Wilson v. Paradise Village

• Decision Date: 10 August 2007
• Docket Number: DOCKET NO. A-3055-05T5.
• Citation: Wilson v. Paradise Village, 929 A.2d 1122, 395 N.J. Super. 520 (N.J. Super. 2007)
• Parties: Essie WILSON, Plaintiff-Appellant, v. PARADISE VILLAGE BEACH RESORT AND SPA, Paradise Vacation Club, Impulsora Canamex, S.A., de C.V., Defendants-Respondents.
• Court: New Jersey Superior Court

929 A.2d 1122

395 N.J. Super. 520

Essie WILSON, Plaintiff-Appellant, v. PARADISE VILLAGE BEACH RESORT AND SPA, Paradise Vacation Club, Impulsora Canamex, S.A., de C.V., Defendants-Respondents.

DOCKET NO. A-3055-05T5.

Superior Court of New Jersey, Appellate Division.

Submitted January 17, 2007.

Decided August 10, 2007.

Zavodnick, Perlmutter & Boccia, attorneys for appellant (Mitchell D. Perlmutter, Jersey City, on the brief).

Greenberg Traurig, Florham Park, attorneys for respondents (Richard I. Scharlat, of counsel and on the brief).

Before Judges SKILLMAN, LISA and GRALL.

The opinion of the court was delivered by

SKILLMAN, P.J.A.D.

The primary question presented by this appeal is whether a Mexican resort's participation in advertisements placed by airlines and travel agencies in newspapers distributed in New Jersey and the resort's maintenance of websites that can be accessed by New Jersey residents constitute sufficient contacts with New Jersey for our courts to exercise jurisdiction over a claim that does not arise out of those contacts. We conclude that such promotional activity does not establish the continuous and substantial presence within New Jersey required to establish the general jurisdiction of the New Jersey courts over a nonresident defendant.

On September 11, 2000, plaintiff was injured in a slip and fall accident while at a timeshare resort in Nuevo Vallarta, Mexico, called Paradise Village Beach Resort and Spa (Paradise Village), which is managed by defendant Conjunto Desarrollo Marina Mar S.A. de C.V. (Conjunto), a Mexican corporation. Plaintiff was at the resort as a guest of her daughter, a timeshare owner.

Upon the purchase of a timeshare, an owner automatically becomes a member of defendant Paradise Vacation Club (PVC), a non-profit corporation established to maintain the timeshare and manage reservations for timeshare owners. As a member, plaintiff's daughter has received correspondence from PVC mailed from its California office at her New Jersey address, including maintenance statements, a certificate of membership, and an irrevocable proxy document.

Two years after her accident, plaintiff filed this personal injury action against Conjunto (described in the complaint as "S.A. De C.V.") and other alleged affiliated companies in the Law Division. Before any discovery was conducted, defendants moved to dismiss plaintiff's complaint on the ground that the New Jersey courts lack jurisdiction. In support of this motion, defendants argued that they did not have the continuous and substantial contacts with New Jersey required for the New Jersey courts to exercise jurisdiction over them. In the alternative, defendants argued that plaintiff had signed a registration form when she checked into Paradise Village that contained a forum selection clause under which she agreed to submit any claim against defendants to the jurisdiction of a state in Mexico. The trial court accepted both arguments and dismissed plaintiff's complaint.

On appeal, we reversed in an unreported opinion on the ground that the trial court should have allowed plaintiff to conduct "jurisdictional discovery" before ruling on defendants' motion and remanded for such discovery. Wilson v. Paradise Village Beach Resort & Spa, No. A-5753-02T5 (decided July 13, 2004).

On remand, plaintiff propounded interrogatories and made a request for the production of documents. In their answers to interrogatories, defendants stated that they do not own any real estate or other property in New Jersey and that none of their officers, directors, agents or employees reside in New Jersey or the New York/New Jersey metropolitan area. Defendants also relied upon their representatives' certifications, filed in support of the original motion to dismiss, which asserted that they do not maintain offices or employees in New Jersey, are not qualified to do business in New Jersey, do not pay any taxes to New Jersey, and have not designated any agent for service of process in New Jersey.

In response to an interrogatory which asked, "During the years 2000-present, what time share exchange programs [have] the defendants belonged to?", defendants responded:

Defendants do not belong to a time share exchange program. Rather, the resort has contracted with Interval International to offer its timeshare members the ability to trade their timeshares with others in the Interval International network. Interval International is an independent company that is not owned or controlled by Defendants.

