Radigan v. Innisbrook Resort and Golf Club

• Decision Date: 01 June 1976
• Citation: 361 A.2d 610,142 N.J.Super. 419
• Parties: John J. RADIGAN and Ruth Radigan, Plaintiffs, v. INNISBROOK RESORT AND GOLF CLUB et al., Defendants.
• Court: New Jersey Superior Court

Page 419

142 N.J.Super. 419

361 A.2d 610

John J. RADIGAN and Ruth Radigan, Plaintiffs, v. INNISBROOK RESORT AND GOLF CLUB et al., Defendants.

Superior Court of New Jersey Law Division.

June 1, 1976.

Philip G. Auerbach, Red Bank, for plaintiffs (Auerbach, Rudnick & Waldman, Red Bank, attorneys).

Terry R. Zuckerman, Newark, for defendant Innisbrook Resort and Golf Club (Conway, Reiseman, Michals & Wahl, Newark, attorneys).

Edward J. DePascale, Jersey City for defendant Texize Chemicals, Inc. (Lamb, Hutchinson, Chappell, Ryan & Hartung, Jersey City, attorneys).

Richard J. Badolato, Livingston, of counsel, for defendant Intex (Morgan, Melhuish, Monaghan & Spielvogel, Livingston, attorneys).

DREIER, J.C.C., temporarily assigned.

Plaintiff, a New Jersey resident, brought this action to recover for injuries sustained as a result of a fall at the Innisbrook Resort and Golf Club in Tarpon Springs, Florida. Defendant Innisbrook has moved to dismiss the complaint on the ground that it has insufficient contacts with New Jersey to support a constitutional exercise of In personam jurisdiction.

International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), represents the starting point for any discussion of long-arm service of process. There is was established that a state court may take jurisdiction of a controversy by appropriate notice to the nonresident if defendant has sufficient contacts with the state. In the course of its opinion the court stated:

* * * (D)ue process requires only that in order to subject a defendant to a judgment In personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of suit does not offend 'traditional notions of fair play and substantial justice'. (326 U.S. at 316, 66 S.Ct. at 158, 90 L.Ed. at 101--102.)

As was noted in Cooke v. Yarrington, 62 N.J. 123, 299 A.2d 400 (1973):

* * * (T)he minimal contacts formula is imprecise and necessarily so. The controlling thought is fairness, and this permits flexibility to deal with the myriad factual patterns which emerge. * * * (at 128, 299 A.2d at 403.)

By its adoption of R. 4:4--4, New Jersey exercises jurisdiction over nonresidents coextensive with the outermost limits permitted by due process. Avdel Corp. v. Mecure, 58 N.J. 264, 268, 277 A.2d 207 (1971). And see, generally, J. W. Sparks v. Gallos, 47 N.J. 295, 299--301, 220 A.2d 673 (1966); Corporate Development Specialists Inc. v. Warren-Teed Pharmaceuticals, Inc., 102 N.J.Super. 143, 148, 245 A.2d 517 (App.Div.1968); Young v. Gilbert, 121 N.J.Super. 78, 85, 296 A.2d 87 (Law Div.1972); Unicon Investments v. Fisco, Inc., 137 N.J.Super. 395, 397--398, 349 A.2d 117 (Law Div.1975); Egan v. Fieldhouse, 139 N.J.Super. 220, 223, 353 A.2d 148 (Law Div.1976).

I

In support of its motion to dismiss defendant furnished the court with the affidavit of John Werner, vice-president of Golf Hosts International, Inc., the corporation which owns Innisbrook (although there are individual owners of on-side condominium units who share income from a rental pool). He states that 'Innisbrook does not advertise in any periodicals published in New Jersey, although it does advertise in magazines that are distributed nationally and may find their way into New Jersey.' Based upon this recitation defendant places reliance upon Dowd v. Boro Drugs Inc., 70 N.J.Super. 488, 176 A.2d 13 (App.Div.1961). In Dowd a New York corporation had sold its products to an independent New York distributor, who then distributed them to retailers in New Jersey. Since the nonresident corporation merely advertised its products in national magazines, some of which were circulated in New Jersey, the court found these contacts insufficient to justify the assumption of In personam jurisdiction. 70 N.J.Super. at 505, 176 A.2d 13.

This court is satisfied that the instant case is readily distinguishable from Dowd. Even though Dowd has not been expressly overruled, later cases have cast doubt upon its underlying reasoning. For example, in Roland v. Modell's Shoppers World of Bergen Cty., Inc., 92 N.J.Super. 1, 222 A.2d 110 (App.Div.1966), the court noted:

* * * (H)aving regard to the development of the law in this field throughout the country since Dowd was decided in 1961, we question whether Dowd is a correct statement of today's constitutional law. (at 16, 222 A.2d at 119.)

