Kawamura v. Boyd Gaming Corp.

• Decision Date: 05 December 2012
• Docket Number: Civ. No. 12-00294 ACK-BMK
• Parties: CALVIN KAWAMURA and JEANIE KAWAMURA, Plaintiffs, v. BOYD GAMING CORPORATION, a foreign corporation; M.S.W., INC., a foreign corporation d/b/a MAIN STREET STATION CASINO BREWERY HOTEL; JOHN DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; DOE ENTITIES 1-10, Defendants.
• Court: U.S. District Court — District of Hawaii

CALVIN KAWAMURA and JEANIE KAWAMURA, Plaintiffs,

v. BOYD GAMING CORPORATION, a foreign corporation; M.S.W.,INC., a foreign corporation d/b/a MAIN STREET STATION CASINO BREWERY HOTEL;JOHN DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; DOE ENTITIES 1-10, Defendants.

Civ. No. 12-00294 ACK-BMK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

Dated: December 5, 2012

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO

DISMISS FOR LACK OF PERSONAL JURISDICTION AND/OR IMPROPER VENUE,

OR IN THE ALTERNATIVE TO TRANSFER VENUE

The Court hereby GRANTS IN PART AND DENIES IN PART Defendants' Motion To Dismiss for Lack of Personal Jurisdiction and/or Improper Venue, or in the Alternative To Transfer Venue. The Court finds that it can exercise specific personal jurisdiction in this case due to Defendants' extensive marketing to and business derived from Hawai'i residents, including the Kawamuras. The Court further finds that venue is proper in this district. The Court finds, however, that it is in the interests of justice to transfer this action to the District of Nevada.

PROCEDURAL BACKGROUND

This case arises from injuries that Plaintiff Calvin Kawamura allegedly suffered when he was attacked and robbed while staying at Defendants' Las Vegas hotel and casino.

I. The Instant Motion

The Kawamuras filed their Complaint on May 24, 2012. (Doc. No. 1.) On June 14, 2012, Defendants moved to dismiss the complaint for lack of jurisdiction or improper venue, or in the alternative to transfer venue. (Doc. No. 5 ("Motion").) The motion was supported by declarations from counsel ("Schmitt Decl.") and from the General Counsel of Defendant Boyd Gaming Corporation ("Larson Decl."). The Kawamuras filed an Opposition on October 4, 2012, which was supported by declarations from counsel ("Saffery Decl.") and from Plaintiff Calvin Kawamura ("Kawamura Decl."), as well as various exhibits. (Doc. No. 18.) Defendants filed a Reply on October 30, 2012.¹ (Doc. No. 23.)

A hearing on the Motion was held on November 13, 2012. At the hearing, the Court requested that the Parties file supplemental briefing on (1) the application of Hawai'i choice-of-law rules to this case and (2) whether Mr. Kawamura's assailant is a necessary and indispensable party to this litigation. The Parties filed their supplemental briefs on November 26, 2012. (Doc. Nos. 28 ("Kawamura Supp.") & 29 ("Defs.' Supp.")

FACTUAL BACKGROUND²

Calvin and Jeanie Kawamura, a married couple who live in Honolulu, were staying at the Main Street Station hotel and casino in Las Vegas, Nevada, on the night of May 25, 2010. (Compl. ¶¶ 2, 13.) The Kawamuras were playing slot machines on the main casino floor at 3:00 a.m. that night when Mr. Kawamura left to go to the nearest men's restroom. (Id. ¶¶ 13-14.) As Mr. Kawamura entered the restroom, he was violently attacked and robbed. (Id. ¶ 17.) Mr. Kawamura was knocked unconscious during the attack and was found on the floor of the restroom by another casino patron. (Id. ¶ 18.) Mr. Kawamura was taken to the hospital, where he was found to have numerous skull and facial fractures, lacerations, and bleeding in his brain. (Id. ¶ 21.) While waiting with Mr. Kawamura in the hospital's emergency room, Mrs. Kawamura fainted and was also admitted to the hospital. (Id. ¶ 22.)

Mr. Kawamura remained in the Nevada hospital for several days before returning to Hawai'i and continued to receivemedical treatment for his injuries in Hawai'i. (Id. ¶¶ 23-24.) In the two months after his return, bleeding in his brain reoccurred twice, requiring operations to relieve fluid pressure and remove a blood clot. (Id. ¶¶ 25-26.) Mr. Kawamura has continued to suffer physical and psychological symptoms resulting from the attack. (Id. ¶¶ 27, 29.) Mrs. Kawamura has also suffered from psychological and emotional symptoms. (Id. ¶¶ 28-29.)

Mr. Kawamura's attacker was arrested and identified as Christopher Corson, a homeless person with a significant criminal record. (Id. ¶ 17.) Corson was ultimately convicted of assault and battery and sentenced to a minimum of six years' imprisonment with a maximum of fifteen years. (Schmitt Decl. ¶ 2; Saffery Decl. ¶ 16.) As of June 2012, he was incarcerated in Nevada. (Schmitt Decl. ¶ 2.)

