Matthews v. Kerzner International Limited et al
Filing
61
Order denying as moot Plaintiff's Motion (Related Doc # 30 ); and granting Defendants' Motion to Dismiss (Related Doc # 33 ). Signed Judge Solomon Oliver, Jr on 9/8/2011. (D,M)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID MATTHEWS,
Plaintiff
v.
KERZNER INTERNATIONAL
LIMITED, et al.,
Defendants
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Case No.: 1:11 CV 417
JUDGE SOLOMON OLIVER, JR.
ORDER
Currently pending in the above-captioned case is Defendants Kerzner International Limited
(“KIL”), Kerzner International Bahamas Limited (“KIBL”), Kerzner International Resorts, Inc.
(“KIRI”), Island Hotel Company Limited (“IHCL”), Paradise Island Limited (“PIL”), and Atlantis
Holdings (Bahamas) Limited’s (“AHBL”) (collectively, “Defendants”) Joint Motion to Dismiss
Plaintiff’s Complaint. (ECF No. 33.) Also pending is Plaintiff’s Motion to Impose Service Costs
and Attorneys’ Fees on Defendants or, in the Alternative, Motion to Deem Service as Sufficient.
(ECF No. 30.) For the following reasons, the court hereby grants Defendants’ Motion to Dismiss,
and denies Plaintiff’s Motion as moot. (ECF No. 30).
I. FACTS AND PROCEDURAL HISTORY
Plaintiff David Matthews (“Plaintiff”) is an adult individual whose primary residence at the
time of the accident was Cuyahoga County, Ohio. (Am. Compl., ECF No. 39, at ¶ 1.) KIL is a
private Bahamian holding company which functions as a parent company for KIBL. (KIL’s Answer,
ECF No. 48, at ¶ 2.) KIBL, in turn, owns IHCL, which operates the Atlantis, Paradise Island Resort
and Casino (“Atlantis”). (Id.) KIBL also owns AHBL, which owns the land and buildings of
Atlantis. (Id. at ¶ 9.) KIRI, the sole named Defendant located in the United States, primarily
functions as a marketing, sales, advertising, reservation, wholesale tour service and travel business
for Atlantis. (Id. at ¶ 6.) KIRI’s principal place of business is in Florida.
Atlantis
does
business
through
the
website
www.atlantis.com
and
www.FamilyFunatAtlantis.com. (D. Matthews Aff., Pl.’s Opp’n to Mot. to Dismiss, ECF No. 44-2,
at ¶ 2.) These websites allow users to “Book Now,” select travel dates, select a number of travelers,
choose a room, add dining plans, choose flights, choose shuttle transfers and confirm reservations.
(Id. at ¶ 3.) Users provide contact information, credit cards, and receive e-mail notifications of
Atlantis travel packages. (Id.)
Plaintiff was a guest at Atlantis in December of 2009. (Am. Compl., at ¶ 14.) On December
11, 2009, Plaintiff used a waterslide at Atlantis and was injured while doing so, suffering injuries
to his left leg and knee. (Id. at ¶ 14–15.) As a result of his injuries, Plaintiff underwent surgery in
the United States and continues to undergo treatment for a tibia plateau fracture. (Id. at ¶ 21.)
Plaintiff alleges that since the injury, he has been immobile and largely out of work as an IT
Consultant. (Id. at ¶ 22.)
Plaintiff filed this lawsuit on January 24, 2011, in the Cuyahoga County Court of Common
Pleas. (Compl., ECF No. 1-1.) Defendants removed the case to this Court on February 19, 2011,
asserting diversity jurisdiction under 28 U.S.C. § 1332. (Notice of Removal, ECF No. 1.) Plaintiff
filed a two-count Amendment Complaint on May 26, 2011. In Count I, Plaintiff alleges premises
liability based on Defendants’ failure “to exercise ordinary care to render ‘The Challengers’
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reasonably safe for Mathews’ [sic] use.” (Am. Compl. ¶ 31.) In Count II, Plaintiff alleges negligent
design, construction, maintenance, repair and supervision” of the water slide and further alleges
negligent provision of first aid. (Id. at ¶¶ 35–41.) Plaintiff claims that all Defendants except KIL
have acknowledged receipt of service through registered mail. (Pl.’s Mot. to Impose Service Costs,
ECF No. 30, p. 2.) Defendants do not dispute this, but claim that this does not constitute valid
service. (Defs.’ Mot. to Dismiss, Br. in Supp., ECF No. 33, p. 17–18.) Defendants filed a Joint
Motion to Dismiss on May 12, 2011. (Defs.’ Mot. to Dismiss, ECF No. 33.)
