United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
In this diversity action, plaintiff Henry Davis, a Nebraska resident, alleges that the defendants failed to provide him a vacation rental property in St. Martin with the amenities required by the parties' contract. The defendants have filed motions to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). (Filings 13, 17.)
In August 2013, plaintiff Henry Davis began communicating with defendant Rental Butler (a citizen of Canada with its principal place of business in Ontario) to assist in planning a family vacation to St. Martin from December 29, 2013, to January 5, 2014. (Filing 3, Amended Complaint ¶¶ 7, 13(a); Filing 60-4, Davis Aff. ¶ 2.) Rental Butler is a web-based service that connects individuals with vacation rentals located outside the United States. Rental Butler has relationships with owners and management companies for properties in Antigua, Grenada, Barbados, and St. Martin, among others. (Filing 15-1, Tarter Aff. ¶¶ 11, 12.)
In the course of planning the Davis family's vacation, Rental Butler exchanged at least 55 emails and 5 telephone calls with Davis, his significant other, and his family-who were all located in Nebraska. (Filing 60-4, Davis Aff. ¶¶ 2-4; Filing 15-1, Tarter Aff. ¶ 14.) In these emails and telephone conversations, Rental Butler made representations regarding Davis's accommodations and what he should expect while on his family vacation. These representations essentially indicated Davis was purchasing, and would receive, a luxury experience at the "Belle Etoile" property in St. Martin, including access to a full-time private chef who would prepare meals of Davis's choice; pre-stocked food provisions of Davis's choice; a concierge to aid in transportation and complete other duties; an on-site, full-time property manager to assist Davis and his guests during the trip; and exercise and spa equipment, including a hot tub. (Filing 3, Amended Complaint ¶ 9; Filing 60-4, Davis Aff. ¶¶ 8-11.)
On August 12, 2013, Davis selected the Belle Etoile property in St. Martin and asked Rental Butler to reserve the property for his vacation. (Filing 15-1, Tarter Aff. ¶ 15.) Defendant Edward Wachs (a resident of Illinois) owned the property, and defendant Carimo Real Estate & Villa Rentals (a French company) was the property manager. (Filing 19-2 ¶¶ 17, 26.)
Rental Butler sent Davis a booking form, which included the terms and conditions of the agreement. (Filing 15-1, Tarter Aff. ¶ 16.) On August 13, 2013, Davis wired half of the balance of the rental ($24, 890) from Nebraska to Rental Butler in Canada and, in turn, Rental Butler sent Davis a booking confirmation via email containing the details of the rental and the statement of accounts. (Filing 15-1, Tarter Aff. ¶¶ 17, 18; Filing 60-4, Davis Aff. ¶¶ 7, 13.) The reservation confirmation and statement of accounts provided that "Sending payment constitutes acceptance and agreement to the following terms...., " two of which were that "[a]ll efforts will be made in the event of service disruption to readily remedy problems through arbitration" and the "[r]ental agreement is subject to the laws of Ontario, Canada where [Rental Butler] is registered with the Travel Industry Council of Ontario." (Filing 15-2, at CM/ECF pp. 2, 4.) On September 30, 2014, Davis wired the remaining balance ($24, 890) to Rental Butler's bank in Canada. (Filing 15-1, Tarter Aff. ¶ 22.)
Davis alleges that, contrary to Rental Butler's representations, he and his family did not receive a "full-time private chef"; the "meals he had requested"; the "food provisions" he wanted; a "concierge"; a "villa manager"; and "typical exercise equipment." Further, Davis claims that the defendants "provided [him] with a cold hot tub" and a property "overrun with the... caretaker's unrestrained dogs." (Filing 3, Amended Complaint ¶ 15(a)-(g).)
Davis filed this lawsuit for breach of contract and for fraudulent or negligent misrepresentation against Rental Butler, Carimo, and Wachs. (Filing 3, Amended Complaint.) Davis claims damages in the amount of $110, 868, consisting of $49, 780 in rental costs, $4, 000 for food, and $57, 088 for transportation to the property. (Filing 3, Amended Complaint at CM/ECF p. 10.)
