Kervin v. Red River Ski Area, Inc.

• Decision Date: 11 April 1989
• Docket Number: No. B-88-590-CA.,B-88-590-CA.
• Citation: 711 F. Supp. 1383
• Parties: Carol KERVIN and Charles Kervin, Plaintiffs, v. RED RIVER SKI AREA, INC., Defendant.
• Court: U.S. District Court — Eastern District of Texas

711 F. Supp. 1383

Carol KERVIN and Charles Kervin, Plaintiffs, v. RED RIVER SKI AREA, INC., Defendant.

No. B-88-590-CA.

United States District Court, E.D. Texas, Beaumont Division.

April 11, 1989.

COPYRIGHT MATERIAL OMITTED

Steven C. Barkley, Lindsay, Moses & Barkley, Beaumont, Tex., for plaintiffs.

Arthur R. Almquist, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Tex., for defendant.

MEMORANDUM OPINION

SCHELL, District Judge.

The motion at bar presents this Court with the interesting question of whether the non-resident defendant's contacts with Texas, which include the solicitation of Texas residents to attend its New Mexico ski resort, constitute the kind of "continuous and systematic" contacts which warrant this Court's assertion of general in personam jurisdiction. This lawsuit arises from a personal injury allegedly sustained by Carol Kervin while vacationing at a ski resort owned and operated by the defendant, Red River Ski Area, Inc. (Red River), a New Mexico corporation. Finding that Red River's contacts with Texas are indeed continuous and systematic, the Court denies the motion to dismiss. The Court also denies Red River's motion to transfer venue.

I. BACKGROUND

Carol and Charles Kervin are citizens of Texas and residents of Warren, Texas, in the Eastern District of Texas. They brought this diversity action to recover damages for injuries allegedly sustained by Mrs. Kervin during their January, 1987, ski trip to the Red River Ski Area. Mrs. Kervin purportedly suffered a fall while attempting to descend a flight of wooden steps leading to the ski lodge. The Complaint alleges that defendant was negligent in failing to maintain the steps in a safe manner. Mrs. Kervin seeks damages for medical expenses, pain and suffering, loss of earning capacity, and mental anguish. Her husband seeks damages for loss of consortium.

Red River originally moved to dismiss on August 1, 1988. The Court denied that motion. Soon thereafter, Red River moved the Court to reconsider that Order. Since the Motion to Reconsider contains argument considerably more detailed than that contained in its original motion, the Court will reconsider its prior order denying the motion to dismiss.

Attached to the Motion to Reconsider is the affidavit of George Blanchard, Red River's President. Blanchard's affidavit contains a recitation of denials of contacts with Texas: Red River is not doing business in Texas, owns no property in Texas, has no assets in Texas, is not licensed to do business in Texas, sells no tickets in Texas, has no contacts with any ski shops or travel agencies in Texas, etc. Blanchard admitted only one contact with Texas: one advertisement in one magazine "whose general circulation would have been available in Texas."

Plaintiffs' initial response to the motion contains only Carol Kervin's brief affidavit attached thereto and bald assertions that defendant's "substantial" contacts with Texas justify its subjection to this Court's in personam jurisdiction. Mrs. Kervin's affidavit avers that she saw television advertisements for Red River in the west Texas area and magazine advertisements in ski magazines purchased in Texas, that travel agents recommended Red River, that Red River mailed an information packet to her home in Jasper, and that a "substantial number" of the vacationers were from Texas. These general assertions by plaintiffs of defendant's contacts with Texas fall short of the proof necessary to justify this Court's assertion of general jurisdiction. Plaintiffs, however, previously requested additional time to conduct limited discovery on the issue of jurisdiction, which this Court granted. In accordance therewith, plaintiffs have recently filed their Supplemental Response arguing the fruits of the additional discovery, the most significant part of which is that obtained through the deposition of Drew Judycki, Red River's General Manager and Vice President. Plaintiffs have also brought before the Court copies of magazine prints advertising defendant's facility.

Defendant filed a reply to plaintiffs' response, asserting that plaintiffs have again failed to demonstrate a sufficiently high level of contacts to justify in personam jurisdiction. Defendant also moves the Court, in the alternative, to transfer the case to the District of New Mexico. Finally, plaintiffs have submitted a response to defendant's venue transfer argument.

