Ross Miley v. Hard Rock Hotel and Casino Punta Cana

• Court: District Court, District of Columbia
• Decided: February 1, 2022
• Docket: Civil Action No. 2019-3381
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANDREA G. ROSS MILEY, Plaintiff v. Civil Action No. 19-3381 (CKK) HARD ROCK HOTEL AND CASINO PUNTA CANA, et al., Defendants

MEMORANDUM OPINION (February 1, 2022)

Plaintiff Andrea G. Ross Miley, who appears pro se, brought this action against Hard Rock

Hotel and Casino Punta Cana (“Hard Rock Punta Cana”) and Hard Rock Café International (USA),

Inc. (“Hard Rock International”), alleging she suffered personal injuries while on vacation at Hard

Rock Punta Cana, located in the Dominican Republic. Hard Rock International was previously

dismissed from the case due to lack of personal jurisdiction. See Order, ECF No. 17; Order, ECF

No. 22, Mem. Op., ECF No. 23.

Currently before the Court is a [25] Motion to Dismiss filed by Inversiones Zahena, SA

(“Defendant”), which seeks dismissal on behalf of Hard Rock Punta Cana, indicating that it is the

“owner and operator” of that entity. Defendant contends that Plaintiff’s claims against it should

be dismissed for lack of personal jurisdiction, insufficient service of process, improper venue, and

failure to state a claim upon which relief can be granted. Because the Court concludes that it lacks

personal jurisdiction over Defendant it shall GRANT Defendant’s [25] Motion to Dismiss and

DISMISS this case.

1 I. BACKGROUND

The Court previously dismissed Hard Rock International as a defendant in this action, and

so its discussion here pertains only to the remaining defendant, Hard Rock Punta Cana. As

previously indicated, the pending motion to dismiss was filed by Inversiones Zahena, SA, which

indicates that it is the owner and operator of the hotel referenced in Plaintiff’s Complaint as “Hard

Rock Hotel and Cana Punta Cana” (and which the Court has previously referred to as “Hard Rock

Punta Cana”). For ease of discussion, the Court shall hereinafter refer to the movant as

“Defendant.”

Plaintiff filed her Complaint on November 8, 2019. See Compl., ECF No. 1. She alleges

that while on vacation at the Hard Rock Hotel and Casino in Punta Cana, Dominican Republic,

she suffered head, back, neck, and shoulder injuries from being “struck” when “an overhead prop

fell from above.” Compl. at 1, ¶¶ 1, 2. Plaintiff sued Hard Rock Punta Cana and Hard Rock

International for “compensatory damages in the amount of $100,000 for her injuries,” though she

does not indicate in her Complaint her theory of either defendant’s legal liability for her injuries.

Id. at 2, ¶ 1.

Plaintiff five times requested additional time to effect service of process on Defendants.

See ECF Nos. 4, 6, 8, 11, 13. The Court granted each motion. See ECF Nos. 5, 7, 9, 12, 14.

Plaintiff explained that her efforts to effect service of process on Hard Rock Punta Cana had been

delayed due to closures caused by COVID-19 pandemic. See ECF No. 13, ¶ 4. She also noted

that she learned that Hard Rock Punta Cana had “changed ownership” and that the “best contact

information” for the new ownership group was an address for an entity called “RCD Hotels,”

located in Cancun, Mexico. Id. She informed the Court that “a service of process packet was

forwarded to the business and individuals” at the Cancun address. Id.

2 On January 8, 2021, Plaintiff filed a [18] Motion for Default Judgment as to Defendant

Hard Rock Punta Cana. Therein, she indicated that she had “recently received proof that the

summons and complaint were received by the above alleged new owners of [Hard Rock Punta

Cana],” referring to the individuals associated with RCD Hotels at the Cancun, Mexico address.

Pl.’s Mot. for Default J. at 5. Plaintiff separately filed a form dated January 8, 2021 entitled “Proof

of Service.” See ECF No. 19. The Proof of Service indicates that a non-party “served the

summons” on two individuals understood by Plaintiff to be the agents of Hard Rock Punta Cana’s

purported new ownership group, RCD Hotels. See Proof of Service, ECF No. 5; see Pl.’s Mot. for

Default J. at 4–5. The “Proof of Service” provided no information about the method by which

service was purportedly completed, though Plaintiff’s motion attached a screenshot of a U.S.

Postal Service tracking number indicating that a package was “Delivered” to an address in Mexico

on October 28, 2020, as well as a registered mail receipt for an item sent to the purported agents

of RCD Hotels. Pl.’s Mot. for Default J., Atts. 5, 8.

The Court denied Plaintiff’s motion for default judgment in an order dated May 3, 2021.

