Kreis v. Boca Chica Resort CV-97-058-SD 06/30/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jennifer Kreis; Kenneth Kreis

v. Civil No. 94-151-SD

Boca Chica Resort

O R D E R

In this diversity action, plaintiffs Jennifer and Kenneth

Kreis seek relief against defendant Boca Chica Resort of Santo

Domingo, Dominican Republic (Boca Chica) under state law claims

of negligence and loss of consortium for injuries Jennifer Kreis

sustained while a guest at Boca Chica. Currently before the

court are defendant's motions to dismiss for lack of personal

jurisdiction and insufficiency of service of process, and

plaintiff's motion reguesting that the court accept the facsimile

affidavit of Harry Hughes as valid without the need for

notarization and in the alternative reguesting an extension of

time for the filing of a notarized original affidavit.

Background

Plaintiffs purchased a package vacation at Boca Chica resort

based on information regarding Caribbean tour packages that they

had obtained from Penny Pitou Travel, a travel agency located in

New Hampshire. During the evening of their arrival on April 21, 1991, plaintiffs walked about the property of the resort. During

this walk, Mrs. Kreis was injured when she accidentally stepped

into an open pipe located in the sidewalk.

Boca Chica is incorporated in the Dominican Republic, which

is its only place of business. Boca Chica does not have any

officers, directors, or employees who are citizens of New

Hampshire. The resort has never maintained an office or a bank

account in this state.

Boca Chica contracted with The Hotel Company, a New York

marketing firm, for marketing and sales services. The Hotel

Company, located in the office space of International Travel &

Resorts, Inc. (ITR), is the sole representative of Boca Chica in

the entire North American region. The Hotel Company sells blocks

of Boca Chica's rooms to several tour package operators,

including Globetrotters, and advertises for Boca Chica, while

also acting as a contact for information and bookings.

One of the tour package operators that buys blocks of Boca

Chica's rooms from The Hotel Company is Globetrotters, a

Massachusetts corporation. Globetrotters assembles tour packages

which include airfare on any of several airlines and rooms at any

of several hotels and resorts. Globetrotters then sells these

package trips to travel agencies, such as Penny Pitou Travel, who

in turn sell the tours directly to consumers. Globetrotters

2 furnished Penny Pitou Travel with a brochure describing its

package tours in the Caribbean, which included a listing for Boca

Chica. Penny Pitou Travel provided this brochure to Mrs. Kreis's

father, which led to the plaintiffs' booking a trip to Boca

Chica. Plaintiffs dealt directly with and paid Penny Pitou

Travel, which in turn made arrangements with Globetrotters.

Globetrotters scheduled the flight and reserved the room at the

resort through The Hotel Company.

Discussion

1. Defendant's Motion to Dismiss for Lack of Personal

Jurisdiction

a. Standard of Review

When the defendant challenges personal jurisdiction, the

plaintiff bears the burden of demonstrating that it is proper for

the court to assert jurisdiction. Sawtelle v. Farrell,

(1st Cir. 1985) . A prima facie standard applies,

under which the court determines whether the plaintiffs have

produced evidence that, "if credited, is enough to support

findings of all facts essential to personal jurisdiction." Bolt

v. Gar-Tec Products, Inc.,

(1st Cir. 1992) .

The court accepts the plaintiff's properly documented proffers of

evidence as true. See

3 b. The New Hampshire Lonq-Arm Statute

The applicable New Hampshire long-arm statute governing the

exercise of jurisdiction over foreign corporations permits

jurisdiction "to the full extent allowed by federal law." New

Hampshire Revised Statutes Annotated (RSA) 293-A:15.10(5) (Supp.

1996). Since the long-arm statute and the constitutional

reguirements of due process are coextensive, the court turns its

attention to whether the assertion of personal jurisdiction over

Boca Chica comports with constitutional due process standards.

(citing McClarv v. Erie Engine &

Mfg. Co.,

(D.N.H. 1994)).

c. Due Process

The exercise of personal jurisdiction comports with the

Fourteenth Amendment's Due Process Clause if certain "minimum

contacts" exist between the defendant and the forum state.

