Summary
In Grabert, the court based its assertion of general jurisdiction over the New Palace Casino, a Mississippi L.L.C., on several contacts that the casino had with the state of Louisiana: New Palace had an advertising program aimed at Louisiana residents which included radio and print advertisements; New Palace contracted with Louisiana bus companies to transport certain patrons to their casino; and New Palace directly targeted Louisiana residents who were members of its Player's Club. Grabert, 2003 WL 21999351, at *3.
Summary of this case from Nayani v. Horseshoe EntertainmentOpinion
CIVIL ACTION NO. 03-382, SECTION "K" (2)
August 20, 2003
ORDER AND REASONS
Before this Court is a "Motion to Dismiss Pursuant to F.R.C.P. Rule 12(b)(2) and (3)" brought by defendant New Palace Casino, ("New Palace"). Rec. Doc. 4. New Palace requests that this Court dismiss the complaint brought by Marjorie Grabert ("Grabert") for lack of personal jurisdiction and improper venue. For the reasons that follow this Court hereby DENIES the motion.
I. Facts
Marjorie Grabert is a Louisiana resident who visited the New Palace Casino Resort in Biloxi, Mississippi, on May 29, 2002. New Palace is a limited liability company authorized to do and doing business in Mississippi. Ms. Grabert arrived at New Palace by chartered bus which was facilitated by New Palace and the Senior Friends organization. While in the casino Ms. Grabert allegedly fell as she attempted to take a seat on an unsecured stool at a slot machine. As a result of her fall, Ms. Grabert suffered severe injuries to her head, neck, shoulders and back.
On February 7, 2003, Ms. Grabert filed a complaint with this Court claiming New Palace's negligence in maintaining the premises proximately caused her injuries and damages. Ms. Grabert alleges this Court has diversity jurisdiction based on 28 U.S.C. § 1332.
On March 24, 2003 New Palace filed the instant "Motion to Dismiss Pursuant to F.R.C.P. Rules 12(b)(2) and (3)." New Palace contends that the complaint should be dismissed for lack of personal jurisdiction and improper venue.
II. Personal Jurisdiction
In the context of a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing the Court's personal jurisdiction over the defendant. Wilson v. Belin, 20 F.3d 644, 648 (5th Cir. 1994); see also DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1270 (5th Cir. 1983); Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985). As the Fifth Circuit explained in Thompson: "The allegations of the complaint, except insofar as controverted by opposing affidavits, must be taken as true, and all conflicts in the facts must be resolved in favor of the plaintiffs for purposes of determining whether a prima facie case for personal jurisdiction has been established." Thompson, 755 F.2d at 1165 (citing DeMelo, 711 F.2d at 1270-71). In making its determination, the court may consider "affidavits, interrogatories, depositions, oral testimony, or any combination of . . . recognized [discovery] methods." Id.
The exercise of personal jurisdiction involves a two-pronged inquiry. "A federal district court sitting in diversity may exercise personal jurisdiction over a nonresident defendant if (1) the long-arm statute of the forum state confers personal jurisdiction over that defendant; and (2) exercise of such jurisdiction by the forum state is consistent with due process under the United States Constitution." Ruston Gas Turbines, Inc. v. Donaldson Company, Inc., 9 F.3d 415, 418 (5th Cir. 1993); see also Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 786 (5th Cir. 1990).
As to the first prong, a nonresident defendant is subject to the personal jurisdiction of a federal court sitting in diversity to the same extent that the defendant would be amenable to the jurisdiction of a state court in the same forum. Trinity Industries, Inc. v. Myers Associates, Ltd., 41 F.3d 229, 230 (5th Cir. 1995); Pedelahore v. Astropark, Inc., 745 F.2d 346, 347 (5th Cir. 1984). Therefore, this court must first apply Louisiana law to ascertain if Louisiana, the forum state, could assert long-arm jurisdiction over the defendants. The Louisiana Long Arm Statute provides that a court may exercise jurisdiction over a nonresident defendant to the full extent provided by the Due Process Clause of the Constitution. See Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 786 (5th Cir. 1990); see also La. Rev. Stat. 13:3201(B).
The relevant portions of La. Rev. Stat. § 13: 3201 states: Personal jurisdiction over nonresidents
A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
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B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.
