation and WIP Lennar OHB, LLC met the standard for an alter ego or agency theory of personal jurisdiction over Defendant, the fact that neither is befdre the Court as a party prevents any exercise of personal jurisdiction on that basis. Radmore v. Megis Commc'ns Grp., Inc., 346 F. App'x 835, 838 (3d I Cir. 2009) (finding an attempt to confer personal jurisdiction through one corporation's relationship with other entities failed ~ecause neither of the others was a party to the action). 3 8

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