International Shoe Co. v. Washington,

(1945);

accord

. Plaintiffs do not

contend that general personal jurisdiction is available over Boca

Chica; rather, they argue only specific personal jurisdiction. A

determination of whether a defendant has sufficient minimum

contacts to permit the exercise of specific personal jurisdiction

is made in this circuit via the following tripartite analysis:

4 First, the claim underlying the litigation must directly arise out of, or relate to, the defendant's forum-state activities. Second, the defendant's in-state contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state's laws and making the defendant's involuntary presence before the state's courts foreseeable. Third, the exercise of jurisdiction must, in light of the Gestalt factors, be reasonable.

United Elec. Workers v. 163 Pleasant Street Corp.,

,

1089 (1st Cir. 1992); accord

.

As a threshold matter, it is necessary to identify the

contacts between Boca Chica and New Hampshire. First, The Hotel

Company, a New York company, arranged to have Boca Chica listed

in a travel brochure published by Globetrotters, a Massachusetts

company, and distributed to Penny Pitou Travel in New Hampshire.

Second, ITR and The Hotel Company, both New York companies,

advertised on behalf of Boca Chica in New Hampshire. The issue

at hand is whether either of these two contacts constitutes

sufficient "minimum contacts" such as will support the exercise

of personal jurisdiction over Boca Chica.

This court concludes that neither contact satisfies the

minimum contacts test because each completely fails either the

relatedness or the purposeful availment prong of the tripartite

analysis. While a weak showing of either relatedness or

purposeful availment is typically just a factor in the

5 jurisdictional analysis, "a complete failure to demonstrate

relatedness or purposeful availment . . . is dispositive of the

jurisdictional issue." Mitrano v. Jerry's Ford Sales, No. 95-

266-JD, slip op. at 10 n.4 (D.N.H. Oct. 6, 1995) (citing

Ticketmaster-New York, Inc. v. Alioto,

(1st Cir.

1994)) (emphasis added). As discussed below, the first relevant

contact, Boca Chica's listing in the Globetrotters brochure

distributed in New Hampshire, completely fails the purposeful

availment prong, and the second relevant contact, advertising for

Boca Chica within the state, is wholly unrelated to the

plaintiffs' cause of action.

(1) Boca Chica's Listing in a Globetrotters Brochure

Boca Chica's listing in a Globetrotters travel brochure that

was distributed in New Hampshire is not an act through which the

resort "purposefully avail[ed] itself of the privilege of

conducting activities within the forum [s]tate, thus invoking the

benefits and protections of its laws." Hanson v. Denckla,

(1958). The focus of a purposeful availment

analysis is "whether [the] defendant has 'engaged in any

purposeful activity related to the forum that would make the

exercise of personal jurisdiction fair, just, or reasonable.'"

(guoting Rush v. Savchuck, 444

, 329 (1980)). The two cornerstones of purposeful

availment are the voluntariness with which the defendant's

contacts were established and the foreseeability that these

contacts would subject the defendant to suit in New Hampshire.

See

; Nowak v. Tak How

Investments, Ltd.,

(1st Cir. 1996).

The listing of Boca Chica in the Globetrotters travel

brochure does not constitute a voluntarily established contact

between Boca Chica and New Hampshire. Voluntary contacts are

those that "amount[] to a purposeful decision by the nonresident

to 'participate' in the local economy . . . ." Bond Leather Co.

v. O.T. Shoe Mfg. Co.,

(1st Cir. 1985).

Voluntary contacts may be contrasted with "'the unilateral

activity of another party or 'third person.'" Burger King Corp.

v. Rudzewicz,

(1984) (quoting Helicopteros

Nacionales de Colombia, S.A. v. Hall,

(1984)).

The listing of Boca Chica in the Globetrotters travel brochure

distributed in New Hampshire is more attributable to the

unilateral acts of The Hotel Company and of Globetrotters rather

than to a purposeful decision by Boca Chica to participate in the

local economy. Boca Chica's listing made its way into New

Hampshire through a long chain of events beginning with a

contract between Boca Chica and The Hotel Company for marketing

7 services throughout North America. Pursuant to this agreement.

