ANTHONY DELGATTO VS. THE GREENBRIER SPORTING CLUB (L-10261-15, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2269-17T3
ANTHONY DELGATTO and
THERESA DELGATTO, his wife,
Plaintiffs-Appellants,
v.
THE GREENBRIER SPORTING
CLUB, d/b/a THE GREENBRIER,
Defendant-Respondent,
and
PGA TOUR, INC., d/b/a PGA TOURS,
Defendant.
______________________________
Submitted January 16, 2019 – Decided February 6, 2019
Before Judges Koblitz and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-10261-15.
Sekas Law Group, LLC, attorneys for appellants
(Nicholas G. Sekas and Louis M. Gerbino, on the
briefs).
Kaufman Borgeest & Ryan, LLP, attorneys for
respondent (John J. Leo III, on the brief).
PER CURIAM
Plaintiffs Anthony Delgatto and Theresa Delgatto appeal from a May 9,
2017 order dismissing their complaint against defendant Greenbrier Sporting
Club d/b/a The Greenbrier (Greenbrier) for lack of jurisdiction. In addition,
plaintiffs appeal from an August 2, 2017 order denying their motion for
reconsideration. 1 We affirm.
Plaintiffs learned of Greenbrier's golf course and hotel, located in West
Virginia, while watching the Golf Channel.2 Plaintiffs also saw advertisements
for Greenbrier during golf events broadcast on national network television
stations, and in nationally circulated golf magazines. Greenbrier does not
advertise on local New Jersey television stations or in local New Jersey
magazines.
Friends who had stayed at Greenbrier suggested plaintiffs would enjoy the
resort and its amenities. Theresa Delgatto visited Greenbrier's website to obtain
1
On appeal, plaintiffs fail to address the denial of their reconsideration motion.
Issues not briefed on appeal are deemed waived. Gormley v. Wood-El, 218 N.J.
72, 95 n.8 (2014).
2
The Golf Channel is a national cable television channel broadcasting golf
related programming throughout the country.
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hotel information. She then contacted American Express Travel Services to
reserve a room at Greenbrier. Plaintiffs made dinner arrangements through
Greenbrier's website and telephoned Greenbrier's golf course to schedule tee-
times.
While staying at Greenbrier in September 2014, Anthony Delgatto slipped
and fell on the golf course, suffering significant injuries. He was treated for his
injuries in New Jersey and New York City.
Plaintiffs filed personal injury and per quod claims against Greenbrier in
November 2015. Greenbrier filed an answer and asserted affirmative defenses,
including lack of jurisdiction.
In 2016, Greenbrier filed a motion to dismiss based on lack of jurisdiction.
Plaintiffs opposed the motion and filed a cross-motion seeking jurisdictional
discovery. The court denied Greenbrier's motion to dismiss and granted
plaintiffs' motion to compel discovery on the issue of jurisdiction. Jurisdictional
discovery was to be completed by the end of June 2016. However, the parties
agreed to extend the time for discovery to August 5, 2016. Greenbrier did not
produce discovery until December 7, 2016.3 By that date, the statute of
3
Greenbrier was unable to provide discovery earlier due to a significant flood
event at its property.
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limitations for filing a personal injury action in West Virginia expired. See W.
Va. Code. § 55-2-12(b).
In its discovery responses, Greenbrier asserted it had no direct
advertisements on any New Jersey television stations or in any New Jersey
magazines. Greenbrier stated its advertisements were limited to nationally
televised media sources, national golf magazines, and social media pages.
Greenbrier claimed its only direct contact with New Jersey was through letters
and e-mails sent to New Jersey residents who previously stayed at Greenbrier.
In January 2017, Greenbrier renewed its motion to dismiss for lack of
jurisdiction.
On May 9, 2017, the trial court granted Greenbrier's motion to dismiss
based on lack of jurisdiction. The judge found Greenbrier did not target any
activities directed to plaintiffs in New Jersey. Greenbrier's television and
magazine advertising was disseminated nationally. Any mailing by Greenbrier
to New Jersey residents was sent only to individuals who previously stayed at
the hotel. Plaintiffs admitted they never received a direct mailing from
Greenbrier.
The judge found Greenbrier's discovery delay did not support a finding
that New Jersey had jurisdiction over plaintiffs' claims arising from an accident
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in West Virginia. Absent a provision for tolling the statute of limitations in
West Virginia, the judge acknowledged "plaintiffs may be without a cause of
action." The judge suggested plaintiffs raise Greenbrier's discovery delay to a
court in West Virginia as a basis for tolling that state's statute of limitations.
