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COLANTONIO v. HILTON INTERNATIONAL CO.

United States District Court, E.D. Pennsylvania


June 8, 2004.

ANN COLANTONIO and JOHN COLANTONIO, Plaintiffs,
v.
HILTON INTERNATIONAL CO., et al., Defendants

The opinion of the court was delivered by: ROBERT KELLY, Senior District Judge

MEMORANDUM

Plaintiffs, Ann and John Colantonio, have brought this premises liability negligence action against Hilton International Company ("Hilton International"), Gestim, S.r.l. ("Gestim"), Hilton Italiana, S.r.l. ("Hilton Italiana") and Hotel Corporation of Europe ("HCE") (collectively referred to as "Defendants").*fn1 Plaintiffs were guests at the Rome Cavalieri Hilton located in Rome, Italy, when Ann Colantonio was allegedly injured when she tripped and fell over a threshold between the bathroom floor and a rug in her hotel room. Gestim, Hilton Italiana and HCE have moved to dismiss Plaintiffs' Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3), because of a lack of personal jurisdiction and improper venue.*fn2 For the reasons stated below, the Motions will be granted and Plaintiffs' Complaint against Gestim, Hilton Italiana and HCE will be dismissed for lack of personal jurisdiction and, accordingly, the issue of improper venue will not be addressed.

I. DISCUSSION

  A. Legal Standard

  A motion made pursuant to Federal Rule of Civil Procedure 12(b)(2) "is inherently a matter which requires resolution of factual issues outside the pleadings, i.e. whether in personam jurisdiction actually lies." Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n. 9 (3d Cir. 1984). "Once the [lack of personal jurisdiction] defense has been raised, then the plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence." Id. "[A]t no point may a plaintiff rely on the bare pleadings alone in order to withstand a defendant's Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction." Id. (citation omitted). The plaintiff is required to respond to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction with actual proofs, not mere allegations. Id. The plaintiff is also required to establish sufficient contacts with the forum state with reasonable particularity. Snyder v. Dolphin Encounters Ltd., 235 F. Supp.2d 433, 436 (E.D. Pa. 2002) (citation omitted).

  Federal Rule of Civil Procedure 4(e) authorizes that a federal court may exercise personal jurisdiction over a non-resident defendant of the state in which the court sits to the extent authorized by the law of that state. See FED. R. CIV. P. 4(e); Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir. 1998). However, "[t]he reach of state law . . . must not extend beyond what Due Process allows." Peek v. Golden Nugget Hotel and Casino, 806 F. Supp. 555, 556 (E.D. Pa. 1992) (citations omitted). The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that "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.'" Id. (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

  There are two potential bases for the exercise of personal jurisdiction over a non-resident corporate defendant under Pennsylvania's long-arm statutes — specific jurisdiction and general jurisdiction.*fn3 Id. Under 42 PA. CONST. STAT. ANN. § 5322, a court may exercise specific jurisdiction over a corporation to the extent that the cause of action arises out of the corporation's transaction of business within the state of Pennsylvania. Id. (citing 42 PA. CONST. Stat. Ann. § 5322) (citations and footnote omitted). A court may exercise general jurisdiction under 42 PA. CONST. STAT. ANN. § 5301 based upon a defendant's general activity within Pennsylvania. Id. (citations omitted). That is, "[p]ersonal jurisdiction may exist over a non-resident corporate defendant if that corporation carries on a `continuous [and] systematic part of its general business within the Commonwealth.'" Id. (quoting 42 PA. CONST. STAT. ANN. § 5301(a)(2)(iii)). Thus, in order for a court to properly exercise general personal jurisdiction under Section 5301, more contacts with the forum are required to be shown than under Section 5322, which provides that one forum related contact may be sufficient to permit the exercise of specific personal jurisdiction. Id. "If general personal jurisdiction exists as a result of the defendant's activities in a forum, there is jurisdiction over the defendant regardless of whether the claim for relief has any relation to the forum." Id. (citation omitted).

  Regarding general personal jurisdiction, it is important to note that the "continuous and systematic standard is not an easy one to meet." Surgical Laser Tech., Inc. v. C.R. Bard, Inc., 921 F. Supp. 281, 284 (E.D. Pa. 1996). "Contacts are continuous and systematic if they are `extensive and pervasive.'" Snyder, 235 F. Supp.2d at 437 (citation omitted). Before a court may exercise general jurisdiction, the United States Court of Appeals for the Third Circuit requires a very high showing. Id. (citing Gehling v. St. George's Sch. of Med., Ltd., 773 F.2d 539, 542 (3d Cir. 1985)). "The standard for general jurisdiction thus `is much higher than that for specific jurisdiction.'" Rose v. Cont'l Aktiengesellschaft et al., No. 99-3794, 2001 WL 236738, at *3 (E.D. Pa. Mar. 2, 2001) (citing Clark v. Matsushita Elec. Indus. Co., 811 F. Supp. 1061, 1067 (M.D. Pa. 1993)).

