JUNGE v. WHEELING ISLAND GAMING INC., No. 2:2010cv01033 - Document 6 (W.D. Pa. 2010)
Court Description: MEMORANDUM AND OPINION re 3 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge William L. Standish on 11/2/2010. (cs)
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JUNGE v. WHEELING ISLAND GAMING INC. Doc. 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA DELLA JUNGE, PIa iff, vs. Civil Action No. 10-1033 WHEELING ISLAND GAMING, INC., De MEMORANDUM OPINION In this ne Inc. igence case, ("Wheeling"), has Federal Rule of C in part We agree Rather than exe se its to which dismiss to (Docket No.3), arguing Junge cannot would allow establish this Court the to c or general jurisdiction over De r we motion Della requisites Constitutional a I Procedure 12 (b) (2) aintiff t exercise e filed Defendant Wheeling Island do not have general jurisdiction ss the case outright, however, over De the Court will scretion and transfer this matter to the Northern District of West Virginia for further consideration. 1 Dockets.Justia.com I. BACKGROUND A. On August 5, 2008, Plaintiff old resident of Natrona Heights, rated by Defendant Penns Junge, a, Wheeling, West Vi accompanied by her daughter, a Della space in 83-year visited a casino inia. Carmen Kaminski. handicapped-accessible an Ms. Junge was The women parked Defendant's parking lot which was connected to the gaming facility by a concrete pathway owned and maintained by Wheeling. wheeled when walker the for wheels of concrete measuring ep, and result, r was walking who uses a along the lodged in approximately three inches wide, the walker Junge, became spanning the ground, assistance, Ms. entire tipped, wal width causing of Ms. the a gap the two inches sidewalk. Junge to As fall head on the concrete, and with Ms. striking pathway to a the Kaminski landing on top of her. Ms. Junge employees, a paramedic did of the was paramedic not Kaminski and recommend incident. ling "disoriented, Ms. helped Ms. at a the security emergency Junge her mother guard. care, The "crawling The facts in this section are taken sol 2 by the returned home dazed and sore." discovered scene two Wheeling Although guard that made a evening following mo around the the from the Complaint. ng, house with rceptible pain and extremely limited mobility.n She sought immediate medical help for Ms. Junge, who was admitted to the hospital with congestive heart ilure and injuries to her head and shoulder resulting from B. fall. Procedural History Plaintiff filed suit in this Court on August 5, 2010, all that Wheeling was negligent in failing to maintain the concrete walkways, particularly from handicap parking areaSi caution on the wal kways i those used to provide access to warn pedestrians to use extreme to routinely inspect the wal kways; to establish a standard business ctice or policy to ensure sa mobili ty of handicapped and e rly patrons using the handicap parking areas; and to pa thways repair in a timely manner. Ms. Junge sought damages for physical and mental injuries the amount of $80,000.00. On August 30, 2010, filed the now-pending motion De ss for lack of personal jurisdiction and subject matter to di juri ion. The parties having briefed r for decision. positions, the motion is now r II. thoroughly JURISDICTION AND VENUE In her complaint, Plaintiff asserts jurisdiction this Court on the basis of complete diversity of the parties and an amount controversy in excess of $75,000.00. 3 See 28 U.S.C. § 1332 (a) . The question of personal jurisdiction over Defendant is the focus of this Memorandum Opinion. Venue is appropriate in § this district pursuant to 28 U.S.C. 1391(a) (3) if we determine that this Court may constitutionally exercise personal jurisdiction over Wheeling. III. STANDARD OF REVIEW Wheeling bases its motion to dismiss first on Federal Rule of Civil Procedure sufficient 12(b) (2), minimum Pennsylvania for this arguing contacts Court that with to the exercise over it. Alternatively, Defendant argues, dismissed under Rule jurisdiction because not meet issue the 12 (b) (1) the for amount statutory minimum. because we conclude this in it not have Commonwealth personal of jurisdiction the matter should be lack of subject controversy We may not Court does does matter "plainlyll reach the not have does second rsonal jurisdiction over Defendant. A motion pursuant to Rule 12 (b) (2) which requires eadings." 