BROCK et al v. MARINA ASSOCIATES, INC. et al

Filing 22

MEMORANDUM. SIGNED BY HONORABLE JAN E. DUBOIS ON 3/6/2013. 3/6/2013 ENTERED AND COPIES E-MAILED.(jmf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
_____________________________________
DEVON BROCK and MARY BROCK,
Plaintiffs,
v.
HARRAH’S ATLANTIC CITY PROPCO,
LLC, and HARRAH’S ATLANTIC CITY
OPERATING COMPANY, LLC,
Defendants.
_____________________________________

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DuBois, J.

CIVIL ACTION

NO. 12-5055

March 6, 2013
MEMORANDUM

I.

INTRODUCTION
Plaintiff Devon Brock claims that he slipped and fell at a hotel and casino owned and

operated by defendants Harrah’s Atlantic City Propco, LLC and Harrah’s Atlantic City
Operating Company, LLC. Defendants now move to dismiss, or in the alternative, to transfer the
case to the District of New Jersey on the ground that this Court lacks jurisdiction and venue is
improper. For the reasons set forth below, the Court denies that part of the motion seeking
dismissal and grants that part of the motion that seeks transfer of the case to the United States
District Court for the District of New Jersey.
II.

BACKGROUND
Plaintiff Devon Brock slipped and fell in a bathroom at Harrah’s Atlantic City, a hotel

and casino in Atlantic City, New Jersey on August 10, 2010. 1 (See Compl. at ¶¶ 18, 20.) He and

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The defendants’ motion and notice of removal set forth that the accident occurred in New
Jersey. However, no such allegation is contained in the Complaint. Notwithstanding that fact,
because the location of the accident does not appear to be contested, the Court assumes that it

his wife Mary Brock, residents of Gillett, Pennsylvania, claim that they were enticed to travel to
Harrah’s because of defendants’ direct mailings that offered free stays. (Pls’. Sur Reply, at 5.)
They allege that “the only reason that Plaintiffs were at the Defendants’ establishment was
because of the invitation from the Defendants to the Plaintiffs.” (Id.) The Brocks also contend
that defendants hire Pennsylvania employees. 2 (Id.)
The Brocks filed a negligence action against eleven Harrah’s entities and one individual
in the Philadelphia County Court of Common Pleas. Although many of the original defendants
are Pennsylvania citizens (as are the Brocks), the defendants removed on fraudulent joinder
grounds. The Brocks responded by filing a motion to remand. The parties then reached an
agreement with respect to the proper defendants and whether the case would proceed in federal
court or state court. Defendants identified the two entities that owned and operated the Harrah’s
facility at which the accident at issue in this case occurred: Harrah’s Atlantic City Propco, LLC
and Harrah’s Atlantic City Operating Company, LLC. (See Order dated December 6, 2012,
Document No. 15.) Those two companies, both of which are diverse, were substituted for the
defendants originally named in the Complaint, and pursuant to the agreement, the case was to
remain in federal court.
There was, however, a major ambiguity in the agreement: whether the case would
proceed in federal court generally or in the Eastern District of Pennsylvania specifically. Each

occurred in New Jersey. The Court notes that the burden is on the plaintiffs to prove that
jurisdiction exists. Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254, 257 (3d Cir. 1998).
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The Brocks’ assertions regarding defendants’ enticing mailings and employment of
Pennsylvania citizens are contained in their Sur Reply, and they are not supported by any
evidence.

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party views the agreement differently. According to the defendants, they streamlined the case by
identifying the two correct defendants. With only diverse defendants in the case, all parties
agreed that this Court had subject matter jurisdiction and the motion for remand was no longer
appropriate. The Brocks have a different version of events. They claim that they agreed not to
pursue their motion to remand in exchange for defendants’ consent to personal jurisdiction and
agreement to proceed in the Eastern District of Pennsylvania.
Defendants now move to dismiss the Brocks’ Complaint or in the alternative, to transfer
the case to the District of New Jersey. Their motion is based on lack of personal jurisdiction and
improper venue.
III.