See Order Denying Pl.’s Mot. for Def. J., ECF No. 24. The Court noted that it was “not satisfied”

that Plaintiff had perfected service of process on Hard Rock Punta Cana because it was not clear

from her submissions that she had complied with Federal Rule of Civil Procedure 4(h)(2). The

Court ordered Plaintiff to file by no later than June 11, 2021 either “(1) notice explaining how her

method of service on Defendant [Hard Rock Punta Cana] complies with Federal Rule of Civil

Procedure 4 and an appropriate server’s affidavit in accordance with Rule 4(l); or (2) a status report

providing an update to the Court regarding renewed efforts to perfect service on Defendant [Hard

Rock Punta Cana].” Order Denying Pl.’s Mot. for Def. J. at 2. The Court warned that “failure to

make such filing by the date specified” would “result in denial of Plaintiff’s motion [for default

3 judgment] with prejudice” and dismissal of Defendant Hard Rock Hotel and Casino Punta Cana

from this case. Id.

In the meantime, on May 6, 2021, Defendant filed a [25] Motion to Dismiss on behalf of

Hard Rock Punta Cana, indicating that it is the “owner and operator of the hotel referenced in the

Plaintiff’s Complaint as ‘Hard Rock Hotel & Casino Punta Cana.’” See Def.’s Mot. at 25.

Defendant seeks dismissal of Plaintiff’s Complaint, contending that Plaintiff has not properly

effected service of process, that she has failed to establish personal jurisdiction over Defendant,

that venue is improper in this jurisdiction, and that the Complaint fails to state a claim upon which

relief may be granted. See generally id.

On May 7, 2021, the Court issued a [26] Order pursuant to Fox v. Strickland, 837 F.2d 507

(D.C. Cir. 1988) (“Fox Order”), informing Plaintiff that she must respond to Defendant’s Motion

to Dismiss by no later than June 4, 2022 and directing that if she “does not file a response, the

Court will treat the motion as conceded[.]” Fox Order, ECF No. 26. In the same order, the Court

vacated the requirement that Plaintiff file a notice by June 11, 2021 explaining how her efforts to

serve Hard Rock Punta Cana complied with Rule 4 or a status report providing an update on her

efforts perfect service on Defendant Hard Rock Punta Cana. Id.

Plaintiff filed her [27] Opposition to Defendant’s Motion to Dismiss on June 4, 2021, and

Defendant filed its [30] Reply on June 18, 2021. Despite Defendant’s representation in its motion

to dismiss that it is the “owner and operator of the hotel referenced in the Plaintiff’s Complaint as

‘Hard Rock Hotel & Casino Punta Cana,’” Plaintiff contends in her opposition that “there is much

confusion as to who [is] the real owner of . . . HR Punta Cana[.]” Pl.’s Opp’n ¶ 1. She claims that

“[r]ecent investigative information reveals that Palace Resort of Miami, Florida is the owner,” but

that “[p]revious information ha[d] revealed that RCD Hotels in Mexico was the owner and that

4 [two] different individuals residing in Cancun, Mexico . . . were the real parties in interest and

should be served.” Id. She notes that “the matter is still under investigation” and the court “will

be kept advised.” Id.

Plaintiff also requested an extension of time to respond to the Court’s order directing her

to file an explanation of her service of process on Hard Rock Punta Cana or a status report on her

efforts to serve that entity—despite the fact that the Court vacated that deadline in its Fox Order.

See Pl.’s Mot. for Extension, ECF No. 29. Because the Court had previously vacated that deadline,

see Fox Order, ECF No. 26, Plaintiff’s request for an extension is moot.

II. DISCUSSION

Defendant has moved to dismiss Plaintiff’s Complaint, among other reasons, for lack of

personal jurisdiction. A complaint must contain a “short and plain statement of the grounds for

the court’s jurisdiction.” Fed. R. Civ. P. 8(a). Although, again, pro se litigants are held to a less

stringent standard of pleading, they must nonetheless comply with the Federal Rules of Civil

Procedure. Satterlee v. Comm’r of Internal Revenue, 195 F. Supp. 3d 327, 334 (D.D.C. 2016).

Plaintiff’s Complaint plainly fails to provide any factual grounds to support the Court’s exercise

of personal jurisdiction over Defendant, a corporation “based in the Dominican Republic” for

injuries she allegedly suffered while she was on vacation at that location. Def.’s Mot. at 1.

Plaintiff does not address Defendant’s argument that the Court lacks personal jurisdiction

over an international corporation for injuries she allegedly suffered while she was out of the

country. The only mention of “personal jurisdiction” in her Opposition is: “[I]n terms of personal

jurisdiction, [Hard Rock] Punta Cana is clearly more culpable than perhaps one of several HR

Internationals, depending on the nexus.” Pl.’s Opp’n ¶ 3. But personal jurisdiction does not turn

on “culpability” and it is unclear to the Court to what “nexus” Plaintiff is referring.

5 Plaintiff also argues that “[t]here is . . . confusion as to who [is] the real owner” of Hard

Rock Punta Cana, claiming that “[p]revious information . . revealed that RCD Hotels in Mexico

was the owner” and that two individuals residing in Cancun, Mexico were “the reals parties in

interest.” Pl.’s Opp’n ¶ 1. She further contends that unspecified “recent investigative information

reveals that Palace Resort of Miami, Florida is the owner of Hard Rock Punta Cana.” Id. But

even assuming that one of these entities is the “real owner” of Hard Rock Punta Cana, Plaintiff

still fails to address the basis for the Court’s exercise of personal jurisdiction over either one that

she has posited.

