Elayyan v. Sol Melia, Sa
| Decision Date | 24 July 2008 |
| Docket Number | No. 2:07-CV-269-PRC.,2:07-CV-269-PRC. |
| Citation | 571 F.Supp.2d 886 |
| Parties | Ayah ELAYYAN b/n/f Emad and Rania Elayyan, Emad Elayyan, and Rania Elayyan, Plaintiffs, v. SOL MELIA, SA (d/b/a Sol Melia Hotels and Resorts), a Corporation and The Sol Group Corporation, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Kevin C. Smith, Rubino Ruman Crosmer Cerven Sersic & Polen, Dyer, IN, for Plaintiffs.
Jon S. Diston, Spangler Jennings & Dougherty PC, Merrillville, IN, for Defendants.
This matter is before the Court on (1) Defendant The Sol Group Corporation's Motion to Dismiss [DE 16], filed by Defendant The Sol Group Corporation ("Sol Group") on April 22, 2008, and (2) Defendant Sol Meliá, S.A.'s Motion to Dismiss [DE 19], filed by Defendant Sol Meliá, S.A. ("Sol Meliá") on April 22, 2008. For the reasons stated below, the Court grants the motions to dismiss.
On July 13, 2007, Plaintiffs Ayah Elayyan b/n/f Emad and Rania Elayyan, Emad Elayyan, and Rania Elayyan filed a Complaint in the Lake Superior Court, alleging a tort action for injuries Ayah Elayyan sustained while in the pool of the Hotel Meliá Puerto Vallarta located in Peurto Vallarta, Mexico. On August 17, 2007, the Defendants, Sol Meliá, a company both incorporated and with its principal place of business in Spain, and Sol Group, an entity incorporated in Delaware with its principal place of business in Miami, Florida, removed the cause of action to the United States District Court for the Northern District of Indiana pursuant to 28 U.S.C. § 1441. Removal was proper as the Court has original jurisdiction under 28 U.S.C. § 1332. On August 22, 2007, the Defendants filed a timely Answer to the Plaintiffs' Complaint and, within the Answer, reserved the right to contest personal jurisdiction.
On April 22, 2008, the Defendants each filed a Motion to Dismiss for lack of personal jurisdiction with supporting affidavits. In addition, each Defendant filed a Motion to Stay, seeking to stay the proceedings until the Court resolves the issue of personal jurisdiction.
On May 15, 2008, after the time for Plaintiffs to file a response to the Motions to Stay had passed and Plaintiffs had not done so, the Court granted the Motions to Stay. In the Order, the Court found that the time to respond to the Motions to Dismiss had also passed pursuant to Local Rule 7.1 and Federal Rule of Civil Procedure 6 and that the Motions to Dismiss were therefore fully briefed and ripe for ruling by the Court.
On May 22, 2008, the Plaintiffs filed an untimely Response to the Defendants' motions to dismiss.
On June 2, 2008, the Defendants filed a joint Reply.
The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
The following facts are based upon the allegations in the Plaintiffs' Complaint and the statements provided in the affidavits submitted by the Defendants that controvert or supplement the Plaintiffs' allegations.
In December 2006, the Plaintiffs, Emad, Rania, and Ayah Elayyan, who are Indiana residents, stayed at the hotel Meliá Puerto Vallarta, located in Puerto Vallarta, Mexico. The Plaintiffs allege that on December 23, 2006, Plaintiff Ayah Elayyan was injured while in the hotel's outdoor swimming pool.
Defendant Sol Meliá is a Spanish corporation with its principal place of business in Palma de Mallorca, Spain. Sol Meliá directly or indirectly manages or owns hotels under a variety of brands such as "Sol," "Meliá," "ME," and "Paradisus" ("Sol-brand hotels"). All of these hotels are outside of the United States. Sol Meliá does not own, operate, or control the premises and facilities of the Meliá Puerto Vallarta, nor is Sol Meliá responsible for the maintenance or day-to-day operations of the hotel's pool or surrounding area.
The second Defendant, Sol Group, is a Delaware corporation with its principal place of business in Miami, Florida. Sol Group provides administrative, marketing, sales, legal, and technical services to companies associated with hotels located outside of the United States affiliated with the Sol-brand hotels. Sol Group does not own, operate, or control the premises and facilities of the Meliá Puerto Vallarta, nor is Sol Group responsible for the maintenance or day-to-day operations of the hotel's pool or surrounding areas.