Thus, in view of the questionable status of the Dowd reasoning, and more recent decisions discussed Infra, this court finds Dowd to be inapplicable. Cf. Blessing v. Prosser, 141 N.J.Super. 548, 359 A.2d 493 (App.Div.1976, decided May 25, 1976, after oral argument of this motion) which, although not citing Dowd, by its holding left little if any viability to the Dowd reasoning.

Plaintiff's opposing affidavit indicates that since his stay at Innisbrook, and prior to suit, he and several of his friends have received in New Jersey illustrated brochures, letters and other promotional literature soliciting their return. Reservation forms were enclosed. These brochures and other exhibits have been viewed by the court. In addition, letters to the condominium unit owners in New Jersey contain such statements as:

Dear Rental Pool Participant:

* * * Once again, let me ask your assistance in letting us know of any groups with which you are familiar who are planning meetings so that we might contact them and present Innisbrook. With full utilization of both Conference Centers, the Rental Pool results will continue to show improvements. Your assistance in letting us know of groups planning conferences will insure that full utilization. (dated 7/15/74)

Dear Rental Pool Participant:

* * * Many of our owners have been instrumental in bringing about group meetings at Innisbrook by suggesting to their acquaintances that Innisbrook be considered when planning meetings, or by suggesting to us that we contact groups and organizations they know of which are considering meetings. This support is important to both of us and we hope that it will continue. * * * (dated 1/31/74)

Dear member of the Innisbrook Owner Family:

* * * Also, should you have friends who might be interested in what Innisbrook has to offer, please let us know, so that we might should you wish, contact them direct telling them that you'd suggested we do so.

Lastly, we also appreciate any referrals of meetings that you might make to your Innisbrook home. A great deal of our future, especially in the off-season, will depend upon that type of activity to build and maintain occupancy for the Joint Venture Rental Pool. * * * (dated 10/31/72)

On facts similar to the case at bar Judge Stamler, in Oliff v. Kiamesha Concord, Inc., 106 N.J.Super. 121, 254 A.2d 330 (Law Div.1969), first cited the Roland language quoted above and then found sufficient contacts. There, also, the nonresident hotel sent brochures which contained reservation forms directly to New Jersey residents. The court found that the defendant by its actions purposefully 'availed itself of the privilege of conducting activities (with)in this State directly to its intended guest and also through travel agents to whom it paid commissions.' (at 125, 254 A.2d at 332), and aptly observed:

* * * (N)o justifiable reason is advanced to create a special hallowed niche of immunity from process for the hotel which seeks to profit from the resident of the forum state by repeated and direct approaches to the resident. (at 126, 254 A.2d at 332.)

The missing element of paid travel agents, present in Oliff, is of no moment in view of the acknowledged direct solicitation program, supplemented by the efforts of the condominium unit owners.

Defendant seeks to avoid the thrust of Oliff by arguing that the soliciting communications between the parties must have occurred prior to the incident which gave rise to this litigation. A similar contention was rejected in Schaffer v. Granit Hotel Inc., 110 N.J.Super. 1, 264 A.2d 240 (App.Div. 1970) where the court noted:

The mere fact that a part of defendant's activities--advertising in The Jewish News--occurred subsequent to the date of plaintiff's injuries, does not invalidate the service made on defendant. Such activity occurred prior to the institution of suit and it therefore may be considered in determining whether sufficient 'minimum contacts' have been made.

(at 6--7, 264 A.2d at 243.)

The brochures mentioned previously were sent to plaintiff and other New Jersey residents prior to institution of suit; they thus satisfy the demands of due process. The maintenance of suit in New Jersey does not 'offend traditional notions of fair play.' Defendant's motion to dismiss for lack of jurisdiction is therefore denied. Cf. Blessing v. Prosser, supra, (and see the well reasoned dissent therein which would have required analysis and findings similar to those employed herein to uphold jurisdiction).

II

The second issue in this case is whether this court may withhold exercise of jurisdiction by applying the doctrine of Forum non conveniens. Under this doctrine a court may decline jurisdiction where there is available another trial forum which will better serve both the convenience of the parties and the ends of justice. Civic Southern Factors v. Bonat, 65 N.J. 329, 332--333, 322 A.2d 436 (1974).

In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062 (1947), the United States Supreme Court outlined some of the relevant considerations for application of the doctrine:

Important considerations are the relative ease of access to sources of proof; availability of compulsory process for the attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of the premises, * * * and all other practical problems that make trial of a case easy, expeditious and inexpensive. * * *

See also, Starr v. Berry, 25 N.J. 573, 138 A.2d 44 (1958); Vargas v. A. H. Bull Steamship Co., 25...