ANTHONY DELGATTO v. THE GREENBRIER SPORTING CLUB

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2269-17T3

ANTHONY DELGATTO and
THERESA DELGATTO, his wife,

          Plaintiffs-Appellants,

v.

THE GREENBRIER SPORTING
CLUB, d/b/a THE GREENBRIER,

          Defendant-Respondent,

and

PGA TOUR, INC., d/b/a PGA TOURS,

     Defendant.
______________________________

                    Submitted January 16, 2019 – Decided February 6, 2019

                    Before Judges Koblitz and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. L-10261-15.

                    Sekas Law Group, LLC, attorneys for appellants
                    (Nicholas G. Sekas and Louis M. Gerbino, on the
                    briefs).
             Kaufman Borgeest & Ryan, LLP, attorneys for
             respondent (John J. Leo III, on the brief).

PER CURIAM

      Plaintiffs Anthony Delgatto and Theresa Delgatto appeal from a May 9,

2017 order dismissing their complaint against defendant Greenbrier Sporting

Club d/b/a The Greenbrier (Greenbrier) for lack of jurisdiction. In addition,

plaintiffs appeal from an August 2, 2017 order denying their motion for

reconsideration. 1 We affirm.

      Plaintiffs learned of Greenbrier's golf course and hotel, located in West

Virginia, while watching the Golf Channel.2 Plaintiffs also saw advertisements

for Greenbrier during golf events broadcast on national network television

stations, and in nationally circulated golf magazines.       Greenbrier does not

advertise on local New Jersey television stations or in local New Jersey

magazines.

      Friends who had stayed at Greenbrier suggested plaintiffs would enjoy the

resort and its amenities. Theresa Delgatto visited Greenbrier's website to obtain


1
  On appeal, plaintiffs fail to address the denial of their reconsideration motion.
Issues not briefed on appeal are deemed waived. Gormley v. Wood-El,  218 N.J. 72, 95 n.8 (2014).
2
   The Golf Channel is a national cable television channel broadcasting golf
related programming throughout the country.
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hotel information. She then contacted American Express Travel Services to

reserve a room at Greenbrier. Plaintiffs made dinner arrangements through

Greenbrier's website and telephoned Greenbrier's golf course to schedule tee-

times.

         While staying at Greenbrier in September 2014, Anthony Delgatto slipped

and fell on the golf course, suffering significant injuries. He was treated for his

injuries in New Jersey and New York City.

         Plaintiffs filed personal injury and per quod claims against Greenbrier in

November 2015. Greenbrier filed an answer and asserted affirmative defenses,

including lack of jurisdiction.

         In 2016, Greenbrier filed a motion to dismiss based on lack of jurisdiction.

Plaintiffs opposed the motion and filed a cross-motion seeking jurisdictional

discovery.      The court denied Greenbrier's motion to dismiss and granted

plaintiffs' motion to compel discovery on the issue of jurisdiction. Jurisdictional

discovery was to be completed by the end of June 2016. However, the parties

agreed to extend the time for discovery to August 5, 2016. Greenbrier did not

produce discovery until December 7, 2016.3            By that date, the statute of



3
  Greenbrier was unable to provide discovery earlier due to a significant flood
event at its property.
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limitations for filing a personal injury action in West Virginia expired. See W.

Va. Code. § 55-2-12(b).

      In its discovery responses, Greenbrier asserted it had no direct

advertisements on any New Jersey television stations or in any New Jersey

magazines. Greenbrier stated its advertisements were limited to nationally

televised media sources, national golf magazines, and social media pages.

Greenbrier claimed its only direct contact with New Jersey was through letters

and e-mails sent to New Jersey residents who previously stayed at Greenbrier.

In January 2017, Greenbrier renewed its motion to dismiss for lack of

jurisdiction.

      On May 9, 2017, the trial court granted Greenbrier's motion to dismiss

based on lack of jurisdiction. The judge found Greenbrier did not target any

activities directed to plaintiffs in New Jersey.    Greenbrier's television and

magazine advertising was disseminated nationally. Any mailing by Greenbrier

to New Jersey residents was sent only to individuals who previously stayed at

the hotel.      Plaintiffs admitted they never received a direct mailing from

Greenbrier.

      The judge found Greenbrier's discovery delay did not support a finding

that New Jersey had jurisdiction over plaintiffs' claims arising from an accident


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in West Virginia. Absent a provision for tolling the statute of limitations in

West Virginia, the judge acknowledged "plaintiffs may be without a cause of

action." The judge suggested plaintiffs raise Greenbrier's discovery delay to a

court in West Virginia as a basis for tolling that state's statute of limitations.

