MICHELE COLLINS v. SANDALS RESORTS INTERNATIONAL
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0924-16T4
MICHELE COLLINS and KEVIN
COLLINS,
Plaintiffs-Appellants,
v.
SANDALS RESORTS INTERNATIONAL,
LTD; SANDALS RESORTS; and
BEACHES TURKS & CAICOS RESORT
& SPA,
Defendants-Respondents.
__________________________________
Submitted January 10, 2018 - Decided February 12, 2018
Before Judges Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-0722-
16.
Law Office of Barbosa Donovan, LLP, attorneys
for appellants (Maurice J. Donovan and Marilyn
K. Barbosa, of counsel and on the brief).
Fitzpatrick & Hunt, Pagano, Aubert, LLP,
attorneys for respondent Sandals Resorts
International, Ltd. (Ralph V. Pagano and Tara
E. Nicola, on the brief).
PER CURIAM
This personal injury action arose during plaintiffs'
Caribbean vacation when they allegedly became ill due to food
poisoning. We must decide whether the Due Process Clause of the
Fourteenth Amendment precludes the New Jersey Superior Court from
exercising jurisdiction over defendant Sandals Resorts
International, Ltd.1 The trial court dismissed plaintiffs'
Superior Court complaint for lack of personal jurisdiction.
Plaintiffs appealed. We conclude the trial court correctly
determined it did not have specific jurisdiction over defendants.
We also conclude the trial court incorrectly determined plaintiffs
had conceded the absence of general jurisdiction, but determine
plaintiffs' proofs nonetheless fell short of establishing a prima
facie case of general jurisdiction. We thus affirm the order that
dismissed the complaint for lack of jurisdiction.
Plaintiffs filed a complaint in January 2016, and amended the
complaint three months later. In the complaints, they alleged on
February 3, 2014, while vacationing at the Beaches resort in Turks
and Caicos, they dined at the "Soy at Beaches" restaurant where
they consumed contaminated food and became ill. The amended
1
Sandals Resorts International, Ltd., averred in its motion
pleadings that Sandals Resorts and Beaches Turks & Caicos Resort
& Spa are not legal entities. The parties appear to have accepted
that representation. For that reason, in this opinion we will
refer to Sandals Resorts International, Ltd. as "defendant."
2 A-0924-16T4
complaint included causes of action for negligence, strict
liability, and breach of warranty. Plaintiffs sought compensatory
and punitive damages.
Defendant responded by filing a motion to dismiss the amended
complaint for lack of personal jurisdiction. The trial court
granted the motion.
In support of the motion to dismiss, defendant submitted a
certification from its Director of Corporate Services. According
to the certification, defendant is a Jamaican corporation with its
headquarters and principal place of business in Montego Bay,
Jamaica. Defendant does not own property or have offices in New
Jersey, does not operate, control, or direct any entity in New
Jersey, and does not conduct business in New Jersey. The
certification also states defendant does not hold a license to do
business in New Jersey, has no affiliation with any entity that
can legally bind it in New Jersey, has no agents or employees in
New Jersey, and has no New Jersey mailing address or telephone
number. Defendant does not pay New Jersey taxes, does not maintain
a New Jersey bank account, and has never solicited business in New
Jersey or directed any advertising specifically at New Jersey.
Lastly, the certification asserts that all food served at the Soy
restaurant in Turks and Caicos is prepared and served in Turks and
Caicos.
3 A-0924-16T4
The Director of Corporate Services explained in the
certification defendant's parent company, a non-party, contracts
with Unique Travel Corp., another non-party, as its sole worldwide
marketing and reservations representative. Unique Travel Corp.
subcontracts its marketing and promotions services to non-party
Unique Vacations, Inc., a Delaware company. According to the
certification, Unique Vacations, Inc., does not target any
specific state with marketing or advertisements.
In response to defendant's motion to dismiss, plaintiffs'
counsel submitted a certification with exhibits, and plaintiff
Michele Collins submitted an affidavit. According to Michele
Collins's affidavit, she first visited a Sandals resort in St.
Lucia at an unspecified time after a travel agent from Liberty
Travel in Parsippany, New Jersey, recommended the resort. After
the initial visit, she saw advertisements for Sandals resorts in
newspapers and magazines, on television, on the internet, and on
billboards in New Jersey. She also received mailed advertisements
addressed to her home soliciting her to take another vacation to
a Sandals resort.
