Oddi v. Mariner-Denver, Inc.

• Decision Date: 05 December 1978
• Docket Number: No. IP 78-586-C.,IP 78-586-C.
• Citation: 461 F. Supp. 306
• Parties: Marcia J. ODDI v. MARINER-DENVER, INC., d/b/a Holiday Inn of Downtown Denver, Colorado, Inc. and Holiday Inn of America, Inc.
• Court: U.S. District Court — Southern District of Indiana

461 F. Supp. 306

Marcia J. ODDI v. MARINER-DENVER, INC., d/b/a Holiday Inn of Downtown Denver, Colorado, Inc. and Holiday Inn of America, Inc.

No. IP 78-586-C.

United States District Court, S. D. Indiana, Indianapolis Division.

December 5, 1978.

Margaret C. Attridge of Ice, Miller, Donadio & Ryan, Indianapolis, Ind., for plaintiff.

Martha S. Hollingsworth and David O. Tittle, Bingham, Summers, Welsh & Spilman, Indianapolis, Ind., for defendants.

ORDER

STECKLER, Chief Judge.

This matter is before the Court on the motion of the defendants to dismiss this action because this Court does not have personal jurisdiction over them, or in the alternative, for a change of venue. Fed.R. Civ.P. 12(b)(2). Subject matter jurisdiction is predicated upon diversity of citizenship. 28 U.S.C. § 1332 (1976).

In her complaint, plaintiff alleges that she was a paying guest during September 11-15, 1977, at the Holiday Inn Denver-Downtown which is operated by Mariner-Denver under a license or franchise agreement with Holiday Inn of America, Inc. She claims that the room assigned to her was infested with bed bugs or other insects which bit her causing severe personal injury. She apparently states five causes of action: (1) breach of implied warranties; (2) breach of explicit warranties; (3) negligence; (4) products liability, and (5) third party beneficiary of a breached contract.

Defendants have not filed their answer, although it was due on November 3, 1978. Defendants have now filed this motion to dismiss. In this motion they note that plaintiff has failed to allege that either defendant has any contact with the State of Indiana. Plaintiff does claim that she chose to stay at the Denver Holiday Inn because of advertising, however, there is no allegation where this advertising took place.

A state long-arm statute may be invoked by a federal court sitting in that jurisdiction under either Fed.R.Civ.P. 4(d)(7) or 4(e). Great Western United Corp. v. Kidwell, 577 F.2d 1256, 1266 (5th Cir. 1978); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1068, at 249 (1969).

When plaintiff is seeking to bring a defendant into court under a long-arm statute he must state sufficient facts in the complaint to support a reasonable inference that defendant can be subjected to jurisdiction within the state. See 4 C. Wright & A. Miller, Federal Practice and Procedure § 1068, at 250 (1969).

The Indiana long-arm statute is contained in Trial Rule 4.4. That Rule allows a court to obtain jurisdiction over nonresidents in seven situations. Only two sections appear to be possibly relevant here. First, there is jurisdiction if personal injury is caused in this state by an act or omission done outside the state if the defendant engages in a persistent course of conduct in this state. Trial Rule 4.4(A)(3).

This first possible basis of jurisdiction will not suffice. Before jurisdiction can be conferred the Trial Rule notes that the tortious act must have caused personal injury in Indiana. This Rule only gives Indiana jurisdiction over persons causing injury here without being present. Civil Code Study Commission Comments reprinted in 1 W. Harvey, Indiana Practice 301 (1969). This did not occur. The injury, insect bites, was "caused" by the actions or omissions of a Colorado Holiday Inn. An Indiana resident injured in Colorado by a Colorado corporation or a Tennessee corporation, even if they engage in a persistent course of conduct, cannot come into this Court and assert jurisdiction under Trial Rule 4.4(A)(3) over these defendants.

