CROYLE v. HUTCHISON et al
Filing
25
Opinion and ORDER granting 11 Motion to Dismiss. Signed by Magistrate Judge Maureen P. Kelly on 6/20/2012. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CYNTHIA A. CROYLE, Administratrix
of the ESTATE OF WALTER E.
CORMAN, Deceased;
Plaintiff,
vs.
LARRY HUTCHISON, an individual
OUTER BANKS BLUE, L.L.C. t/d/b/a
OUTER BANKS BLUE REALTY
SERVICE, a North Carolina Limited
Liability Business Corporation;
Defendants.
)
)
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) Civil Action No. 11-1141
) Magistrate Judge Maureen P. Kelly
)
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) ECF No. 11
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)
OPINION AND ORDER
KELLY, Magistrate Judge
On September 21, 2009, Plaintiff's Decedent, Walter E. Corman, tripped and fell on an
entrance way mat while a seasonal tenant at property maintained and leased by Defendant Outer
Banks Blue, L.L.C. t/d/b/a Outer Banks Blue Realty Service ("Defendant" or "Outer Banks
Blue"). Mr. Corman apparently sustained severe injuries that allegedly led to his death.
Plaintiff, Cynthia A. Croyle ("Croyle" or "Plaintiff"), who is Mr. Corman's daughter and
the Administratrix of his estate, brought this wrongful death and survival action seeking to
recover damages for the losses suffered as a result Mr. Corman's death as well as for the pain and
suffering he endured as a result of the accident.
Outer Banks Blue filed a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(2) ("the Motion") on September 30, 2011, arguing that the Complaint is properly
dismissed as the Court is without personal jurisdiction. ECF No. 11. Plaintiff filed a response to
the Motion on December 13, 2011, in which she maintains that jurisdiction is not wanting and
alternatively requests that that she be permitted to conduct discovery to develop the facts relevant
to the jurisdictional issue.
For the reasons that follow, Defendant's Motion will be granted and Plaintiff's request for
leave to conduct discovery will be denied.
I.
STANDARD OF REVIEW
Once a defendant files a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), "the
plaintiff must "prov[e] by affidavits or other competent evidence that jurisdiction is proper.'"
Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009), quoting Dayhoff Inc. v.
H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996). The plaintiff, however, need only establish "a
prima facie case of personal jurisdiction," and is entitled to have the allegations set forth in the
complaint taken as true and all factual disputes drawn in his or her favor. Miller Yacht Sales,
Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004). The complaint must nevertheless contain "specific
facts" rather than vague or conclusory assertions. Marten v. Godwin, 499 F.3d 290, 298 (3d Cir.
2007).
II.
DISCUSSION
Under Rule 4(e) of the Federal Rules of Civil Procedure, a federal district court sitting in
diversity has personal jurisdiction over a non-resident defendant only to the extent that the laws
of the forum state permit it. Pennsylvania's long-arm statute, 42 Pa. C.S.A. ' 5322(b), provides
that a court may exercise personal jurisdiction over non-resident defendants “to the constitutional
limits of the due process clause of the Fourteenth Amendment.” Remick v. Manfredy, 238 F.3d
248, 255 (3d Cir. 2001).
The due process clause requires: (1) that the defendant have "minimum contacts" with the
forum state; and (2) that the exercise of jurisdiction comports with "traditional notions of fair
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play and substantial justice." Remick, 238 F.3d at 255, quoting International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945). "Minimum contacts must have a basis in 'some act by
which the defendant purposefully avails itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its laws.'" Remick, 238 F.3d at 255,
quoting Asahi Metal Indus. Co., Ltd. v. Superior Court of California, 480 U.S. 102, 109 (1987).
Personal jurisdiction may be invoked over a non-resident defendant on the basis of either
general or specific jurisdiction. General jurisdiction is appropriate when the defendant's contacts
with the forum are "continuous and systematic" and when the cause of action "arises from the
defendant's non-forum related activities." Vetrotex Certainteed Corp. v. Consolidated Fiber
Glass Products Co., 75 F.3d 147, 151 (3d Cir. 1995). In contrast, specific jurisdiction is properly
exercised when the plaintiff's cause of action arises from the defendant's forum-related activities,
"such that the defendant 'should reasonably anticipate being haled into court there.'" Id., quoting
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). See Remick v.
Manfredy, 238 F.3d at 255. See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at
297 ("foreseeability . . . is critical to the due process analysis").