735 F.2d 61, the question resolution of "is inherently a matter factual issues outside the Time Share Vacation Club v. Atlantic Resorts, Ltd., 66, of n.9 (3d Cir. whether jurisdiction over it, 1984). the When a defendant raises district court has personal the plaintiff bears the burden of showing that jurisdiction exists. GE v. Deutz AG, 4 270 F.3d 144, 150 (3d Cir. 2001); Mellon Bank F.2d 1217, 1223 this burden PSFS (3d Cir. 1992) by Nat'l Ass'n v ("Farino.") "establishing with 960 A plaintiff may meet reasonable particula ty sufficient contacts between the defendant and the forum state." Farino, 960 F.2d at 1223 the plaintiff may not this burden. 2007 U.S. Bank, "General response without Vector F.A. v. the Novik, (W.D. Shushan, in support Inc., Pa. Aug. of to satisfy CA No. 07-498, 2, fied 'sworn Dist. LEXIS 6573, affidavits *2 Inc. v. (E.D. Corum, Pa. Mar. 735 F.2d at 66, CA 21, n.9i No. (3d Cir. or or other 03-741, 2003), to dismiss, this "accept the plaintiff's allegations as v.Step Two, vor of the in S.A., 318 quoting Time id. Court must . construe disputed facts 2003 see also Farino for purposes of deciding the mot Inc., 146 complaint Otherwise, Us, ting 2007) , 954 F.2d 141, an However, are insufficient to establish jurisdictional Security, Share Vacation Club, v. *6 averments competent evidence' U.S. solely on her pleadings LEXIS 56217, 1992). facts." rest Red Square Corp. Dist. Carteret Sav. (internal quotation omitted.) true, and. aintiff." F.3d 446, 457 (3d Cir. 2003) (citation omitted.) If the jurisdiction justice," plaintiff "comport[s] defendant is successful with must fair then 5 in demonstrating ay "present and a that substantial compelling case that. . render [s] Sales, Inc. v. Burger King Corp. Determining requires burden Smith, if the on j ur isdiction 384 v. is court to the judicial controversies, furthering 471 consider fendant, Miller (3d Cir. U.S. to 462, forum Yacht quoting 2004), 476-477 exercise several the (1985). jurisdiction factors, state's e.g., "the interest in the plaintiff's interest in obtaining cti ve relief, system in 97 reasonable adjudicating the dispute, convenient and ef F.3d 93, Rudzewicz, it unreasonable." obtaining the interest of the interstate the most efficient resolution of and the shared interest of the several States in fundamental substantive social policies." Burger 471 U.S. at 477i Farino, 960 F.2d at 1222. IV. LEGAL ANALYSIS A. Establishing Personal Jurisdiction over a Non Resident Defendant exercise must A court faced personal jurisdiction begin with question over of a the a of whether non-resident Federal lli omi tted. ) & ct court sits." Pennsylvania's 6 may of Civil deral court may exercise Assocs., 149 F.3d 197, 200 In turn, it defendant Rules jurisdiction "to the extent permissible under the state where the di v. Co 4(e) the Pursuant to Rule 4(e), Procedure. such Rule with the law of Pennzoil Prods. (3d Cir. 1998) Co. (citation long-arm statute authorizes the exercise of jurisdiction over a non-resident "to the fullest extent allowed under the Constitution of the United States," Pa. Cons. Stat. Ann. § 5322(b);2 see also O'Connor v. Hotel, 496 312, F.3d 316 (3d Cir. 2007) , Pennsylvania's long-arm statute "provides 42 Sandy Lane noting that jurisdiction based on the most minimum contact with the Commonwealth allowed under the Constitution omitt .) Process of That C Constitution se the is, of have as United long Fourteenth been States" as the requirements Amendment satisfied, the due process to jurisd non-resident defendants in Pennsylvania. "Under (internal clause, a the citations of t United ion will Due States 1 over Pennzoil Prods., id. court personal jurisdiction over a non-resident may not exercise end ant unless there are certain minimum contacts between the defendant and the forum state." Time Share Vacation Club, 735 F.2d at 63, Wide Volkswagen Corp. minimum contacts with v. Woodson, the forum 444 U.S. 286, state must be 292 ting World- (1978). "such that The t maintenance of the suit does not offend traditional not ions of 2EXERCISE OF FULL CONSTITUTIONAL POWER OVER NONRESIDENTS.