Chamberlin et al v. Venture Resorts, Inc. (JRG1)

Filing 8

ORDER: Defendant's Motion to Dismiss 6 is GRANTED. This Clerk is directed to transfer this case, pursuant to 28 U.S.C. § 1631, to the District Court for the Eastern District of Tennessee, Knoxville Division. Signed by Judge James S. Moody, Jr. on 5/17/2017. (LN) [Transferred from Florida Middle on 5/18/2017.]

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JENNIFER CHAMBERLIN, RYAN
CHAMBERLIN, OLIVIA WOOTEN,
STEVEN CRAIG, ANGELIQUE CRAIG
and SPENCER CRAIG,
Plaintiffs,
v.

Case No: 5:17-cv-105-Oc-30PRL

VENTURE RESORTS, INC.,
Defendant.

ORDER
Plaintiffs rented a cabin at Defendant’s resort in Gatlinburg, Tennessee. Plaintiffs
allege Defendant was negligent for failing to evacuate Plaintiffs from a wildfire that burned
the cabin shortly after Plaintiffs fled for their lives. Defendant argues this Court lacks
personal jurisdiction and subject-matter jurisdiction. The Court agrees the Complaint must
be dismissed because Plaintiffs failed to plead a basis for personal jurisdiction.
FACTUAL BACKGROUND
On November 27, 2016, Plaintiffs checked into a cabin at Defendant’s resort in
Gatlinburg, Tennessee. The following day, Plaintiffs say the air was smoky due to a nearby
wildfire. Plaintiffs called Defendant’s office to ask about the fire and see if Plaintiffs
needed to evacuate. Defendant assured Plaintiffs that the wildfire was contained and that
there was no need to evacuate. Plaintiffs contacted Defendant’s office another four times
over the course of the day and night and were assured that there was no need to evacuate.

Around 9:30 p.m. on November 28, 2016, Plaintiffs noticed there were flames near
the cabin, grabbed what belongings they could, and fled. When Plaintiffs drove by
Defendant’s office shortly after 10 p.m., Plaintiffs say Defendant’s employees had
evacuated the office without notifying the guests. During the drive to safety, Plaintiffs say
flames blazed on both sides of the road.
On November 29, 2016, Plaintiffs learned the cabin in which they had stayed
burned, destroying the nearly $20,000 in personal property Plaintiffs left behind. Plaintiffs
claim to have suffered severe emotional distress.
On March 15, 2017, Plaintiffs sued Defendant in this Court based on diversity
jurisdiction. The Complaint has two counts: innkeeper liability (Count I), and gross
negligence (Count II). The only allegation regarding this Court’s personal jurisdiction over
Defendant is as follows:
28. Defendant, VENTURE RESORTS, INC., is a Tennessee for profit
business, doing business as Gatlinburg Falls Resort, located with its principle
[sic] place of business in Sevier County, Tennessee.
(Doc. 1, ¶28).
MOTION TO DISMISS STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for
failure to state a claim on which relief can be granted. When reviewing a motion to dismiss,
courts must limit their consideration to the well-pleaded allegations, documents central to
or referred to in the complaint, and matters judicially noticed. See La Grasta v. First Union
Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004) (internal citations omitted); Day v.
Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). Courts must accept all factual allegations

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contained in the complaint as true, and view the facts in a light most favorable to the
plaintiff. See Erickson, 551 U.S. at 93–94.
Legal conclusions, however, “are not entitled to the assumption of truth.” Ashcroft
v. Iqbal, 556 U.S. 662, 664 (2009). In fact, “conclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila
v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). To survive a motion to
dismiss, a complaint must instead contain sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal
quotation marks and citations omitted). This plausibility standard is met when the plaintiff
pleads enough factual content to allow the court “to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (internal citations omitted).
DISCUSSION
Defendant argues the Complaint should be dismissed based on lack of personal
jurisdiction and lack of subject-matter jurisdiction. The Court will address the personal
jurisdiction argument, which is dispositive, since it is straightforward and was raised by
Defendant before the subject-matter jurisdiction argument. Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 587–88, 119 S. Ct. 1563, 157–722, 143 L. Ed. 2d 760 (1999) (“Where,
as here, however, a district court has before it a straightforward personal jurisdiction issue
presenting no complex question of state law, and the alleged defect in subject-matter
jurisdiction raises a difficult and novel question, the court does not abuse its discretion by
turning directly to personal jurisdiction.”); Ballew v. Roundpoint Mortg. Servicing Corp.,
491 F. App'x 25, 26 (11th Cir. 2012).

