Honeycutt v. Tour Carriage, Inc., 5:95CV134-MCK.

• Decision Date: 18 March 1996
• Docket Number: No. 5:95CV134-MCK.,5:95CV134-MCK.
• Citation: 997 F.Supp. 694
• Parties: Carolyn J. HONEYCUTT, Plaintiff, v. TOUR CARRIAGE, INC., Mann Travels, and Go Tour Incorporated, Defendants.
• Court: U.S. District Court — Western District of North Carolina

Page 694

997 F.Supp. 694

Carolyn J. HONEYCUTT, Plaintiff, v. TOUR CARRIAGE, INC., Mann Travels, and Go Tour Incorporated, Defendants.

No. 5:95CV134-MCK.

United States District Court, W.D. North Carolina, Statesville Division.

March 18, 1996.

Deborah Brinton, Mooresville, NC, for Carolyn J. Honeycutt, plaintiff.

Mark A. Ash, Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, Raleigh, NC, for Tour Carriage, Inc., defendant.

Richard T. Rice, Womble, Carlyle, Sandridge & Rice, Winston-Salem, NC, Rodney E. Gould, Craig S. Harwood, Rubin, Hay & Gould, P.C., Framingham, MA, for Edsil Limited, GOGO Tours, defendants.

ORDER

McKNIGHT, United States Magistrate Judge.

THIS MATTER is before the undersigned pursuant to 28 U.S.C. § 636(c) for disposition of Defendants' Mann Travels and GOGO Tours, Inc., motion to dismiss or for summary judgment and brief and affidavits in support (docs.2, 3, 4, 5) and Defendant Tour Carriage's motion to dismiss for lack of personal jurisdiction and brief and affidavit in support (docs. 9, 10, and 11). Plaintiff has failed to file a response within the time allowed. These motions are ripe for disposition.

FACTS¹

Plaintiff alleges that on March 21, 1995 she broke her ankle during a five-day vacation trip to the Copper Canyon in Mexico that she booked through Mann Travels. She claims her injury occurred when the horse she was riding stumbled. Plaintiff alleges that on March 21, 1995, Yves I. Defreyn with Tour Carriage offered a horseback ride to the tour group with assurance to Plaintiff that the horses and activity were safe and that Defreyn would accompany them on the ride. She alleges that the moving defendants were negligent because the defendant Tour Carriage, an independent company that provided groundhandling services to the tour, told her, through Defreyn, that the horseback ride was not dangerous, and because inadequate provisions had been made to treat an injury during the horseback riding trip.

Defendants GOGO Tours and Mann Travels have submitted affidavits (docs.2, 5) which establish the following facts: GOGO Tours is a New Jersey tour operator/wholesaler of package vacation tours. Cowlan Aff., para. 1. It sells vacation tour packages through independent retail travel agencies such as the defendant Mann Travels and through GOGO Tours' affiliated corporation, Liberty Travel, Inc. Id.

GOGO Tours was the tour operator of the "Copper Canyon" tour. Id., para. 2. The tour included a ground tour package operated by Tour Carriage, Inc., d/b/a Signa Tours, of Phoenix, Arizona (Tour Carriage), as well as round-trip air transportation to Phoenix. Id. The Copper Canyon tour did not include the horseback riding excursion into the Copper Canyon in Mexico during which Plaintiff alleges she broke her ankle. Id. Apparently, Plaintiff decided to take the horseback riding excursion from a local entity which had nothing to do with the tour during her free time while the tour was at the Copper Canyon in Mexico. Id.

GOGO Tours does not now and did not at the time of the Plaintiff's tour, March 1995, own, operate, manage, control, supervise, have the right to do so, or own stock in Tour Carriage. Id., para. 4. It does not employ Yves Defreyn of Tour Carriage. Id. Rather, Tour Carriage is completely independent of GOGO Tours. Id. GOGO Tours does not own, operate, manage, or control the horseback riding excursion upon which Plaintiff bases her lawsuit but which she has failed to name as a party to this lawsuit or even to identify in her Complaint. Id. GOGO Tours was not even aware that there was such a horseback riding service in the Copper Canyon and, hence, GOGO did not even mention it in its brochure. Id. and Exh. A.