-- In addition to the provisions of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States. 42 Pa. Cons. Stat. Ann. § 5322(b). Bases of personal jurisdiction over persons outside this Commonwealth. 7 ir play and Washington, citations 326 U.S. omitted.) purpose state, substantial justice." 310, 316 Having Int'l (1945) minimum Shoe (quotation contacts, v. Co. marks 1. e. , and having ly directed his activities toward the residents of the provides subject "fair warning" to suit in that to forum. a defendant that Burger King, 471 he may U.S. at 472 (internal citations and quotation omitted.) The basic principles of due process are two recognized specific. 2007), types See Marten of v. rsonal reflected in the jurisdiction Godwin, 499 F.3d general 290, 296 (3d and Cir. citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-415 (1984). As the United States Court of Appeals for the Third Circuit has recently noted, [g] eneral jurisdiction results from, among other things, "systematic and continuous" contact between a non-resident defendant and the forum state. General jurisdiction allows the forum state to exer se personal jurisdiction over non-resident defendants, even non-forum-related activit Specific jurisdiction allows for the exe se of personal jurisdiction over a non-resident defendant for actions arising out of the defendant's contact with the forum. Spuglio 20398, v. *3 Cabaret (3d Cir. Lounge, No. 09-2195, Sept. 14, 2009), 2009 U.S. App. citing Int'l Shoe, LEXIS 326 U.S. at 320, and Farino, 960 F.2d at 1221. General distinct and specific categories, not sdiction j two points 8 on are a "analytically sliding sca " O'Connor, 496 F.3d at 321. general speci or fendant, a c court Pennzoil Prods., whether the In determining whether it has either jurisdiction must ta 149 F.3d at fendant's over the "specific 200. non-resident analytical The court first contacts with the steps.H determines forum state are "systematic and continuous,H i.e., sufficient to support general personal jurisdiction. Id.; see also Helicopteros, 414-415. "The threshold for is high, very pervasive' state. H 1122, and cts 2007 U.S. s, 675 437 demonstrating LLC v. Steel F.2d 587, Prods. (3d more Cir. than 1987) mere 589 with minimum the (W.O. v. r. 1982); to higher Supp.2d 268, 274 (M.D. Pa. 2000) BBI 05 & Provident 819 F.2d 434, significantly threshold physical Produce No. Marshall establish approximate v. show forum 12, 2007), see also contacts this CA Ess, & Loan Ass'n and the Inc., Watson, must Co. 'extens Pa. Mar. plaintiff which Sons William *5 at jurisdiction with Componentart, Sav. short, forum of connections (3d (" [T]he In jurisdiction.") contacts showing Co. Bank v. California Fed. Na ' a Oist. LEXIS 18333, quoting Reliance establishing general requires Componentone, 466 U.S. Inc. general demands presence. 123 F. (internal quotation omitted.) Although Plaintiff argues that Wheeling is subject to both general and specific jurisdiction, 9 it is r from her complaint that patronizing her injuries Defendant's West were incurred Virginia while business, and she was did not arise out of Wheeling's alleged contacts with Pennsylvania. must therefore establish that Wheeling jurisdiction in the Commonwealth. 20398 at *4 (where injuries is subject to She general Spuglio, 2009 U.S. App. LEXIS occurred at Cabaret Lounge in Massachusetts, they did not arise out of the defendant's alleged contacts with Pennsylvania and the plaintiff had to establish that the defendant was subject to general jurisdiction.) As noted above, alleging exercise reasonable defendant under the law of this Circuit, jurisdiction of "presents personal the forum prima jurisdiction state." facie by sufficient particularity and a a plaintiff case establishing contacts Farino, 960 only evidence; be satisfied through sworn af F.2d at 735 F.2d at 67, n.9 with the 1223 This burden davits or reliance on the bare pleadings is not enough. Share Vacation Club, the between (citation and internal quotation marks omitted). can for other Time ("at no point may a plaintiff rely on the bare pleadings alone in order to withstand a defendant's rule 12 (b) (2) personam jurisdiction.") a motion Here, Ms. idavits or evidence. 