1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARILY ENGLISH, Case No. 20-cv-02034-JSW

8 Plaintiff,

ORDER GRANTING MOTION TO

9 v. DISMISS AND ORDER TO SHOW

CAUSE

10 AM RESORTS, et al., Re: Dkt. No. 41 Defendants. 11

12 13 Now before the Court for consideration is the motion to dismiss, motion for more definite 14 statement, or motion to transfer venue submitted by Defendants AMResorts, L.P., and ALG 15 Vacations Corp. (“Defendants”). The Court has considered the parties’ papers, relevant legal 16 authority, and the record in the case, and it finds this matter suitable for disposition without oral 17 argument. See N.D. Civ. L.R. 7-1(b). The Court HEREBY VACATES the hearing scheduled for 18 March 19, 2021. For the following reasons, the Court GRANTS Defendants’ motion to dismiss. 19 BACKGROUND 20 Plaintiff Marily English (“Plaintiff”) brings this negligence action to recover damages 21 resulting from an alleged slip and fall that occurred while she was a guest at Secrets Resorts and 22 Spas Montego Bay (the “Resort”) in 2018. (First Amended Complaint (“FAC”) ¶ 26.) Plaintiff 23 alleges that Defendants owned and maintained the Resort. (Id. ¶¶ 12, 15.) Plaintiff alleges that 24 during a previous stay at the Resort in 2016, hotel management offered her a gift certificate for a 25 subsequent stay. (Id. ¶ 21.) The hotel manager gave Plaintiff a business card, which included the 26 email address for the manager at the Resort and the URL www.amresorts.com. (Id.) Plaintiff 27 alleges that she subsequently emailed the Resort from her home in California to apply her gift 1 the alleged injuries from which this lawsuit arises. (Id. ¶ 26.) Defendants now move to dismiss 2 Plaintiff’s first amended complaint for lack of personal jurisdiction. 3 ANALYSIS 4 A. Applicable Legal Standard. 5 Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2), which 6 governs dismissal for lack of personal jurisdiction. It is the plaintiff’s burden to establish the 7 court’s personal jurisdiction over a defendant. Menken v. Emm, 503 F.3d 1050, 1056 (9th Cir. 8 2007). Courts may consider evidence presented in affidavits to assist in its determination and may 9 order discovery on jurisdictional issues. Data Disc, Inc. v. Systems Technology Assoc., Inc., 557 10 F.2d 1280, 1285 (9th Cir. 1977). However, when “a district court acts on a defendant’s motion to 11 dismiss without holding an evidentiary hearing, the plaintiff need make only a prima facie 12 showing of jurisdictional facts to withstand the motion to dismiss . . . That is, the plaintiff need 13 only demonstrate facts that if true would support jurisdiction over the defendant.” Ballard v. 14 Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) (citations omitted); see also AT&T v. Compagnie 15 Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996). Where the facts are not directly 16 controverted, plaintiff’s version of the facts is taken as true. See AT&T, 94 F.3d at 588. Likewise, 17 conflicts between the facts contained in the parties’ affidavits must be resolved in a plaintiff’s 18 favor for purposes of deciding whether a prima facie case for personal jurisdiction exists. 19 Schwarzenegger v. Fred Martin Co., 374 F.3d 797, 800 (9th Cir. 2004). 20 “Personal jurisdiction over a defendant is proper if it is permitted by a long-arm statute and 21 if the exercise of that jurisdiction does not violate federal due process.” Pebble Beach Co. v. 22 Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006) (citing Fireman’s Fund Ins. Co. v. Nat’l Bank of 23 Cooperatives, 103 F.3d 888, 893 (9th Cir. 1996)). Because California’s long arm statute is co- 24 extensive with federal due process requirements, the jurisdictional analyses under California law 25 and federal due process are the same. Schwarzenegger, 374 F.3d at 801. 26 The exercise of personal jurisdiction over a defendant comports with the Due Process 27 Clause where the defendant has sufficient “minimum contacts” with the forum state such that the 1 Int’l Shoe Co. v. Washington, 326 U.S. 310, 315 (1945). The “strength of contacts” required to 2 meet this standard depends on whether the plaintiff is seeking to invoke specific jurisdiction or 3 general jurisdiction. See Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015). 4 General jurisdiction exists when a party’s “affiliations with the [forum] State are so 5 ‘continuous and systematic’ as to render [the party] essentially at home in the forum State.” 6 Goodyear Dunlop Tires Operations S.A. v. Brown, 564 U.S. 915, 919 (2011) (quoting Int’l Shoe, 7 326 U.S. at 317). For corporations, the “paradigm forum for the exercise of general jurisdiction is 8 ... one in which the corporation is fairly regarded as at home,” e.g., the state of incorporation or 9 principal place of business. Goodyear, 564 U.S. at 924. In contrast, specific jurisdiction “depends 10 on an affiliation between the forum and the underlying controversy, principally, activity or an 11 occurrence that takes place in the forum State and is therefore subject to the State’s regulation.” 12 Id. at 919 (internal quotations and citations omitted). 13 B. The Court Does Not Have Personal Jurisdiction Over Defendants. 14 1. The Court Does Not Have General Jurisdiction Over Defendants. 15 Plaintiff does not dispute that none of the moving Defendants are located in California and 16 concedes that because the Defendants are not “at home” in California, the Court may not exercise 17 general jurisdiction over them. (See FAC ¶¶ 5-11 (alleging that Defendants are citizens of 18 Pennsylvania); see also Opp. at 4.) 19 2. Plaintiff Has Not Shown the Court Has Specific Jurisdiction Over Defendants. 