Plaintiff in Casino Suit Craps Out in Venue Decision

A New Jersey resident unsuccessfully sought to keep his slip-and-fall case in Philadelphia Common Pleas Court by arguing that an Atlantic City casino's Internet advertising within Pennsylvania established the state's personal jurisdiction over alleged negligence by the casino.

Philadelphia Common Pleas Judge Allan L. Tereshko, writing in an opinion explaining to the state Superior Court the basis for his ruling in Jenkins v. Marina District Development Co., No. 3360 (C.P.Philadelphia, 2010), said that plaintiff Brian Jenkins did not establish that Pennsylvania has either general personal or specific personal jurisdiction over the Borgata Hotel, Casino and Spa, because the casino solicits business from Pennsylvania through its Web site and other Internet advertising.

Finding that the Borgata's Web-based advertising and Web site establish Pennsylvania's jurisdiction over the Atlantic City casino would make the Borgata subject to the jurisdiction of every state, Tereshko said.

Online Advertising Not Sufficient Nexus

Jenkins alleged that he slipped Nov. 17, 2008, in a bathroom at the Borgata's MurMur nightclub because the Borgata allowed water or other liquid to accumulate on the floor, the opinion said.

“The Borgata's Web-based advertising and marketing does not amount to sufficient contacts in Pennsylvania, along with the fact that the accident did not arise out of any contacts with the forum state,” Tereshko said. “' Plaintiff has failed to articulate any reason this case should not be brought in a New Jersey court and why a Pennsylvania court would be a better forum for this case. To maintain notions of fair play and substantial justice, this case should be brought in a New Jersey court where [Borgata] has a principal place of business and conducts business activities.”

Among other facts that the plaintiff pointed to is that the Borgata's Web site allows patrons to rent any of the hotel's 2,000 guest rooms or to purchase tickets to its 2,400-seat event center or its 1,000-seat theater, Tereshko said.

The plaintiffs relied upon a 2002 decision by the state Superior Court, which considered as an issue of first impression whether Pennsylvania courts have general personal jurisdiction over companies operating Web sites that permit Pennsylvania users to interact with the Web sites. The Superior Court, in Efford v. Jockey Club, 796 A. 2d 370 (Pa: Superior Court 2002), concluded that Pennsylvania did not have general jurisdiction over a defendant operating an online breed registry for thoroughbred horses because the defendant's Web site did not specifically target Pennsylvania residents, among other reasons.

Tereshko said Efford applied a sliding scale of jurisdiction based upon the degree and type of interactivity on a Web site, but the Superior Court did not apply the sliding scale test in a 2008 decision, Haas v. Four Season Campground Inc., 952 A. 2d 688 (Pa: Superior Court 2008), because the underlying cause of action did not arise from the defendant's use of a Web site.

Site Doesn't Target Forum State

For specific jurisdiction to hinge on the nature of contacts through a Web site, Tereshko said the Superior Court found that “a Web site must target users of the forum state and the use of the Web site must engage the party in a manner where the underlying transaction gives rise to the claim due to the use of the Web site.”

The plaintiffs also named Marina District Development Co., which the plaintiffs say in their complaint operates or controls the Borgata, the judge said.

Tereshko said Pennsylvania has no general jurisdiction over the Borgata because the Borgata is not incorporated under the laws of Pennsylvania and has not consented to litigating in Pennsylvania. The Borgata also does not come under Pennsylvania's general jurisdiction by conducting “'a continuous and substantial part of its general business within Pennsylvania,'” Tereshko said, citing 42 Pa.C.S.A. '5301(a)(2)(iii). Having a high percentage of employees reside in the forum state, and generating substantial income from the forum state, not Web-based advertisements and a Web site, constitutes continuous, substantial conduct, Tereshko said. He also dismissed Jenkins' contention that the Borgata's Web site and online advertising were “sufficient contacts with Pennsylvania to establish personal jurisdiction,” noting that the casino's Web site and marketing “has no relationship to Plaintiff's alleged fall at MurMur.”

In addition, Jenkins has not shown under the state's long-arm statute that the defendant has caused harm or tortious injury in Pennsylvania, so Pennsylvania also does not have specific personal jurisdiction over the Borgata, Tereshko said.

Tereshko also ruled that Philadelphia County would not be the proper venue for the lawsuit.

The casino's Web site is not the sole way to reserve hotel rooms or event tickets, the judge said. The Web site, as well as Internet advertising, are solicitations for business and only incidental contacts with Philadelphia County, he said. Borgata's Web site isn't so essential to the business' operations that the venue would be proper.

The Borgata's counsel, Mitchell Berger of Ryan Brown Berger & Gibbons, declined comment.

The plaintiff's counsel, Patrick J. Rodden of Rodden & Rodden, did not respond to a request for comment.

