Sheridan v. Ascutney Mountain Resort Services, Inc., Civil A. No. 95-30270 MAP.

• Decision Date: 16 May 1996
• Docket Number: Civil A. No. 95-30270 MAP.
• Citation: 925 F. Supp. 872
• Parties: Elizabeth SHERIDAN, a/k/a "Betty" Sheridan, Plaintiff, v. ASCUTNEY MOUNTAIN RESORT SERVICES, INC., d/b/a Mt. Ascutney Ski Area, Defendant.
• Court: U.S. District Court — District of Massachusetts

925 F. Supp. 872

Elizabeth SHERIDAN, a/k/a "Betty" Sheridan, Plaintiff, v. ASCUTNEY MOUNTAIN RESORT SERVICES, INC., d/b/a Mt. Ascutney Ski Area, Defendant.

Civil A. No. 95-30270 MAP.

United States District Court, D. Massachusetts.

May 16, 1996.

COPYRIGHT MATERIAL OMITTED

Gary A. Ensor, Ryan, Boudreau & Kirkpatrick, South Hadley, MA, for plaintiff.

John B. Connarton, Jr., and Maria E. Ciampa, Connarton, Wood & Callahan, Boston, MA, for defendant.

ORDER

PONSOR, District Judge.

Before the Court is a Motion to Dismiss or to Change Venue filed by the defendant. No opposition to the Motion having been filed, it is hereby ordered that the Report and Recommendation of the Magistrate Judge issued on April 26, 1996 be adopted.

Therefore, venue in the above captioned case is hereby transferred to the District of Vermont.

It is so ordered.

REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANT'S MOTION TO DISMISS COMPLAINT OR TO CHANGE VENUE (Docket No. 05)

April 26, 1996

NEIMAN, United States Magistrate Judge.

Defendant Ascutney Mountain Resort Services, Inc., d/b/a Mt. Ascutney Ski Area, seeks to dismiss or, in the alternative, transfer the venue of Plaintiff Elizabeth Sheridan's complaint for personal injuries sustained while ice skating at Defendant's resort in Vermont. Defendant's motion has been referred to the Court for a report and recommendation pursuant to Rule 3 of the Rules for United States Magistrate Judges in the United States District Court for the District of Massachusetts. 28 U.S.C. § 636(b)(1)(B). For the reasons indicated below, the Court recommends that the motion, to the extent it seeks to transfer venue of the matter, be allowed.

I. BACKGROUND

The complaint alleges that on or about January 1, 1994, Plaintiff sustained a personal injury while lawfully on the Defendant's premises when she slipped and fell while traversing a surface which was icy and lightly covered with snow. Plaintiff claims that the area, which was adjacent to an ice rink and designated for putting on skates, was unsafe because of its descending slope and the absence of a supporting handrail. Plaintiff also claims that Defendant failed to adequately maintain the area and to warn of the danger created by unsafe conditions.¹

In an affidavit in support of her opposition to Defendant's motion ("Plaintiff's Affidavit"), Plaintiff reveals that she resides in South Hadley, Massachusetts, and, together with her husband, has owned a vacation condominium at Defendant's ski resort in Vermont since approximately 1984. Plaintiff's Affidavit, at ¶¶ 1-2. Plaintiff and her husband are also members of the resort's property owners association and have attended various meetings of the association during which Defendant's representatives discussed plans to promote business in Massachusetts. Id., at ¶¶ 2-3. In addition, Plaintiff has seen Defendant's advertisements in the Boston Globe and the Springfield Union, both Massachusetts newspapers, on local television stations and in brochures available at the Eastern States Exposition in West Springfield, Massachusetts. Id., at ¶ 4. Plaintiff claims as well that Defendant advertises on a billboard visible from Interstate 91 in Northampton, Massachusetts. Id., at ¶ 5. Plaintiff also alleges that she has received direct mailing from Defendant at her Massachusetts residence and that she has "responded to said solicitations by mail" by making reservations — paid by credit card over the telephone — including the reservation for the stay during which she was injured. Id., at ¶¶ 6-7. Finally, Plaintiff indicates that she has received written confirmation of these reservations at her Massachusetts residence. Id., at ¶ 7.

Attached to Plaintiff's affidavit are a number of documents. Included with these documents are (1) an undated letter to Plaintiff and her husband as property owners at the resort, (2) a copy of an envelope postmarked February of 1995, which appears to accompany the undated letter, (3) information with regard to a season pass program for the 1993-1994 ski season, (4) a form in which Plaintiff and her husband make their condominium available to seasonal renters, (5) a notice of a zoning hearing sent to Plaintiff as a property owner at the resort, and (6) a solicitation letter from a broker inquiring about the possible sale of the condominium.

