ANITA B. BRODY, District Judge.
Plaintiff Ricardo Rivera ("Plaintiff" or "Rivera") filed suit in the Court of Common Pleas of Philadelphia County against Defendant Bally's Park Place ("Defendant" or "Bally's"), alleging negligent conduct. Defendant removed the case here, invoking diversity jurisdiction. Two days later, Defendant filed a motion to dismiss the Complaint for lack of personal jurisdiction or, in the alternative, to transfer the case to the United States District Court for the District of New Jersey. For the reasons that follow, I find that this Court lacks personal jurisdiction over Defendant.
On June 7, 2009, Rivera, a resident of Chester County, Pennsylvania, slipped and fell in a puddle of water in a public restroom on property owned by Bally's, a casino incorporated in New Jersey with its principal place of business in Atlantic City. Compl. ¶¶ 1, 2, 6. Rivera alleges in the Complaint that he sustained serious, potentially permanent personal injuries, including head, spinal, and torso damage as well as lacerations and contusions, as a result of Defendant's negligence. Compl. ¶¶ 8-9.
In reviewing a motion to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(6), a court "must accept all of the plaintiff's allegations as true and construe disputed facts in favor of the plaintiff." Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002). If no evidentiary hearing is held on the motion to dismiss, the plaintiff need only make a prima facie showing of personal jurisdiction. O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir.2007). A plaintiff satisfies this prima facie standard by presenting evidence sufficient to defeat a motion for directed verdict—specific facts that, if true, would permit the Court to exercise personal jurisdiction over Defendant. Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990); Action Mfg. Co. v. Simon Wrecking Co., 375 F.Supp.2d 411, 418-19 (E.D.Pa.2005).
In its Motion to Dismiss, Defendant alleges that it lacks sufficient contacts with Pennsylvania and that the exercise of personal jurisdiction over it would therefore be impermissible. Defendant requests that this case either be dismissed for lack of personal jurisdiction or transferred to New Jersey pursuant to 28 U.S.C. § 1406.
In response, Rivera asserts that this Court may permissibly exercise personal jurisdiction over Defendant both because Defendant has sufficient contacts with the state and because Defendant invoked this Court's jurisdiction by filing the Notice of Removal. Pl.'s Answer to Def.'s Mot. Dismiss or Transfer 3-4. Rivera does not give specific details about the business conducted by Defendant in Pennsylvania that calls for the exercise of personal jurisdiction by this Court but says only that, if he is "given the opportunity, [he] will prove that [Defendant] regularly conducts business in Philadelphia by soliciting for and bringing customers from Philadelphia to its business in Atlantic City, New Jersey." Pl.'s Mem. Opp'n to Def.'s Mot. Dismiss or Transfer 1-2.
I will grant Defendant's Motion because Rivera has not adequately responded to Defendant's Motion to Dismiss—Rivera
When a defendant challenges a court's personal jurisdiction, the plaintiff must then establish its existence. O'Connor, 496 F.3d at 316. The plaintiff may not "rely on the bare pleadings alone in order to withstand a defendant's . . . motion to dismiss" for lack of personal jurisdiction; instead, the plaintiff must present "competent evidence," such as sworn affidavits, to support its jurisdictional allegations. Action Mfg., 375 F.Supp.2d at 418. The plaintiff must respond to the defendant's motion with "actual proofs"; "affidavits which parrot and do no more than restate [the] plaintiff's allegations . . . do not end the inquiry." Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66, n. 9 (3d Cir.1984).
In this case, Rivera did not present any such "competent evidence" or "actual proofs" to sustain his allegation that Defendant conducts business in Pennsylvania. Rivera insists that he will prove the existence of personal jurisdiction "[i]f given the opportunity," but his response to Defendant's Motion was his opportunity. Rivera did not respond with any reasonable particularity to Defendant's assertion that it does not conduct business in Pennsylvania—Rivera insisted only that Defendant "regularly does business in Philadelphia County." Only once did Rivera provide specific information about Defendant's contacts with Pennsylvania— that Bally's solicited new customers and transported them from Pennsylvania to New Jersey—and even then Rivera did not provide any supporting evidence. Pl.'s Mem. Opp'n to Def.'s Mot. Dismiss or Transfer 1-2.
As discussed above, I am granting Defendant's Motion to Dismiss because Rivera has failed to respond with any support for his jurisdictional allegations. However, even if Rivera had provided evidentiary support, his factual allegations are insufficient to confer personal jurisdiction over Defendant.