Defendants Boyd Gaming Corporation and M.S.W., Inc. are Nevada corporations with their principal places of business in Las Vegas, Nevada. (Larson Decl. ¶¶ 3, 6.) M.S.W., Inc. ("Main Street Station") does business as the Main Street Station Casino Brewery Hotel. (Compl. ¶ 4.) Boyd Gaming is the parent company of California Hotel & Casino, which is the parent company of Main Street Station. (Larson Decl. ¶ 4.) Boyd Gaming does not run the daily operations at Main Street Station. (Id. ¶ 7.) Boyd Gaming's subsidiaries and affiliates include eighteen casinos, none of which are located in Hawai'i. (Larson Decl. ¶ 5.) Boyd runs aloyalty program called "B-Connected", through which customers may build up and redeem points at its casinos, including those in Nevada. (Opp'n Ex. 2, at 5.) The Kawamuras are enrolled in the B-Connected program. (Kawamura Decl. ¶ 5.)

Neither Boyd Gaming nor Main Street Station have any offices, employees, or agents for service of process in Hawai'i. (Larson Decl. ¶¶ 3, 6.) They do not rent or own any real or personal property in Hawai'i, including any bank accounts. (Id.) They do not pay any Hawai'i taxes. (Id.) Neither is registered to do business in Hawai'i. (Id.)

Boyd Gaming's SEC 10-K filing for fiscal year 2011 states, however, that Boyd Gaming has "developed a distinct niche for our downtown [Las Vegas] properties by focusing on customers from Hawaii." (Opp'n, Ex. 2 at 9.) The filing explains that Boyd Gaming's downtown Las Vegas properties - which include Main Street Station - "focus their marketing on gaming enthusiasts from Hawaii," which marketing, "combined with our Hawaiian promotions," has allowed Boyd Gaming's downtown Las Vegas properties "to capture a significant share of the Hawaiian tourist trade in Las Vegas." (Id.) Boyd Gaming's 10-K states that during the 2011 fiscal year, "patrons from Hawaii comprised approximately . . . 55% of the occupied room nights at Main Street Station" and 53% and 68%, respectively, of the occupied room nights at its other two downtown Las Vegas properties. (Id.)It states that Boyd Gaming's downtown Las Vegas properties are "benefiting [sic] from successful marketing efforts to our Hawaiian customers, and the strength of the local Hawaiian economy." (Id. at 46.)

Boyd Gaming lists seven factors which it believes "have contributed to our success in the past and are central to our success in the future"; one of the seven is that "our downtown Las Vegas properties focus their marketing programs on, and derive a majority of their revenue from, a unique niche - Hawaiian customers." (Id. at 7.) The Kawamuras booked their May 2010 stay at Main Street Station to take advantage of special offers which they received in the mail from Defendants. (Kawamura Decl. ¶ 6.)

The Kawamuras brings five claim against Boyd Gaming and Main Street, for: (1) negligence; (2) innkeeper liability; (3) premises liability; (4) negligent infliction of emotional distress; and (5) gross negligence/punitive damages.

STANDARD

I. Standard for Motion to Dismiss for Lack of Personal Jurisdiction

"Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate." Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). It is within the Court's discretion to allow the plaintiff to submitaffidavits, allow affidavits plus discovery, or to conduct an evidentiary hearing. Data Disc., Inc. v. Sys. Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). When the Court rules without conducting an evidentiary hearing, "the plaintiff need only make a prima facie showing of jurisdictional facts" through the submitted materials in order to avoid dismissal.³ Schwarzenegger, 374 F.3d at 800; Data Disc., 557 F.2d at 1285. In such cases, the Court only inquires into whether the plaintiff's "pleadings and affidavits make a prima facie showing of personal jurisdiction." Id. (citation omitted).

"In determining whether [the plaintiff] has met this burden, uncontroverted allegations in [the] complaint must be taken as true, and 'conflicts between the facts contained in the parties' affidavits must be resolved in [the plaintiff's] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists.'" Am. Tel. & Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996) (citation omitted).

II. Standard for Motion to Dismiss for Lack of Venue or, in the Alternative, Transfer

The general venue statute, 28 U.S.C. § 1391(b), states:

A civil action may be brought in -

(1) a judicial district in which any defendant resides, if all defendants areresidents of the State in which the district is located;

(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated; or

(3) if there is no district in which the action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

Pursuant to 28 U.S.C. § 1406(a), if venue in the district is improper, the district court "shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."

Finally, even if venue is proper in the district pursuant to pursuant to 28 U.S.C. § 1391, the district court may transfer the case to another district for the convenience of the parties and witnesses and in the interest of justice. 28 U.S.C. § 1404(a). "The purpose of this section is to prevent the waste of time, energy, and money and to protect...