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PEEK v. GOLDEN NUGGET HOTEL & CASINO

November 6, 1992

BARBARA PEEK
v.
GOLDEN NUGGET HOTEL AND CASINO; GOLDEN NUGGET RISK MANAGEMENT CORPORATION



The opinion of the court was delivered by: BY THE COURT; HARVEY BARTLE, III

 Bartle, J.

 Plaintiff, Barbara Peek ("Peek"), has brought this action based on diversity of citizenship against both GNLV Corporation doing business as Golden Nugget Hotel and Casino ("GNLV") and the Golden Nugget Risk Management Corporation ("GNRM"). Plaintiff, a citizen of Pennsylvania, seeks damages for injuries that she allegedly sustained as the result of a "slip and fall" on the defendants' property in Reno, Nevada. Defendants have moved to dismiss plaintiff's complaint, pursuant to Rule 12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure, because of a lack of personal jurisdiction and improper venue. *fn1" GNLV also seeks dismissal under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

 Once a defense challenging personal jurisdiction has been raised, the plaintiff bears the burden of proving by a preponderance of the evidence, by way of affidavits or otherwise, that the defendant did have sufficient forum contacts for the court to exercise personal jurisdiction. Mellon Bank (East) PSFS, National Association v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992); Carteret Savings Bank v. Shushan, 954 F.2d 141, 146 (3d Cir.), cert. denied, 121 L. Ed. 2d 29, 61 U.S.L.W. 3256, 1992 WL 104769, 113 S. Ct. 61 (U.S., Oct. 5, 1992).

 Rule 4(e) of the Federal Rules of Civil Procedure authorizes a federal district court to exercise personal jurisdiction over non-resident defendants like GNLV and GNRM to the "extent permissible under the law of the state where the district court sits." Mellon Bank, 960 F.2d at 1221. Accord North Penn Gas v. Corning Natural Gas, 897 F.2d 687, 689 (3d Cir.) (per curiam), cert. denied, 112 L. Ed. 2d 101, U.S. , 111 S. Ct. 133 (1990). The reach of state law, of course, must not extend beyond what Due Process allows. Van Buskirk v. Carey Canadian Mines Ltd., 760 F.2d 481, 489-90 (3d Cir. 1985); Wims v. Beach Terrace Motor Inn, Inc., 759 F. Supp. 264, 265 (E.D. Pa. 1991). Under the Due Process Clause of the Constitution, a state may exercise personal jurisdiction over a non-resident defendant if its minimum contacts with a forum are "such that the maintenance of [a] suit [there] does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945) (quotation omitted).

 Under Pennsylvania's long-arm statutes there are two potential bases for the exercise of personal jurisdiction over a non-resident corporate defendant. First, a court may exercise personal jurisdiction over a corporation to the extent that the cause of action arises out of the corporation's transaction of business within Pennsylvania. 42 Pa. Cons. Stat. Ann. § 5322 (Supp. 1992). *fn2" See also Mellon Bank, 960 F.2d at 1221; North Penn Gas, 897 F.2d at 690.

 General jurisdiction under 42 Pa. Cons. Stat. Ann. § 5301, on the other hand, is grounded on the defendant's general activity within Pennsylvania. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.9, 104 S. Ct. 1868, 1872, 80 L. Ed. 2d 404 n.9 (1984); Gehling v. St. George's School of Medicine, 773 F.2d 539, 541 (3d Cir. 1985). Personal jurisdiction may exist over a non-resident corporate defendant if that corporation carries on a "continuous or systematic part of its general business within this Commonwealth." 42 Pa. Cons. Stat. Ann. § 5301(a)(2)(iii). While only one forum related contact may be sufficient to exercise specific personal jurisdiction under § 5322, substantially more contacts with the forum are required before a court properly may exercise general personal jurisdiction. See also Reliance Steel Products Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir. 1982). If general personal jurisdiction exists as a result of the defendant's activities in a forum, there is jurisdiction over that defendant regardless of whether the claim for relief has any relation to the forum. Mellon Bank, 960 F.2d at 1221.

 The Pennsylvania long-arm statute under § 5322 specifically provides for the exercise of personal jurisdiction over a corporate non-resident defendant "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) (Supp. 1992). The courts have held that the reach of both Pennsylvania long-arm statutes is "co-extensive" with the Due Process Clause of the Fourteenth Amendment. Mellon Bank, 960 F.2d at 1221; North Penn Gas, 897 F.2d at 690, Van Buskirk, 760 F.2d at 490. See also Narco Avionics, Inc. v. Sportsman's Market, Inc., 792 F. Supp. 398, 403 (W.D. Pa. 1992); Wims, 759 F. Supp. at 266.