The second possible basis for jurisdiction is whether defendant does "any business in this state." See Trial Rule 4.4(A)(1). Obviously, this is a standard which has less than mathematical precision. It should be noted that the Indiana long-arm statute was intended to extend personal jurisdiction of courts sitting in this state, including federal courts, to the limits permitted under the due process clause of the fourteenth amendment. Valdez v. Ford, Bacon and Davis, Texas, Inc., 62 F.R.D. 7, 14 (N.D.Ind.1974). Thus, the usual two-step analysis of first checking if a state statute allows jurisdiction over defendant and then ascertaining whether the state's assertion of jurisdiction accords with due process collapses into a single search for the outer limits of what due process permits. Forsythe v. Overmyer, 576 F.2d 779, 782 (9th Cir. 1978).

The limit of this constitutional authority is the fairness of subjecting a defendant to suit in a distant forum. Only if the nonresident defendant has such "minimum contacts" with the state that the maintenance of the suit does not offend traditional notions of fair play and justice, see Kulko v. Superior Court of California, 436 U.S. 84, 92, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Shaffer v. Heitner, 433 U.S. 186, 203, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), or if the defendant has performed some act by which it purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws, see Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), may the forum, consistent with due process, extend its long-arm to embrace it.

The minimum contacts test cannot be formularized. Rather, as Judge Learned Hand noted, the test leaves a court to "step from tuft to tuft across the morass." See Hutchinson v. Chase & Gilbert, 45 F.2d 139, 142 (2d Cir. 1930).

There is no doubt that courts have effected a prodigious expansion of state in personam jurisdiction in recent years. However, it would be a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective states. Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); see generally Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978) (held no personal jurisdiction); Walker v. Newgent, 583 F.2d 163 (5th Cir. 1978) (no personal jurisdiction); Hutson v. Fehr Brothers, Inc., 584 F.2d 833 (8th Cir. 1978), cert. denied, 47 U.S.L.W. 3364 (1978), ___ U.S. ___, 99 S.Ct. 573, 58 L.Ed.2d ___ (no personal jurisdiction).

When a cause of action arises from the defendant's contacts with the forum, less is required to support jurisdiction than when the cause of action is unrelated to those contacts. Forsythe v. Overmyer, 576 F.2d 779, 782 (9th Cir. 1978); Vencedor Mfg. Co., Inc. v. Gougler Industries, 557 F.2d 886, 889 (1st Cir. 1977); Tillay v. Idaho Power Co., 425 F.Supp. 376, 379 (E.D.Wash. 1976). In fact, if plaintiff's injury does not arise out of an act done in the forum state, then other contacts between the corporation and the state must be fairly extensive before the burden of defending a suit there may be imposed upon it without offending traditional notions of fair play and substantial justice. Ratliff v. Cooper Laboratories, Inc., 444 F.2d 745, 748 (4th Cir.), cert. denied, 404 U.S. 948, 92 S.Ct. 271, 30 L.Ed.2d 2652 (1971); see also Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1287 (9th Cir. 1977). When there is a minimum of contacts, and the cause of action does not arise out of the contacts, there will normally be no basis for jurisdiction. 2 Moore's Federal Practice ¶ 4.41-13 at 4-454 (2d ed. 1978).

In the case at bar it is clear plaintiff makes no allegation that defendants' contacts with the State of Indiana form the basis for the cause of action. Thus, the defendants' other ties with this state must be substantial. Defendant Mariner-Denver submitted the affidavit of John Camerson, Secretary-Treasurer of that corporation, which states, although in relatively conclusory terms, that this firm does not regularly do or solicit business or engage in any other persistent course of conduct or derive substantial revenue or benefit from goods, materials or services used or rendered in Indiana. Plaintiff made no response to this; she has not alleged that this Colorado Holiday Inn has substantial contacts with Indiana.

In a similar case, Bryson v. Northlake Hilton, 407 F.Supp. 73 (M.D.N.C.1976), the court held that there was no personal jurisdiction. In Bryson, plaintiffs, guests at a Georgia motel, sued that motel to recover for injuries sustained when they were allegedly bitten by flea-like insects. Northlake, which held a franchise from Hilton Inn, Inc., moved to dismiss this suit brought in a North Carolina federal court. The court rejected plaintiffs' arguments that jurisdiction attached because Northlake (1) benefitted from the reputation of Hilton franchises in North Carolina; (2) was a part of the network of motels that are covered by the general advertising campaign for all Hilton Inns, and, as such, solicits business in North Carolina; ...