To survive a motion to dismiss for lack of personal jurisdiction, the plaintiff must make a prima facie showing of personal jurisdiction over the defendant. Fastpath, Inc. v. Arbela Tech. Corp., 760 F.3d 816, 820 (8th Cir. 2014). "A plaintiff's prima facie showing must be tested, not by the pleadings alone, but by affidavits and exhibits supporting or opposing the motion." Id. (internal quotation marks and citations omitted). To determine whether a plaintiff has asserted a prima facie case, the court views the evidence in the light most favorable to the plaintiff and resolves all factual conflicts in the plaintiff's favor. Id.
Analyzing personal jurisdiction is a two-step process. First, the court must determine whether the forum state's long-arm statute has been satisfied. Second, the court must decide whether exercising jurisdiction comports with the requirements of due process. Because Nebraska has construed its long-arm statute to permit jurisdiction to the limits of due process, it is only necessary to decide "whether the exercise of personal jurisdiction over [the defendants] violates due process." Stanton v. St. Jude Medical, Inc., 340 F.3d 690, 693 (8th Cir. 2003).
Due process requires that the defendant have sufficient minimum contacts with the forum state such that "maintenance of the suit does not offend traditional notions of fair play and substantial justice" and a non-resident defendant "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 297 (1980) (internal quotation marks and citations omitted); Fastpath, Inc., 760 F.3d at 820. "Minimum contacts is based on the notion that those who live or operate primarily outside a State have a due process right not to be subjected to judgment in its courts as a general matter.'" Fastpath, Inc., 760 F.3d at 820 (quoting J. McIntyre Mach., Ltd. v. Nicastro, 131 S.Ct. 2780, 2787 (2011)).
"Sufficient minimum contacts requires some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'" Id. at 821 (quoting J. McIntyre, 131 S.Ct. at 2787). "The purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as the result of random, fortuitous, or attenuated contacts or of the unilateral activity of another party or a third person." Id. (internal quotation marks and citations omitted). "For a State to exercise jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State. This means that the relationship must arise out of contacts that the defendant himself creates with the forum State." Id. (internal quotation marks and citations omitted).
To determine the sufficiency of a non-resident defendant's contacts with the forum state, the Eighth Circuit Court of Appeals uses a five-factor test: "1) the nature and quality of contacts with the forum state; 2) the quantity of the contacts; 3) the relation of the cause of action to the contacts; 4) the interest of the forum state in providing a forum for its residents; and 5) convenience of the parties. We give significant weight to the first three factors." Id. (internal quotation marks and citations omitted).
A. Defendant Rental Butler
Rental Butler is a citizen of Canada, and its principal place of business is in Ontario, Canada. Rental Butler is incorporated under the laws of the province of Ontario and is registered with the Travel Industry Council of Ontario. Rental Butler does not own real property or bank accounts in the State of Nebraska, is not registered to do business in Nebraska, and has no registered agent in Nebraska. Rental Butler does not have any offices or employees in Nebraska. In neither the booking confirmation and statement of accounts, nor in the parties' email and telephone communication, did Rental Butler consent to be subjected to the Nebraska courts. No agent or representative of Rental Butler traveled to Nebraska to conduct business with Davis, or for any other reason. Rental Butler does not, and never has, directed sales, marketing, or advertising to Nebraska and has never contracted to provide services or goods in Nebraska. Rental Butler has booked thousands of vacations for customers from around the world, and Davis is Rental Butler's only customer from Nebraska. (Filing 15-1, Tarter Aff. ¶¶ 2-10, 28-29; Filing 60-2, Ex. B, Rental Butler's Resp. to Pl.'s Interrog. No. 15.)
Rental Butler operates a website, www.rentalbutler.com, which provides general information regarding rental properties. Visitors to the site cannot book a reservation or purchase any services through the site; rather, interested visitors must call or email Rental Butler in Canada to do so. (Filing 28-1, Second Tarter Aff. ¶ 3.) Rental Butler does not actively market its website, but instead relies on customer ...