10 to dismiss for lack of in Junge has provided no such General Jurisdiction B. In general order jurisdiction either (1) foreign be corporation its Cons. general Stat. a court over a (3) in Pennsylvania the exercise corporation must or Commonwealth; § within to jurisdiction licensed to do licensed as consent (2 ) Junge Commonwealth." Wheeling and is as a foreign no evidence business Ms. this 5301 (a) (2). consented Pennsylvania. in the to a to carryon a "continuous and systematic part business Ann. Pennsylvania corporation, incorporated jurisdiction; or of for offers neither 42 Pa. clearly not incorporated nor has corporation to refute these s. As Plaintiff points have identi Pennsylvania considered defendant's when out, ed determining contacts courts consider if t is incorporated Pennsylvania; with ral courts sitting a number of factors the extent and strength the Commonwealth. In to of or licensed to do business in has ever filed tax returns with the Commonwealth; files administrative agency or department; reports regularly purchases Pennsylvania for use state; products or supplies in its business outside 11 with any be a particular, defendant: in in Pennsylvania within of the owns land or property within the state; advertises in Pennsylvania; and/or mainta (Reply to Reply," *10-*11 LEXIS v. 5, Motion to citing Gaylord v. Ctr., Inc., CA No. *12 (W.O. Charles Town Gaming, LLC, Ms. Doc. No.5, Sheraton Ocean City 93-0463, 759 F.Supp. Captive Media, 38410, 94381, * Dismiss, 1993 U.S. Dist. "Plf.' s Resort LEXIS & 5024, (E.D. Pa. Apr. 16, 1993) ; see also Wims v. Beach Terrace Motor Inn, Inc. Defendant's at Conference an agent in Pennsylvania. Inc., Pa. 264, 269 CA No. May CA No. 9, (E.D. Pa. 07-1462, 2008) ; 07-2352, 1991); ClubCom, 2008 and U.S. Davis 2007 U.S. v. Dist. PNGI Dist. LEXIS *7 (E.D. Pa. Dec. 28, 2007). Junge argues that Wheeling's systematic and continuous contacts with Pennsylvania are demonstrated through: its extensi ve advertising on radio, billboards, newspapers, magazines and wi thin the Commonwealth directed at citizens; directly marketing through to Pennsylvania citizens; promotions television, other media Pennsylvania and incentives the fact that Wheeling employs "a substantial number" of individuals who 1 in Pennsylvania; a contract with a claims administrative office located in Greensburg, Pennsylvania; and 12 "engaging in affairs u with a collective bargaining organization, the United Food and Commercial Wor rs Local 23, located in Canonsburg, Pennsylvania. (Plf.'s Reply at 6.) In its memorandum of law dismiss for lack of personal Memo U af davit ), in support jurisdiction of the (Doc. No.4, Wheeling presents the following facts, of Daniel Hancock, rector of motion to "Def.' s supported by an Compliance at the Wheeling Island Hotel-Casino-Racetrack: Wheeling Island Gaming is incorporated in the State of Delaware with a corporate address in Buffalo, New York, and is licensed to do business and actually does business in Wheel g, West Virginia. Wheeling does not conduct any business in Pennsylvania; has never had offices or operations in the Commonwealth; does not have employees working in Pennsylvania; does not own real or personal property in Pennsylvania; and has never availed itself of the jurisdiction of the courts of t Commonwealth. in some advertising in Wheeling does engage employees who live in Pennsylvania; has some claims administrator in Pennsylvania; uses a Greensburg, Pennsylvania; and deals with a collective located in Canonsburg, bargaining organization Pennsylvania. (Def.'s Memo at 3-4; see also Exhibit B thereto.) We conclude that the contacts between Wheeling Pennsylvania are insufficient to establ ish general over Beginning it. engages in extensive with Plaintiff's advertising 13 claims directed at and j ur isdiction that Wheeling Pennsylvania tizens and incenti ves, held directly markets "courts in this that advertisements to them through promotions and judicial district have cons istently and solicitations. .are not, by themselves, substantial enough to meet the high standard for the exercise general personal jurisdiction. u Feldman v. Park Place, Inc., Oist. *11 *12 relied (E.O. upon CA No. Pa. by June CA No. 1982), (Pa. 2006) for in 2006 U.S. (listing the opposite both Garfield v. the 1982 U.S. defendants than in advertised weekly in Oist. had this a LEXIS case. In The conclusion cases can Homowack Lodge, be 378 Sea World of Ohio, 13754 engaged LEXIS 37172, cases.) Super. Ct. 1977), and Busch v. 82-0339, advertising 7, Plaintiff distinguished because A.2d 351 05-5345, Bally's (W.O. in June 7, more targeted the defendant Garfield, Philadelphia newspaper Pa. for five years, maintained a toll-free number for Philadelphia area residents to make reservations at Homowack Lodge, travel Gar agents eld, id. a referral at advertising on advertising on newspapers, local 353. the fee In Busch, Pittsburgh, grocery filling for store 14 recommending the shopping the defendant Pennsylvania, station radio and television advertising. and paid Philadelphia area bags promotions, resort. focused market and and Busch, id. at *4-*6. its through coupons, extensive Here, aintiff relies primarily on a filing Wheeling submitted to the Securities and Exchange Commission for fiscal year 2006, which states that Defendant target[s] markets within a 150-mi radius around Wheeling. .including the local regional area and the maj or cities of Cleveland, Akron, Canton, Youngstown and Columbus, Ohio and Washington and Pittsburgh Pennsylvania. Advertising ini tiati ves have been focused on generating awareness and inducing product trials for new customers and the existing player database. (Plf.'s Reply at 6.) Plaintiff also points out that Wheeling million on marketing and advertising programs 7), but there is no evidence what spent some in 2004 percentage of directed to the Pennsylvania market. As another dist in an this business Circuit campaign has pointed which out, aims to sell advertising a (id. this at was ct court or particular $6.6 other product, whether it is a tangible item or a service, "cannot be deemed to be purposefully Pennsylvania directed residents at respond Pennsylvania to that even campaign." Health Care AB v. Dumex Med. Surgical Prods. Ltd., 448, 452 (E.D. Pa. 1999), ci g Gehling v. if some Molnlycke 64 F. Supp.2d St. George's School of Medicine, Ltd., 773 F.2d 529, 542 (3d Cir. 1985). Moreover, advertising in of the 2004, $6.6 million $5.2 million 15 was spent for directed marketing to and promotional programs, including rewards for members of Wheeling's Preferred Players' Club. (Plf.'s Reply at 6-7.) Again, there is no evidence as to the number of club members who are Pennsylvania residents, but Pennsylvania, of a even if a substantial number were from courts are reluctant to find that the percentage defendant's total business represented by Pennsylvania contacts is relevant to the question of jurisdiction. Nat'l. Bank, 819 F.2d at 437 438; see also Wims, Provident 759 F. Supp. at (the fact that "a substantial number u of the defendant's 269-270 guests were Pennsylvania residents did not establish substant 1 and continuous contacts with Pennsylvania), and Davis, 2007 U.S. st. LEXIS program 94381 customers at *10 were (the from fact that Pennsylvania 14-17% and/or of loya "spent y large amounts of moneyU in the casino was irrelevant to the issue of general personal jurisdiction over the defendant.) Similarly, Defendant's we find employees the are some residents jurisdiction. actions taken by the defendant individually. See third person is a court is number irrelevant In evaluating whether only 408 at 417 exists, unknown may 466 U. S. jurisdiction that Pennsylvania to the question of general personal fact consi r the ("Unilateral activity of