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Gardache v. Boyd Biloxi, L.L.C

United States District Court, S.D. Mississippi, Southern Division

February 7, 2019

MARY ALICE GARDACHE PLAINTIFF
v.
BOYD BILOXI, L.L.C., BOYD GAMING CORPORATION, AND JOHN AND JANE DOES A, B, C, AND D DEFENDANTS

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT BOYD GAMING CORPORATION'S MOTION TO DISMISS [5]

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         THIS MATTER IS BEFORE THE COURT on Defendant Boyd Gaming Corporation's Motion to Dismiss [5], which is fully briefed. After review of the Motion, the record, and relevant legal authority, the Court finds that because it possesses personal jurisdiction over Defendant Boyd Gaming Corporation, the Motion is not well taken and should be denied.

         I. BACKGROUND

         A. Facts and procedural history

         This matter arises out of an incident that occurred on June 29, 2016, while Plaintiff Mary Alice Gardache (“Plaintiff”) was a guest staying at the Imperial Palace Casino Resort Spa (“IP”) in Biloxi, Mississippi, with her daughter Denise. Compl. [1-2] at 7-13. Plaintiff claims that, at the invitation of Defendant Boyd Gaming Corporation (“Boyd Gaming”), she had traveled from Mobile, Alabama, “for the purpose of entertainment and lodging” as a business invitee. Id. 5, 11. Plaintiff, “a seventy-two-year-old disabled woman with only one leg who was permanently confined to a wheel chair, ” alleges that although she had previously made a reservation for a handicapped-accessible room, upon arrival she was assigned Room 418 which lacked a handicapped-accessible toilet.[1] Id. at 10-12. After notifying the front desk of the problem, IP employees installed a “booster seat” on the toilet. Id. When Plaintiff later attempted to use the booster seat, it allegedly slid off the toilet, causing her to fall against the adjacent marble sink and suffer “numerous painful and substantial lacerations, bruises and other bodily injuries, including gruesome lacerations to her throat, chin, head, legs[, ] and arms.” Id. at 12.

         On February 15, 2018, Plaintiff filed a Complaint [2-1] in the Circuit Court of Harrison County, Mississippi, Second Judicial District, advancing causes of action against Defendants Boyd Biloxi, L.L.C. (“Boyd Biloxi”) and Boyd Gaming (jointly “Defendants”) for: (1) Negligence and/or gross negligence; (2) res ipsa loquitor; (3) negligence per se; (4) violations of the Americans with Disabilities Act (“ADA”); (5) respondeat superior; and (6) joint venture/partnership/co-principals. Id. at 13-29. The Complaint seeks actual compensatory damages for, among other things, severe physical injuries, medical treatment, past and future physical pain and suffering, and emotional distress. Id. at 29-33. The Complaint also seeks pre- and post- judgment interest at the rate of 8% per annum and an award of punitive damages. Id. at 30-33. Finally, Plaintiff requests declaratory and injunctive relief ordering Defendants to comply with all provisions of the ADA, together with an award of attorneys' fees. Id. Defendants removed the case to this Court, invoking federal question jurisdiction under 28 U.S.C. § 1331.

         B. Defendant Boyd Gaming Corporation's Motion to Dismiss [5]

         Defendant Boyd Gaming has now filed a Motion to Dismiss [5] pursuant to Federal Rule of Civil Procedure 12(b)(2), claiming the Court lacks personal jurisdiction over it.[2] Mot. [5] at 1. Boyd Gaming contends that it does not have the requisite minimum contacts with the State of Mississippi to satisfy Mississippi's long-arm statute or the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Mem. in Supp. [6] at 2. Boyd Gaming contends that Defendant Boyd Biloxi purchased the IP in 2011, and since that time Boyd Biloxi has maintained a separate corporate structure and separate bank accounts, has solely owned and operated the IP, and is solely responsible for the IP's compliance with the ADA. Boyd Gaming's Motion further asserts that Boyd Biloxi is Boyd Gaming's wholly owned subsidiary, and that Boyd Biloxi's contacts with Mississippi cannot be attributed to Boyd Gaming, which is a Nevada corporation. Mot. [5] at 1; Gugino Aff. [5-1] at 1-3.

         Plaintiff's Response [11] contends that personal jurisdiction over Boyd Gaming comports with the long-arm statute because Boyd Gaming is registered to do business with Mississippi's Secretary of State, has maintained a certificate of authority to do business in Mississippi, and has a registered agent for service of process in Mississippi. Plaintiff cites Read v. Sonat Offshore Drilling, Inc., 515 So.2d 1229 (Miss. 1987), to support her position.[3] Resp. in Opp'n [11] at 3-4; Mem. in Opp'n [12] at 3-5. Plaintiff maintains that Boyd Gaming falls within the purview of Mississippi's long-arm statute and is subject to this Court's personal jurisdiction for the additional reasons that it: (1) made direct advertising contact with Plaintiff and solicited her to travel to Mississippi to visit the IP; (2) maintains a Management Agreement with Boyd Biloxi for the operation of the IP; (3) maintains advertisements for, and web links to, book hotel rooms and/or other services at Boyd Biloxi through the Boyd Gaming website; (4) caused Plaintiff to suffer injuries in Mississippi; and (5) investigated and responded to Plaintiff's notice of claim, which was mailed to Boyd Biloxi, on Boyd Gaming's letterhead through Donna Tirona, Claims Administrator for Boyd Gaming's Risk Management Department. Resp. in Opp'n [11] at 1-5.

         In reply, Boyd Gaming argues that: (1) as a general rule passive advertising on a website is not sufficient to establish jurisdiction; (2) the Fifth Circuit has held that merely registering to do business and appointing an agent for service of process does not automatically confer personal jurisdiction over a nonresident defendant; and (3) there is no proof that Boyd Gaming “jointly” operated the IP Casino with Boyd Biloxi. Reply [13] at 1-12.

         II. DISCUSSION

         A. Personal jurisdiction and Rule 12(b)(2)

         “Where a court finds it lacks personal jurisdiction, it may dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(2).” Herman v. Cataphora, Inc., 730 F.3d 460, 466 (5th Cir. 2013). “[T]he party seeking to invoke the power of the court . . . bears the burden of establishing jurisdiction but is required to present only prima facie evidence.” Pervasive Software, Inc. v. Lexware GMBH & Co. KG, 688 F.3d 214, 219 (5th Cir. 2012) (quotation omitted). “In determining whether a prima facie case exists, this Court must accept as true [the Plaintiff's] uncontroverted allegations, and resolve in [its] favor all conflicts between the [jurisdictional] facts contained in the parties' affidavits and other documentation.” Id. at 219-20 (quotation omitted); Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002) (“In considering a motion to dismiss for lack of personal jurisdiction a district court may consider affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery.”) (quotation omitted)).

         In cases arising under federal question jurisdiction, unless otherwise provided by federal law, the exercise of personal jurisdiction over a nonresident defendant is limited by the forum state's long-arm statute and the Due Process Clause of the Fourteenth Amendment. Gardner v. Clark, 101 F.Supp.2d 468, 474 (N.D. Miss. 2000) (citing Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104-05 (1987)). If Mississippi law does not support the exercise of personal ...


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