Summary
finding that Keeton supported a finding of general jurisdiction
Summary of this case from Condit v. USA TodayOpinion
Case No. C-3-97-145.
March 22, 1999.
Robert P. Bartlett, Jr., Attorney for Plaintiff.
Mark D. Guifoyle, Attorney for Defendant.
DECISION AND ENTRY OVERRULING PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT (DOC. #15); CAPTIONED CAUSE REMAINS TERMINATED
On March 29, 1995, the Plaintiff traveled to Defendants' place of business, located in Boone County, Kentucky, to attend horse races. While there, the Plaintiff, who had contracted polio in 1955 and, therefore, must wear a leg brace, slipped and fell on what he alleges was an overly waxed floor. The Plaintiff, invoking this Court's diversity jurisdiction ( 28 U.S.C. § 1332), brings this action in order to recover damages for the injuries he suffered as a result of his fall.
In his Complaint (Doc. #1), the Plaintiff names Turfway Park and Turfway Park Racing Association, Inc., as Defendants. According to Defendants, Turfway Park is the name of the racetrack at which Turfway Park Racing Association, Inc., conducts horse races and, therefore, is not a legal entity. Nevertheless, since the parties have used the term "Defendants," the Court will do so also.
On March 13, 1998, this Court entered a Decision in which it sustained the Defendants' Motion to Dismiss for Lack of Personal Jurisdiction or, in the alternative, to Transfer to an Alternative Jurisdiction (Doc. #3), treating that motion solely as one seeking dismissal. See Doc. #13. The Court concluded that it could not exercise personal jurisdiction over the Defendants, in accordance with Ohio's long arm statute, Ohio Revised Code § 2307.382. The Plaintiff had argued that this Court could exercise personal jurisdiction over the Defendants pursuant to § 2307.382(A)(1), which permits a court to exercise such jurisdiction over claims against a non-resident defendant, which arise out of its having transacted business in Ohio. The Court found that, although there was ample evidence that the Defendants had transacted business within the state of Ohio, § 2307.382 did not authorize the exercise of personal jurisdiction over the Defendants, since the Plaintiff's claim did arise out of the Defendants' actions within this state. At the end of its Decision, the Court noted that the Plaintiff had not argued that this Court could exercise general (as opposed to specific) jurisdiction over the Defendants. This litigation is now before the Court on the Plaintiff's Motion to Alter or Amend Judgment (Doc. #15), wherein he argues that the Court can exercise such general jurisdiction over the Defendants.
The Court rejected the Defendants' alternative request that, pursuant to 28 U.S.C. § 1406(a), it transfer this litigation to the United States District Court for the Eastern District of Kentucky at Covington, "in the interest of justice," since such a transfer would have resulted in Plaintiff's claim being dismissed as barred by Kentucky's one-year statute of limitations (Ky. St. Ann. § 413.140(1)(a)). By declining to transfer this litigation to the Eastern District of Kentucky, this Court has afforded the Plaintiff the opportunity to argue that it should exercise personal jurisdiction over the Defendants, in accordance with principles of general jurisdiction.
In particular, the Court found that the Defendants had transacted business in Ohio, as a result of spending a significant portion of their advertising budget and engaging in other promotional activities within this state. It should be noted that the Plaintiff did not even argue that his claim arose out of those advertising and promotional activities, because he was induced to travel to Defendants' place of business by same. Therefore, this Court distinguished cases such as Creech v. Roberts, 908 F.2d 75 (6th Cir. 1990), cert. denied, 499 U.S. 975 (1991), wherein the Sixth Circuit concluded that the plaintiff's claim arose out of the defendants' having transacted business in Ohio, because that activity (television advertising broadcast within this state) induced the plaintiff to travel to defendants' place of business in Oklahoma. See Doc. #13 at 7.
The Plaintiff so moved in timely fashion, under Rule 59(e) of the Federal Rules of Civil Procedure.