In support of its motion to dismiss, Defendant has provided the affidavit of Susan D. Plausteiner, president of Snowdance Ski Company, a general partner of Defendant ("Defendant's Affidavit"). Ms. Plausteiner avers that Defendant is incorporated under the laws of the state of Delaware, is not licensed to do business in Massachusetts, does not maintain an office in Massachusetts, does not employ any person whose office or place of business is within Massachusetts, and neither possesses nor maintains any mailing address or telephone listing in Massachusetts. Defendant's Affidavit, at ¶¶ 3-5. Ms. Plausteiner further avers that Defendant's place of business and the place where the Plaintiff's injury occurred are both located in Vermont, that Defendant does not contract to supply any services or goods in Massachusetts, and that Defendant has no interest in any real or personal property in Massachusetts. Id., at ¶¶ 6, 9-11. Ms. Plausteiner does admit that Defendant advertises in Massachusetts. Id., at 7.

II. STANDARD OF REVIEW

When reviewing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), a court must accept the facts alleged in the complaint as true and view any reasonable inferences in a light most favorable to the plaintiff. See Noonan v. Winston Co., 902 F.Supp. 298, 302 (D.Mass.1995) (citing Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989)). However, in order to establish a prima facie case of personal jurisdiction, it is not enough for the plaintiff to rely on the bare allegations of the complaint. Id. See Chlebda v. H.E. Fortna & Bro., Inc., 609 F.2d 1022, 1024 (1st Cir. 1979). Rather, "the prima facie showing of personal jurisdiction must be based on evidence of specific facts set forth in the record. The `plaintiff must go beyond the pleadings and make affirmative proof.'" Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675 (1st Cir.1992) (quoting Chlebda, 609 F.2d at 1024). See also Noonan, 902 F.Supp. at 302. At bottom, the evidence a plaintiff presents must establish that sufficient contacts exist between the defendant and the foreign state in order to survive a motion to dismiss on personal jurisdiction grounds. See Boit, 967 F.2d at 681-82; and Mellon Bank (East) PSFS, Nat. Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir.1992).

III. DISCUSSION

A court's exercise of personal jurisdiction over a non-resident defendant presents a two-fold inquiry: (1) whether the assertion of jurisdiction is authorized by statute, and, if authorized, (2) whether such assertion is consistent with basic due process requirements. Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir.1995); Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 144 (1st Cir.1995). Each issue will be addressed in turn.

As to the first inquiry, the law of the forum state applies. Sawtelle, 70 F.3d at 1387 (citing cases). As such, the Court's determination of personal jurisdiction, as both parties agree, rests on the Massachusetts long-arm statute which provides, in relevant part, that "a court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's ... transacting any business in this commonwealth ..." M.G.L. ch. 223A, § 3(a).²

Defendant asserts that, although it advertises in Massachusetts, it does not transact any business in this state as required by M.G.L. ch. 223A, § 3(a). It has long been held, Defendant argues, that advertising activities alone will not support a finding of transacting business for purposes of this Court's exercise of personal jurisdiction. See Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 376 N.E.2d 548, 551 (1978); Rye v. Atlas Hotels, Inc., 30 Mass. App.Ct. 904, 566 N.E.2d 617, 619 (1991).

More to the point, Defendant asserts that even if the advertising and other actions of Defendant amount to the transaction of business in Massachusetts, the Plaintiff has failed to establish how her injury, which forms the basis of her cause of action, arises from Defendant's transaction of business. In this regard, Defendant argues that other courts in this district, together with the First Circuit itself, have on numerous occasions found jurisdiction lacking in instances comparable to those facts presented here, either because the business activities of the defendant were inadequate or because the alleged injuries could not be said to "arise from" those activities. See Canning v. Gunstock Area Com'n, 695 F.Supp. 602 (D.Mass.1988) (plaintiff failed to establish nexus between defendant's alleged activities in Massachusetts and the personal injury plaintiff suffered at defendant's New Hampshire ski lodge); Gray v. O'Brien, 777 F.2d 864 (1st Cir.1985) (plaintiff failed to establish how the defendant's advertising in Massachusetts was related to his ski injury on defendant's New Hampshire property); Morse v. Walt Disney World Co., 675 F.Supp. 42 (D.Mass.1987) (while defendant corporation transacted business in Massachusetts, negligent cause of action did not arise out of defendant's Massachusetts activities when the plaintiff was injured at defendant's Florida location.) Finally, and most particularly, Defendant asserts that this case comes within the purview of Marino v. Hyatt Corp., 793 F.2d 427 (1st Cir.1986).

In Marino, the First Circuit held that a guest's action against a hotel owner for injuries received in a slip and fall in her hotel room in Hawaii did not "arise from" her reservation of the room in Massachusetts within the meaning of the Massachusetts long-arm statute. In essence, the First Circuit found that the hotel...