  B. Analysis

  Plaintiffs broadly allege that this Court has personal jurisdiction over Gestim, Hilton Italiana and HCE. They do not specify whether the personal jurisdiction is specific or general.*fn4 Regarding the issue of personal jurisdiction, Plaintiffs' Complaint and responses to the outstanding Motions rely exclusively upon allegations that Gestim, Hilton Italiana and HCE conduct or engage in business activities in Pennsylvania. Thus, it appears that Plaintiffs assert that this Court has general personal jurisdiction. There are no allegations that Ann Colantonio's alleged accident arose from any contact of Gestim, Hilton Italiana and HCE within the forum. Consequently, the facts alleged do not support the assertion of specific personal jurisdiction in Pennsylvania over the named Defendants. As a result, the Court will focus its analysis on whether general personal jurisdiction exists over Gestim, Hilton Italiana and HCE.

  Gestim, the owner of the Rome Cavalieri Hilton, is organized under the laws of Italy and has its registered office in Milan, Italy. (Gestim's Mot. to Dismiss, ¶¶ 3-5). Gestim asserts that it "does not operate, conduct, engage in or carry on a business, or business ventures in the Commonwealth of Pennsylvania." (Id., ¶ 10). Hilton Italiana, the manager of the Rome Cavalieri Hilton, is incorporated in Italy and has its principal place of business in Rome, Italy. (Hilton Italiana's Mot. to Dismiss, ¶¶ 3-5). Similar to Gestim, Hilton Italiana states that it "does not operate, conduct, engage in or carry on a business, or business ventures in the Commonwealth of Pennsylvania." (Id., ¶ 10). As for HCE, the parent company of Hilton Italiana, it is organized under the laws of the state of New York with its principal place of business located in Rome, Italy. (HCE's Mot. to Dismiss, ¶ 3-6). In conjunction with Gestim and Hilton Italiana, HCE states that it also "does not operate, conduct, engage in or carry on a business, or business ventures in the Commonwealth of Pennsylvania." (Id., ¶ 13). Based upon the above, all three entities assert that they do "not regularly, continuously or systematically transact business in Pennsylvania," therefore, they do not have "the requisite continuous, systematic, and substantial contacts to establish general personal jurisdiction." (Gestim's Mot. to Dismiss, ¶ 13; Hilton Italiana's Mot. to Dismiss, ¶ 13; HCE's Mot. to Dismiss, ¶ 16).

  Plaintiffs respond to the aforementioned arguments by claiming that personal jurisdiction is proper in this case because Gestim, Hilton Italiana and HCE engage in continuous and substantial business activities in Pennsylvania. In support of this claim, Plaintiffs make broad references to the complex interactions between the large "network" of Hilton hotels and attendant subsidiaries, as well as assert generalized statements regarding interrelated advertising and promotional activities.*fn5 However, Plaintiffs primarily focus their argument upon a call center located in Hazleton, Pennsylvania, which is operated by Hilton Reservations Worldwide.*fn6 Plaintiffs claim that Gestim, Hilton Italiana and HCE, through their parent and sister corporations, Hilton International, Hilton Hotel Corporation and Hilton Reservations Worldwide, own and operate a business enterprise in Pennsylvania.

  While Plaintiffs may assert valid arguments, they fail to present any competent evidence to meet their burden of proof showing that this Court has personal jurisdiction. See Time, 735 F.2d at 66 n. 9 (stating that "the plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence"); see also Hurley v. Cancun Playa Oasis Int'l Hotels, No. 99-574, 1999 WL 718556, at *1 (E.D. Pa. Aug. 31, 1999) (stating that "[g]eneral averments in an unverified complaint or response without the support of sworn affidavits or other competent evidence are insufficient to establish jurisdictional facts"). Plaintiffs contend that Gestim, Hilton Italiana and HCE conduct a continuous and systematic part of their general business within the Commonwealth, however, they do not present any evidence in support of their contentions. Without any evidence regarding the actual contacts of Gestim, Hilton Italiana and HCE within Pennsylvania the Court cannot determine whether the corporations did, in fact, conduct a continuous and systematic part of their general business within the Commonwealth. Thus, although Plaintiffs may have been able to establish a basis of general personal jurisdiction, the Court finds that the record is insufficient to allow it to exercise general personal jurisdiction in this action.*fn7 As a result of the insufficient record, Plaintiffs fail to meet their burden of proof establishing that this Court properly has personal jurisdiction over Gestim, Hilton Italiana and HCE.

