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Sarah Archbold, Donald L. Marvin and Donald Marvin v. Landry's Gaming

April 24, 2012

SARAH ARCHBOLD, DONALD L. MARVIN AND DONALD MARVIN, PLAINTIFFS
v.
LANDRY'S GAMING, INC., GOLDEN NUGGET, INC. AND DOES 1-10, INCLUSIVE, DEFENDANTS



The opinion of the court was delivered by: (Judge Munley)

MEMORANDUM

Before the court for disposition is defendants' motion to dismiss or transfer the pending action to the United States Court for the District of Nevada. (Doc. 5). For the following reasons, the court will grant defendants' motion.

Background

Plaintiffs Sarah Archbold, Donald L. Marvin and Donald Marvin (collectively "plaintiffs") are adult individuals residing in Monroe County, Pennsylvania. (Doc. 1, Ex. A, Compl. (hereinafter "Compl.") ¶ 17). Defendants Landry's Gaming, Inc. and Golden Nugget, Inc. (collectively "defendants") are the owners and operators of the Golden Nugget Casino located in Las Vegas, Nevada. (Compl. ¶ 18; Doc. 5-1, Decl. of Lauren Ware (hereinafter "Ware Decl.") ¶¶ 2-4).

In January, February and May 2011, plaintiffs each performed electronic fund transfers at automated teller machines "ATMs" inside defendants' casino. (Compl. ¶¶ 21-22). Plaintiffs were charged a $3.50 transaction fee. (Id. ¶ 23). Plaintiffs contend defendants failed to provide notice of the $3.50 transaction fee in violation of the Electronic Fund Transfer Act ("EFTA"), 15 U.S.C. §§ 1693-1693r.

On November 6, 2012, plaintiffs filed a pro se single-count complaint in Monroe County, Pennsylvania. Plaintiffs seek $3,000 in actual damages pursuant to 15 U.S.C. § 1693m(a)(1), $3,000 in statutory damages in accordance with15 U.S.C. § 1693m(a)(2) and attorney's fees and costs pursuant to 15 U.S.C. § 1693m(a)(3). Defendants subsequently removed the action to this court (Doc. 1) and filed a motion to dismiss or transfer the case to the District of Nevada (Doc. 5). The parties briefed the issues bringing the case to its present posture.

Standard of Review

In determining whether personal jurisdiction is proper, a federal district court sitting in diversity applies the law of the forum state--here Pennsylvania. FED. R. CIV. P. 4(e); North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 689 (3d Cir. 1990). The Pennsylvania Long Arm Statute permits a court to exercise jurisdiction over non-resident defendants "to the fullest extent allowed under the Constitution of the United States and [jurisdiction] may be based on the most minimum contacts with this Commonwealth allowed under the Constitution of the United States. 42 PA. CONS. STAT. ANN. § 5322(b); Vetrotex Certainteed Corp. v. Consol. Fiber Glass Prods. Co., 75 F.3d 147, 150 (3d Cir. 1996). The Pennsylvania Long Arm Statute is coextensive with the Due Process clause of the Fourteenth Amendment of the United States Constitution. Mellon Bank (East) PSFS v. Farino, 960 F.2d 1217, 1221 (3d cir. 1992) (citations omitted).

When deciding a motion to dismiss for lack of personal jurisdiction, we accept the plaintiff's allegations as true. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004); see also Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 142 n.1 (3d Cir. 1992). Once a defendant files a motion to dismiss pursuant to Rule 12(b)(2), however, the plaintiff bears the burden of proving, either by sworn affidavits or other competent evidence, that the defendant has sufficient contacts with the forum state to establish personal jurisdiction. North Penn Gas, 897 F.2d at 689 (3d Cir. 1990); see also Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984).

Discussion

In the present case, defendants argue that the court lacks personal jurisdiction over them. Plaintiffs counter that we may exercise specific personal jurisdiction over defendants because defendants accessed their Pennsylvania bank accounts.*fn1 After a careful review of the record, we agree with defendants.

A. Specific Personal Jurisdiction

Plaintiffs allege that the court has specific personal jurisdiction over defendants under 42 PA. CONS. STAT. ANN. § 5322(b) (hereinafter "Section 5322(b)").*fn2 Section 5322(b) permits Pennsylvania courts to exercise specific personal jurisdiction over non-resident defendants "to the fullest extent allowed under the Constitution and may be based on the most minimum contact with the Commonwealth allowed under the Constitution." 42 PA.

CONS. STAT. ANN. ยง 5322(b). To assert specific jurisdiction on the basis of minimum contacts in this case, we must find that defendants purposefully availed themselves of the privileges and protections of Pennsylvania law by doing business in the Commonwealth. See Pennzoil Prods. Co. v. Colelli & Assocs. Inc., 149 F.3d 197, 203 (3d Cir. 1998) (discussing application of the minimum contacts doctrine). Additionally, "a plaintiff must show that the defendant has minimum contacts with the state 'such that the defendant should reasonably anticipate ...


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