 Plaintiff has not demonstrated sufficient forum contacts on the part of either GNLV or GNRM which would permit this Court to exercise either specific or general jurisdiction. Plaintiff has not provided this Court with any affidavits, or other evidence which proves its assertion that the defendants "benefitted from long and continuous campaigns of advertising, travel industry promotions and, ongoing block room sales agreements through which a significant percentage of their business comes[sic] from Pennsylvania travelers." (Plaintiff's Memorandum of Law Opposing Defendants' Motion to Dismiss at page 5). The only two exhibits provided by plaintiff are not supported by affidavit and are of unknown origin. They are a brochure of the Golden Nugget Hotel and Casino and a promotional brochure from Liberty Travel/American Airlines which contains a description of six Las Vegas hotels, including the Golden Nugget Hotel.

 Under the circumstances, this Court will not presume that the brochures provided by plaintiff were produced by the defendants or that the defendants purposely distributed them or made them available throughout Pennsylvania. It thus cannot conclude that plaintiff met her burden of establishing that the defendants had sufficient forum related contacts so as to permit the Court to exercise personal jurisdiction over the defendants. References in a brief, unsupported by affidavit, are not properly before the Court as 'facts' evidencing contact for jurisdictional purposes. Alston and Guinn v. Solomon, 754 F. Supp. 46, 48 n.1 (E.D. Pa. 1990). See also Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 67 (3d Cir. 1984).

 The defendants themselves, in affidavits accompanying their motions to dismiss, have provided the only competent evidence before this Court relating to the defendants' contacts with Pennsylvania.

 The uncontested affidavit submitted on behalf of defendant GNRM, Corp. states: (1) GNRM is a Nevada corporation; (2) GNRM does not, and did not at the time of injury, own any real or personal property in Pennsylvania; (3) GNRM did not lease or maintain any office, residence or place of business in Pennsylvania, either currently or at the time of the injury; (4) GNRM has never filed for incorporation in Pennsylvania; (5) GNRM has not designated a person in Pennsylvania to receive service of process; (6) GNRM never owned stock, of any kind, in Pennsylvania; (7) GNRM has never paid any income or real property taxes in Pennsylvania; (8) GNRM has not consented to the jurisdiction of Pennsylvania; (9) GNRM has never conducted any business within the State of Pennsylvania; and (10) GNRM conducts no general public advertising, and only services the wholly-owned subsidiaries of Mirage Resorts, Inc. (Affidavit of Carolyn Ellsworth, Vice President and General Counsel of Golden Nugget Risk Management (GNRM) Corp.).

 The uncontested affidavits submitted on behalf of defendant GNLV, Corp. d/b/a Golden Nugget Hotel and Casino, contain the following facts: (1) GNLV does not own or operate any hotels or casinos in Pennsylvania; (2) GNLV has never owned any real or personal property in Pennsylvania; (3) GNLV does not lease or maintain any office, residence or place of business in Pennsylvania; (4) GNLV has never filed for incorporation in Pennsylvania; (5) GNLV has never designated an individual for service of process in Pennsylvania; (6) GNLV has never owned stock, of any kind, in Pennsylvania; (7) GNLV has never paid income or real property taxes in Pennsylvania; (8) GNLV has never conducted any business in Pennsylvania; (9) GNLV has never advertised, via newspaper, radio, television, or billboard in the State of Pennsylvania; (10) GNLV has not consented to the jurisdiction of Pennsylvania; (11) although pre-printed brochures may be available from some travel agents in Pennsylvania, these brochures are either obtained by the travel agents themselves at travel conventions or through the agents' direct solicitation of GNLV; (12) less than 2% of GNLV's hotel guests reside in the New Jersey, New York, Pennsylvania tri-state region; and (13) GNLV does not derive a significant portion of its total revenues from Pennsylvania residents. (Affidavit of Joanne Beckett, General Counsel for GNLV, Corp. (1-10) and Affidavit of Bill LaMacchia, Director of Hotel Sales and Marketing for GNLV, Corp. (11-13)).

 Based on the foregoing, as well as the allegation that plaintiff's personal injuries occurred in Nevada, this Court finds that the plaintiff's claim for relief did not arise out of the defendants' contacts with Pennsylvania, the forum state. When a plaintiff brings an action for personal injuries suffered in another state, as a result of the defendant's negligent activities within that state, courts have concluded that "the cause of action does not arise from the defendant's forum contacts for the purposes of asserting ...


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