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A plaintiff bears the initial burden of alleging sufficient facts in a complaint to make
out a prima facie case of personal jurisdiction against a defendant. Posner v. Essex Ins.
Co., 178 F.3d 1209, 1214 (11th Cir. 1999); see also Morris v. SSE, Inc., 843 F.2d 489, 492
(11th Cir. 1988) (holding, “the plaintiff bears the burden of establishing a prima facie case
of jurisdiction over the movant, non-resident defendant.”). A prima facie case is established
if, accepting the allegations in the complaint as true, the plaintiff presents sufficient
evidence to withstand a motion for directed verdict or motion for judgment as a matter of
law. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990); PVC Windoors, Inc. v.
Babbitbay Beach Const., N.V., 598 F.3d 802, 810 (11th Cir. 2010). “A federal court sitting
in diversity undertakes a two-step inquiry in determining whether personal jurisdiction
exists: the exercise of jurisdiction must (1) be appropriate under the state long-arm statute
and (2) not violate the Due Process Clause of the Fourteenth Amendment to the United
States Constitution.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009).
Defendant argues Plaintiffs failed to that the Court has personal jurisdiction over
Defendant under Florida’s long-arm statute. To be clear, Defendant has not raised a factual
challenge to jurisdiction by submitting affidavits rebutting the allegations in the Complaint;
instead, it simply argues that the allegations in the Complaint are insufficient to confer
personal jurisdiction over Defendant to this Court.
In rebuttal, Plaintiffs filed an unverified response arguing the Court has personal
jurisdiction over Defendant pursuant to section 48.193(1)(a)(1), Florida Statutes. That
subsection of Florida’s long-arm statute provides as follows:

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(1)(a) A person, whether or not a citizen or resident of this state, who
personally or through an agent does any of the acts enumerated in this
subsection thereby submits himself or herself and, if he or she is a natural
person, his or her personal representative to the jurisdiction of the courts of
this state for any cause of action arising from any of the following acts:
1. Operating, conducting, engaging in, or carrying on a business or business
venture in this state or having an office or agency in this state.
§ 48.193(1)(a)(1), Fla. Stat. To support this basis of personal jurisdiction, Plaintiffs claim
that Defendant advertises in Florida to attract Florida residents to its resort, that Defendant
regularly sent e-mail advertisements to Plaintiffs, and that Defendant receives a large
portion of its guests through its efforts in targeting Florida residents.
The Court concludes the Complaint must either be dismissed or transferred because
Plaintiffs failed to establish a prima facie case of personal jurisdiction against Defendant.
Because this is a facial challenge to jurisdiction, the Court confines its inquiry to the
Complaint.

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Plaintiffs never allege in the Complaint that Defendant “Operat[ed],

conduct[ed], engag[ed] in, or carr[ied] on a business or business venture in this state or
ha[d] an office or agency in this state.” § 48.193(1)(a)(1), Fla. Stat. The allegations in the
Complaint, accepted as true, establish Defendant operated Gatlinburg Falls Resort in
Tennessee, and that Plaintiffs were damaged by Defendant’s negligence in Tennessee. As
such, this Court concludes Plaintiffs never pled a prima facie case of personal jurisdiction. 2

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In other words, the Court disregards the unsworn allegations in Plaintiffs’ response.
The Court notes that Plaintiffs also never moved to allow discovery on the issue of
personal jurisdiction or moved to amend the Complaint so they could plead a prima facie case of
personal jurisdiction. See Posner, 178 at 1214 n.7, 1222 (11th Cir. 1999). Although Plaintiffs
requested the Court grant leave to amend the Complaint in their prayer for relief in response to
Defendant’s motion (Doc. 7, p.4), that request was not properly raised. Id. (“Where a request for
leave to file an amended complaint simply is imbedded within an opposition memorandum, the
issue has not been raised properly.”).
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Accordingly, it is therefore ORDERED AND ADJUDGED that:
1.

Defendant’s Motion to Dismiss (Doc. 6) is GRANTED.

2.

This Clerk is directed to transfer this case, pursuant to 28 U.S.C. § 1631, to
the District Court for the Eastern District of Tennessee, Knoxville Division.

DONE and ORDERED in Tampa, Florida, this 17th day of May, 2017.

Copies furnished to:
Counsel/Parties of Record

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