De Leon v. Ocean Motion Watersports

2016 DNH 115

• Court: District Court, D. New Hampshire
• Decided: July 13, 2016
• Docket: 13-cv-218-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Shannon N. De Leon, Plaintiff

v. Case No. 13-cv-218-SM Opinion No. 2016 DNH 115

Ocean Motion Watersports, Ltd., Defendant

O R D E R

Plaintiff brought this action against Ocean Motion

Watersports and several other defendants, seeking damages for

injuries she sustained while vacationing on Grand Bahama Island.

She subsequently settled her claims against those other

defendants, so only the claims against Ocean Motion remain.

According to the amended complaint, “Upon information and

belief, Ocean Motion is a corporation organized and existing

under the laws of Lucaya, Grand Bahama Island, with its

principal place of business located in Lucaya, Grand Bahama

Island.” Amended Complaint (document no. 23) at para. 7.

Although plaintiff claims to have properly served Ocean Motion

1 under the terms of the Hague Convention, Ocean Motion failed to

file an answer or dispositive pleading. Accordingly, plaintiff

moved for entry of default. That motion was granted. In due

course, plaintiff moved for default judgment against Ocean

Motion. That motion is pending.

Prior to granting plaintiff’s motion for default judgment,

the court issued an order in which it noted its independent

obligation to ensure that it may properly exercise personal

jurisdiction over Ocean Motion. The court also observed that

plaintiff’s amended complaint contains, at best, only sparse

allegations concerning Ocean Motion’s contacts with this forum -

allegations that, even if fully credited as true, are plainly

insufficient to warrant the conclusion that Ocean Motion has

adequate contacts with this forum to permit the court to

properly exercise either general or specific personal

jurisdiction over it. Accordingly, the court directed plaintiff

to show cause why her claims against Ocean Motion should not be

dismissed for want of personal jurisdiction.

In her response, plaintiff acknowledges that she bears the

burden to establish personal jurisdiction. See Plaintiff’s

2 Response (document no. 71) at 1. See generally, Negron-Torres

v. Verizon Communications, Inc., 478 F.3d 19, 24 (1st Cir. 2007)

(noting that when personal jurisdiction is challenged, “it is

plaintiff’s burden to demonstrate the existence of every fact

required to satisfy both the forum’s long-arm statute and the

Due Process Clause of the Constitution.”) (quoting United States

v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001)).

And yet, plaintiff offers not a single new allegation concerning

Ocean Motion’s contacts with this forum. Instead, she relies

exclusively upon the factual claims set forth in paragraph 12 of

her amended complaint, which state:

Upon information and belief, at all times material, Radisson International, Radisson Property, Radisson Hospitality, Radisson Management, Radisson Worldwide and/or Ocean Motion, through the internet and other advertising methods, which include purchasing and placing advertisements in major publications distributed and/or available in this district, solicited and received substantial business for the Radisson Our Lucaya Resort located on Grand Bahama Island and other properties that it/they operated, manage, maintain and/or control.

Amended Complaint at para. 12 (emphasis supplied). Plaintiff

has submitted no copies of the alleged “advertisements in major

publications” that Ocean Motion allegedly purchased, nor has she

provided a link to any website(s) through which Ocean Motion

3 allegedly “solicited and received substantial business” from

residents of this forum, nor has she even alleged that the

referenced website is “interactive.” And, as the court of

appeals has noted:

It is clear that the mere existence of a website that is visible in a forum and that gives information about a company and its products is not enough, by itself, to subject a defendant to personal jurisdiction in that forum. Given the omnipresence of internet websites, such a rule would eviscerate the limits on personal jurisdiction over out-of-state defendants. Instead, for website activity to support the exercise of personal jurisdiction, something more is necessary, such as interactive features which allow the successful online ordering of the defendant’s products.

Cossaboon v. Maine Medical Ctr., 600 F.3d 25, 35 (1st Cir. 2010)

(citations and internal punctuation omitted).

In short, plaintiff has done nothing to substantiate the

minimal assertions that she makes “upon information and belief”

in her amended complaint. See generally Negron-Torres, 478 F.3d

at 23 (“The prima facie showing of personal jurisdiction must be

based on evidence of specific facts set forth in the record. In

other words, the plaintiff must go beyond the pleadings and make

affirmative proof.”) (citation and internal punctuation

omitted). Instead, plaintiff asserts that because Ocean Motion

4 failed to appear, she has been deprived of the opportunity to

engage in jurisdictional discovery (and, at least implicitly,

acknowledges that she cannot meet her prima facie burden).

Consequently, she says her “venue choice and the allegations

supporting it should be taken as true and in the light most

favorable to Plaintiff.” Plaintiff’s memorandum (document no.

71) at para. 12. She then concludes by asserting that the

“presumption in favor of Plaintiff’s choice of forum,” combined

with her inability to conduct jurisdictional discovery, should

relieve her of the burden to produce any additional facts

relevant to the court’s jurisdictional analysis. Id. at para.

13.

Looking beyond the fact that plaintiff appears to confuse

and conflate the concepts of venue and personal jurisdiction,

her memorandum lacks a critical element: she fails to allege

what jurisdictional facts she reasonably expected to obtain

through such discovery - facts to which she otherwise would not

have access; facts that could only be obtained from Ocean

Motion; and facts that would have demonstrated its minimum

contacts with this forum. Instead, plaintiff speaks only in

confusing generalities: “However, allegations could reasonably

5 have led to discovery and requisite jurisdiction ties, given an

opportunity to do so. Defendant’s default prevented the

Plaintiff from conducting such discovery.” Id. at para. 14.

Plainly, more is needed to carry her burden. See generally Boit

v. Gar-Tec Products, Inc., 967 F.2d 671, 675 (1st Cir. 1992)

(noting that a “prima facie showing of personal jurisdiction

must be based on evidence of specific facts set forth in the

record,” and observing that “it has long been the rule of this

circuit, however, that plaintiffs may not rely on unsupported

allegations in their pleadings to make a prima facie showing of

personal jurisdiction.”). See also Phillips v. Prairie Eye

Ctr., 530 F.3d 22, 26 (1st Cir. 2008) (“In order to make a prima

facie showing of jurisdiction, ‘the plaintiff ordinarily cannot

rest upon the pleadings but is obliged to adduce evidence of

specific facts.’”) (quoting Foster-Miller, Inc. v. Babcock &

Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995)).

Conclusion

Despite having been afforded the opportunity to do so,

plaintiff has failed to carry her burden of making a prima facie

showing that Ocean Motion is subject to personal jurisdiction in

this proceeding. Accordingly, her motion for default judgment

6 (document no. 47) is denied and her claims against Ocean Motion

Watersports, Ltd. are dismissed for lack of personal

jurisdiction.

As all of plaintiff’s other claims have been resolved by

reason of settlement, the Clerk of Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

___________________________ Steven J. McAuliffe United States District Judge July 13, 2016

cc: Glenn J. Holzberg, Esq. John E. Brady, Esq. Phillip S. Bixby, Esq.