In response to those solicitations, plaintiffs booked a
family vacation for February 2013 at the Beaches resort in Turks
and Caicos through Sandals' website. During the February 2013
vacation, while still on the Beaches resort, Beaches personnel
4 A-0924-16T4
approached plaintiffs and offered a substantial discount if they
would book a vacation at the Turks and Caicos Beaches resort for
the following year. Before leaving the Beaches resort in 2013,
plaintiffs accepted the discount and booked a 2014 vacation to
Turks and Caicos.
Plaintiffs vacationed at the Beaches resort in Turks and
Caicos with their children from February 2, 2014, to February 9,
2014. According to the amended complaint, on February 3, 2014,
plaintiffs visited the "Soy at Beaches" restaurant on the resort
to eat dinner. Plaintiffs claim they ordered and consumed a meal
consisting of seafood, including sushi, which caused them to become
seriously ill because the food was allegedly spoiled, unwholesome,
contaminated, and not fit for human consumption. Plaintiffs allege
they became seriously ill within hours.
The trial court concluded it did not have specific
jurisdiction. The court determined the contacts between defendant
and New Jersey, as alleged by plaintiffs, were insufficient to
establish personal jurisdiction over defendant.
The trial court did not address the issue of general
jurisdiction. Rather, in its opinion, it stated: "Plaintiff
concedes defendant's contacts with New Jersey do not reach the
threshold for general jurisdiction." The court did not state when
or where plaintiffs made such concession.
5 A-0924-16T4
On appeal, plaintiffs first challenge the trial court's
decision concerning specific jurisdiction. They argue they
produced sufficient evidence to establish specific jurisdiction
over defendant and the trial court erred by finding to the
contrary. They assert the record did not support the trial court's
findings. Finally, they argue the trial court incorrectly applied
the law.
Plaintiffs also challenge the trial court's determination
concerning general jurisdiction. They assert the trial court
erroneously concluded they conceded general jurisdiction.2 They
argue the defendants have "continuous and substantial" contacts
with New Jersey for the purposes of establishing general
jurisdiction.
A challenge to a trial court's personal jurisdiction over a
party presents a mixed question of law and fact. For that reason,
a trial court must make findings of "jurisdictional facts . . .
in order for the jurisdictional decision to be made and hence
defendant's right to proceed determined." Citibank, N.A. v. Estate
of Simpson,
290 N.J. Super. 519, 531 (App. Div. 1996). Generally,
2
Plaintiffs also assert the trial court failed to consider other
issues, such as venue and the enforceability of a forum selection
clause. In view of our determination that the trial court did not
have personal jurisdiction over defendant, we need not address
these issues.
6 A-0924-16T4
disputed jurisdictional facts must be resolved at an evidentiary
hearing. Ibid.
"We review the [trial] court's factual findings with respect
to jurisdiction to determine whether they were supported by
substantial, credible evidence . . . ." Mastondrea v. Occidental
Hotels Mgmt. S.A.,
391 N.J. Super. 261, 268 (App. Div. 2007). Our
review of a trial court's legal conclusions concerning personal
jurisdiction is plenary. That is so because "[a] trial court's
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special deference."
Manalapan Realty, L.P. v. Twp. Comm.,
140 N.J. 366, 378 (1995)
(citations omitted); see also Rippon v. Smigel,
449 N.J. Super.
344, 358 (App. Div. 2017).
We begin our analysis of the case before us by noting "[a]
state court's assertion of jurisdiction exposes defendants to the
State's coercive power, and is therefore subject to review for
compatibility with the Fourteenth Amendment's Due Process Clause."
Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915,
918-19 (2011) (citing Int'l Shoe Co. v. Wash.,
326 U.S. 310, 316
(1945)). Thus "the general rule [is] that territorial presence
in the forum is the basic prerequisite for subjecting a defendant
to its in personam judgment." Estate of Simpson,
290 N.J. Super.
at 526. Absent "actual territorial presence, in personam
7 A-0924-16T4
jurisdiction may be predicated upon the defendant's contacts with
the forum provided they meet the standard of minimum contacts . .
. such that maintenance of the suit in the forum does not offend
'traditional notions of fair play and substantial justice.'" Ibid.
(quoting Int'l Shoe,
326 U.S. at 316).
In determining whether a defendant's contacts satisfy the
International Shoe standard and thus due process, a court must
consider whether it has either specific or general jurisdiction.
If a claim "is related to or arises out of the contacts in the
forum," then the forum state's court has specific jurisdiction.