      In their May 26, 2017 motion for reconsideration, plaintiffs argued

general jurisdiction, rather than specific jurisdiction, permitted their claims

against Greenbrier in New Jersey. Even with the change in plaintiffs' legal

position, the judge concluded general jurisdiction required systematic and

continuous activity in New Jersey and such activity was not shown by plaintiffs.

Plaintiffs' counsel conceded he did not "have a general jurisdiction argument . . .

for the [c]ourt."

      On reconsideration, the judge asked plaintiffs to identify outstanding

discovery needed to proceed with a specific jurisdiction claim against

Greenbrier. Plaintiffs were unable to articulate additional discovery necessary

to support specific jurisdiction in this case.

      In denying reconsideration, the judge emphasized plaintiffs were aware

how they came to reserve a room at Greenbrier and no additional discovery from

Greenbrier was needed. The judge repeated her inquiry, asking what discovery

"would [have] help[ed] [plaintiffs'] arguments on specific jurisdiction because


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[plaintiffs' counsel] conceded that you don't have general jurisdiction."

Plaintiffs remained unable to identify such discovery.

      On appeal, plaintiffs argue the trial court erred because: (1) the judge

ignored Greenbrier's "copious . . . connections" to New Jersey; (2) the judge

dismissed the case prior to developing a complete record; and (3) the judge

failed to consider that dismissal of plaintiffs' complaint foreclosed any

opportunity to pursue a cause of action in another forum.

      When considering a motion to dismiss a complaint based on lack of

jurisdiction, reviewing courts "examine[] whether the trial court's factual

findings are 'supported by substantial, credible evidence' in the record." Patel

v. Karnavati Am., LLC,  437 N.J. Super. 415, 423 (App. Div. 2014) (quoting

Mastondrea v. Occidental Hotels Mgmt., S.A.,  391 N.J. Super. 261, 268 (App.

Div. 2007)). Whether the facts support the exercise of jurisdiction is a question

of law and is reviewed de novo. Mastondrea,  391 N.J. Super. at 268. A plaintiff

bears the burden to prove jurisdiction. Dutch Run–Mays Draft, LLC v. Wolf

Block, LLP,  450 N.J. Super. 590, 598 (App. Div. 2017), certif. denied,  231 N.J.
 176 (2017).

      A defendant "must have sufficient contact with the forum state 'to make

it reasonable and just, according to our traditional conception of fair play and


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substantial justice,'" to exercise jurisdiction. Rippon v. Smigel,  449 N.J. Super.
 344, 360 (App. Div. 2017) (quoting Int'l Shoe Co. v. Washington,  326 U.S. 310,

320 (1945)). Jurisdiction over a nonresident defendant exists in two forms:

specific and general. Jacobs v. Walt Disney World, Co.,  309 N.J. Super. 443,

452 (App. Div. 1998). Here, plaintiffs failed to establish either specific or

general jurisdiction to proceed with their claims against Greenbrier in New

Jersey.

      New Jersey may exercise specific jurisdiction "over a defendant who has

'minimum contacts' with the state" when "the cause of action arises directly out

of a defendant's contacts with [New Jersey]." Rippon,  449 N.J. Super. at 359

(quoting Lebel v. Everglades Marina, Inc.,  115 N.J. 317, 323 (1989)).

Minimum contacts "focus on 'the relationship among the defendant, the forum,

and the litigation.'" Lebel,  115 N.J. at 323 (quoting Shaffer v. Heitner,  433 U.S. 186, 204 (1977)). "[M]inimum contacts" are "satisfied so long as the contacts

resulted from the defendant's purposeful conduct and not the unilateral activities

of the plaintiff." Ibid. (quoting World-Wide Volkswagen Corp. v. Woodson,

 444 U.S. 286, 297–98 (1980)).

      "[W]hen 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


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privilege of conducting activities within [New Jersey], 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. Inc. v. Admiral Ins.

Co.,  138 N.J. 106, 120 (1994)). The defendant must "purposefully avail[] itself

of the privilege of conducting activities" in New Jersey such that the defendant

can reasonably anticipate being sued in this State. Dutch Run,  450 N.J. Super.

at 599 (quoting Burger King Corp. v. Rudzewicz,  471 U.S. 462, 475 (1985)).