  1. Advertising and Promotional Activities

  As mentioned earlier, Plaintiffs make generalized statements regarding interrelated advertising and promotional activities of Hilton entities in relation to the issue of personal jurisdiction. However, Plaintiffs fail to point to any advertising or promotional activity pertaining to the issue of general personal jurisdiction relevant to this case. Advertising and promotional activities by a non-resident corporation are factors to be considered when evaluating whether a defendant maintains "continuous and substantial" contacts within Pennsylvania for purposes of general personal jurisdiction. Weintraub v. Walt Disney World Co., 825 F. Supp. 717 (E.D. Pa. 1993) (finding general jurisdiction due to expansive contacts through a regional advertising campaign and efforts that focused particularly on Pennsylvania); Gavigan v. Walt Disney World, Inc., 646 F. Supp. 786 (E.D. Pa. 1986) (concluding that a targeted advertising campaign and presence in Pennsylvania validated general jurisdiction).*fn8

  Even though the advertising and promotional activities of Gestim, Hilton Italiana and HCE are relevant to this Court's analysis of general personal jurisdiction, Plaintiffs fail to show any advertising or promotional activity undertaken by any of the entities. Plaintiffs have not introduced any evidence that Gestim, Hilton Italiana or HCE advertise in Pennsylvania newspapers, magazines, television, or radio. Likewise, Plaintiffs have not introduced any evidence of any promotional activities by Gestim, Hilton Italiana or HCE in Pennsylvania or specifically targeted at Pennsylvania residents. Thus, Plaintiffs fail to offer any evidence that the entities advertise or conduct promotional activities in Pennsylvania, much less advertise or promote on either a continuous or systematic basis. As a result, Plaintiffs fail to establish that this Court has general personal jurisdiction over Gestim, Hilton Italiana and HCE because they have not made any showing that the entities maintain "continuous and substantial" contacts within Pennsylvania through their advertising and promotional activities.

  2. Parent Subsidiary Relations

  In support of their argument that general personal jurisdiction is proper over Gestim, Hilton Italiana and HCE, Plaintiffs make broad references to the complex interactions between the large "network" of Hilton hotels and attendant subsidiaries. Plaintiffs generally assert that "Hilton, a huge global chain of hotels, has chosen to compartmentalize its operations by creating a myriad of interconnected wholly owned subsidiaries, that all work together, to promote, take reservations for and operate hundreds of hotels around the world, for profit." (Pls.' Br. in Resp. to Gestim's Mot. to Dismiss at 1; Pls.' Br. in Resp. to Hilton Italiana's Mot. to Dismiss at 1; Pls.' Br. in Resp. to HCE's Mot. to Dismiss at 1). Relying upon the "myriad of interconnected wholly owned subsidiaries" associated with Hilton, Plaintiffs claim that Gestim, Hilton Italiana and HCE have substantial and continuous contacts within Pennsylvania through their interaction and association with the Hilton "network."

  "A foreign corporation is not usually subject to personal jurisdiction merely because of its ownership of the shares of stock of a subsidiary doing business in the state." Visual Sec. Concepts, Inc. v. KTV, Inc., 102 F. Supp.2d 601, 605 (E.D. Pa. 2000) (quotation and internal quotation marks omitted); see also Weber v. Jolly Hotels, 977 F. Supp. 327, 334 (D.N.J. 1997) ("Courts have consistently found that a subsidiary corporation's contacts with the forum are not sufficient grounds to exercise jurisdiction over the parent corporation without a showing of something more than ownership."). "A foreign corporation may be subject to personal jurisdiction based on its ownership of stock in a subsidiary doing business in Pennsylvania only if one entity is the alter ego of the other, the entities disregarded corporate independence or one corporation exercised pervasive control over the other." Rose, 2001 WL 236738, at *3 (citation omitted); see also Ames v. Whitman's Chocolates, No. 91-3271, 1991 WL 281798, at *3 (E.D. Pa. Dec. 30, 1991). "That the companies may have a close relationship or may coordinate and cooperate, however, is not sufficient to impute forum contacts." Id. (citations omitted). "[A] plaintiff bears the burden of proving that the contacts of a subsidiary corporation should be imputed to the parent." Gallagher v. Mazda Motor of Am., Inc., 781 F. Supp. 1079, 1083 n. 6 (E.D. Pa. 1992) (citation omitted).