Id. at 526-27. If a defendant "is subject to any claim that may
be brought against him in the forum state whether or not related
to or arising out of the contacts themselves," the forum state's
court has general jurisdiction. Ibid.
The burden is upon the plaintiffs "to allege or plead
sufficient facts with respect to jurisdiction." Blakey v. Cont'l
Airlines,
164 N.J. 38, 71 (2000). A "plaintiff must establish
defendant's contacts with the jurisdiction through the use of
'sworn affidavits, certifications, or testimony.'" Jacobs v. Walt
Disney World, Co.,
309 N.J. Super. 443, 454 (App. Div. 1998)
(quoting Catalano v. Lease & Rental Mgmt. Corp.,
252 N.J. Super.
545, 547-48 (Law Div. 1991)). "In the early stages of a proceeding
'where the factual record consists of only pleadings and
8 A-0924-16T4
affidavits, plaintiff's burden is satisfied by establishing a
prima facie case of jurisdiction.'" Ibid. (quoting Cresswell v.
Walt Disney Prod.,
677 F. Supp. 284, 286 (M.D. Pa. 1987)).
In the case before us, we first address — and reject —
plaintiffs' argument that the trial court had specific
jurisdiction over defendant. Specific jurisdiction is present
when the "cause of action arises directly out of a defendant's
contacts with the forum state." Waste Mgmt., Inc. v. Admiral Ins.
Co.,
138 N.J. 106, 119 (1994) (citation omitted). Whether "minimum
contacts" are present for the purposes of specific jurisdiction
depends upon "the relationship among the defendant, the forum, and
the litigation." Lebel v. Everglades Marina, Inc.,
115 N.J. 317,
323 (1989) (quoting Shaffer v. Heitner,
433 U.S. 186, 204 (1977)).
In order for a court to exercise specific jurisdiction over a
defendant, there must be "an 'affiliatio[n] between the forum and
the underlying controversy,' principally, activity or an
occurrence that takes place in the forum State and is therefore
subject to the State's regulation." Fairfax Fin. Holdings Ltd.
v. S.A.C. Capital Mgmt., L.L.C.,
450 N.J. Super. 1, 68 (App. Div.
2017) (alteration in original) (quoting Goodyear Dunlop Tires
Operations, S.A.,
564 U.S. at 919) (quoting Arthur T. Von Mehren
& Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested
Analysis,
79 Harv. L. Rev., 1121, 1136 (1996))).
9 A-0924-16T4
Stated differently, "when the defendant is not present in the
forum state, 'it is essential that there be some act by which the
defendant purposefully avails [itself] of the privilege of
conducting activities within the forum state, thus invoking the
benefit and protection of its laws.'" Baanyan Software Servs.,
Inc. v. Kuncha,
433 N.J. Super. 466, 475 (App. Div. 2013) (quoting
Waste Mgmt.,
138 N.J. at 120 (quoting Hanson v. Denckla,
357 U.S. 235, 253 (1958)). It is "essential" the foreign corporation
"purposely avails" itself of the privilege of conducting
activities within the forum state, such that it will not be hauled
into court based upon "random, fortuitous, or attenuated contacts
or as a result of the unilateral activity of some other party."
Waste Mgmt.,
138 N.J. at 120-121 (citing Burger King Corp. v.
Rudzewicz,
471 U.S. 462, 475 (1985).
Here, plaintiffs' cause of action did not arise "directly out
of" defendant's contacts with New Jersey. The incident giving
rise to the cause of action occurred at the Beaches resort on
February 3, 2014, when plaintiffs consumed an allegedly tainted
meal at the Soy restaurant. All activities relating to the
preparation and service of food occurred at the Soy restaurant.
The facts in plaintiff Michele Collins's affidavit make clear
there was no "'affiliatio[n] between the forum and the underlying
controversy,' principally, activity or an occurrence that takes
10 A-0924-16T4
place in the forum State and is therefore subject to the State's
regulation." Fairfax Fin. Holdings Ltd.,
450 N.J. Super. at 68
(alteration in original) (quoting Goodyear Dunlop Tires
Operations, S.A.,
564 U.S. at 919 (quoting Mehren &
Trautman,
79 Harv. L. Rev. at 1136)).
Plaintiffs' arguments on appeal are premised upon a meeting
with a travel agent in New Jersey prior to their trip to St. Lucia,
which predated their 2013 and 2014 trips to Turks and Caicos, as
well as advertisements they saw prior to their 2013 trip.