In their May 26, 2017 motion for reconsideration, plaintiffs argued
general jurisdiction, rather than specific jurisdiction, permitted their claims
against Greenbrier in New Jersey. Even with the change in plaintiffs' legal
position, the judge concluded general jurisdiction required systematic and
continuous activity in New Jersey and such activity was not shown by plaintiffs.
Plaintiffs' counsel conceded he did not "have a general jurisdiction argument . . .
for the [c]ourt."
On reconsideration, the judge asked plaintiffs to identify outstanding
discovery needed to proceed with a specific jurisdiction claim against
Greenbrier. Plaintiffs were unable to articulate additional discovery necessary
to support specific jurisdiction in this case.
In denying reconsideration, the judge emphasized plaintiffs were aware
how they came to reserve a room at Greenbrier and no additional discovery from
Greenbrier was needed. The judge repeated her inquiry, asking what discovery
"would [have] help[ed] [plaintiffs'] arguments on specific jurisdiction because
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[plaintiffs' counsel] conceded that you don't have general jurisdiction."
Plaintiffs remained unable to identify such discovery.
On appeal, plaintiffs argue the trial court erred because: (1) the judge
ignored Greenbrier's "copious . . . connections" to New Jersey; (2) the judge
dismissed the case prior to developing a complete record; and (3) the judge
failed to consider that dismissal of plaintiffs' complaint foreclosed any
opportunity to pursue a cause of action in another forum.
When considering a motion to dismiss a complaint based on lack of
jurisdiction, reviewing courts "examine[] whether the trial court's factual
findings are 'supported by substantial, credible evidence' in the record." Patel
v. Karnavati Am., LLC, 437 N.J. Super. 415, 423 (App. Div. 2014) (quoting
Mastondrea v. Occidental Hotels Mgmt., S.A., 391 N.J. Super. 261, 268 (App.
Div. 2007)). Whether the facts support the exercise of jurisdiction is a question
of law and is reviewed de novo. Mastondrea, 391 N.J. Super. at 268. A plaintiff
bears the burden to prove jurisdiction. Dutch Run–Mays Draft, LLC v. Wolf
Block, LLP, 450 N.J. Super. 590, 598 (App. Div. 2017), certif. denied, 231 N.J.
176 (2017).
A defendant "must have sufficient contact with the forum state 'to make
it reasonable and just, according to our traditional conception of fair play and
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substantial justice,'" to exercise jurisdiction. Rippon v. Smigel, 449 N.J. Super.
344, 360 (App. Div. 2017) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310,
320 (1945)). Jurisdiction over a nonresident defendant exists in two forms:
specific and general. Jacobs v. Walt Disney World, Co., 309 N.J. Super. 443,
452 (App. Div. 1998). Here, plaintiffs failed to establish either specific or
general jurisdiction to proceed with their claims against Greenbrier in New
Jersey.
New Jersey may exercise specific jurisdiction "over a defendant who has
'minimum contacts' with the state" when "the cause of action arises directly out
of a defendant's contacts with [New Jersey]." Rippon, 449 N.J. Super. at 359
(quoting Lebel v. Everglades Marina, Inc., 115 N.J. 317, 323 (1989)).
Minimum contacts "focus on 'the relationship among the defendant, the forum,
and the litigation.'" Lebel, 115 N.J. at 323 (quoting Shaffer v. Heitner, 433 U.S.
186, 204 (1977)). "[M]inimum contacts" are "satisfied so long as the contacts
resulted from the defendant's purposeful conduct and not the unilateral activities
of the plaintiff." Ibid. (quoting World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 297–98 (1980)).
"[W]hen the defendant is not present in the forum state, 'it is essential that
there be some act by which the defendant purposefully avails [itself] of the
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privilege of conducting activities within [New Jersey], thus invoking the benefit
and protection of its laws.'" Baanyan Software Servs., Inc. v. Kuncha, 433 N.J.
Super. 466, 475 (App. Div. 2013) (quoting Waste Mgmt. Inc. v. Admiral Ins.
Co., 138 N.J. 106, 120 (1994)). The defendant must "purposefully avail[] itself
of the privilege of conducting activities" in New Jersey such that the defendant
can reasonably anticipate being sued in this State. Dutch Run, 450 N.J. Super.
at 599 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
Here, Greenbrier did not specifically target plaintiffs. Greenbrier
advertised only on national television and in national magazines. Greenbrier
did not solicit New Jersey residents through local golf clubs or other local golf
organizations. The solicitations and e-mails sent by Greenbrier to New Jersey
residents were directed to those individuals who previously stayed at the hotel.