II. LAW AND ANALYSIS
Defendants seek dismissal pursuant to Fed. R. Civ. P. 12(b) on various grounds: (1) lack of
personal jurisdiction; (2) improper venue; (3) forum non conveniens; (4) insufficiency of process
; and (5) failure to state a claim upon which relief can be granted. As is explained below, the court
need not address all grounds because the court finds that it lacks personal jurisdiction over the
Defendants.
Personal Jurisdiction
It is well-settled that “[i]n diversity cases, federal courts apply the law of the forum state to
determine whether personal jurisdiction exists.” Nationwide Mut. Ins. Co. v. Tryg Int’l Ins. Co., Ltd.,
91 F.3d 790, 793 (6th Cir. 1996) (citing LAK, Inc. v. Deer Creek Enterprises, 885 F.2d 1293, 1298
(6th Cir. 1989)). Since the court is ruling without conducting an evidentiary hearing, it must consider
the pleadings and affidavits in a light most favorable to Plaintiff. CompuServe, Inc. v. Patterson, 89
F.3d 1257, 1262 (6th Cir. 1996). Plaintiff need only make a prima facie showing of jurisdiction to
defeat the motion, and the court “need not weigh the controverting assertions of the party seeking
dismissal ... because we want to prevent non-resident defendants from regularly avoiding personal
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jurisdiction simply by filing an affidavit denying all jurisdictional facts.” Id. (internal citation and
quotation omitted). Therefore, “dismissal in this procedural posture is proper only if all the specific
facts which the plaintiff alleges collectively fail to state a prima facie case for jurisdiction.” Id.
Under Ohio law, general jurisdiction is proper “in cases in which a defendant’s “continuous
and systematic” conduct within the forum state renders that defendant amenable to suit in any
lawsuit brought against it in the forum state.” Estate of Thomson ex rel. Estate of Rakestraw v.
Toyota Motor Corp., 545 F.3d 357, 361 (6th Cir. 2008) (citation omitted). Specific jurisdiction may
be exercised pursuant to Ohio’s long-arm statute. Ohio R.C. § 2307.382, provides in pertinent part:
(A) A court may exercise personal jurisdiction over a person who acts directly or by
an agent, as to a cause of action arising from the person's:
(1) Transacting any business in this state;
(2) Contracting to supply services or goods in this state;
(3) Causing tortious injury by an act or omission in this state;
(4) Causing tortious injury in this state by an act or omission outside this state if he
regularly does or solicits business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or consumed or services
rendered in this state;
(6) Causing tortious injury in this state to any person by an act outside this state
committed with the purpose of injuring persons, when he might reasonably have
expected that some person would be injured thereby in this state.
(emphasis added).
After analyzing personal jurisdiction with respect to the long-arm statute, the question
becomes whether the jurisdictional reach of the forum state’s courts can be extended to nonresidents
consistently with federal due process. S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 376 (6th
Cir. 1968). The Due Process Clause requires that the exercise of personal jurisdiction agree with
“traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310,
316 (1945). The Sixth Circuit has distilled due process requirements into a three-part test: (1) the
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defendant must purposefully avail himself of the privilege of acting in the forum state; (2) the cause
of action must arise from the defendant’s activities there; and (3) the acts of defendant, or
consequences thereof, must have a substantial enough connection with the forum state to make the
exercise of jurisdiction reasonable. S. Mach. Co., 401 F.2d at 381.
Even assuming that it is proper to treat all Defendant entities as one entity for the purposes
of evaluating jurisdiction, which Defendants dispute and this court doubts, the court finds that
personal jurisdiction over the foreign Defendants is lacking in this case.1 Plaintiff asserts that this
court has jurisdiction over the foreign Defendants pursuant to Ohio R.C. § 2307.382(A)(1)–(4) and
(6) and does not assert that this court has general jurisdiction. Plaintiff, however, misapprehends the
scope of each of the cited provisions of Ohio’s long-arm statute.
For Ohio R.C. § 2307.382(A)(1) to confer jurisdiction, the cause of action must arise from
a transaction of business in the State of Ohio. The Sixth Circuit has held that “arising from”
“requires a ‘proximate cause’ relationship between a plaintiff’s personal injury claim and the
defendant’s conduct in Ohio.” Brunner v. Hampson, 441 F.3d 457, 466 (6th Cir. 2006). In Brunner,
the appellants were United States citizens who were injured in an explosion and fire in a hunting
cabin in Canada, where they were staying as part of a hunting excursion booked through a Canadian
corporation and its owner. Id. at 458–59. The injured parties brought a diversity suit against the
Canadian citizens, asserting long-arm jurisdiction under Ohio R.C. § 2307.382(A)(1). Id. at 464. The
court, however, found that even assuming that the Canadian parties transacted business in Ohio
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See, e.g., Lafarge Corp. v. Altech Env’t, U.S.A., 220 F. Supp. 2d 823, 827 (E.D.