another party or a not an appropriate consideration when determining whether a defendant has sufficient contacts with a 16 forum state to justify an assertion of jurisdiction.") where its employees Defendant. In live addition, employees act as is not there a no determined evidence by that those in the Commonwealth, e.g., 1S Defendant's agents matter Surely, soliciting business, promoting the goods and services of red by Defendant, or otherwise acting on Wheeling's behalf. Defendant concedes that it does have business relationships with claims a Pennsylvania, management and a company service located workers union in Greensburg, headquartered in Canonsburg, Pennsylvania. It is well established that contracts between defendant businesses a insufficient, See standing Helicopteros, corporations plaintiff, joint and to to vent ure 466 alone, U.S. purchase purchase were to at 80% in the confer general 409-410 of the helicopter to with helicopters and to are jurisdiction. (contracts parts, insufficient jurisdiction used by enter establish Texas the into a jurisdiction because actions taken under these contracts did not rise to the level of systematic and continuous contact with Texas); l'1ellon N.A. Bank F.2d 551, 557 (3d Cir. 1993) v. DiVeronica see also Bros. 983 ("[c]ontracting with a resident of the forum state does not alone justify the exercise of personal jurisdiction over a CA No. 06-698, non-resident 2007 u.s. Dist. defendant"); LEXIS 83835 17 Romah v. (W.D. Pa. Scully, Nov. 13, 2007) ("the mere existence of a contract, not confer general ju sdiction Nationwide Contr. Audit Servo 622 F. Supp.2d 276, 286 over a defendant") Nat'l Compliance Mgmt. V. (W.D. standing alone, Pa. 2008) (where the failed to present evidence regarding the formation, does and i Servs., plaintiff duration or other facts related to four contracts between the defendant and Pennsylvania companies, the court was not persuaded that the defendant should be subject to general jurisdiction.) In sum, substantial we and find that Wheeling does not have continuous contacts with this sufficient forum for the Court to exercise personal jurisdiction over it. V. TRANSFER "Whenever a c court finds that I there action is filed in a court. is a want of .and that jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time 1631; see also Gehling, 773 F.2d was at led." 544 28 U.S.C. (conclusion § that district court did not have jurisdiction over the defendant did not prevent the court from transferring case to the venue in which it could have originally been brought.) of the forum and Neither rties has requested such a transfer, but we conclude it is within our discretion to do so even in the absence of such a 18 request. Chicosky See F.Supp. 316, 28 U. S. C. § 320 323 v. Medical Center, 979 (D. N.J. 1997), holding that transfer under 1631 is proper even if the parties did not invoke that provision. In this case, the interests of justice are better served by transferring Virginia this where action the to inj ury dismissing it outright. the Northern Ms. Junge to occurred Moreover, serve because need for interests Ms. Junge of to of West rather than Personal jurisdiction over Wheeling and venue are proper in that court. the District justice incur additional such a trans it will filing r will eliminate costs the and will avoid any statute of limitations problems that could arise from an outright dismissal at this point. Simon, trans 319 F. Supp.2d 499, 507 See Lawman Armor Corp. (E.D. Pa. v. ("Normally 2004) r will be in the interest of justice because dismissal of an action that could be brought elsewhere is time-consuming and nally, justice-defeating.") we express no opinion on Wheeling's argument that the case should be dismissed for lack of subj ect matter jurisdiction, does 1332, not meet the believing i. e., statutory minimum that decision Virginia court. 19 is the amount in controversy required better Ie by 28 to U. S. C. the § West An appropriate Order follows . November .J , 2010 William L. Standish United States District Judge 20
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