The principle of general jurisdiction is a concept of due process that allows a court to exercise personal jurisdiction over a nonresident defendant whose contacts with the forum are continuous and systematic, even though the plaintiff's claim did not arise from those contacts. See e.g., Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408 (1984); Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1983); Aristech Chemical International, Ltd. v. Acrylic Fabricators, Ltd., 138 F.3d 624, 627 (6th Cir. 1998) ("General jurisdiction exists when a defendant has continuous and systematic contacts with the forum state sufficient to justify the state's exercise of judicial power with respect to any and all claims."). Thus, if this Court can exercise general jurisdiction over the Defendants, the fact that the Plaintiff's claim did not arise out of their contacts with Ohio will not be dispositive.
Aristech Chemical was a diversity action filed in United States District Court for the Eastern District of Kentucky; therefore, the Sixth Circuit did not address, therein, the question of whether the exercise of general jurisdiction is authorized by the law of Ohio.
In Keeton, the plaintiff sued the defendant in New Hampshire, claiming that she had been libeled by the defendant's magazine which had been circulated in that state and elsewhere. The Supreme Court concluded that the District Court could, consistent with the due process, exercise general jurisdiction over the defendant, even though the plaintiff had suffered her damages outside New Hampshire. The Keeton Court based that conclusion on the fact that the defendant had "continuously and deliberately exploited the market in New Hampshire," by circulating its magazines within that state. 465 U.S. at 781. Herein, the Defendants have continuously and deliberately exploited the market in Ohio. For instance, the Defendants have spent approximately 80% of their advertising budget in the Cincinnati, Ohio, media market. In addition, Defendants' sales department has regularly corresponded with Ohio residents and organizations regarding group outings at Turfway Park and has booked such outings for those Ohio residents and organizations. The Defendants have also sent employees into Ohio, to speak to groups in an effort to promote Turfway Park and, on an annual basis, have rented a booth at the Cincinnati Sport, Travel and Boat Show. Defendants' activities directed at Ohio residents have proved successful. A parking lot survey they have conducted shows that 46% of their patrons are from the state of Ohio. Accordingly, the Court finds that, consistent with due process, it can exercise general jurisdiction over the Defendants.
Suit was filed in New Hampshire to take advantage of that state's six-year statute of limitations for libel actions.
However, the above is merely one step in the analysis. The Sixth Circuit has repeatedly stressed that, to determine whether personal jurisdiction exists over a nonresident defendant, a District Court must apply the law of the state in which it sits, subject to the constitutional limits of due process. Cole v. Mileti, 133 F.3d 433 (6th Cir. 1998); CompuServe v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996). Therefore, the Court turns to the question of whether the law of Ohio permits this Court to exercise general jurisdiction over the Defendants.
The Ohio Supreme Court has held that, when deciding whether to exercise personal jurisdiction over a nonresident defendant, a court must apply a two-part test, determining initially whether the exercise of personal jurisdiction comports with Ohio's long arm statute, Ohio Revised Code § 2307.382, and then whether it meets the standards of due process. Goldstein v. Christiansen, 70 Ohio St.3d 232, 235, 638 N.E.2d 541, 543 (1994); U.S. Sprint Communications Co., Ltd. Partnership v. Mr. K's Foods, Inc., 68 Ohio St.3d 181, 183-84, 624 N.E.2d 1048, 1051 (1994). Section 2307.382 does not authorize courts to exercise general jurisdiction, since that statute limits the exercise personal jurisdiction over a nonresident defendant to claims that arise out of its having transacted business within Ohio. Nevertheless, the Plaintiff argues that general jurisdiction may be exercised over the Defendant, in accordance with the law of Ohio.
The Sixth Circuit had previously interpreted Ohio's long arm statute as extending to the limits of due process. See e.g.,Creech, 908 F.2d at 79; In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 224-25 (6th Cir. 1972). In Goldstein, the Ohio Supreme Court rejected that position, since conflating the analysis of Ohio's long arm statute and due process would have rendered the first part of its two-part test nugatory. 70 Ohio St.3d at 238 n. 1, 638 N.E.2d at 545-46 n. 1.