"[S]pecific jurisdiction is not
established if the non-resident defendant's conduct in the forum is 'random, isolated or
fortuitous.'" Planet Goalie, Inc. v. Monkeysports, Inc., 2011 WL 3876178 at * 3 (M.D. Pa. Sept.
1, 2011), quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984).
Here, Plaintiff does not dispute that general jurisdiction over Outer Banks Blue is
lacking. Rather, Plaintiff argues only that specific jurisdiction may be exercised over Defendant
as Outer Banks Blue has purposefully directed its activities at Pennsylvania. ECF No. 22, p. 2.
To support her position, Plaintiff points to the fact that Outer Banks Blue maintains an
interactive website on which it posts information about its properties, invites email questions
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from its users and allows its users to purchase vacation rentals. Plaintiff also represents that Mr.
Corman and his family, in fact, booked their reservation at Outer Banks Blue's property through
its website.
Plaintiff's Complaint, however, is devoid of any reference to Outer Banks Blue's website
or any other facts from which it could be inferred that Outer Banks Blue purposefully directed its
activities at Pennsylvania or that Plaintiff's claims arises out of Outer Banks Blue's activities in
Pennsylvania. Because it is well established that a plaintiff may not establish jurisdictional facts
in a response without the support of a sworn affidavit or other competent evidence, Plaintiff's
assertions regarding Outer Banks Blue's website in her brief in opposition to Defendant's Motion
cannot serve to establish personal jurisdiction. Nationwide Contractor Audit Service, Inc. v.
National Compliance Management Services, Inc., 622 F. Supp. 2d 276, 282 (W.D. Pa. 2008).
See Metcalfe v. Renaissance Marine, Inc., 566 F.3d at 330. See also Commonwealth of Pa. ex.
rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (It is well established that the
plaintiff may not attempt to amend the complaint through a brief filed in response to the
defendant's motion to dismiss).
Even if the Court were to take Plaintiff's assertions regarding Outer Banks Blue's website
into consideration, however, it appears that specific jurisdiction would still be lacking.
Determining whether specific jurisdiction exists involves a three-part
inquiry. . . . First, the defendant must have "'purposefully directed' his
activities" at the forum. . . . Second, the plaintiff's claim must "arise out of
or relate to" at least one of those specific activities. . . . Third, courts may
consider additional factors to ensure that the assertion of jurisdiction
otherwise "comport[s] with 'fair play and substantial justice.'" . . . Because
this analysis depends on the relationship between the claims and contacts,
we generally evaluate specific jurisdiction on a claim-by-claim basis.
Marten v. Godwin, 499 F.3d at 296 (internal citations omitted). Moreover, determining whether
personal jurisdiction exists based on contact through an interactive website requires the Court to
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assess the level of interactivity and the commercial nature of the exchange of information.
Planet Goalie, Inc. v. Monkeysports, Inc., 2011 WL 3876178 at * 3. Nevertheless, "[i]t must be
shown that [the] 'web site targets a particular remote jurisdiction . . . .'" Id. at * 4, quoting
Hershey Co. v. Pagosa Candy Co., 2008 WL 1730538 at *5 (M. D. Pa. April 10, 2008).
Here, Plaintiff has failed to show either that Outer Banks Blue purposefully directed its
activities at Pennsylvania or that her claims arise out of or relate to Outer Banks Blue's activities
in this forum. Indeed, in her brief Plaintiff states only that "Plaintiff's decedent and his family
booked their reservations ... through Defendant, Outer Banks Blue's website," and that
"Defendant's site is interactive with users in various ways including, posting information on their
site about their properties, inviting email questions and responses from its users as well as
making the actual purchase of vacation rentals on said site." ECF No. 22, pp. 2, 3. Noticeably
absent is any assertion that Outer Banks Blue's website specifically targeted Pennsylvania
residents and any reference to any specific actions taken by Outer Banks Blue relative to the
reservation process. Under these circumstances, it cannot be said that Outer Banks Blue
purposefully directed its activities at Pennsylvania. See Planet Goalie, Inc. v. Monkeysports,
Inc., 2011 WL 3876178 at *5 (declining to exercise specific jurisdiction over Defendant even
where nine percent of Defendant's sales occurred in Pennsylvania where Plaintiff failed to show
that Defendant's website specifically targeted Pennsylvania residents); Haffen v. Butler
Specialties, Inc., 2011 WL 831933 at *4 (D.N.J. Mar. 3, 2011) (noting that the contract at issue
"came about as the result of Plaintiff's reaching out to Defendant in North Carolina, and not of
Defendant's purposeful availment of Plaintiff's forum"). See also Orazi v. Hilton Hotels Corp.,
2010 WL 4751728 at *3 (E.D. Pa. Nov. 22, 2010).
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Further, it is apparent that Plaintiff is unable to establish the second element necessary to
find specific jurisdiction as the cause of action does not arise from any forum related activities.
