USCA1 Opinion
[NOT FOR PUBLICATION]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-1360
THERESA AQUILINO AND DANIEL AQUILINO,
Plaintiffs, Appellants,
v.
HARRAH'S ATLANTIC CITY, INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, Senior U.S. District Judge]
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Before
Boudin and Stahl, Circuit Judges,
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and Fuste,* District Judge.
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George F. Parker, III with whom Kelly A. Kalandyk and Badger,
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Dolan, Parker & Cohen were on brief for appellants.
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Jocelyn M. Sedney with whom Richard E. Brody and Morrison,
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Mahoney & Miller were on brief for appellee.
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September 14, 1993
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*Of the District Court of Puerto Rico, sitting by designation.
STAHL, Circuit Judge. In this "slip and fall"
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case, plaintiffs Theresa and Daniel Aquilino challenge the
district court's decision granting defendant Harrah's
Atlantic City, Inc.'s ("Harrah's") motion to dismiss for lack
of personal jurisdiction. Finding no error in the decision
below, we affirm.
I.
I.
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Background
Background
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Sometime in March 1988, plaintiffs were overnight
guests at Harrah's Marina ("the Hotel"), a hotel and casino
in Atlantic City, New Jersey, owned and operated by
defendant. Every three or four months for the next year,
defendant mailed various marketing brochures regarding the
Hotel to plaintiffs' residence in Weston, Massachusetts.
This promotional literature contained, inter alia,
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descriptions and photographs of Hotel accommodations,
including photographs of guest rooms in "the Atrium," the
section of the Hotel where the injuries in this lawsuit were
allegedly sustained.1 The literature also emphasized
certain attributes of the Hotel, including the convenience of
its gambling facilities and the casino's late hours of
operation.
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1. Defendant's Massachusetts-based solicitation efforts also
included regular advertisements in the Boston Globe and
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mailings to plaintiffs' son, who, like his parents, had also
previously stayed at the Hotel.
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In March 1989, after reviewing this literature,
plaintiffs made reservations to stay for one night, March 16,
1989, at the Hotel, this time in the Atrium. Plaintiffs made
the reservations over the telephone and charged the expenses
to Daniel Aquilino's credit card, a card issued through the
Bank of New England in Boston, Massachusetts.
At around 7:30 p.m. on March 16, 1989, plaintiffs
arrived at the Hotel. After having dinner, Daniel Aquilino
went to their room for the evening, while Theresa Aquilino
visited the casino. Several hours and one drink later,
Theresa also retired to the room for the evening. As she was
dosing off, she began to feel uncomfortable and decided to
retrieve an extra pillow from the closet. On her way back to
the bed, she tripped on telephone and/or electrical cords on
the floor between the bed and nightstand, sustaining injuries
which required medical attention.
On March 3, 1992, plaintiffs filed this diversity
action in district court, alleging claims for negligence,
breach of contract, and loss of consortium.2 On June 18,
1992, defendant filed a motion to dismiss based upon lack of
personal jurisdiction, which motion the district court
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2. Suit was originally brought against Harrah's and its
parent company, Promus Companies, Inc. After learning that
Promus was not a proper party to the suit, plaintiffs filed
an amended complaint on May 1, 1992, dropping Promus.
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granted on February 22, 1993. After an unsuccessful motion
to reconsider, plaintiffs filed this appeal.
II.
II.
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Discussion
Discussion
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In their appeal, plaintiffs advance the following
arguments: (1) that both Massachusetts long-arm statutes,
Mass. Gen. L. ch. 223 38 and Mass. Gen. L. ch. 223A 3(a),
confer personal jurisdiction over defendant; and (2) that the
district court abused its discretion in dismissing
plaintiffs' complaint without allowing discovery.3
Unfortunately for plaintiffs, we have recently rejected these
very arguments in a case closely on point. See Crocker v.
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Hilton Int'l Barbados Ltd., 976 F.2d 797, 798-801 (1st Cir.
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1992) (citing Fournier v. Best W. Treasure Island Resort, 962
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F.2d 126, 126-27 (1st Cir. 1992); Marino v. Hyatt Corp., 793
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F.2d 427, 428-31 (1st Cir. 1986)).4 As that case is on all
fours with this one, it is controlling.5 Accordingly, for
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3. Plaintiffs also contend that the exercise of personal
jurisdiction would not offend the Fourteenth Amendment's Due
Process clause. Because we find infra, however, that the
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state long-arm statutes fail to confer jurisdiction, we need
not reach the merits of their constitutional argument.
4. Much of plaintiffs' brief is devoted to arguing that the
First Circuit's interpretation of the Massachusetts long-arm
statutes is patently mistaken. This panel is, however, bound
by prior panel decisions closely on point. E.g., Fournier,
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962 F.2d at 127.
5. Plaintiffs attempt to distinguish Crocker, both on the
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issue of Massachusetts long-arm jurisdiction and the issue of
discovery, by pointing out various factual differences which
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the reasons therein stated, we reject plaintiffs' appeal as
meritless.
Affirmed. Costs to appellee.
Affirmed. Costs to appellee.
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they contend have legal significance. We have considered
each of these contentions and find them to be without merit.
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