LEGAL STANDARD
Rule 4(e) of the Federal Rules of Civil Procedure “authorizes personal jurisdiction over

non-resident defendants to the extent permissible under the laws of the state where the district
court sits.” Pennzoil Prods. Co. v. Colelli & Assocs., 149 F.3d 197, 200 (3d Cir. 1998).
Pennsylvania’s long-arm statute permits courts to exercise personal jurisdiction over nonresident
defendants “to the constitutional limits of the Due Process Clause of the Fourteenth
Amendment.” Id.; 42 PA. CONS. STAT. § 5322(b).
Once a defendant has filed a motion to dismiss for lack of personal jurisdiction, the
burden rests on the plaintiff to prove that jurisdiction exists in the forum state. Imo Indus., Inc.
v. Kiekert AG, 155 F.3d 254, 257 (3d Cir. 1998). When considering the motion, the court
construes any factual averments and resolves all doubts in the plaintiff’s favor. Pinker v. Roche
Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 1996).
A court may obtain personal jurisdiction over a defendant in one of two ways. First, the

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court has general jurisdiction if the defendant has engaged in “systematic and continuous”
contacts with the forum state and the exercise of jurisdiction is “reasonable.” Helicopteros
Nacionales De Colombia v. Hall, 466 U.S. 408, 416 (1984). Second, the court has specific
jurisdiction if “the defendant purposefully establishe[s] ‘minimum contacts’ in the forum.” BP
Chems. Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 259 (3d Cir. 2000) (quoting Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)).
IV.

DISCUSSION
Defendants argue that this Court lacks personal jurisdiction. They contend that the

accident occurred in New Jersey and that the Court does not have specific or general jurisdiction
over them. The Brocks respond with numerous arguments as to why there is personal
jurisdiction: (A) defendants agreed not to contest jurisdiction and averred in their Notice of
Removal that personal jurisdiction exists; (B) defendants have sufficient contacts with
Pennsylvania; (C) defendants were served in Pennsylvania; and (D) case law establishes that
New Jersey casinos are subject to personal jurisdiction in this Court.
The Court rejects these arguments and will address each in turn. Because the Court
concludes there is no personal jurisdiction over defendants, it will not address defendants’
second argument that venue is improper.
A.

Agreement not to Contest Personal Jurisdiction and Averment in the Notice of
Removal

As discussed above, the parties do not dispute that an agreement was reached with
respect to proceeding in federal court. However, the parties have different versions of the
specifics of the agreement. According to the defendants, defense counsel identified the two

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proper Harrah’s entities. As they were both diverse, defendants claim that the Brocks agreed not
to pursue their motion to remand. In contrast, the Brocks assert that defendants consented to
personal jurisdiction and agreed that the case would remain in the Eastern District of
Pennsylvania. The Brocks bear the burden of showing that an agreement regarding personal
jurisdiction existed, and they have not satisfied that burden.
In support of their contention that defendants consented to personal jurisdiction, the
Brocks submitted an email from plaintiffs’ counsel dated November 21, 2012 that states, “As
discussed, we believe we have come to a resolution in our issues and propose the following as
per our conversation. In exchange for the naming of defendants . . . defendants will not contest
and or defend that this cause of action remain in the Eastern District of Pennsylvania.” (Pls.’
Resp. Ex. C.) Defense counsel responded by email on the same date, “I look forward to
reviewing your proposed stipulation.” (Id.) The email from plaintiffs’ counsel states that the
agreement not to contest the case remaining in this Court was a proposal. Similarly, defense
counsel’s response refers to reviewing a proposed stipulation. This email exchange does not
establish that an agreement regarding personal jurisdiction was ever reached.
The Brocks also submitted “Plaintiffs’ Joint Case Management Plan” as evidence of an
agreement with respect to personal jurisdiction. It states, “Defendants have agreed not to contest
and/or defend and agree that this cause of action shall remain before this Honorable Court in the
United States District Court for the Eastern District of Pennsylvania.” (Ex. D at ¶1.2.) However,
this document was submitted to the Court unilaterally by plaintiffs’ counsel, in violation of Rule
26(f) which requires a joint submission. There is no evidence that any of the provisions of the
so-called Joint Case Management Plan were agreed to. Significantly, at the Preliminary Pretrial

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Conference on December 6, 2012, the proper defendants were substituted, as agreed, but neither
counsel mentioned an agreement that the case would proceed in the Eastern District of
Pennsylvania.
Finally, the Brocks argue that defendants “averred that this Honorable Court had
jurisdiction, both personal and subject matter in nature, when the[y] filed their Notice of
Removal and Amended Notice of Removal.” (Pls.’ Resp. at 8.) However the original Notice of
Removal and the Amended Notice of Removal merely state that this Court has subject matter
jurisdiction based on diversity of citizenship. (Notice of Removal, ¶¶ 9, 13; Amended Notice of
Removal, ¶¶ 19, 23.) The notices do not refer to personal jurisdiction. Moreover, removal in
and of itself does not constitute consent to personal jurisdiction. Arizona v. Manypenny, 451
U.S. 232, 242 n.17 (1981) (“[I]f the state court lacks jurisdiction over the subject matter or the
parties, the federal court acquires none upon removal. . . .”).
The Court thus concludes that the Brocks have not established that defendants consented
to personal jurisdiction.
B.