20 Plaintiff argues that the Court has specific jurisdiction over Defendants based on their 21 “electronic contacts” with California. Defendants contend that the Court may not exercise specific 22 jurisdiction over them in California because the existence of a website is insufficient to establish 23 the minimum contacts required for specific jurisdiction. 24 Specific jurisdiction over a nonresident defendant exists where: (1) the defendant has 25 purposefully directed its activities at the forum state or has purposefully availed itself of the 26 privileges of doing business in the forum; (2) the plaintiff’s claim arises out of or relates to those 27 activities; and (3) the assertion of personal jurisdiction is reasonable and fair. Schwarzenegger, 1 the plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the 2 forum state.” Id. (internal citation omitted). “On the other hand, if the plaintiff succeeds in 3 satisfying both of the first two prongs, the burden then shifts to the defendant to present a 4 compelling case that the exercise of jurisdiction would not be reasonable.” Menken, 503 F.3d at 5 1057 (internal quotations and citations omitted). The Court concludes that Plaintiff fails to meet 6 her burden on the first prong of this test. 7 Plaintiff argues that certain uses of the internet may subject a nonresident to personal 8 jurisdiction. Plaintiff asserts that the Court may exercise specific jurisdiction over Defendants in 9 this case because Plaintiff accepted the Resort’s offer to reserve a subsequent trip via the internet 10 from her home in California. Specifically, Plaintiff alleges that she sent the Resort an e-mail from 11 her residence in Salinas, California “in order to accept it’s offer […] to reserve her 12 accommodations.” (FAC ¶ 22-23.) She also alleges that while at the Resort, she received a letter 13 detailing information about AMResorts and directing her to visit AMResorts.com for additional 14 details. (Id. ¶ 25.) 15 In the internet context, the Ninth Circuit uses a sliding scale analysis “that looks to how 16 interactive an Internet website is for purposes of determining its jurisdictional effect.” Boschetto 17 v. Hansing, 539 F.3d 1011, 1018 (9th Cir. 2008). “Personal jurisdiction is appropriate where an 18 entity is conducting business over the internet and has offered for sale and sold its products to 19 forum residents.” Gucci Am., Inc., v. Wang Huoqing, C-09-05969 CRB, 2011 WL 31191, at *6 20 (N.D. Cal. Jan. 3, 2011) (internal citation omitted). 21 Plaintiff has not provided information or allegations regarding the interactive nature of 22 Defendants’ website, nor does she allege that she used or visited Defendants’ website. Apart from 23 the website, Plaintiff does not allege any contacts Defendants have with California. The mere fact 24 that Defendants have a website, which can be viewed by residents in California, is insufficient to 25 establish the necessary minimum contacts for specific personal jurisdiction. Protrade Sports, Inc. 26 v. Nextrade Holdings, Inc., No. C05-04039 MJJ, 2006 WL 269951, at *3 (N.D. Cal. Feb. 2, 2006) 27 (citing Schwarzenegger, 374 F.3d at 801-802); see also Summers v. Starwood Hotels, No. CV- 1 jurisdiction where the hotel website was the only contact plaintiff alleged the defendants had with 2 California); Life Alert Emergency Response, Inc. v. Lifealert Sec., Inc., No. CV08-3226 AHM 3 PLAX, 2008 WL 5412431, at *4 (C.D. Cal. Dec. 29, 2008) (“The mere maintenance of an 4 interactive website, without consummated commercial activity, is not sufficient to establish 5 specific jurisdiction over Defendant.”). Accordingly, Plaintiff has not established that Defendants’ 6 online presence was directed toward California such that this Court’s exercise of specific 7 jurisdiction over Defendants would be proper. The Court need not address the other elements of 8 the specific jurisdiction test. 9 Because the Court finds its lacks jurisdiction over Defendants, it must determine whether 10 to dismiss or transfer the action. See 28 U.S.C. § 1631. As an alternative to dismissal, Defendants 11 seek to transfer this action pursuant to 28 U.S.C. section 1631 (“Section 1631”) to Pennsylvania, 12 where Defendants reside. Section 1631 states that a court “shall, if it is in the interest of justice,” 13 transfer an “action” upon determining that there is “a want of jurisdiction.” Id. Here, the Court 14 concludes that the interests of justice favor dismissal, not transfer. Plaintiff opposes transfer and 15 concedes that the accident giving rise to the claims occurred in Jamaica, not Pennsylvania. 16 Additionally, it is unclear from the FAC that the Resort Defendant would be subject to jurisdiction 17 in Pennsylvania. Accordingly, the Court declines to transfer this action. 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 1 CONCLUSION 2 For the foregoing reasons, the Court GRANTS the moving Defendants’ motion to dismiss 3 for lack of personal jurisdiction. Defendants’ motion for a more definite statement is DENIED AS 4 || MOOT. Defendants AMResorts, L.P., and ALG Vacations Corp., designated as Apple Leisure 5 Group, AMResorts LLC, ALG Vacations Corporation, and Apple Vacations, LLC, shall be 6 || dismissed. 7 Additionally, Plaintiff filed the complaint in this action on March 23, 2020, and the 8 summons was issued on April 1, 2020, but it does not appear that Plaintiff has served Defendant 9 Secrets Resorts and Spas Montego Bay. Plaintiff is ORDERED TO SHOW CAUSE why this case 10 || should not be dismissed without prejudice for failure to prosecute as to the sole remaining 11 Defendant, Secrets Resorts and Spas Montego Bay. Plaintiffs response is due by no later than March 15, 2021.

E 13 IT IS SO ORDERED.

|) Dated: March 1, 2021 /) )

JEFFREY S. JNHITH

16 United Stated Distr Judge

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