Assuming these activities could somehow be imputed to defendant,
they do not establish specific jurisdiction. Plaintiffs' cause
of action arose out of conduct that occurred in Turks and Caicos
during the 2014 trip, which was solicited and booked in 2013 in
Turks and Caicos, not New Jersey. "[C]ontacts with a state's
citizens that take place outside the state are not purposeful
contacts with the state itself." O'Connor v. Sandy Lane Hotel
Co.,
496 F.3d 312, 317 (3d Cir. 2007) (citation omitted). Thus,
plaintiffs' 2014 injury does not arise "directly out of" any
alleged contacts that occurred between defendant and New Jersey
prior to the 2013 trip to Turks and Caicos. Waste Mgmt.,
138 N.J.
at 119. Plaintiffs did not allege nor plead sufficient facts to
establish specific jurisdiction, and the trial court did not err
by so finding.
11 A-0924-16T4
We turn to the question of general jurisdiction. Plaintiffs
argue the trial court erred when it asserted they conceded the
issue of general jurisdiction. They argue the defendants have
"continuous and substantial" contacts with New Jersey for the
purposes of establishing general jurisdiction. Plaintiffs'
purported concession does not appear in the record of oral
argument. The second point heading in plaintiffs' brief opposing
the dismissal motion asserts the trial court has general
jurisdiction over the defendants. Moreover, in support of their
jurisdictional claim, plaintiffs submitted a certification from
their attorney with sixteen exhibits purporting to demonstrate
general affiliations between the defendant and New Jersey. Lastly,
during oral argument, plaintiffs' counsel argued defendants have
"general contacts which are ongoing and numerous and certainly
substantial," which suggests plaintiffs believed they had
established a prima facie case of general jurisdiction.
Assuming the trial court erred in its statement concerning
plaintiffs' concession, we nonetheless conclude the order
dismissing plaintiffs' complaint was correct. "[W]e review orders
and not, strictly speaking, reasons that support them." El-Sioufi
v. St. Peter's Univ. Hosp.,
382 N.J. Super. 145, 169 (App. Div.
2005). Thus, "a correct result, even if predicated on an erroneous
basis in fact or in law, will not be overturned on appeal." Ibid.
12 A-0924-16T4
(citations omitted).
"A court may assert general jurisdiction over foreign
(sister-state or foreign-country) corporations to hear any and all
claims against them when their affiliations with the State are so
'continuous and systematic' as to render them essentially at home
in the forum State." Goodyear Dunlop Tires Operations, S.A.,
564 U.S. at 919 (citing Int'l Shoe,
326 U.S. at 317). Thus, "the
inquiry under Goodyear is not whether a foreign corporation’s in-
forum contacts can be said to be in some sense 'continuous and
systematic,' it is whether that corporation’s 'affiliations with
the State are so "continuous and systematic" as to render [it]
essentially at home in the forum State.'" Daimler AG v. Bauman,
571 U.S. ____,
134 S. Ct. 746, 761 (2014) (alteration in original)
(quoting Goodyear Dunlop Tires Operations, S.A.,
564 U.S. at 919).
The United States Supreme Court has explained "only a limited
set of affiliations with a forum will render a defendant amenable
to all-purpose jurisdiction there." Id. at 760. "With respect
to a corporation, the place of incorporation and principal place
of business are 'paradig[m] . . . bases for general jurisdiction.'"
Ibid. (alterations in original) (quoting Brilmayer, et al., A
General Look at General Jurisdiction,
66 Tex. L. Rev. 721, 735
(1988)). Although these paradigm bases for general jurisdiction
over corporations are not exclusive, to be subject to a forum's
13 A-0924-16T4
general jurisdiction a corporation must be "so heavily engaged in
activity in [the forum State] 'as to render [it] essentially at
home' in that State." BNSF Ry. v. Tyrrell, 581 U.S. ___,
137 S. Ct. 1549, 1559 (2017) (second alteration in original) (quoting
Daimler AG,
134 S. Ct. at 751).
The Supreme Court suggested Perkins v. Benguet Consol. Mining
Co.,
342 U.S. 437 (1952), "exemplified such a case." BNSF Ry.,
137 S. Ct. at 1558. In Perkins, the defendant was forced by war
to temporarily relocate its operations from the Philippines to
Ohio.