Contacts with Pennsylvania

The Brocks next contend that defendants have sufficient contacts with Pennsylvania
because defendants hired Pennsylvania employees and sent direct mailings to the Brocks that
invited them to come to Harrah’s and offered free stays. Plaintiffs have provided the Court with
no evidence to support these contentions. However, even if the assertions are true, they do not
establish personal jurisdiction. While the Brocks do not distinguish between whether these
contacts support general or specific jurisdiction, the Court will address each type of personal
jurisdiction in turn.

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(a)

General Jurisdiction

Defendants’ employment of Pennsylvania citizens would not constitute “systematic and
continuous” contacts with Pennsylvania. See Helicopteros, 466 U.S. at 416. In Helicopteros, the
Supreme Court stated that it could not “conclude that the fact that [defendant] sent personnel into
Texas for training in connection with the purchase of helicopters and equipment in that State in
any way enhanced the nature of [defendant’s] contacts with Texas.” Id. at 418. In this case, the
Brocks do not even allege that defendants’ employees entered Pennsylvania in connection with
their job. They merely assert that defendants hired “Pennsylvania employees.” (Pls.’ Sur Reply
at 4-5.) That allegation does not establish general jurisdiction.
Plaintiffs also assert that defendants sent, and continue to send, direct mailings to the
Brocks in Pennsylvania on a monthly basis. “However, targeted mailings, alone, do not support
general jurisdiction. Courts in this district have consistently held that advertisements and
solicitations, including direct mailings and voucher offers, are not, by themselves, substantial
enough to meet the high standard for the exercise of general personal jurisdiction.” Lingo v.
Harrah’s Entm’t, Inc., 10-cv-7032, 2011 WL 2621396, at *3 (E.D. Pa. July 1, 2011) (internal
quotations and citations omitted).
Thus, this Court does not have general jurisdiction over the defendants.
(b)

Specific Jurisdiction

The Brocks also argue that “the only reason Plaintiffs were at the Defendants’
establishment was because of the invitation from Defendants to the Plaintiffs.” (Pls.’ Sur Reply
at 5.) In other words, they claim that but for “the invitation,” Devon Brock would never have
been injured.

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In order to establish personal jurisdiction, plaintiffs’ claims must “arise out of or relate
to” a purposeful contact with the forum state. O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312,
318 (3d Cir. 2007). “[A]lthough the analysis may begin with but-for causation, it cannot end
there.” Id. at 322 “[S]pecific jurisdiction requires a closer and more direct causal connection
than that provided by the but-for test.” Id. at 323. “The animating principle behind the
relatedness requirement is the notion of a tacit quid pro quo that makes litigation in the forum
reasonably foreseeable.” Id. at 322. “Out-of-state residents who exercise the privilege of
conducting activities within a state enjoy the benefits and protection of the state’s laws; in
exchange, they must submit to jurisdiction over claims that arise from or relate to those
activities.” Id. at 322. (internal quotations and alterations omitted.) “The causal connection can
be somewhat looser than the tort concept of proximate causation, but it must nonetheless be
intimate enough to keep the quid pro quo proportional and personal jurisdiction reasonably
foreseeable.” Id. at 323 (internal citations omitted).
The court in Lingo addressed a very similar case to that of the Brocks’. That case
involved a different Harrah’s business, the Rio All Suite Hotel and Casino in Las Vegas, Nevada.
Lingo, 2011 WL 2621396, at *1. The defendants sent plaintiff Carol Lingo “numerous
invitations offering her a complimentary stay at the Rio.” Id. While at the hotel, Lingo slipped
and fell in the shower. Id. The court concluded that the mailings did not establish specific
jurisdiction, stating: “The fact that Defendants sent Plaintiff an advertising mailer does not make
Defendants subject to specific jurisdiction in Pennsylvania for any and all personal injuries that
Plaintiff may sustain on Defendants’ premises in Nevada. A slip-and-fall injury in the hotel’s
shower does not directly and closely relate to Defendants’ contacts with the forum. The links in

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the chain of causation between Defendants’ contacts and the asserted injury are too remote to
find specific jurisdiction.” Id. at *4 (internal quotations omitted).
The same is true of this case. Devon Brock’s fall in the shower at Harrah’s in New
Jersey does not directly and closely relate to defendants’ contacts with Pennsylvania. The
Brocks allegation that they went to Harrah’s because of an invitation is not sufficient to establish
specific jurisdiction.
The Brocks’ allegation that Harrah’s hires Pennsylvania employees is similarly not
sufficient to establish specific jurisdiction. “[C]ontacts with a state’s citizens that take place
outside the state are not purposeful contacts with the state itself.” O’Connor, 496 F.3d at 317.
The Brocks have not alleged that they had contact with any Harrah’s employee in Pennsylvania.
C.