Greenbrier never sent e-mails or other solicitations to plaintiffs.
Nor was logging onto Greenbrier's website sufficient to confer
jurisdiction. See Lebel, 115 N.J. at 323. Plaintiffs did not reserve a hotel room
through Greenbrier's website. Thus, Greenbrier did not "purposefully avail[]
itself of the privilege of conducting activities" in New Jersey to reasonably
anticipate being sued in this State.
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Plaintiffs were also unable to establish general jurisdiction to proceed
against Greenbrier in New Jersey. Under general jurisdiction, a defendant may
be sued for "virtually any claim, even if unrelated to the defendant's contacts
with the forum" provided "the defendant's activities in [New Jersey] can be
characterized as 'continuous and systematic' contacts." Lebel, 115 N.J. at 323
(quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416
(1984)).
For general jurisdiction to be applicable, a defendant's activities must be
"so 'continuous and systematic' as to render [it] essentially at home in the forum
State." FDASmart, Inc. v. Dishman Pharm. and Chems. Ltd., 448 N.J. Super.
195, 202 (App. Div. 2016) (alteration in original) (quoting Daimler AG v.
Bauman, 571 U.S. 117, 128 (2014)). A defendant's "principal place of business
and place of incorporation" generally indicates where that defendant is "at
home" and thus subject to general jurisdiction. Ibid. Establishing general
jurisdiction requires "extensive contacts between a defendant and a forum." Id.
at 202–03 (quoting Mische v. Bracey's Supermarket, 420 N.J. Super. 487, 492
(App. Div. 2011)).
In this case, Greenbrier has little to no contact with New Jersey generally.
Greenbrier is incorporated in West Virginia. Greenbrier's facilities are located
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in West Virginia. The motion judge thoroughly analyzed plaintiffs' proffered
evidence and found Greenbrier lacked any systematic and continuous contacts
with New Jersey to establish general jurisdiction.
We next consider plaintiffs' arguments that the judge erred by not allowing
further discovery to establish jurisdiction and Greenbrier's delay in providing
discovery caused them to suffer prejudice. Despite being given ample
opportunity, plaintiffs failed to articulate additional discovery that might have
established jurisdiction to proceed with their claims against Greenbrier in New
Jersey. When a party asserts incomplete discovery as a defense to dismissal
based on lack of jurisdiction, the party "must establish that there is a likelihood
that further discovery would supply the necessary information" with "some
degree of particularity." J. Josephson, Inc. v. Crum & Forster Ins. Co., 293 N.J.
Super. 170, 204 (App. Div. 1996).
In its discovery responses, Greenbrier certified it did not have any
advertising agreements, contracts, partnerships, or targeted campaigns in New
Jersey. On reconsideration, plaintiffs were unable to explain how additional
discovery would establish jurisdiction over their claims in New Jersey.
We next review plaintiffs' argument that the judge erred in dismissing the
action because they were left without a forum as a result of the expiration of the
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statute of limitations in West Virginia. While Greenbrier provided discovery
after the expiration of West Virginia's statute of limitations for a personal injury
action, nothing precluded plaintiffs from filing suit in West Virginia. Plaintiffs
were aware Greenbrier asserted lack of jurisdiction to pursue claims in New
Jersey based on Greenbrier's original motion to dismiss. Plaintiffs also knew
Greenbrier was likely to renew its motion after the exchange of court-ordered
jurisdictional discovery. Plaintiffs could have filed an action in West Virginia
because Greenbrier is incorporated in West Virginia, the accident occurred in
West Virginia, and West Virginia has similar tort remedies to New Jersey. See
W. Va. Code. § 55-2-12(b). The judge, while recognizing the unfortunate
situation resulting from dismissal of the New Jersey matter, properly conclude d
Greenbrier's delay in providing discovery did not confer jurisdiction in New
Jersey.
Having reviewed the record, we are satisfied the judge's findings of fact
are supported by substantial and credible evidence. We are satisfied de novo
that those facts do not establish jurisdiction in New Jersey. The judge accorded
plaintiffs more than ample opportunity to establish New Jersey had either
general or specific jurisdiction to proceed with their claims against Greenbrier.
Affirmed.
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