The opinion of the court was delivered by: Anita B. Brody, United States District Judge
The defendants Treasure Cay Services, Inc. and Dolphin Encounters
Limited move to dismiss the plaintiff's claims and Liberty Travel, Inc.'s
cross claim in this negligence action for lack of personal jurisdiction,
improper venue, insufficiency of service of process, and failure to state
a claim upon which relief can be granted pursuant to rules 12(b)(2),
(3), (5), and (6) of the Federal Rules of Civil Procedure. Upon
consideration of the defendants' motion, the defendants' motion to
dismiss the plaintiff's amended complaint and the cross claim of Liberty
Travel, Inc. for lack of personal jurisdiction will be granted.
Consistent with the standards for deciding a motion to dismiss, the
following facts are interpreted in the light most favorable to the
plaintiff. The plaintiff, Nancy Glass Snyder, is a resident of Bryn Mawr,
Montgomery County, Pennsylvania. (Pl's Amended Complaint at ¶ 1).
Treasure Cay Services ("Treasure Cay") is a Florida corporation with its
principal place of business in Fort Lauderdale, Florida. Id. at ¶ 3.
Dolphin Encounters Limited ("Dolphin Encounters") is a Bahamian
corporation with its principal place of business in Nassau, Bahamas. Id.
at ¶ 2. Liberty Travel Inc. ("Liberty") is a New York corporation
with its principal places of business in Philadelphia, Pa. and Fort
Lauderdale, Fla. Id. at ¶ 4.
The plaintiff's husband booked a dolphin encounter by credit card,
using a "Dolphin Encounters, Ltd. Credit Card Authorization Form"
provided to him by Liberty, and which he returned to either Treasure Cay
or Dolphin Encounters. Id. The plaintiff alleges that Treasure Cay
receives the credit card authorization forms as the agent for Dolphin
Encounters and then pays Dolphin Encounters or deposits Dolphin
Encounters' revenues into a Florida bank account. Id.
On August 26, 2000, the plaintiff and her family participated in a
dolphin encounter at Dolphin Encounters on Blue Lagoon Island, Nassau,
Bahamas which was booked and paid for through Liberty and Treasure Cay.
(Am. Comp. at ¶ 17). Despite the alleged assurances of the employees
and agents of Treasure Cay and Dolphin Encounters, during the plaintiff's
dolphin encounter, a large dolphin landed on the plaintiff's head and
pushed her underwater against the force of her life preserver. Id. at
¶¶ 24-29. The dolphin trapped the plaintiff underwater for several
seconds. The plaintiff alleges that she suffered permanent partial
hearing loss in one ear and cervical injury as a result of her encounter
with the dolphin. Id. at ¶ 30.
The plaintiff originally filed this action in the Court of Common Pleas
of Philadelphia County against Liberty, Treasure Cay and Dolphin
Encounters. On March 12, 2001, the case was removed to this court.
Jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332.
On April 24, 2002, the plaintiff amended her complaint. On April 30,
2002, defendant Liberty answered the plaintiff's amended complaint and
asserted a cross claim against defendants Dolphin Encounters and Treasure
Cay.*fn1 On May 3, 2002, the defendants Dolphin Encounters and Treasure
Cay moved to dismiss the plaintiff's claims as well as Liberty's cross
claim for lack of personal jurisdiction, improper venue and insufficiency
of service of process, and failure to state a claim under which relief
can be granted under rules 12(b)(2), (3), (5), and (6) of the Federal
Rules of Civil Procedure.
The plaintiff's amended complaint alleges that at all relevant times
Dolphin Encounters, Liberty Travel, and/or Treasure Cay trained the
dolphins, advertised and promoted dolphin encounters, and exercised
control over the dolphin encounter. Id. at ¶¶ 24-32. The plaintiff
alleges numerous claims sounding in negligence. Id. More specifically,
the plaintiff claims, among other things, that the defendants had an
obligation and legal duty to: conduct the dolphin encounter in a safe
manner; warn the plaintiff of the risks and dangers of a dolphin
encounter; avoid misstating the facts and risks associated with a dolphin
encounter; train and supervise the participants and employees in their
interaction with the dolphins; and properly train, control, and supervise
the dolphins. Id.
On July 29, 2002 the court ordered the plaintiff to file a motion
in support of personal jurisdiction. On December 5, 2002 the court
held a hearing on the issue of personal jurisdiction.
The defendants Treasure Cay and Dolphin Encounters move to dismiss the
plaintiff's amended complaint and Liberty's cross claim on, among others,
the ground that the court lacks personal jurisdiction over them. The
plaintiff asserts that personal jurisdiction over the defendants is proper
on the basis of principles of general jurisdiction. (Pl's Br. at 8-9).
Federal Rule of Civil Procedure 4(e) authorizes a district court to
assert personal jurisdiction over a non-resident to the extent allowed by
the law of the state in which it sits. See Time Share Vacation Club v.
Atlantic Resorts, 735 F.2d 61, 63 (3d Cir. 1984). Pennsylvania's long-arm
statute provides that a court may exercise personal jurisdiction over
nonresidents "to the fullest extent allowed under the Constitution of the
Untied States . . . based on the most minimum contact with this
Commonwealth allowed under the Constitution of the United States." 42
Pa. Cons. Stat. § 5322(b). The statute also permits jurisdiction over
a non-resident if the non-resident has "[c]aused harm or tortious injury
by an act or omission in this Commonwealth" or "[c]aus[ed] any harm or
tortious injury in this Commonwealth by an act or omission outside this
Commonwealth." § 5322(a)(3), (4). This means that this court's
exercise of personal jurisdiction over the non-resident defendants
Treasure Cay and Dolphin Encounters is proper, so long as there is no
violation of procedural due process. See Fields v. Ramada Inn, Inc.,
816 F. Supp. 1033, 1035-36 (E.D.Pa. 1993).
A court may exercise personal jurisdiction as long as the "relationship
among the defendant, the cause of action, and the forum falls within the
`minimum contacts' framework" established by the Supreme Court in
International Shoe Co. v. Washington, 326 U.S. 310 (1945). Mellon Bank
(East) PSFS, Nat'l Assn. v. Farino, 960 F.2d 1217, 1221-22 (3d Cir.
1992). The minimum contacts analysis is a "`fair warning' requirement of
due process which is satisfied `if the defendant has purposely directed
his activities at residents of the forum, and the litigation results from
alleged injuries that `arise out of or relate to those activities.'" Id.
at 1222 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). The