Service on Defendants in Philadelphia

The Brocks further argue that they served defendants in Pennsylvania. To support this
assertion they submitted two affidavits of service regarding Jeffrey Frazier and Harrah’s Chester
Downs Investment Co. (See Pls.’ Resp. Ex. A.) Frazier and Harrah’s Chester Downs
Investment Co. are no longer defendants in this case. Service on them is irrelevant in
determining whether the Court has personal jurisdiction over the current defendants: Harrah’s
Atlantic City Propco, LLC and Harrah’s Atlantic City Operating Company, LLC. With respect
to these two remaining defendants, the Brocks have submitted evidence that they were not served
in Pennsylvania, but rather in New Jersey. (See Pls.’ Sur Reply Ex. B).
D.

Other Cases Involving Atlantic City Casinos

Finally, the Brocks contend that “Pennsylvania Courts have a long standing history of
hearing negligence cases involving the New Jersey casinos.” (Pls.’ Resp. at 8.) As examples,

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they cite Bruno v. Merv Griffin’s Resorts Intern. Casino Hotel, 37 F. Supp. 2d 395 (E.D. Pa.
1999) and Blunt v. Boyd Gaming Corp., 08-cv-285, 2008 WL 4694757 (E.D. Pa. Oct. 23, 2008).
Neither case contains the term “personal jurisdiction.” Rather, both courts mention, without
discussion, that subject matter jurisdiction existed based on diversity. See Bruno, 37 F. Supp. 2d
at 396; Blunt, 2008 WL 4694757, at *2. Blunt and Bruno do not establish that personal
jurisdiction exists in this case.
In contrast, defendants cite numerous cases in which courts in the Eastern District of
Pennsylvania have determined that they do not have personal jurisdiction over a New Jersey
casino. See Stinnett v. Atlantic City Showboat, Inc., 07-cv-4743, 2008 WL 1924125, at *7 (E.D.
Pa. Apr. 28, 2008) (DuBois, J.); Ferro v. Atlantic City Showboat, Inc., 07-cv-1016, 2007 WL
4275506, at *2-*4 (E.D. Pa. Dec. 3, 2007); Potts v. Harrah’s Atlantic City Hotel and Casino, 06cv-5422, 2007 WL 1866750, at *5 (E.D. Pa. June 28, 2007); Feldman v. Bally’s Park Place, Inc.,
05-cv-5345, 2006 WL 1582331, at *6 (E.D. Pa. June 5, 2006); Blackwell v. Marina Assocs., 05cv-5418, 2006 WL 573793, at *7 (E.D. Pa. Mar. 9, 2006). This Court follows these cases and
concludes there is no personal jurisdiction over defendants.
E.

Remedy

Although the Court lacks personal jurisdiction over defendants, the Court chooses not to
dismiss the case but, instead, will transfer the case to the District of New Jersey under 28 U.S.C.
§ 1631 in the interest of justice. See Feldman, 2006 WL 1582331, at *6. Jurisdiction and venue
are proper in New Jersey because defendant has its principal place of business there, and the
events leading to plaintiffs’ claims occurred there. See N.J. Court Rule 4:4-4; 28 U.S.C. § 1391;
Feldman, 2006 WL 1582331, at *6; see also Ferro v. Atlantic City Showboat, 2007 WL

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4275506, at *4. Transferring the case will also serve the courts’ “interests in judicial economy
. . . by obviating the need for plaintiff[s] to refile [their] claim in New Jersey.” Blackwell, 2006
WL 573793, at *7.
V.

CONCLUSION
For the reasons stated above, the Court concludes that it lacks personal jurisdiction over

defendants in this matter. However, rather than dismiss the case, the Court will transfer the case
to the United States District Court for the District of New Jersey, Camden Vicinage, pursuant to
28 U.S.C. § 1631. An appropriate order follows.

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