Sol Meliá conducts sales, marketing, and promotional activities primarily in Europe on behalf of Sol-brand hotels. Sol Meliá conducts few sales, marketing, and promotional activities in the United States and does not conduct any such activities in Indiana. Sol Meliá does not create or distribute promotional materials in the United States. Furthermore, Sol Meliá's employees and sales representatives, who all reside outside of Indiana, do not target Indiana residents with unsolicited telephone calls, facsimiles, correspondence, or email, and Sol Meliá does not send unsolicited promotional materials to Indiana residents.
The marketing services provided by Sol Group in the United States are directed at a nationwide audience. Sol Group creates all of its promotional materials outside of Indiana. Sol Group does not direct its marketing to Indiana, nor does it send unsolicited promotions to Indiana residents or advertise in Indiana newspapers or publications. Sol Group does not target Indiana residents with unsolicited telephone calls, facsimiles, correspondence, or email.
Neither Defendant has ever maintained an office in Indiana, nor do they have any officers, directors, shareholders, employees, sales representatives, or agents regularly or routinely present in Indiana. Furthermore, neither Defendant is authorized to conduct business in Indiana, conducts business in Indiana, or receives any revenue from Indiana. The Defendants do not own any real or personal property, pay taxes, or maintain an agent for service of process in Indiana.
Neither Defendant enters into reservations or bookings with consumers. Reservations are entered into directly with Sol-brand hotels. Interested consumers may place reservations for Sol-brand hotels with travel agents and tour operators located in Indiana.
Sol Meliá has no contracts with tour operators or travel agents in Indiana, nor does Sol Meliá pay commissions to or control the tour operators and travel agents in Indiana who book reservations for Sol-brand hotels.
Sol Group has non-exclusive contracts on behalf of the Sol-brand hotels with independent tour operators and travel agents around the United States, none of which are located in Indiana. None of the tour operators or travel agents are employed, controlled, or paid commissions by Sol Group. Furthermore, the travel agents and tour operators do not work exclusively for Sol Group.
Each of the Defendants operates a website. Sol Meliá's website permits interested users to make reservations directly with Sol-brand hotels. Potential guests are not charged when they make a reservation through Sol Meliá's website; guests pay for their stay at the hotel and, therefore, do not pay Sol Meliá directly. Sol Meliá's website is available in nine languages and is targeted at a worldwide audience. The website is not targeted at residents in Indiana, and the word "Indiana" does not appear anywhere on the website.
Sol Group's website is targeted at its employees and professionals affiliated with Sol-brand hotels. It allows employees to access their company email and permits registered professionals to access promotional material. The website also provides company news and lists job placements at Sol Group. The website is not targeted to the public at large and is not directed to the public in Indiana. The general public cannot exchange information with Sol Group through its website.
Guests are also able to make reservations with Sol-brand hotels through third-party websites, such as www.expedia.com and www.hotels.com. Sol Meliá pays commissions to certain independent online booking services for reservations placed with Sol-brand hotels. However, Sol Meliá does not control the content of such websites, which are targeted at a worldwide audience. The online booking services are not agents of Sol Meliá nor do they work exclusively for Sol Meliá, and Sol Meliá does not control these online booking services. Furthermore, Sol Meliá does not enter into contracts with guests through these websites.
Defendant Sol Group does not use online booking services and does not pay commissions for hotel bookings from such third-party sites.
The Plaintiffs in this case booked their hotel stay at the Meliá Puerto Vallarta through Fantasy Travel, a travel agency located in Gary, Indiana. The Plaintiffs paid Fantasy Travel directly for their all-inclusive package prior to leaving for Mexico. The package included airfare for a flight departing from Chicago, Illinois, to Peurto Vallarta, Mexico, and accommodations at the Meliá Puerto Vallarta. Neither Defendant was involved in the reservations for or the booking of the Plaintiffs' vacation package. Neither Defendant has a contract or agency relationship with Fantasy Travel, nor did either pay a commission in connection with the Plaintiffs' reservations.
The Plaintiffs' all-inclusive vacation package was offered by Apple Vacations, a tour operator company or vacation-package wholesaler, based in Illinois. Apple Vacations entered into a non-exclusive contract with Sol Group on behalf, of Bisol Vallarta, the...
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