Initially, the Plaintiff argues that the Ohio Supreme Court recognized general jurisdiction in U.S. Sprint, supra. Therein, the plaintiff sued to collect unpaid long-distance telephone charges. Those charges arose out of seventeen separate accounts, only six of which related to services that had been provided in Ohio. The Ohio Supreme Court concluded that Ohio courts could, consistent with § 2307.382, exercise personal jurisdiction over all claims asserted against the defendant (both those that arose within Ohio and those that did not), writing:
From this record it is abundantly clear that [defendant] was "[t]ransacting any business in this state" within the plain meaning of R.C. 2307.382(A)(1). Once it has been determined the defendant is transacting business in Ohio pursuant to the "long-arm" statute, a court may accordingly exercise jurisdiction over the defendant. The court need not exercise personal jurisdiction over each claim. We hold that once an Ohio court acquires personal jurisdiction over a nonresident defendant for claims arising in Ohio, Civ.R. 18(A) permits joinder of related claims that do not arise in Ohio, as long as granting jurisdiction for all claims does not deprive defendant of the right to due process of law.68 Ohio St.3d at 185, 624 N.E.2d at 1052 (emphasis in the original). Therein, the Ohio Supreme Court did not intimate that, as a matter of state law, Ohio courts may exercise general jurisdiction. Therefore, since the Plaintiff herein has not set forth a claim arising out of the Defendants' transacting business within Ohio, this Court concludes that U.S. Sprint does not support the exercise of personal jurisdiction over the Defendants in this litigation.
The Plaintiff also relies upon Conti v. Pneumatic Products Corp., 977 F.2d 978 (6th Cir. 1992), and Davis Airplane Sales v. Groff, 1991 W.L. 262082 (Ohio App. 1991), wherein the Sixth Circuit and the Ohio Second District Court of Appeals implicitly assumed that Ohio law permits Ohio courts to exercise general jurisdiction. The assumptions made in those decisions do not convince this Court that it may, consistent with Ohio law, exercise general jurisdiction over the Defendants in this litigation. In Conti, the Sixth Circuit limited its discussion to the question of whether personal jurisdiction could constitutionally be exercised over the defendant. See 977 F.2d at 980-81 ("We need not determine the correctness of the district court's statutory decision [i.e., whether that court could exercise personal jurisdiction over the defendant in accordance with § 2307.382]. The controlling issue on this appeal is the constitutional standard."). Thus, the Conti court did not address the question of whether general jurisdiction is permissible under the law of Ohio. In Davis Airplane Sales, the court said that Ohio's long arm statute permits the exercise of personal jurisdiction to the limits of due process and, therefore, discussed general jurisdiction, a principle of due process. Since the Ohio Supreme Court has subsequently rejected that position (Goldstein, supra), this Court does not consider Davis Airplane Sales to be persuasive.
Although not cited by either party, this Court deems Pittock v. Otis Elevator Co., 8 F.3d 325 (6th Cir. 1993), to be instructive. Therein, the plaintiffs sued Otis Elevator Company ("Otis") and another defendant for personal injuries suffered in an elevator accident that had occurred in Las Vegas. The Sixth Circuit concluded that Ohio law did not permit the District Court to exercise personal jurisdiction over Otis, because the plaintiffs' claims did not arise in Ohio. The Sixth Circuit reached that conclusion, even though Otis was licensed to do business within Ohio and, therefore, had appointed an agent to receive process within that state. Herein, although the Defendants have engaged in continuous and systematic business within the state of Ohio, it is neither licensed to do business therein nor has it appointed an agent for the service of process.
In sum, the Court concludes that the exercise of general jurisdiction is not authorized by Ohio law in this case, since § 2307.382(A)(1), the portion of Ohio's long arm statute upon which Plaintiff has relied, limits the exercise of personal jurisdiction over nonresident defendants to instances where a plaintiff's claim arises out of the business that the defendant has transacted within Ohio. Accord Coleman v. Chen, 712 F. Supp. 117 (S.D.Ohio 1988). Accordingly, the Court overrules the Plaintiff's Motion to Alter or Amend Judgment (Doc. #15).
The captioned cause remains terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.