II. ANALYTICAL FRAMEWORK

A. Jurisdictional Analysis in Federal District Court

Fed.R.Civ.P. 4(e) permits service of process on a non-resident defendant pursuant to state statute. Presumably, plaintiffs served Red River in accordance with the Texas Long-Arm Statute, Tex.Civ.Prac. & Rem.Code Ann. §§ 17.041-.045 (Vernon 1986).¹ A federal court sitting in diversity may exercise jurisdiction over a non-resident defendant only to the extent that a state court could do so as permitted by the forum's long-arm statute. E.g., Interfirst Bank Clifton v. Fernandez, 844 F.2d 279, 282 (5th Cir.1988); Breeland v. Hide-A-Way Lake, Inc., 585 F.2d 716, 719 (5th Cir.1978). A state court, of course, is limited by federal due process requirements. See, e.g., Stuart v. Spademan, 772 F.2d 1185, 1189 (5th Cir.1985); D.J. Inv., Inc. v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 545 (5th Cir.1985). Since the Texas Long-Arm Statute confers jurisdiction to the Constitutional limit, Hall v. Helicopteros Nacionales de Columbia, S.A., 638 S.W.2d 870, 872 (Tex.1982), rev'd on other grounds, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) hereinafter Helicopteros,² the jurisdictional analysis is identical to a federal due process analysis. Interfirst Bank Clifton, 844 F.2d at 282; Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 777 (5th Cir.1986).

B. Plaintiffs' Burden

When a non-resident defendant challenges in personam jurisdiction, the plaintiff bears the burden of demonstrating facts sufficient to support jurisdiction. Stuart, 772 F.2d at 1192. The court may determine the jurisdictional issue by considering essentially the entire record. (Id.) When jurisdiction is considered without a full evidentiary hearing, the plaintiff need only present prima facie proof that the assertion of jurisdiction is proper, rather than proving such by a preponderance of the evidence as required when jurisdiction is contested at a pre-trial evidentiary hearing or at trial. Travelers Indem. Co. v. Calvert Fire Ins. Co., 798 F.2d 826, 831 (5th Cir.1986). When considering a motion to dismiss for lack of jurisdiction, uncontroverted allegations in the complaint must be taken as true, and conflicts between the parties' affidavits must be resolved in the plaintiff's favor. D.J. Inv., 754 F.2d at 546.

III. JURISDICTIONAL FACTS

Red River's contacts with Texas currently before the Court are brought through Mrs. Kervin's affidavit and plaintiffs' Supplemental Response and exhibits thereto, which consist of the Judycki deposition transcript and reproductions of Red River's magazine advertisements and promotional brochure. In light of the foregoing standards for determining a motion to dismiss for lack of jurisdiction over the person, the Court accepts the following contacts with Texas as true:

Advertising. Red River has advertised in two nationally circulated magazines on one occasion each, Ski and Skiing.³ These publications are circulated in Texas. Mrs. Kervin purchased the issues in Texas and saw these ads.

Of greater significance, Red River has engaged in promotional activities within the state of Texas through the use of local advertising media. It has run one advertisement in Accent West, a local magazine targeted directly at the Amarillo, Texas area.⁴ It advertises on "five or six" billboards in the Texas and Oklahoma panhandles, exchanging lift tickets for such advertisements with the billboards owner, a resident of San Angelo, Texas.⁵ It has run an advertisement in Texas Monthly magazine.⁶ It has also advertised in Texas newspapers.⁷

Mrs. Kervin alleged in her affidavit that she saw Red River Ski Area ads on television stations in the Hereford and Lubbock, Texas, areas. The record is unclear whether these ads were actually run on stations inside Texas or were broadcast from New Mexico into Texas. Judycki's deposition failed to clarify this ambiguity. Accordingly, unable to conclude that these ads were local in character and unwilling to speculate, the Court analogizes them to print advertisements in nationally circulated magazines.

Shareholders' Residences. Red River is privately held by five shareholders, four of whom reside in Amarillo, Texas. The other shareholder maintains residences in both Red River, New Mexico and Texas, and spends more than half his time in New Mexico.

Incorporation. Red River was originally incorporated in Texas, but later dissolved and reincorporated in New Mexico.

Recruitment of Employees. Red River recruits ski instructors from universities in Texas.

Travel agencies. Red River does a "small amount" of business through travel agencies. It has no contracts with travel agencies in Texas, but accepts their referrals. Judycki stated that he was "sure" they've done some business with travel agents in Texas. Transcript at 13-15. These travel agencies deduct commissions before transmitting client funds to Red River.

Mail. Once contacted by an agent or by a prospective client in Texas, Red River mails a promotional brochure into this state. The brochure is reproduced as Exhibit "2" to plaintiffs' Supplemental Response. Mrs. Kervin asserted in her affidavit that she received a "packet of information" through the mail at her home in Warren, Texas.

Brochure Printer. Red River procures the services of a printer in Amarillo for the printing of its brochures.

Texas Clientele. Approximately 47% of Red River's clientele is comprised of Texas residents.⁸

Texas CPA. Red River currently employs the services of a CPA in Amarillo.⁹

IV. IN PERSONAM JURISDICTION

The Fourteenth...