While a defendant can waive his objection to personal jurisdiction by failing to raise it in a timely manner, Fed.R.Civ.P. 12(h)(1), removal to federal court does not constitute such a waiver. Arizona v. Manypenny, 451 U.S. 232, 242 n. 17, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981) ("[I]f the state court lacks jurisdiction over the subject matter or the parties, the federal court acquires none upon removal. . . ."); Cantor Fitzgerald, L.P. v. Peaslee, 88 F.3d 152, 157 n. 4 (2d Cir.1996) ("Removal does not waive any Rule 12(b) defenses."); Harrison v. L.P. Rock Corp., No. 99-5886, 2000 WL 19257, at *1 n. 1 (E.D.Pa. Jan. 7,
A court's ability to exercise general personal jurisdiction over a defendant turns on whether the plaintiff can demonstrate that the defendant maintained continuous and systematic contacts with and carried on a "substantial portion" of its business within the forum state. D'Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 107-08 (3d Cir.2009). These contacts must be "significantly more than mere minimum contacts"—the plaintiff must show that the defendant's contacts with the state were so "central to the conduct of its business" that jurisdiction may be fairly exercised even over claims not arising from those contacts. Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437-38 (3d Cir.1987).
The Eastern District of Pennsylvania has previously held that advertisements and solicitations alone are insufficient to support general personal jurisdiction over nonresident corporations, Ferro v. Atl. City Showboat, Inc., No. 07-1016, 2007 WL 4275506, at *3 (E.D.Pa. Dec. 3, 2007), even where those efforts were targeted specifically at Pennsylvania residents, Feldman v. Bally's Park Place, Inc., No. 05-5345, 2006 WL 1582331, at *3 (E.D.Pa. June 5, 2006). See also Gehling v. St. George's Sch. of Med., Ltd., 773 F.2d 539, 542-43 (3d Cir.1985) (declining to find that defendant that visited, advertised in, and made agreements with entities in Pennsylvania had sufficient contacts to justify the exercise of general personal jurisdiction). A plaintiff therefore needs to show more than mere promotional contacts to support general personal jurisdiction in this district.
Rivera has alleged only promotional contacts—he has claimed that, if given the chance, he will prove that Defendant "regularly conducts business in [Pennsylvania] by soliciting for and bringing customers from Philadelphia to its business in Atlantic City . . . ." Pl.'s Mem. Opp'n to Def.'s Mot. Dismiss or Transfer 1-2. This is not enough to support general personal jurisdiction—Defendant's alleged advertising and marketing activities in Pennsylvania are simply not extensive and pervasive enough to confer general personal jurisdiction. See, e.g., Ferro, 2007 WL 4275506, at *3. This Court thus may not exercise general personal jurisdiction over Defendant.
The Third Circuit employs a three-part analysis for specific personal jurisdiction. For specific personal jurisdiction to exist, it must be true that: (1) the defendant "purposefully directed [its] activities" at Pennsylvania, (2) the litigation "arise[s] out of or relate[s] to" at least one of the defendant's activities in Pennsylvania, and (3) the exercise of jurisdiction comports with traditional notions of "fair play and substantial justice." O'Connor, 496 F.3d at 317 (citations omitted).
The exercise of specific personal jurisdiction requires that there be some "deliberate targeting" of Pennsylvania by the defendant. Physical presence or entry into the state is not required. D'Jamoos, 566 F.3d at 103. Although materials sent into Pennsylvania by themselves are generally insufficient to support general personal jurisdiction, they do provide
Specific personal jurisdiction over the defendant also requires that the plaintiff's claims "arise out of or relate to" at least one of the defendant's contacts with Pennsylvania. Id. at 317. While the Third Circuit has not adopted a bright-line rule regarding the required degree of relatedness, see id. at 318-20 (describing three tests for relatedness used by other courts),
In this case, Rivera has alleged only that Defendant advertises and solicits customers in Pennsylvania. Under O'Connor, Rivera had to establish that the connection between those contacts and his negligence claim is stronger than but-for causation, but he failed to even allege this. He has not shown that Defendant's contacts with Pennsylvania were such that the "quid pro quo [would be] proportional" or that "personal jurisdiction [would be] reasonably foreseeable" to Defendant. O'Connor, 496 F.3d at 323. Rivera simply has not demonstrated a strong enough connection between Defendant's contacts with Pennsylvania and his negligence claims to support specific personal jurisdiction.
If the plaintiff satisfies his burden of establishing the first two required components of specific personal jurisdiction, jurisdiction is presumed constitutional, and the burden shifts to the defendant to rebut this presumption. O'Connor, 496 F.3d at 324. Because Rivera did not satisfy this burden, this element need not be addressed.
In sum, Rivera has not pled facts sufficient to establish either general or specific personal jurisdiction. Defendant's alleged activities in Pennsylvania—promotional mailings and business solicitation—have been held to be not continuous or systematic enough to support general personal jurisdiction. Additionally, those contacts are not related enough to Rivera's claim to support specific personal jurisdiction. This Court thus cannot exercise personal jurisdiction over Defendant based on the facts pled by Rivera.
For the reasons stated above, this Court lacks personal jurisdiction over Defendant. The parties have until July 15, 2011 to file a one-paragraph memorandum addressing whether dismissal or transfer is the appropriate remedy.
AND NOW, this 12th day of July, 2011, it is