A New Jersey resident unsuccessfully sought to keep his slip-and-fall case in Philadelphia Common Pleas Court by arguing that an Atlantic City casino's Internet advertising within Pennsylvania established the state's personal jurisdiction over alleged negligence by the casino.

Philadelphia Common Pleas Judge Allan L. Tereshko, writing in an opinion explaining to the state Superior Court the basis for his ruling in Jenkins v. Marina District Development Co., No. 3360 (C.P.Philadelphia, 2010), said that plaintiff Brian Jenkins did not establish that Pennsylvania has either general personal or specific personal jurisdiction over the Borgata Hotel, Casino and Spa, because the casino solicits business from Pennsylvania through its Web site and other Internet advertising.

Finding that the Borgata's Web-based advertising and Web site establish Pennsylvania's jurisdiction over the Atlantic City casino would make the Borgata subject to the jurisdiction of every state, Tereshko said.

Online Advertising Not Sufficient Nexus

Jenkins alleged that he slipped Nov. 17, 2008, in a bathroom at the Borgata's MurMur nightclub because the Borgata allowed water or other liquid to accumulate on the floor, the opinion said.

“The Borgata's Web-based advertising and marketing does not amount to sufficient contacts in Pennsylvania, along with the fact that the accident did not arise out of any contacts with the forum state,” Tereshko said. “' Plaintiff has failed to articulate any reason this case should not be brought in a New Jersey court and why a Pennsylvania court would be a better forum for this case. To maintain notions of fair play and substantial justice, this case should be brought in a New Jersey court where [Borgata] has a principal place of business and conducts business activities.”

Among other facts that the plaintiff pointed to is that the Borgata's Web site allows patrons to rent any of the hotel's 2,000 guest rooms or to purchase tickets to its 2,400-seat event center or its 1,000-seat theater, Tereshko said.

The plaintiffs relied upon a 2002 decision by the state Superior Court, which considered as an issue of first impression whether Pennsylvania courts have general personal jurisdiction over companies operating Web sites that permit Pennsylvania users to interact with the Web sites. The Superior Court, in Efford v. Jockey Club , 796 A. 2d 370 (Pa: Superior Court 2002), concluded that Pennsylvania did not have general jurisdiction over a defendant operating an online breed registry for thoroughbred horses because the defendant's Web site did not specifically target Pennsylvania residents, among other reasons.

Tereshko said Efford applied a sliding scale of jurisdiction based upon the degree and type of interactivity on a Web site, but the Superior Court did not apply the sliding scale test in a 2008 decision, Haas v. Four Season Campground Inc. , 952 A. 2d 688 (Pa: Superior Court 2008), because the underlying cause of action did not arise from the defendant's use of a Web site.

Site Doesn't Target Forum State

For specific jurisdiction to hinge on the nature of contacts through a Web site, Tereshko said the Superior Court found that “a Web site must target users of the forum state and the use of the Web site must engage the party in a manner where the underlying transaction gives rise to the claim due to the use of the Web site.”

The plaintiffs also named Marina District Development Co., which the plaintiffs say in their complaint operates or controls the Borgata, the judge said.

Tereshko said Pennsylvania has no general jurisdiction over the Borgata because the Borgata is not incorporated under the laws of Pennsylvania and has not consented to litigating in Pennsylvania. The Borgata also does not come under Pennsylvania's general jurisdiction by conducting “'a continuous and substantial part of its general business within Pennsylvania,'” Tereshko said, citing 42 Pa.C.S.A. '5301(a)(2)(iii). Having a high percentage of employees reside in the forum state, and generating substantial income from the forum state, not Web-based advertisements and a Web site, constitutes continuous, substantial conduct, Tereshko said. He also dismissed Jenkins' contention that the Borgata's Web site and online advertising were “sufficient contacts with Pennsylvania to establish personal jurisdiction,” noting that the casino's Web site and marketing “has no relationship to Plaintiff's alleged fall at MurMur.”

In addition, Jenkins has not shown under the state's long-arm statute that the defendant has caused harm or tortious injury in Pennsylvania, so Pennsylvania also does not have specific personal jurisdiction over the Borgata, Tereshko said.

Tereshko also ruled that Philadelphia County would not be the proper venue for the lawsuit.

The casino's Web site is not the sole way to reserve hotel rooms or event tickets, the judge said. The Web site, as well as Internet advertising, are solicitations for business and only incidental contacts with Philadelphia County, he said. Borgata's Web site isn't so essential to the business' operations that the venue would be proper.

The Borgata's counsel, Mitchell Berger of Ryan Brown Berger & Gibbons, declined comment.

The plaintiff's counsel, Patrick J. Rodden of Rodden & Rodden, did not respond to a request for comment.