Defendants' answers to interrogatories also contained statements regarding their participation in advertisements placed in New Jersey newspapers, maintenance of websites, and other contacts with New Jersey, which are quoted and discussed later in this opinion.

Plaintiff did not object to any of defendants' answers to interrogatories or their responses to the request for the production of documents, and she did not seek to depose any of defendants' representatives.

After the completion of jurisdictional discovery, defendants renewed their motion to dismiss plaintiff's complaint for lack of jurisdiction.¹ The trial court concluded in an oral opinion that plaintiff failed to demonstrate that defendants had the continuous and substantial contacts with New Jersey required for our courts to exercise jurisdiction over them. Accordingly, the court granted defendants' motion to dismiss. Although the court did not need to reach the issue, it expressed the opinion that the forum selection clause on the back of the registration form allegedly signed by plaintiff was unenforceable.

We conclude that the trial court properly dismissed plaintiff's complaint on the ground that defendants' contacts with New Jersey are insufficient to support long-arm jurisdiction. This conclusion makes it unnecessary to consider the enforceability of the forum selection clause on the back of the registration form signed by plaintiff.

"Rule 4:4-4, this state's equivalent of a `long-arm statute,' permits service of process on non-resident defendants `consistent with due process of law.'" Charles Gendler & Co. v. Telecom Equip. Corp., 102 N.J. 460, 469, 508 A.2d 1127 (1986). Consequently this State "allow[s] out-of-state service to the uttermost limits permitted by the United States Constitution." Ibid. (quoting Avdel Corp. v. Mecure, 58 N.J. 264, 268, 277 A.2d 207 (1971)).

"[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 the suit does not offend `traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278, 283 (1940)). In determining whether this test is satisfied, courts distinguish between "specific" and "general" jurisdiction. Compare Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-82, 105 S.Ct. 2174, 2182-87, 85 L.Ed.2d 528, 540-47 (1985) with Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-19, 104 S.Ct. 1868, 1872-74, 80 L.Ed.2d 404, 410-14 (1984). "If a cause of action arises directly out of a defendant's contacts with the forum state, the court's jurisdiction is `specific'." Waste Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106, 119, 649 A.2d 379 (1994), cert. denied, 513 U.S. 1183, 115 S.Ct. 1175, 130 L.Ed.2d 1128 (1995). In such a case, "an isolated act may be sufficient to subject the defendant to the jurisdiction of the forum." Charles Gendler & Co., supra, 102 N.J. at 471, 508 A.2d 1127. But when a cause of action is unrelated to the defendant's contacts with the forum state, the court's jurisdiction is "general" and those contacts "must be so continuous and substantial as to justify subjecting the defendant to [the forum's] jurisdiction." Id. at 472, 508 A.2d 1127.

It is undisputed that this case involves "general jurisdiction" because plaintiff's accident occurred in Mexico and her presence at the resort did not arise out of defendants' contacts with New Jersey. Plaintiff went to the resort as a guest of her daughter, who was a timeshare owner, rather than as a result of any advertising or other marketing activity by defendants in New Jersey. Moreover, the purchase by plaintiff's daughter of a timeshare did not result from any of defendants' contacts with New Jersey. Plaintiff's daughter was first solicited to purchase a timeshare while she was on vacation in Mexico, and the entire sale transaction occurred in Mexico. Although PVC subsequently sent letters and other materials to plaintiff's daughter in New Jersey, there is no indication that plaintiff's visit to the resort resulted from those communications. Thus, unlike Mastondrea v. Occidental Hotels Management S.A., 391 N.J.Super. 261, 268, 918 A.2d 27 (App.Div.2007), this is not a case in which defendants' "minimum contacts [with New Jersey] gave rise to the injury claimed by [plaintiff,]" and for this reason the case does not involve "specific jurisdiction."

If the assertion of jurisdiction over a non-resident defendant rests upon "general jurisdiction," a plaintiff "must show substantially more than mere minimum contacts" with the forum state. Jacobs v. Walt Disney World, Co., 309 N.J.Super. 443, 453, 707 A.2d 477 (App. Div.1998). To establish general jurisdiction, a plaintiff must show that the defendant maintains minimum contacts with the forum state that are "continuous and substantial." Charles Gendler & Co., supra, 102 N.J. at 472, 508 A.2d 1127. Thus, there must be a showing of not only the "nature and quality" but also the "quantity" of the contacts with the forum state. Lakin v. Prudential Secs., Inc., 348 F.3d 704, 712 (8th Cir.2003) (quoting Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816 819 (8th Cir.1994)). "[This] standard for establishing...