As to the second prong of the personal jurisdiction inquiry, personal jurisdiction must satisfy due process standards. Due process requires the satisfaction of two elements to exercise personal jurisdiction over a nonresident defendant: (1) the nonresident must have some minimum contact with the forum which results from an affirmative act on its part such that the nonresident defendant could anticipate being haled into the courts of the forum state; and (2) it must be fair or reasonable to require the nonresident to defend the suit in the forum state. Burger King Corporation v. Rudzewicz, 471 U.S. 462, 474-77 (1985); C H Transportation Co., Inc. v. Jensen and Reynolds Constr. Co., 719 F.2d 1267, 1269 (5th Cir. 1983). The Due Process Clause ensures that persons have "fair warning that a particular activity may subject a person to the jurisdiction of a foreign sovereign." Shaffer v. Heitner, 433 U.S. 186, 218 (1977).
To establish minimum contacts, a nonresident defendant must do some act by which it "purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958). However, the unilateral activity of one asserting a relationship with the nonresident defendant does not satisfy this requirement. World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 298 (1980). In determining whether the exercise of jurisdiction is appropriate, the Supreme Court has focused less on presence in the forum state as a means to establish jurisdiction and looked increasingly to whether a defendant's contacts with the forum make it reasonable to require the defendant to defend the particular suit in that forum. Shaffer, 433 U.S. at 203.
With respect to the minimum contacts analysis, two types of in personam jurisdiction may be exercised over a nonresident defendant: specific and general. Specific jurisdiction exists if the cause of action is related to, or arises out of, the defendant's contacts with the forum, and those contacts meet the due process standard. Ruston Gas, 9 F.3d at 418-19. "When a court exercises personal jurisdiction over a defendant based on contacts with the forum related to the particular controversy, the court is exercising `specific jurisdiction.'" Holt Oil Gas Corporation v. Harvey, 801 F.2d 773, 777 (5th Cir. 1986). General jurisdiction, on the other hand, may be found when the claim is unrelated to the nonresident's contacts with the forum but where those contacts are "continuous and systematic." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 (1984).
Under either a specific or general jurisdiction analysis, however, "the constitutional touchstone remains whether the defendant purposefully established `minimum contacts' in the forum [s]tate." Burger King, 471 U.S. at 474(quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The "purposeful availment" requirement of the minimum contacts inquiry "ensures that a defendant will not be haled into a jurisdiction solely as a result of `random,' `fortuitous,' or `attenuated' contacts . . . or of the `unilateral activity of another party or a third person.'" Id.
In the case at bar Ms. Grabert, who has the burden of proving that this Court has personal jurisdiction, argues that there are sufficient contacts to support either general or specific jurisdiction. She alleges the following contacts in which New Palace purposefully directed activities toward Louisiana:
1. New Palace had an advertising program aimed at Louisiana residents including radio spots and ads in Louisiana publications;
2. New Palace offered incentives to groups and clubs located in Louisiana, including the provisions of free coins and lunches to group members to entice them to come to New Palace;
3. New Palace entered into agreements with bus companies located in Louisiana where New Palace agreed to pay the busing company fees for transporting a certain number of patrons to the casino;
4. New Palace offered incentives through telemarketing and direct personal mail in which it offered discount hotel rates and other promoted other offers; and
5. New Palace specifically targeted, through direct mail, to Louisiana residents who were members of its Player's Club.
In the Court finds that based on the above contacts general jurisdiction exists. General jurisdiction is created when the claim is unrelated to the nonresident's contacts with the forum but where those contacts are "continuous and systematic." Helicopteros, 466 U.S. at 415-16 (1984). Normally, national advertising alone is not enough to support general jurisdiction. Salem v. Circuis Circus Hotels, Inc., No. 96-2049, 1997 WL 102481, *4 (N.D. Tex. 2/28/97). Local advertising, however, when successful and directed toward local markets can support personal jurisdiction and can constitute systematic and continuous contacts supporting general jurisdiction. See Morgan v. Coushatta Tribe of Indians of Louisiana, 214 F.R.D. 202 (E.D. Tex. 2001); Gorman v. Grand Casino of Louisiana, Inc., 1 F. Supp.2d 656 (E.D. Tex. 1998); Northlake Cardiology Assocs, Inc. v. Alpha Gulf Coast, Inc., No. 95-2511, 1995 WL 739865 (E.D. La. 1995).