      Here, Greenbrier did not specifically target plaintiffs.        Greenbrier

advertised only on national television and in national magazines. Greenbrier

did not solicit New Jersey residents through local golf clubs or other local golf

organizations. The solicitations and e-mails sent by Greenbrier to New Jersey

residents were directed to those individuals who previously stayed at the hotel.

Greenbrier never sent e-mails or other solicitations to plaintiffs.

      Nor was logging onto Greenbrier's website sufficient to confer

jurisdiction. See Lebel,  115 N.J. at 323. Plaintiffs did not reserve a hotel room

through Greenbrier's website. Thus, Greenbrier did not "purposefully avail[]

itself of the privilege of conducting activities" in New Jersey to reasonably

anticipate being sued in this State.




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      Plaintiffs were also unable to establish general jurisdiction to proceed

against Greenbrier in New Jersey. Under general jurisdiction, a defendant may

be sued for "virtually any claim, even if unrelated to the defendant's contacts

with the forum" provided "the defendant's activities in [New Jersey] can be

characterized as 'continuous and systematic' contacts." Lebel,  115 N.J. at 323

(quoting Helicopteros Nacionales de Colombia, S.A. v. Hall,  466 U.S. 408, 416

(1984)).

      For general jurisdiction to be applicable, a defendant's activities must be

"so 'continuous and systematic' as to render [it] essentially at home in the forum

State." FDASmart, Inc. v. Dishman Pharm. and Chems. Ltd.,  448 N.J. Super.
 195, 202 (App. Div. 2016) (alteration in original) (quoting Daimler AG v.

Bauman,  571 U.S. 117, 128 (2014)). A defendant's "principal place of business

and place of incorporation" generally indicates where that defendant is "at

home" and thus subject to general jurisdiction. Ibid. Establishing general

jurisdiction requires "extensive contacts between a defendant and a forum." Id.

at 202–03 (quoting Mische v. Bracey's Supermarket,  420 N.J. Super. 487, 492

(App. Div. 2011)).

      In this case, Greenbrier has little to no contact with New Jersey generally.

Greenbrier is incorporated in West Virginia. Greenbrier's facilities are located


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in West Virginia. The motion judge thoroughly analyzed plaintiffs' proffered

evidence and found Greenbrier lacked any systematic and continuous contacts

with New Jersey to establish general jurisdiction.

      We next consider plaintiffs' arguments that the judge erred by not allowing

further discovery to establish jurisdiction and Greenbrier's delay in providing

discovery caused them to suffer prejudice.           Despite being given ample

opportunity, plaintiffs failed to articulate additional discovery that might have

established jurisdiction to proceed with their claims against Greenbrier in New

Jersey. When a party asserts incomplete discovery as a defense to dismissal

based on lack of jurisdiction, the party "must establish that there is a likelihood

that further discovery would supply the necessary information" with "some

degree of particularity." J. Josephson, Inc. v. Crum & Forster Ins. Co.,  293 N.J.

Super. 170, 204 (App. Div. 1996).

      In its discovery responses, Greenbrier certified it did not have any

advertising agreements, contracts, partnerships, or targeted campaigns in New

Jersey. On reconsideration, plaintiffs were unable to explain how additional

discovery would establish jurisdiction over their claims in New Jersey.

      We next review plaintiffs' argument that the judge erred in dismissing the

action because they were left without a forum as a result of the expiration of the


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statute of limitations in West Virginia. While Greenbrier provided discovery

after the expiration of West Virginia's statute of limitations for a personal injury

action, nothing precluded plaintiffs from filing suit in West Virginia. Plaintiffs

were aware Greenbrier asserted lack of jurisdiction to pursue claims in New

Jersey based on Greenbrier's original motion to dismiss. Plaintiffs also knew

Greenbrier was likely to renew its motion after the exchange of court-ordered

jurisdictional discovery. Plaintiffs could have filed an action in West Virginia

because Greenbrier is incorporated in West Virginia, the accident occurred in

West Virginia, and West Virginia has similar tort remedies to New Jersey. See

W. Va. Code. § 55-2-12(b). The judge, while recognizing the unfortunate

situation resulting from dismissal of the New Jersey matter, properly conclude d

Greenbrier's delay in providing discovery did not confer jurisdiction in New

Jersey.

      Having reviewed the record, we are satisfied the judge's findings of fact

are supported by substantial and credible evidence. We are satisfied de novo

that those facts do not establish jurisdiction in New Jersey. The judge accorded

plaintiffs more than ample opportunity to establish New Jersey had either

general or specific jurisdiction to proceed with their claims against Greenbrier.

      Affirmed.


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