342 U.S. at 447-48. "Because Ohio then became 'the center
of the corporation’s wartime activities,' Daimler,
134 S. Ct. at
756, n.8, suit was proper there, Perkins,
342 U.S. at 448." BNSF
Ry.,
137 S. Ct. at 1558.
Here, plaintiffs argue defendant's alleged affiliation with
travel agents in New Jersey satisfies the general jurisdiction
standard. They also argue defendant solicits business in New
Jersey through general advertising. Plaintiffs support their
argument regarding travel agents with several pages printed from
the Sandals website, annexed to a certification of counsel. The
first webpage is an access portal for travel agents. The second
page provides an option for customers to "meet a certified Sandals
specialist travel agent" within the United States, including New
Jersey. The search result provided is a Liberty Travel agency in
14 A-0924-16T4
New Jersey. The website explains a certified Sandals travel agent
undergoes "extensive training through our education program" and
attends annual Sandals workshops. The third and fourth pages
reference "Sandals Resorts Home-Based Travel Agents," including
two such agents from New Jersey. The fifth page is a travel agent
search result on the "Beaches Resorts for Everyone by Sandals"
website, which again identifies "Beaches Specialists" in New
Jersey. The sixth page is largely illegible, and its origin is
not explained in the certification of counsel. The remaining
pages are taken from the websites of various New Jersey travel
companies that advertise themselves as Sandals or Beaches experts
or specialists based in New Jersey.
Plaintiffs support their argument regarding advertising
efforts through several exhibits. First, counsel for plaintiffs
annexed a page that references Beaches billboards, but he did not
explain where this page was obtained or how it is proof that such
billboards are located in New Jersey. The next exhibit is a
Sandals Barbados advertisement in the New York Times Magazine.
Counsel for plaintiffs certified he received the advertisement at
his home in New Jersey on July 2, 2016. The next exhibit is
alleged to be a brochure that references a Sandals resort, but it
is unauthenticated. Similarly, counsel attached what he described
as an advertisement for a painting studio offering a free trip to
15 A-0924-16T4
a Sandals resort, but did not authenticate the advertisement.
Finally, counsel for plaintiffs annexed two hearsay articles from
an internet news site. The first describes a travel agency in New
Jersey and its interactions with Sandals. The second describes a
New Jersey couple's interactions with a Sandals resort.
Assuming all plaintiffs' exhibits were properly submitted on
the motion record, see Rule 1:6-6, defendant's alleged contacts
with New Jersey do not rise to the level of establishing defendant
is "at home" in New Jersey. New Jersey is not defendant's place
of incorporation or principal place of business. Defendant does
not employ any individuals or agents in New Jersey and has no
physical location or mailing address in New Jersey.
In short, defendant's alleged advertising and affiliation
with travel agents, even if true, do not establish defendant is
"so heavily engaged in activity in [New Jersey] 'as to render [it]
essentially at home' in [this] State." BNSF Ry.,
137 S. Ct. at
1559 (second alteration in original) (quoting Daimler,
134 S. Ct.
at 751). The Superior Court did not have general jurisdiction
over defendant.
Plaintiffs next contend that aside from the issues of specific
and general jurisdiction, the trial court erred by omitting to
address their request for jurisdictional discovery. They insist
they are entitled to conduct limited discovery on the
16 A-0924-16T4
jurisdictional issues. Although the trial court did not address
the issue in its opinion, a remand on that issue is unnecessary.
Generally, a "plaintiff's right to conduct jurisdictional
discovery should be sustained" "if a plaintiff presents factual
allegations [suggesting] with reasonable particularity the
possible existence of the requisite contacts between [the party]
and the forum state." Rippon,
449 N.J. Super. at 359 (alterations
in original) (citation omitted). "[T]he record must support the
existence of disputed or conflicting facts to warrant
jurisdictional discovery." Ibid. (citing Reliance Nat'l Ins. Co.
In Liquidation v. Dana Transp.,
376 N.J. Super. 537, 551 (App.
Div. 2005)). That is not the case here.
As we have already discussed, plaintiff Michele Collins's own
affidavit makes clear the Superior Court does not have specific
jurisdiction over defendant. As to general jurisdiction,
accepting plaintiffs' proofs on the motion record as true,
plaintiffs have neither suggested with reasonable particularity
the possible existence of requisite contacts nor established a
dispute as to general jurisdictional facts. Ibid. For these
reasons, we reject plaintiffs' argument that they were entitled
to discovery on the jurisdictional issues.
Affirmed.
17 A-0924-16T4
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