Mich. 2002) (“Personal jurisdiction over a parent company does not arise merely
because the forum state properly asserts jurisdiction over one of its subsidiaries.”)
(citing Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1273–74 (6th Cir. 1998)).
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through advertising and solicitations, the long-arm statute was not satisfied because the injuries did
not arise from the defendants’ “advertising or solicitation of business in Ohio, ‘but (allegedly) from
the condition’ of the facilities and equipment provided . . . at the site of the hunt.” Id. at 466. (citing
Coleman v. Chen, 712 F. Supp. 117, 122 (S.D. Ohio 1988) (parenthetical in original)). See also Cruz
v. Kentucky Action Park, Inc., 950 F. Supp. 210, 214 (N.D. Ohio 1996) (“It cannot be said that the
purported injuries arose from any solicitation by Defendant. Rather, the purported injuries may have
arisen from the condition of [the slide] in the state of Kentucky.”). The court found there was no
jurisdiction even though “[a] ‘but for’ relationship between the solicitation and the injuries clearly
exists.” Brunner, 441 F.3d at 466–67. Similarly in this case, Plaintiff has failed to establish a
“proximate cause” relationship between his injury and Defendants’ alleged business transactions in
the State of Ohio, because his injuries allegedly arose from “[u]nreasonably dangerous conditions
. . . on the premises at the Atlantis Resort in the Bahamas.” (Am. Compl. ¶ 19.)
Plaintiff next asserts jurisdiction under Ohio R.C. § 2307.382(A)(2), but for this ground to
confer jurisdiction, the cause of action must arise out of a contract to supply goods or services in this
state. Joffe v. Cable Tech, Inc., 839 N.E.2d 67, 75 (Ohio Ct. App. 2007). Plaintiff does not allege
that such a contract exists in this case, nor that his claims arise out of such a contract. See Brunner,
441 F.3d at 464 (finding no jurisdiction under Ohio R.C. § 2307.382(A)(2) where no factual basis
to show that defendant supplied any goods or services in Ohio).
The remaining asserted grounds for specific jurisdiction all deal with causes of action arising
out of tortious injuries. But again, the asserted bases of jurisdiction require a nexus to the State of
Ohio wholly absent here, i.e., that a tortious injury take place in the state or be caused by an act or
omission in the state. See, e.g., Kauffman Racing Equip., L.L.C. v. Roberts, 930 N.E.2d 784, 791
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(Ohio 2010) (“Because Roberts’s allegedly defamatory statements were published in Ohio, his
alleged tort was committed in Ohio, and he falls within the grasp of R.C. 2307.382(A)(3)”); Grossi
v. Presbyterian Univ. Hosp., 446 N.E.2d 473, 476 (Ohio Ct. App. 1980) (Ohio R.C. §
2307.382(A)(4) “require[s] that the injury which is the basis of the complaint must occur in the state
of Ohio and that the fact that the person causing injury regularly does business in Ohio does not
confer jurisdiction over such person for an injury that occurred outside this state”). Ohio courts have
further held that “a tortious injury is not considered to have occurred in Ohio simply because a party
continues to suffer from the effects of the injury after returning to Ohio.” Robinson v. Koch Ref.,
1999 WL 394512 *4 (Ohio Ct. App, June 17, 1999). While Plaintiff alleges that he “underwent
surgery and continues to undergo treatment for a tibia plateau fracture,” (Am. Compl., ¶ 21), he does
not allege that the tortious injury took place in Ohio, nor that an act or omission of the Defendants
in the State of Ohio caused the tortious injury.
Because Plaintiff has failed to satisfy any of the asserted grounds of long-arm jurisdiction,
the court need not proceed to the constitutional analysis. Brunner, 441 F.3d at 467 (“[W]e hold that
the Ohio long-arm statute is not satisfied in this case. We thus have no reason to analyze whether
the Fourteenth Amendment’s Due Process Clause is a limitation on the exercise of personal
jurisdiction.”) Moreover, having concluded that personal jurisdiction over the Defendants is lacking,
the court need not reach Defendants’ alternative arguments for dismissal, i.e., improper venue, forum
non conveniens, and failure to state a claim upon which relief can be granted. Further, because the
court finds that it lacks personal jurisdiction over the Defendants, it also denies as moot Plaintiffs
Motion to Impose Service Costs and Attorneys’ Fees on Defendants, or in the Alternative, Motion
to Deem Service as Sufficient, and denies Plaintiff’s request for a hearing on the Motion. Friedman
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v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991) (“Without personal jurisdiction over an
individual . . . a court lacks all jurisdiction to adjudicate that party’s right.”).
III. CONCLUSION
The court hereby grants Defendants’ Motion to Dismiss (ECF No. 33) and denies Plaintiff’s
Motion (ECF No. 30) as moot.
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT
September 8, 2011
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