Personal jurisdiction “takes two forms: (1) general or all-purpose jurisdiction or (2)

specific or case-linked jurisdiction.” Vasquez v. Whole Foods Market, 302 F. Supp. 3d 36, 45

(D.D.C. 2018) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919,

(2011) (internal quotation marks omitted)). General jurisdiction exists where a defendant has

“continuous and systematic” contacts with the forum state such that the defendant is “essentially

at home” in the forum. Goodyear, 564 U.S. at 919. A corporation is “fairly regarded as at home”

in “the place of incorporation and principal place of business.” Id.; Daimler AG v. Bauman, 571

U.S. 117, 137 (2014). In this case, Plaintiff does not contend that the Court has general jurisdiction

over Defendant, a corporation in the Dominican Republic. Nor does she contend that the Court

has general jurisdiction over the individuals or entities that she claims are the “real owners”—

located in Mexico or Florida. Accordingly, the Court turns to the question of specific jurisdiction.

“In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to

adjudication of issues deriving from, or connected with, the very controversy that establishes

jurisdiction.” Goodyear, 564 U.S. at 919 (citation omitted). A plaintiff seeking to establish

specific jurisdiction over a non-resident defendant must demonstrate that specific jurisdiction

6 comports with the forum’s long arm statute and does not violate due process. Where, as here,

subject matter jurisdiction is based on diversity of citizenship, the District of Columbia’s long arm

statute, D.C. Code § 13–423, “determines whether there is a basis for exercising personal

jurisdiction over the defendants.” Myers v. Holiday Inns, Inc., 915 F. Supp. 2d 136, 140 (D.D.C.

2013) (citing Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 455 (D.C. Cir. 1990)). The District’s

long arm statute is coextensive with the constitutional requirements for personal

jurisdiction, Crane v. Carr, 814 F.2d 758, 762 (D.C. Cir. 1987), and requires that “non-resident

defendants have certain minimum contacts with the forum state, so that the exercise of jurisdiction

does not offend traditional notions of fair play and substantial justice.” Int’l Shoe v.

Washington, 326 U.S. 310, 316 (1945). It further provides that “[w]hen jurisdiction over a person

is based solely upon this section, only claims for relief arising from acts enumerated in this section

may be asserted against him.” D.C. Code § 13–423(b).

Plaintiff makes no allegation or argument demonstrating any contacts between Defendant

and the District of Columbia, much less any of the contacts specified by the District’s long arm

statute. Nor has she identified any such contacts for the Mexican and/or Floridian entities that she

claims are the “real owners” of the Hard Rock Punta Cana. For example, as Defendant notes, she

makes no allegation that Defendant “transacts any business or has any continuous and systematic

contacts with the District of Columbia.” Def.’s Mot. to Dismiss to 11. Rather, the allegations in

the Complaint are limited to claiming that she suffered an injury at a hotel in the Dominican

Republic, which she alleged was owned by a Dominican company. See Compl. Such allegations

provide no nexus or contacts with this jurisdiction.

Because Plaintiff is pro se, the Court has also considered her arguments offered in other,

earlier pleadings. For example, in response to Hard Rock International’s motion to dismiss,

7 Plaintiff claimed that Hard Rock Punta Cana “advertises” in Washington, D.C., suggesting that

this activity satisfied the “transacting business” prong of the District’s long arm statute. Pl.’s Resp.

to Def. Hard Rock Int’l Mot. to Dismiss at 2, ECF No. 18 (claiming that “both Defendants solicit

and conduct substantial advertising” in Washington, D.C.”). But this theory fails as to Hard Rock

Punta Cana for the same reasons it failed against Hard Rock International. To establish personal

jurisdiction under the “transacting business” provision, the plaintiff must prove that that “the

defendant (1) transacted business in the District; (2) that the claim arose from the business

transacted in the District; and (3) that the defendant ‘had minimum contacts with the District of

Columbia such that the Court's exercise of personal jurisdiction would not offend ‘traditional

notions of fair play and substantial justice.’” Myers, 915 F. Supp. at 140 (quoting Dooley v. United

Techs. Corp., 786 F. Supp. 65, 71 (D.D.C. 1992), overruled on other grounds, (citing Int’l

Shoe, 326 U.S. at 316). Plaintiff here has not demonstrated any nexus between alleged

advertisements by Hard Rock International or Hard Rock Punta Cana in Washington, D.C. and her

alleged injury in the Dominican Republic. See D.C. Code § 13–423(b) (for claims arising under

D.C.’s long arm statute, “only claims for relief arising from acts enumerated in this section may

be asserted against [the defendant]”). Simply put, Plaintiff has not shown any connection between

Hard Rock Punta Cana and the District of Columbia, and therefore fails to satisfy the District’s

long arm statute or due process. The Court lacks personal jurisdiction over Defendant.

Because the Court concludes that it lacks personal jurisdiction over Defendant, it does not

reach the remaining arguments regarding improper venue, deficient service of process, and the

Complaint’s failure to state a claim. See Def.’s Mot. to Dismiss at 5–9, 12–14.

8 III. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s [25] Motion to Dismiss and

DISMISSES this case. An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

Date: February 1, 2022