Marten, 499 F.3d at 296. See General Electric Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir.
2001) ("[q]uestions of specific jurisdiction are properly tied to the particular claims asserted").
To the contrary, Plaintiff's claims stem from an accident that occurred in North Carolina as the
result of Outer Banks Blue's allegedly negligent conduct in North Carolina, and are not in any
way related to any activity Outer Banks Blue may have conducted in Pennsylvania. See Marten,
499 F.3d at 296. See also Live Face on Web, LLC v. iSpeakVideo.com, 2012 WL 1867548 at *
5 (E.D. Pa. May 22, 2012) (finding that Plaintiff's residence in Pennsylvania was insufficient to
invoke specific jurisdiction over the defendant where the focus of the defendant's activities out of
which the suit arose occurred in Florida); Haffen v. Butler Specialties, Inc., 2011 WL 831933 at
*4 ("Much like the Plaintiff in the instant case, the Plaintiff in Koczkodon 'points to contacts that
she argues constitute purposeful availment of the forum, including the defendants' website.' But
much like the Plaintiff in Koczdokon, '[s]he has failed to demonstrate that her claim in any way
arises from or relates to those contacts with the forum'"); Koczkodon v. Grand Versailles, LLC,
2010 WL 3656037 at *1 (E.D. Pa. Sept. 17, 2010) ("[a]lthough the plaintiff points to contacts
that she argues constitute purposeful availment of the forum, including the defendants' website
and the hosting of Pennsylvania residents at their facility in New Jersey, she has failed to
demonstrate that her claim in any way arises from or relates to those contacts with the forum.
Instead, the plaintiff's claim sounds in personal injury based on the defendants' conduct in New
Jersey"). As such, Plaintiff has failed to demonstrate that the requirements of due process have
been met or that the specific jurisdiction is properly exercised.
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Nor do the cases upon which Plaintiff relies compel a different result. See Maritz, Inc. v.
Cybergold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996); Zippo Manufacturing Co. v. Zippo Dot
Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). In Maritz, Cybergold's website provided
information about an upcoming service whereby it would maintain a mailing list of internet users
who provided Cybergold with his or her particular areas of interest. Id. at 1330. Cybergold,
having separately contracted with certain advertisers, would then forward advertisements to the
user that match the user's selected interests. Id. The Court found that because the plaintiff had
alleged that Cybergold's actions infringed on its trademark in violation of the Lanham Act, it had
personal jurisdiction over Cybergold under the "commission of a tortious act" provision of
Missouri's its long arm statute. Id. at 1331. In assessing whether exercising personal jurisdiction
would violate due process, the Court found that by setting up the website and posting
information in the form of an advertisement or solicitation, Cybergold intended to reach all
internet users including residents of Missouri. Hence, the Court concluded that the requisite
minimum contacts had been established to warrant the exercise of personal jurisdiction. Id. at
1332-1333.
Maritz, however, is not only not controlling in this jurisdiction but is contrary to cases
that have been decided in this jurisdiction, including Zippo, upon which Plaintiff herself relies.
See Molnlycke Health care AB v. Dumex Medical Surgical Products, LTD., 64 F. Supp. 2d 448,
453 n.5 (E.D. Pa. 1999) (declining to follow Maritz, finding that the website at issue in that case
would not provide the basis for exercising jurisdiction in Pennsylvania). Indeed, although the
Court in Zippo found that the nature and quality of the defendant's commercial activity through
its website was such that the Court could properly exercise specific jurisdiction, it also found that
the defendant had "done more than create an interactive Web site through which it exchanges
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information with Pennsylvania in hopes of using that information for commercial gain later."
Zippo, 952 F.2d at 1225. The "something more" was the fact that the defendant had
consummated approximately 3000 contracts with Pennsylvania individuals and seven Internet
access providers in Pennsylvania. Id. at 1126. Moreover, because the messages defendant
transmitted over the internet through its website were alleged to have infringed on the plaintiff's
trademark, the Court was able to conclude that the plaintiff's cause of action arose out of the
defendant's forum related conduct thereby satisfying the second prong of the test for specific
jurisdiction as well. Id. at 1127.
