Abramov v. Otis Elevator Co et al

Filing 46

MEMORANDUM OPINION AND ORDER allowing discovery re 38 Motion to Dismiss/Lack of Jurisdiction filed by Desert Palace Inc. Abramov must complete this discovery and file a supplemental response brief and evidence appendix no later than August 26, 2011. Desert Palace may file a reply brief and evidence appendix no later than 14 days after Abramov files her responsive materials. (Ordered by Chief Judge Sidney A Fitzwater on 6/27/2011) (Chief Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GENA M. ABRAMOV,

§
§
Plaintiff, §
§ Civil Action No. 3:11-CV-0440-D
VS.
§
§
OTIS ELEVATOR COMPANY, et al., §
§
Defendants. §
MEMORANDUM OPINION
AND ORDER
In this action by plaintiff Gena M. Abramov against, inter
alia, defendant Desert Palace, Inc. (“Desert Palace”), Desert
Palace moves to dismiss Abramov’s claim against it for lack of in
personam
discovery.

jurisdiction.1
The

court

Abramov
grants

the

moves

for

jurisdictional

motion

for

jurisdictional

discovery to the extent set out below and defers a decision on the
motion to dismiss.2

1

In its motion, Desert Palace adopts the arguments and
authorities of former defendants Caesars Palace Realty Corp. and
Caesars Entertainment Corporation f/b/a Harrah’s Entertainment,
Inc. presented in their motion to dismiss Abramov’s complaint and
in their reply in support of that motion.
2

Under § 205(a)(5) of the E-Government Act of 2002 and the
definition of “written opinion” adopted by the Judicial Conference
of the United States, this is a “written opinion[] issued by the
court” because it “sets forth a reasoned explanation for [the]
court’s decision.” It has been written, however, primarily for the
parties, to decide issues presented in this case, and not for
publication in an official reporter, and should be understood
accordingly.

I
Abramov contends that the court can exercise in personam
jurisdiction over Desert Palace because its advertising efforts in
Texas give rise to general personal jurisdiction.

She relies on

Morgan v. Coushatta Tribe of Indians of Louisiana, 214 F.R.D. 202
(E.D. Tex. 2001), and Gorman v. Grand Casino of Louisiana, Inc.Coushatta,

1 F.Supp.2d 656 (E.D. Tex. 1998), to support her

argument that the Texas advertising campaigns of an out-of-state
entity can be sufficiently pervasive, systematic, and continuous to
establish general personal jurisdiction over that entity.

Abramov

maintains that discovery will demonstrate that Desert Palace has
undertaken such an advertising campaign, and she requests that she
be allowed to conduct jurisdictional discovery before the court
decides Desert Palace’s motion to dismiss.
II
“When a nonresident defendant presents a motion to dismiss for
lack of personal jurisdiction, the plaintiff bears the burden of
establishing

the

district

court’s

jurisdiction

nonresident.”

Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir.

1985).
When a court rules on a motion to dismiss for
lack of personal jurisdiction without holding
an evidentiary hearing, it must accept as true
the
uncontroverted
allegations
in
the
complaint and resolve in favor of the
plaintiff any factual conflicts posed by the
affidavits.
Therefore,
in
a
no-hearing
situation, a plaintiff satisfies his burden by
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over

the

presenting a prima facie case for personal
jurisdiction.
Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999) (footnotes
omitted).

In determining whether Abramov has established a prima

facie showing for personal jurisdiction, the court can look beyond
the

pleadings

“by

receiving

affidavits,

interrogatories,

depositions, oral testimony, or any combination of the recognized
methods of discovery.”

Stuart, 772 F.2d at 1192.

The court has the discretion to decide whether, and to what
extent, to permit discovery regarding personal jurisdiction.
Wyatt v. Kaplan, 686 F.2d 276, 283 (5th Cir. 1982).

See

Although

“discovery on matters of personal jurisdiction . . . need not be
permitted unless the motion to dismiss raises issues of fact,”
Kelly v. Syria Shell Petroleum Development BV, 213 F.3d 841, 855
(5th Cir. 2000) (quoting Wyatt, 686 F.2d at 284), “[w]hen a
district court makes factual determinations decisive of a motion to
dismiss for lack of jurisdiction, it must give plaintiffs an
opportunity for discovery,” McAllister v. FDIC, 87 F.3d 762, 766
(5th Cir. 1996).
Applying this standard, the court concludes that Abramov
should be permitted to conduct limited jurisdictional discovery.
“General jurisdiction exists when a defendant’s contacts with the
forum

state

are

unrelated

to

‘continuous and systematic.’”

the

cause

of

action

but

are

Tempur-Pedic Int’l, Inc. v. Go

Satellite Inc., 758 F.Supp.2d 366, 372 (N.D. Tex. 2010) (Fitzwater,
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C.J.) (citations omitted).

The Eastern District of Texas has held

that a “pervasive, systematic and continuous local advertising
campaign” can support the exercise of general personal jurisdiction
over an out-of-state casino.
Morgan,

Gorman, 1 F.Supp.2d at 659; see also

214 F.R.D. at 206 (citing

Gorman, 1 F.Supp.2d 656).

Although Desert Palace contends that its nationwide marketing and
advertising campaigns are not directed at Texas in a way that would
support the exercise of general personal jurisdiction, Abramov is
entitled to conduct discovery regarding this question.

She must

seek the discovery by means that are as narrow as reasonably
possible to establish her contention that the court can exercise
general personal jurisdiction based on Desert Palace’s advertising
efforts in Texas.

No officer, director, managing agent, or

employee of Desert Palace can be required to appear in this
district for a deposition, or, if subpoenaed, required to do more
than is permitted by Fed. R. Civ. P. 45.
Abramov must complete this discovery and file a supplemental
response brief and evidence appendix no later than August 26, 2011.
Desert Palace may file a reply brief and evidence appendix no later
than 14 days after Abramov files her responsive materials.

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These

deadlines may be extended, if necessary, by agreed order or for
good cause by motion.
SO ORDERED.
June 27, 2011.

_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE

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