Herlihy v. Sandals Resorts International, LTD.

19-632-cv
Herlihy v. Sandals Resorts International, LTD., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 19th day of December, two thousand nineteen.
PRESENT: JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
CHRISTINA REISS,
District Judge.*
SCOTT HERLIHY,
Plaintiff-Appellant, 19-632-cv
v.
SANDALS RESORTS INTERNATIONAL, LTD., and LA
TOC HOLDINGS LIMITED,
Defendants-Appellees.†
FOR PLAINTIFF-APPELLANT: I. BRYCE MOSES, Wingate Russotti
Shapiro & Halperin, LLP, New York, NY.
*
Judge Christina Reiss, of the United States District Court for the District of Vermont, sitting by
designation.
†
The Clerk of Court is directed to amend the official caption to conform to the above.
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FOR DEFENDANTS-APPELLEES: THOMAS E. SCOTT, Cole, Scott & Kissane,
P.A., Miami, FL, Ralph V. Pagano and
Tara E. Nicola, on the brief, Fitzpatrick &
Hunt, Pagano, Aubert, LLP, New York,
NY.
Appeal from a February 20, 2019 judgment of the United States District Court for the
District of Connecticut (Jeffrey A. Meyer, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.
Plaintiff-Appellant Scott Herlihy (“Herlihy”) appeals from a February 20, 2019 judgment
dismissing his suit against Defendants-Appellees Sandals Resorts International, LTD. and La Toc
Holdings Limited (jointly, “Sandals”)1 for lack of personal jurisdiction pursuant to Fed. R. Civ. P.
12(b)(2). We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.
On appeal, Herlihy argues that the District Court erred in finding a lack of minimum
contacts for personal jurisdiction in a suit arising from or relating to Sandals’ alleged sustained and
targeted efforts to induce Connecticut residents to stay at its resorts. Herlihy further contends that
the District Court erroneously denied him the opportunity to conduct discovery as to the forum-
related conduct of Sandals’ agents.
I. Personal Jurisdiction Over Sandals
In reviewing a district court’s decision regarding its exercise of personal jurisdiction, we
review its legal conclusions de novo and its factual findings for clear error. See Troma Entm’t, Inc. v.
Centennial Pictures, Inc., 729 F.3d 215, 217 (2d Cir. 2013). We may affirm the district court “for any
reason supported by the record.” Latner v. Mount Sinai Health Sys., Inc., 879 F.3d 52, 54 (2d Cir. 2018).
Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss a
complaint for lack of personal jurisdiction. For a plaintiff to prevail, he must make a prima facie
showing that the court has jurisdiction over the defendant. See Penguin Grp. (USA) Inc. v. Am. Buddha,
609 F.3d 30, 34–35 (2d Cir. 2010) (“Such a showing entails making legally sufficient allegations of
jurisdiction, including an averment of facts that, if credited[,] would suffice to establish jurisdiction
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As noted by the District Court, at oral argument Herlihy abandoned his claims against
defendant Sandals Resorts International LTD, IBC. See App’x 430 n.1.
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over the defendant.”). A court may not exercise jurisdiction over a defendant if it would violate the
defendant’s right to constitutional due process. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945) (“[D]ue process requires only that in order to subject a defendant to a judgment in personam,
if he be not present within the territory of the forum, he have certain minimum contacts with it such
that the maintenance of the suit does not offend traditional notions of fair play and substantial
justice.”) (internal quotation marks omitted).
We agree with the District Court’s conclusion that exercising jurisdiction over Sandals in the
circumstances here would not comport with due process. To establish specific jurisdiction, “the
defendant’s suit-related conduct must create a substantial connection with the forum State.” Walden
v. Fiore, 571 U.S. 277, 284 (2014). Here, as identified by the District Court, Sandals’ conduct is not
sufficiently connected to Connecticut, as Herlihy’s claims for negligence, recklessness, and public
nuisance relate to the maintenance of a tree on Saint Lucia. See App’x 434. Herlihy has not
demonstrated that Sandals “purposefully directed” its activities to Connecticut such that it would be
subject to jurisdiction there under established Supreme Court jurisprudence and this Circuit’s own
precedents, which require a substantial connection between the cause of action and the alleged
minimum contacts with the State. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal
quotation marks omitted); see also Walden, 571 U.S. at 284 (“[O]ur ‘minimum contacts’ analysis looks
to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons
who reside there.”); Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68, 86 (2d Cir. 2018) (noting
that “bare allegation[s]” are insufficient to allow a court to impute a defendant’s agent’s forum-
related contacts to the defendant for the purposes of personal jurisdiction). And, although not
necessary to the disposition of this appeal, as noted by Sandals in its uncontested affidavits, Sandals
is not directly responsible for the marketing and advertising of its resorts and nor does it participate
in the decision-making process regarding marketing, promotion, or advertising. See Appellee’s Br. at
18. Likewise, Sandals does not market itself directly to Connecticut citizens, travel agents, or media,
and does not solicit or transact business with Connecticut residents. See id. Accordingly, the District
Court correctly dismissed Herlihy’s claims for its lack of personal jurisdiction over Sandals.
II. Jurisdictional Discovery
We review a District Court’s denial of jurisdictional discovery for abuse of discretion. See
Haber v. United States, 823 F.3d 746, 754 (2d Cir. 2016). “A district court has abused its discretion if it
based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the
evidence, or rendered a decision that cannot be located within the range of permissible decisions.” In
re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks, alteration, and citation omitted);
see also In re City of New York, 607 F.3d 923, 943 n.21 (2d Cir. 2010) (explaining that “abuse of
discretion” is a nonpejorative “term of art”).
A district court may deny jurisdictional discovery where a plaintiff fails to establish a prima
facie case for jurisdiction. See Best Van Lines, Inc. v. Walker, 490 F.3d 239, 255 (2d Cir. 2007). Here,
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Sandals’ affidavits, submitted in support of its motion to dismiss, were sufficient for the District
Court to determine that jurisdictional discovery was unwarranted, particularly in light of the “wide
latitude” afforded to a district court regarding the scope of discovery. Frontera Res. Azerbaijan Corp. v.
State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 401 (2d Cir. 2009) (internal quotation marks
omitted); see also Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977)
(“An appellate court will not interfere with the trial court's refusal to grant discovery except upon
the clearest showing that the dismissal resulted in actual and substantial prejudice to the litigant; such
a refusal is not an abuse of discretion when it is clear that further discovery would not demonstrate
facts sufficient to constitute a basis for jurisdiction.”). In particular, the Declaration of Jeremy Jones
contains numerous unrebutted factual assertions relevant for the purposes of determining personal
jurisdiction that serve as an ample basis for concluding that jurisdictional discovery was unnecessary
in this case. See App’x 173-180. We therefore reject Herlihy’s argument that the District Court
abused its discretion in denying his request for forum-related discovery of Sandals or its agents.
CONCLUSION
We have reviewed all of the arguments raised by Herlihy on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the February 20, 2019 judgment of the
District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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