  While Plaintiffs premise general personal jurisdiction over Gestim, Hilton Italiana and HCE upon the interrelated relations of the entities associated with the Hilton "network," they fail to make the requisite showing that one entity is the alter ego of the other, that the entities disregarded corporate independence or that one corporation exercised pervasive control over the other.*fn9 Specifically, Plaintiffs do not present any evidence regarding the following: Gestim, Hilton Italiana and HCE are the alter ego of the other or another Hilton enterprise; the entities disregarded corporate independence; or one corporation, or Hilton entity, exercised pervasive control over the other. Plaintiffs provide broad statements regarding the corporate structures of Gestim, Hilton Italiana and HCE and the Hilton "network," however, they fail to provide any competent evidence revealing that they are actually being controlled by or dependent upon other entities which would allow for the exercise of personal jurisdiction. Plaintiffs neither allege, nor provide any proof, that the corporate relations involved in this action are anything more than a close relationship based, in part, upon joint coordination and cooperation between the entities within the Hilton "network." However, such allegations are not sufficient to impute forum contacts. See Rose, 2001 WL 236738, at *3. Without any evidence in which to examine the intimacy of the corporate relations of Gestim, Hilton Italiana and HCE with the Hilton "network" of hotels and hotel service providers, this Court is unable to adequately determine whether forum contacts may be properly imputed to allow for the exercise of personal jurisdiction in this action. By failing to adequately establish the imputation of forum contacts, Plaintiffs have not satisfied their burden of proving that Gestim, Hilton Italiana and HCE have substantial and continuous contacts within Pennsylvania through their interaction and association with the Hilton "network." Gallagher, 781 F. Supp. at 1083 n. 6.

  3. Agency Relations

  In addition to relying upon the parent subsidiary relationship, Plaintiffs also rely upon the agency theory as a basis for imputing forum contacts to Gestim, Hilton Italiana and HCE. Plaintiffs' argument under their agency theory parallels their argument centered upon the parent subsidiary relationship. According to Plaintiffs, Hilton International, Hilton Hotel Corporation and Hilton Reservations Worldwide, acting as the agents and joint venturers of Gestim, Hilton Italiana and HCE, operate a call center located in Hazleton, Pennsylvania that employs Pennsylvanians to take binding reservations for the Rome Cavalieri Hilton. Relying upon the Pennsylvania call center, Plaintiffs assert that Gestim, Hilton Italiana and HCE, through their agents and joint venturers Hilton International, Hilton Hotel Corporation and Hilton Reservations Worldwide, own and operate a business enterprise in Pennsylvania, and are thereby subject to this Court's jurisdiction.

  "It is well settled that to form an agency relationship, a plaintiff must demonstrate `[1] the manifestation by the principal that the agent shall act for him, [2] the agent's acceptance of the understanding and [3] the understanding of the parties that the principal is to be in control of the undertaking.'" Myelle v. Am. Cyanamid Co., No. 92-5243, 1993 WL 93422, at *5 (E.D. Pa. Apr. 1, 1993) (quoting Johnson v. Summa Corp., 632 F. Supp. 122, 124 (E.D. Pa. 1985)). "[T]he element of control is the touchstone of a principal-agent relationship." Id. (citations omitted). "The requisite inquiry is whether some nexus exists between the parent corporation and the subsidiary . . . to indicate that the latter is not independent, but rather totally under the control and dominion of the parent." Ames, 1991 WL 281798, at *7 (quotations omitted).

  In support of their argument in favor of personal jurisdiction, Plaintiffs refer to, as well as supply, a Royalty Agreement and a Management Agreement (collectively referred to as the "Agreements"). Paragraph 2 of the Royalty Agreement between Gestim and Hilton International provides as follows:

H.I.C.O. [Hilton International] shall provide [to Gestim] . . . at the same terms and conditions provided in the Management Agreement and in particular at the specific terms and conditions set out in Article 6, Section 2 of the said Management Agreement . . . inter hotel reservations, . . . and all other group benefits, services and facilities . . . to the extent appropriate furnished to other hotels owned or operated by H.I.C.O. [Hilton International] and its affiliated companies.
(Pls.' Resp. to Gestim's Mot. to Dismiss, Ex. A (Royalty Agreement)). The aforementioned Article 6, Section 2 of the Management Agreement between Gestim and Hilton Italiana states that "H.I.S.P.A. [Hilton Italiana] shall cause H.I.C.O. [Hilton International] . . . to furnish to the hotel . . . (A) . . . international "Sales Offices" placed in various locations of the world. . . ." (Id., Ex. B (Management Agreement)). Plaintiffs rely upon these two Agreements to show that Hilton International, Hilton Hotel Corporation and Hilton Reservations Worldwide, acting as the agents and joint venturers of Gestim, Hilton Italiana and HCE, operated the Pennsylvania call center for their benefit.

  Neither the Royalty Agreement, nor the Management Agreement, establish the requisite relationship, or contacts, to establish personal jurisdiction under the circumstances of this case. The Agreements are general in nature and do not provide any specific details, let alone any information, regarding any contacts within Pennsylvania. Neither Agreement explicitly sets forth that the Hilton Reservations Worldwide Pennsylvania call center is employed to answer telephone calls, or take binding reservations, for the Rome Cavalieri Hilton. Likewise, the Agreements do not reveal any evidence of substantial and continuous contacts within Pennsylvania undertaken by Hilton International, or its related entities, on behalf of Gestim, Hilton Italiana and HCE. While the two Agreements may establish some contractual relationship between Gestim, Hilton Italiana and Hilton International, they do not clearly establish the nature of the relationship, nor do they establish the extent of any contacts within Pennsylvania that may be properly imputed to them. Likewise, neither the Royalty Agreement nor the Management Agreement show the requisite existence of a nexus exists between the corporations to indicate that one corporation is not independent, but rather totally under the control and dominion of another. Ames, 1991 WL 281798, at *7.

  It may be inferred that the Hilton Reservations Worldwide Pennsylvania call center services the Rome Cavalieri Hilton, however, the Court requires more than mere inference to assert personal jurisdiction.*fn10 By not providing specific evidence revealing that the Agreements produced an agency relationship between Hilton International, or one of its attendant entities, and Gestim, Hilton Italiana and HCE, that resulted in a continuous or systematic part of their business taking place in Pennsylvania, Plaintiffs fail to make the requisite showing for imputation of forum contacts for purposes of personal jurisdiction based upon their agency theory. Thus, Plaintiffs have not satisfied their burden of proving that Gestim, Hilton Italiana and HCE have substantial and continuous contacts within Pennsylvania through their interaction and association with the Hilton "network."

  II. CONCLUSION

  This Court does not have general personal jurisdiction over Gestim, Hilton Italiana and HCE. Although Plaintiffs rely upon the assertion that general personal jurisdiction may be premised upon the Hilton "network" of advertising and promotion, as well as the parent subsidiary and agency relationships involved in the Hilton "network," they fail to provide any tangible evidence regarding the requisite jurisdictional contacts of the entities within Pennsylvania. Due to the complete lack of evidence specifically showing contacts within Pennsylvania, this Court cannot determine whether the corporations did, in fact, conduct a continuous and systematic part of their general business with the Commonwealth. As a result of the insufficient record, Plaintiffs fail to meet their burden of proof establishing that this Court properly has general personal jurisdiction over Gestim, Hilton Italiana and HCE. Consequently, the Motions to Dismiss filed by Gestim, Hilton Italiana and HCE will be granted and Plaintiffs' Complaint against them will be dismissed for lack of personal jurisdiction.*fn11

  An appropriate Order follows.

  ORDER

  AND NOW, this 8 th day of June, 2004, upon consideration of Gestim's Motion to Dismiss Plaintiffs' Complaint Pursuant to Rules 12(b)(2), Lack of Jurisdiction Over the Person, and F.R.C.P. 12(b)(3), Improper Venue (Doc. No. 5), Hilton Italiania's Motion to Dismiss Plaintiffs' Complaint Pursuant to Rules 12(b)(2), Lack of Jurisdiction Over the Person, and F.R.C.P. 12(b)(3), Improper Venue (Doc. No. 6) and HCE's Motion to Dismiss Plaintiffs' Complaint Pursuant to Rules 12(b)(2), Lack of Jurisdiction Over the Person, and F.R.C.P. 12(b)(3), Improper Venue (Doc. No. 8), and the Responses thereto, it is it is hereby ORDERED that the Motions are GRANTED because this Court lacks personal jurisdiction over Gestim, Hilton Italiana and HCE.


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