GOGO Tours has been marketing tours operated by Tour Carriage since September 1994. Id., para. 5. Before it began marketing Tour Carriage packages, it knew that Tour Carriage enjoyed a strong reputation in the industry for providing safe and reliable local tour services. Id. Before Plaintiff's Copper Canyon tour, GOGO Tours had sold approximately ten Tour Carriage "Copper Canyon" tour packages through travel agencies such as Mann Travels. Id., para. 6. To date, GOGO Tours had sold approximately 40 Tour Carriage "Copper Canyon" tours. Id. It has found Tour Carriage to be safe and reliable. Id. The tour participants and GOGO were very pleased with the services provided by Tour Carriage. Id. Other than Plaintiff, GOGO Tours has had no reports of Tour Carriage providing purportedly inaccurate advice about any activities tour participants might choose to engage in during free time during a tour. Id. Tour participants and travel agencies have not reported to GOGO Tours that tour participants have been injured during the Copper Canyon tour, including during activities that are not part of the tour such as horseback riding excursions. Id. In fact, until it received the Plaintiff's Complaint, Tour Carriage did not even know that a horseback riding excursion was available in the Copper Canyon. Id. Plaintiff was the first tour participant to notify GOGO that she had bought such an excursion. Id.

The terms and conditions, or contract, governing this tour was printed inside the back cover of the 1995 GOGO Tours brochure. Id., para. 7 and Exh. B thereto. The contract states expressly that GOGO tours and its agents, which would include a travel agency such a Mann Travels, are not liable for any negligence by a supplier of services to the tour such as Tour Carriage:

RESPONSIBILITY: GOGO TOURS, INC .... and/or their agents and offices [sic] and/or suppliers of services pursuant to or in connection with these itineraries shall act only as agents for the passenger in making arrangements for hotels, transportation, restaurants, or any other service and does not assume any liability whatsoever for any injury, damage, death, loss, accident or delay to person or property due to an act of negligence of or default of any hotel, carrier, restaurant, company or person rendering any of the services included in the tour, or by act of God. Further, no responsibilities are accepted for any damage or delay due to sickness, pilferage, labor disputes, machinery breakdown, quarantine, government restraints, weather or other causes beyond their personal control....

Id. and Exh. B thereto (underlining added).

GOGO Tours does not make any representations about the reliability or safety of any independent services or vendors that tour participants might encounter or learn about at the tour destinations, and GOGO Tours certainly does not guarantee the safety or reliability of such services. Id., para. 9.

Mann Travels is a retail travel agency with its headquarters and principal place of business in Charlotte and 11 offices in the Charlotte area. Widis Aff., para. 1. On or about February 21, 1995 Mann Travels sold Plaintiff the Copper Canyon tour on which she bases her lawsuit. Id., para. 2. Mann Travels did not select the tour for her or make any representations about it. Id. It simply booked the tour at her request and gave her a copy of the page from the GOGO Tours brochure describing the tour. Id. Mann Travels has never owned, operated, managed, controlled, supervised, had the right to do so, or owned stock in GOGO Tours or Tour Carriage. Id., para. 5. Mann Travels simply sells GOGO Tours tour packages at retail, including Plaintiff's tour. Id. Mann Travels did not have any business relationship with Tour Carriage concerning Plaintiff's tour and has had no business relationship with Tour Carriage on any other matter. Id. Rather, GOGO Tours had contracted with Tour Carriage for groundhandling services in Arizona and Mexico. Id.

Mann Travels has never owned, operated, controlled, or supervised the unnamed horseback riding excursion in the Copper Canyon in Mexico. Id., para. 6. In fact, Mann Travels did not even know that horseback riding excursions were available in the Copper Canyon. Id. The GOGO Tours brochure for this tour did not mention horseback riding excursions in the Copper Canyon. Id. and Exh. A thereto. Plaintiff did not ask Mann Travels about the availability of horseback riding in the Copper Canyon or at any other destination during the tour, and, accordingly, Mann Travels did not even discuss horseback riding during the tour with Plaintiff when she booked her trip or at any other time. Id.

Mann Travels makes no representations about the reliability or safety of known suppliers of services to tours, and does not guarantee the safety of its clients during a tour. Id., para. 7. GOGO Tours specifically disclaimed liability for any negligence on the part of suppliers of services to the tour such as Tour Carriage.

APPLICABLE LAW

Defendant Tour Carriage has moved to dismiss for lack of personal jurisdiction under Fed. Rule Civ. P. 12(b)(2), which governs motions to dismiss for lack of jurisdiction over a person. The burden of establishing personal jurisdiction rests with the party asserting it. See 2A Moore's Federal Practice, Par. 12.07[2.-2] at 12-55 (1990). However, if the court decides a motion to dismiss for lack of jurisdiction over a person without an evidentiary hearing based only on the written submissions of the parties, the party asserting jurisdiction need only make a prima facie showing that jurisdiction exists. Id. at 12-56; see Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989); Dowless v. Warren-Rupp Houdailles, Inc., 800 F.2d 1305, 1307 (4th Cir.1986); Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985); Wyatt v. Kaplan, 686 F.2d 276 (5th Cir.1982).

Defendants Mann Travels and GOGO Tours have moved to dismiss, or alternatively, for summary judgment. Fed Rule Civ.P. 12(b) provides, in part: "If, on a motion asserting the defense numbered (6) for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and...