Brock v. Harrah's Atl. City Propco, LLC, CIVIL ACTION NO. 12-5055

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: DuBois
• Parties: DEVON BROCK and MARY BROCK, Plaintiffs, v. HARRAH'S ATLANTIC CITY PROPCO, LLC, and HARRAH'S ATLANTIC CITY OPERATING COMPANY, LLC, Defendants.
• Docket Number: CIVIL ACTION NO. 12-5055
• Decision Date: 06 March 2013

DEVON BROCK and MARY BROCK, Plaintiffs,
v.
HARRAH'S ATLANTIC CITY PROPCO, LLC,
and HARRAH'S ATLANTIC CITY OPERATING COMPANY, LLC, Defendants.

CIVIL ACTION NO. 12-5055

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

March 6, 2013

DuBois, J.

MEMORANDUM

I. INTRODUCTION

Plaintiff Devon Brock claims that he slipped and fell at a hotel and casino owned and operated by defendants Harrah's Atlantic City Propco, LLC and Harrah's Atlantic City Operating Company, LLC. Defendants now move to dismiss, or in the alternative, to transfer the case to the District of New Jersey on the ground that this Court lacks jurisdiction and venue is improper. For the reasons set forth below, the Court denies that part of the motion seeking dismissal and grants that part of the motion that seeks transfer of the case to the United States District Court for the District of New Jersey.

II. BACKGROUND

Plaintiff Devon Brock slipped and fell in a bathroom at Harrah's Atlantic City, a hotel and casino in Atlantic City, New Jersey on August 10, 2010.¹ (See Compl. at ¶¶ 18, 20.) He and

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his wife Mary Brock, residents of Gillett, Pennsylvania, claim that they were enticed to travel to Harrah's because of defendants' direct mailings that offered free stays. (Pls'. Sur Reply, at 5.) They allege that "the only reason that Plaintiffs were at the Defendants' establishment was because of the invitation from the Defendants to the Plaintiffs." (Id.) The Brocks also contend that defendants hire Pennsylvania employees.² (Id.)

The Brocks filed a negligence action against eleven Harrah's entities and one individual in the Philadelphia County Court of Common Pleas. Although many of the original defendants are Pennsylvania citizens (as are the Brocks), the defendants removed on fraudulent joinder grounds. The Brocks responded by filing a motion to remand. The parties then reached an agreement with respect to the proper defendants and whether the case would proceed in federal court or state court. Defendants identified the two entities that owned and operated the Harrah's facility at which the accident at issue in this case occurred: Harrah's Atlantic City Propco, LLC and Harrah's Atlantic City Operating Company, LLC. (See Order dated December 6, 2012, Document No. 15.) Those two companies, both of which are diverse, were substituted for the defendants originally named in the Complaint, and pursuant to the agreement, the case was to remain in federal court.

There was, however, a major ambiguity in the agreement: whether the case would proceed in federal court generally or in the Eastern District of Pennsylvania specifically. Each

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party views the agreement differently. According to the defendants, they streamlined the case by identifying the two correct defendants. With only diverse defendants in the case, all parties agreed that this Court had subject matter jurisdiction and the motion for remand was no longer appropriate. The Brocks have a different version of events. They claim that they agreed not to pursue their motion to remand in exchange for defendants' consent to personal jurisdiction and agreement to proceed in the Eastern District of Pennsylvania.

Defendants now move to dismiss the Brocks' Complaint or in the alternative, to transfer the case to the District of New Jersey. Their motion is based on lack of personal jurisdiction and improper venue.

III. LEGAL STANDARD

Rule 4(e) of the Federal Rules of Civil Procedure "authorizes personal jurisdiction over non-resident defendants to the extent permissible under the laws of the state where the district court sits." Pennzoil Prods. Co. v. Colelli & Assocs., 149 F.3d 197, 200 (3d Cir. 1998). Pennsylvania's long-arm statute permits courts to exercise personal jurisdiction over nonresident defendants "to the constitutional limits of the Due Process Clause of the Fourteenth Amendment." Id.; 42 PA. CONS. STAT. § 5322(b).

Once a defendant has filed a motion to dismiss for lack of personal jurisdiction, the burden rests on the plaintiff to prove that jurisdiction exists in the forum state. Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254, 257 (3d Cir. 1998). When considering the motion, the court construes any factual averments and resolves all doubts in the plaintiff's favor. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 1996).

A court may obtain personal jurisdiction over a defendant in one of two ways. First, the

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court has general jurisdiction if the defendant has engaged in "systematic and continuous" contacts with the forum state and the exercise of jurisdiction is "reasonable." Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 416 (1984). Second, the court has specific jurisdiction if "the defendant purposefully establishe[s] 'minimum contacts' in the forum." BP Chems. Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 259 (3d Cir. 2000) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)).

IV. DISCUSSION

Defendants argue that this Court lacks personal jurisdiction. They contend that the accident occurred in New Jersey and that the Court does not have specific or general jurisdiction over them. The Brocks respond with numerous arguments as to why there is personal jurisdiction: (A) defendants agreed not to contest jurisdiction and averred in their Notice of Removal that personal jurisdiction exists; (B) defendants have sufficient contacts with Pennsylvania; (C) defendants were served in Pennsylvania; and (D) case law establishes that New Jersey casinos are subject to personal jurisdiction in this Court.

The Court rejects these arguments and will address each in turn. Because the Court concludes there is no personal jurisdiction over defendants, it will not address defendants' second argument that venue is improper.

A. Agreement not to Contest Personal Jurisdiction and Averment in the Notice of Removal

As discussed above, the parties do not dispute that an agreement was reached with respect to proceeding in federal court. However, the parties have different versions of the specifics of the agreement. According to the defendants, defense counsel identified the two

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proper Harrah's entities. As they were both diverse, defendants claim that the Brocks agreed not to pursue their motion to remand. In contrast, the Brocks assert that defendants consented to personal jurisdiction and agreed that the case would remain in the Eastern District of Pennsylvania. The Brocks bear the burden of showing that an agreement regarding personal jurisdiction existed, and they have not satisfied that burden.

In support of their contention that defendants consented to personal jurisdiction, the Brocks submitted an email from plaintiffs' counsel dated November 21, 2012 that states, "As discussed, we believe we have come to a resolution in our issues and propose the following as per our conversation. In exchange for the naming of defendants . . . defendants will not contest and or defend that this cause of action remain in the Eastern District of Pennsylvania." (Pls.' Resp. Ex. C.) Defense counsel responded by email on the same date, "I look forward to reviewing your proposed stipulation." (Id.) The email from plaintiffs' counsel states that the agreement not to contest the case remaining in...