Plaintiff in the instant case, however, has not suggested that Outer Banks Blue has done
anything more than create an interactive Web site through which can provide information to
internet users and allow internet users to contact it to make reservations.1 In addition, in both
Maritz and Zippo, it was the maintenance of the website itself that gave rise to the cause of
action, i.e., trademark infringement. In this case, however, even if making a reservation through
Defendant's website could be considered sufficient contact with Pennsylvania for purposes of
specific jurisdiction, that contact does not provide the basis for Plaintiff's wrongful death or
survival causes of action. Rather, as previously discussed, the conduct of which Plaintiff
complains occurred in North Carolina. As such, it cannot be said that Outer Banks Blue could
1
In this manner, Bell v. Imperial Palace Hotel/casino, Inc., 200 F. Supp. 2d 1082 (E.D. Mo. 2001), upon which
Defendant relies is instructive. In Bell, the Court specifically addressed the nature of the hotel business vis-à-vis the
internet, finding that, although reservations can be made over the internet, merely making reservations is
distinguishable from ordering goods where the entire transaction is completed online and the transmission of the
goods into the forum state is brought about through the order alone. Id. at 1088. Where reservations are made on
hotel websites, however, the Court noted that "[n]either party anticipates that goods, services, or information of
intrinsic value will be transmitted or provided in the forum state as a result of the internet exchange of information.
To the contrary, both parties recognize that the internet exchange is simply preliminary to the individual traveling
outside the forum state to use the service. . . . The purpose of the internet interaction is not achieved until the
resident customer leaves the forum state and arrives at the hotel destination." Id. Under these circumstances, the
Court concluded that the plaintiff was unable to establish the necessary minimum contacts for specific jurisdiction.
Moreover, like in the instant case, the Court also noted that there was an absence of any evidence that the defendant
directly advertised or solicited business in the forum state, and that the plaintiff's personal injury suit stemming from
a fall in the hotel in Las Vegas was entirely unrelated to the defendant's website. Id.
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reasonably foresee being haled into court in Pennsylvania and precludes a finding that due
process has been satisfied.
In the alternative, Plaintiff asks that she be granted leave to conduct discovery to develop
"disputed and unknown" jurisdictional facts. ECF No. 22, p. 4.
As the United States Court of Appeals for the Third Circuit has recently stated:
As a general rule, jurisdictional discovery is allowed unless the claim of
jurisdiction is "clearly frivolous." Toys “R” Us[, Inc. v. Step Two, S.A.],
318 F.3d [446,] 456 [3d Cir. 2003]. In order to demonstrate that the claim
is not clearly frivolous, the plaintiff must "present[ ] factual allegations that
suggest with reasonable particularity the possible existence of the requisite
contacts between [the party] and the forum state." Id. (internal quotations
omitted). Most recently, this Court has cautioned against allowing
jurisdictional discovery to serve as "a fishing expedition based only upon
bare allegations, under the guise of jurisdictional discovery." Eurofins
Pharma U.S. Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 157 (3d
Cir. 2010).
LaSala v. Marfin Popular Bank Public Co., 410 F. App'x 474, 478 (3d Cir. 2011).
Here, Plaintiff has not alleged any facts that suggest the possible existence of the
requisite contacts between Outer Banks Blue and Pennsylvania to establish personal jurisdiction.
Nor does it appear likely that any such facts exist given the Court's findings that booking a
reservation on Defendant's website is insufficient to establish that Defendant purposefully
directed its activities at the Pennsylvania and, more importantly, that Plaintiff's cause of action
does not arise from any of Defendant's forum-related activities. Because it is unclear what facts
Plaintiff believes she will uncover to overcome these obstacles, and Plaintiff has not otherwise
suggested to the Court how discovery will aide her in establishing jurisdiction, her request is
denied.
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III.
CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss Pursuant to Federal Rule of
Civil Procedure 12(b)(2), ECF No. 11, is granted, and Plaintiff's request for leave to conduct
discovery is denied.
ORDER
AND NOW, this 20th day of June, 2012, upon consideration of Defendant's Motion to
Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2), IT IS HEREBY ORDERED that
the Motion, ECF No. 11, is GRANTED.
BY THE COURT,
/s/ Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE
cc:
All Counsel of Record Via CM-ECF
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