The Hotel Company sold rooms to Globetrotters in Massachusetts so

Globetrotters could offer Boca Chica as one of several hotel

accommodations as part of a travel package. Globetrotters

assembled the vacation packages and distributed informational

brochures to various travel agencies, including Penny Pitou

Travel in New Hampshire. The only purposeful decision

attributable to Boca Chica is its entering into the marketing

contract with The Hotel Company. Beyond this. The Hotel Company

was exclusively responsible for promoting Boca Chica, and the

resort itself retained no control over, nor expressed any

interest in, those states in which its rooms were marketed. The

listing of Boca Chica in a travel brochure distributed in New

Hampshire was the result of the acts of The Hotel Company and

Globetrotters rather than a purposeful decision of Boca Chica to

participate in the New Hampshire economy. While it may be said

that the agreement between Boca Chica and The Hotel Company set

in motion a chain of events that ultimately resulted in Boca

Chica's listing in the brochure in New Hampshire, finding this to

be "a sufficiently direct 'targeting' of [New Hampshire] would be

to embrace, in effect, the 'stream of commerce' theory of

personal jurisdiction rejected by the First Circuit." Bennett v.

Jack Dennis Whitewater Trips,

(D. Mass.

8 1996) (citing

; Bolt, supra,

).

Plaintiffs rely on the recently decided Nowak case, in which

the First Circuit upheld the exercise of personal jurisdiction

over a foreign hotel that, like Boca Chica, solicited business in

the United States. Nowak, supra,

. However, Nowak

is readily distinguishable. In Nowak, the controlling factor was

the hotel's direct solicitation of business from a Massachusetts

corporation. See

. Through its efforts, the hotel

established an ongoing correspondence and relationship with this

corporation. See

Here, Boca Chica did not directly solicit,

correspond with, or in any way specifically campaign New

Hampshire residents.

(2) Boca Chica's More General Advertising

Long after Mrs. Kreis suffered injury, Mr. Kreis obtained an

advertising brochure for Boca Chica from a New Hampshire travel

agent. The brochure was distributed by The Hotel Company or ITR.

Mr. Kreis also stated that, within one year of his wife's

accident, he observed posters also devoted solely to advertising

the resort displayed in the window of a New Hampshire travel

agency. In addition, Mr. Kreis conducted an Internet search

regarding Boca Chica that produced information on the resort and

9 listed ITR as the contact.

Since the plaintiffs never observed the above advertising

prior to their decision to book a stay at Boca Chica, this

contact is completely unrelated to the plaintiffs' cause of

action. The relatedness requirement is met if the action

directly arises out of the specific contacts between the

defendant and the forum state.

(citing Fournier v. Best Western Treasure Island Resort,

(1st Cir. 1992)). Relatedness "focuses on the nexus

between the defendant's contacts with the forum and the

plaintiff's cause of action."

. Because the Kreises never observed any of this advertising

until after their trip, the advertising had no causal connection

with their decision to vacation at Boca Chica and, subsequently,

Mrs. Kreis's injury.

Conclusion

In sum, the listing of Boca Chica in a New Hampshire travel

brochure fails the purposeful availment test. The more general

advertising in New Hampshire fails the relatedness test.

Therefore, neither constitutes minimum contacts, and jurisdiction

over Boca Chica is constitutionally improper. Having reached

this conclusion, it is unnecessary to address the motion to

10 dismiss for insufficient service of process.

Lastly, plaintiff's motion requesting that the court accept

the affidavit of Harry Hughes is granted, but this court

nonetheless finds that the information contained in Hughes's

affidavit does not alter the conclusion that jurisdiction over

Boca Chica is improper.

Basically, Hughes swears that a substantial percentage of

Boca Chica's customers come from northern New England. This

evidence is unhelpful to the jurisdiction analysis for two

reasons. First, it does not indicate what percentage of northern

New England customers are from New Hampshire, the forum in which

jurisdiction is sought. Second, as discussed above, the

marketing of Boca Chica in New Hampshire is more attributable to

The Hotel Company and Globetrotters rather than a purposeful

decision by Boca Chica. The fact that The Hotel Company's

marketing on behalf of Boca Chica was successful and attracted

customers from New Hampshire does not establish that Boca Chica

purposefully availed itself of the privilege of doing business in

New Hampshire.

11 For the foregoing reasons, Boca Chica's motion to dismiss

for lack of personal jurisdiction is granted.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

June 30, 1997

cc: Andrew J. Harmon, Esg. Claudia C. Damon, Esg.

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