Aquilino v. Harrah's ( 1993 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]

                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 93-1360

                        THERESA AQUILINO AND DANIEL AQUILINO,

                               Plaintiffs, Appellants,

                                          v.

                            HARRAH'S ATLANTIC CITY, INC.,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                 [Hon. A. David Mazzone, Senior U.S. District Judge]
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                                        Before

                           Boudin and Stahl, Circuit Judges,
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                             and Fuste,* District Judge.
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                                 ____________________

            George F.  Parker, III  with whom  Kelly A.  Kalandyk and  Badger,
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        Dolan, Parker & Cohen were on brief for appellants.
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            Jocelyn  M. Sedney  with  whom  Richard  E.  Brody  and  Morrison,
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        Mahoney & Miller were on brief for appellee.
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                                 ____________________

                                  September 14, 1993
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        *Of the District Court of Puerto Rico, sitting by designation.



















                      STAHL,  Circuit Judge.   In  this  "slip and  fall"
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            case, plaintiffs Theresa  and Daniel  Aquilino challenge  the

            district   court's  decision   granting  defendant   Harrah's

            Atlantic City, Inc.'s ("Harrah's") motion to dismiss for lack

            of  personal jurisdiction.  Finding no  error in the decision

            below, we affirm.

                                          I.
                                          I.
                                          __

                                      Background
                                      Background
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                      Sometime in March  1988, plaintiffs were  overnight

            guests at Harrah's  Marina ("the Hotel"), a hotel  and casino

            in  Atlantic  City,   New  Jersey,  owned  and   operated  by

            defendant.   Every three  or four months  for the  next year,

            defendant  mailed various  marketing brochures  regarding the

            Hotel to  plaintiffs'  residence  in  Weston,  Massachusetts.

            This   promotional   literature    contained,   inter   alia,
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            descriptions   and  photographs   of  Hotel   accommodations,

            including photographs  of guest  rooms in  "the Atrium,"  the

            section of the Hotel where  the injuries in this lawsuit were

            allegedly  sustained.1     The  literature   also  emphasized

            certain attributes of the Hotel, including the convenience of

            its  gambling facilities  and  the  casino's  late  hours  of

            operation.


                                
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            1.  Defendant's Massachusetts-based solicitation efforts also
            included  regular advertisements  in  the  Boston  Globe  and
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            mailings to plaintiffs' son, who,  like his parents, had also
            previously stayed at the Hotel.

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                      In  March 1989,  after  reviewing this  literature,

            plaintiffs made reservations to stay for one night, March 16,

            1989, at the Hotel, this time in the Atrium.  Plaintiffs made

            the  reservations over the telephone and charged the expenses

            to  Daniel Aquilino's credit card, a  card issued through the

            Bank of New England in Boston, Massachusetts.

                      At around 7:30  p.m. on March 16,  1989, plaintiffs

            arrived at the Hotel.   After having dinner, Daniel  Aquilino

            went to their  room for the  evening, while Theresa  Aquilino

            visited the  casino.   Several  hours  and one  drink  later,

            Theresa also retired to the room for the evening.  As she was

            dosing off, she  began to feel  uncomfortable and decided  to

            retrieve an extra pillow from the closet.  On her way back to

            the bed, she tripped on telephone and/or electrical  cords on

            the floor between the bed and nightstand, sustaining injuries

            which required medical attention.

                      On  March 3, 1992,  plaintiffs filed this diversity

            action  in district  court,  alleging claims  for negligence,

            breach of  contract, and  loss of consortium.2   On  June 18,

            1992, defendant filed a motion  to dismiss based upon lack of

            personal  jurisdiction,  which  motion   the  district  court




                                
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            2.  Suit  was  originally brought  against  Harrah's  and its
            parent company, Promus  Companies, Inc.  After  learning that
            Promus was not  a proper party to the  suit, plaintiffs filed
            an amended complaint on May 1, 1992, dropping Promus.

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            granted on February  22, 1993.  After an  unsuccessful motion

            to reconsider, plaintiffs filed this appeal.   

                                         II.
                                         II.
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                                      Discussion
                                      Discussion
                                      __________

                      In their  appeal, plaintiffs advance  the following

            arguments:   (1) that  both Massachusetts long-arm  statutes,

            Mass. Gen. L. ch. 223   38 and Mass. Gen. L. ch. 223A   3(a),

            confer personal jurisdiction over defendant; and (2) that the

            district   court   abused   its   discretion  in   dismissing

            plaintiffs'    complaint    without    allowing   discovery.3

            Unfortunately for plaintiffs, we have recently rejected these

            very arguments in a  case closely on  point.  See Crocker  v.
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            Hilton Int'l Barbados  Ltd., 976 F.2d 797,  798-801 (1st Cir.
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            1992) (citing Fournier v. Best W. Treasure Island Resort, 962
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            F.2d 126, 126-27 (1st Cir.  1992); Marino v. Hyatt Corp., 793
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            F.2d 427,  428-31 (1st Cir. 1986)).4  As  that case is on all

            fours with  this one, it  is controlling.5   Accordingly, for

                                
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            3.  Plaintiffs  also contend  that the  exercise of  personal
            jurisdiction would not offend the Fourteenth Amendment's  Due
            Process clause.   Because  we find infra,  however, that  the
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            state  long-arm statutes fail to confer jurisdiction, we need
            not reach the merits of their constitutional argument.

            4.  Much of plaintiffs' brief is devoted to arguing that  the
            First Circuit's interpretation of the Massachusetts  long-arm
            statutes is patently mistaken.  This panel is, however, bound
            by prior panel decisions  closely on point.   E.g., Fournier,
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            962 F.2d at 127.  

            5.  Plaintiffs attempt  to distinguish  Crocker, both on  the
                                                    _______
            issue of Massachusetts long-arm jurisdiction and the issue of
            discovery, by pointing out  various factual differences which

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            the reasons therein  stated, we reject plaintiffs'  appeal as

            meritless.

                      Affirmed.  Costs to appellee.
                      Affirmed.  Costs to appellee.
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            they contend  have legal  significance.   We have  considered
            each of these contentions and find them to be without merit.

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