In this case New Palace's contacts with Louisiana are purposeful and "continuous and systematic" and therefore support general jurisdiction. In Gorman the court discussed the significance of local advertising because it illustrated purposeful activity with the forum. Gorman, 1 F. Supp.2d at 659. The defendant in Gorman advertised on billboards, on local television, on local radio, and in telephone directories. Id. Quoting a Fifth Circuit case, the Gorman court stated "a defendant's `decision to advertise in local telephone directories, in and of itself, is a sufficiently purposeful act . . .' to support jurisdiction." Id. (citing Growden v. Ed Bowlin Assoc. 733 F.2d 1149, 1151-52 (5th Cir. 1984).
This Court finds the reasoning in Gorman persuasive. New Palace conducts several activities that are purposely aimed at convincing Louisiana patrons to spend money at their casino and resort. They send direct mail to members of their Player's Club, and when contacted by a group such as Senior Friends, they pay bus companies to transport groups. Plaintiff has also submitted an exhibit showing that New Palace has advertised frequently in the local paper, The Times-Picayune and on a local radio station. Further, in the deposition of Matt Reed, the Director of Marketing, Mr. Reed stated that Louisiana was considered a "secondary market place." Deposition of Matt Reed, p. 28. Such activities are purposeful, rather than fortuitous and are enough in the aggregate to constitute continuous and systematic activity.
After finding that New Palace's contacts with the forum are continuous and systematic, the Court must next determine whether the exercise of jurisdiction over a non-resident defendant offends traditional notions of fair play and substantial justice. International Shoe, 326 U.S. at 316. Iii determining this analysis, the court must examine: 1) the defendant's burden; 2) the forum state's interest; 3) the plaintiffs interest in convenient and effective relief; 4) the judicial system's interest in efficient resolution of controversies; 5) the states' shared interest in furthering fundamental social policy. Asahi Metal Ind. Co. v. Superior Court of California, 480 U.S. 102, 107(1987).
In the present case, New Palace would not be overly burdened by litigation in New Orleans, Louisiana. New Orleans is approximately, an hour and a half from Biloxi, Mississippi, and thus is relatively close to the location of the casino. Second, the state of Louisiana has a legitimate interest in the outcome of this dispute involving one of its own citizens, who is one of many lured to the casino by New Palace's advertising efforts. Third, Ms. Grabert has an interest in litigating her claim in a Louisiana court. Fourth, even though this litigation is in its early stages, dismissal or transfer would only delay the progress of this case. Finally, both Mississippi and Louisiana have an interest in the issues arising from this case. This factor does not weigh in favor of one forum over the other.
Taking into account all of the factors involved in the due process and fairness analysis and considering the uncontroverted allegations of the complaint and the proffered evidence in the light most favorable to the plaintiff, the Court finds that tradition notions of fair play and substantial justice are not offended by the Court's exercise of jurisdiction over New Palace. Therefore, the Court finds that defendant's Motion to Dismiss for lack of personal jurisdiction should be DENIED.
III. Improper Venue
In the alternative, New Palace has moved to dismiss this case under Federal Rule of Civil Procedure, 12(b)(3). Under § 1391(a) and (c), venue in a diversity suit lies against a corporate defendant in any district where the corporation "resides," and a corporation is deemed to reside in any district in which it is subject to personal jurisdiction. 28 U.S.C. § 1391(a), (c); see Gorman v. Grand Casino of Louisiana, Inc., 1 F. Supp.2d 656, 660 (E.D. Tex. 1998); Barrineau v. Sub Sea Intern., 940 F. Supp. 153, 154 (E.D. Tex. 1996). Since this court has determined that it has personal jurisdiction over New Palace, the defendant resides here for purposes of venue. Therefore, venue is proper and defendant's Motion to Dismiss for improper venue is DENIED.
28 U.S.C. § 1391(a) and (c) state in pertinent part:
(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
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(c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.
New Orleans, Louisiana, this day of