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Pena v. Gray Line Corp.

United States District Court, N.D. Illinois, Eastern Division

May 25, 2018

ANTHONY PENA and SANDRA PENA, Plaintiff,
v.
GRAY LINE CORPORATION, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          HON VIRGINIA M. KENDALL, UNITED STATES DISTRICT JUDGE

         Plaintiffs Anthony Pena and Sandra Pena filed this suit against Defendants Gray Line Corporation (“Gray Line”) and Expedia Inc., individually and d/b/a Expedia and Travelocity (“Expedia”) in the Circuit Court of Cook County, Illinois, alleging negligence related to an off-road vehicle accident involving Plaintiffs while they were on vacation in Mexico. (Dkt. 1-B).[1]On August 22, 2017, Gray Line removed the case to federal court and it was assigned to Judge Der-Yeghiayan. (Dkt. 1). In October 2017, Gray Line and Expedia each separately moved to dismiss the First Amended Complaint for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). (Dkts. 14, 21). On February 20, 2018, the case was reassigned to this Court. (Dkt. 31). Despite receiving three extensions of time to file a response-from Judge Der-Yeaghiayan and this Court-between October 2017 and March 2018, Plaintiffs failed to respond to either Motion to Dismiss. For the reasons stated below, the Court grants Gray Line's Motion to Dismiss (Dkt. 14) and Expedia's Motion to Dismiss (Dkt. 21) and dismisses the case without prejudice for lack of personal jurisdiction.

         BACKGROUND

         The following facts are based on the allegations in the First Amended Complaint and the statements provided in the affidavits submitted by both Defendants that controvert or supplement the Plaintiffs' allegations. To determine a motion to dismiss for lack of personal jurisdiction, the Court “take[s] as true all well-pleaded facts alleged in the complaint and resolve[s] any factual disputes in the affidavits in favor of the plaintiff.” Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir. 2010) (citing Purdue Res. Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003)).

         According to the First Amended Complaint, on or around July 24, 2015, Plaintiffs checked in to the Sunset Plaza Beach Resort and Spa in Puerto Vallarta, Mexico, at which point they were approached by agent(s) or affiliate(s) of Gray Line and/or Expedia (hereinafter, “Defendants”). (Dkt. 1-2 at ¶¶ 15, 39). Defendants promoted and provided Plaintiffs with information about the “Hidden Mexico” excursion, an excursion that traveled through mountains and terrain on off-road vehicles. (Id. at ¶¶ 16, 18, 40, 42). Gray Line's logo and the language “Gray Line Vallarta in Partnership with Expedia” appeared on the promotional materials. (Id. at ¶¶ 22, 46). The excursions should have been considered a “hazardous activity, ” but Defendants failed to disclose to Plaintiffs that the excursion was dangerous in any way. (Id. at ¶¶ 17-18, 41-42). Defendants offered to make arrangements for Plaintiffs to participate in the “Hidden Mexico” excursion and, relying on Defendants' recommendation and representations, Plaintiffs accepted. (Id. at ¶¶ 15, 19, 39, 43). On or around July 24, 2015, while on the “Hidden Mexico” excursion, Plaintiffs were passengers on an off-road vehicle that suddenly and without warning overturned on its side and rolled down a steep embankment. (Id. at ¶¶ 20, 44). Plaintiffs suffered severe and permanent injuries as a result. (Id. at ¶¶ 24, 26, 48, 50).

         Plaintiffs are both residents of Illinois. (Id. at ¶¶ 2-3). Plaintiffs conceded in the First Amended Complaint that neither Gray Line nor Expedia is incorporated in or has its principal place of business in Illinois. (Id. at ¶¶ 4-5). With regard to jurisdiction, the First Amended Complaint alleges only that each of Gray Line and Expedia is subject to the limited personal jurisdiction of this Court pursuant to the Illinois Long Arm Statute, 735 ILCS 5/2-209(b), because each:

● “either personally and/or through affiliates, agents, or otherwise, engaged in, transacted, carried on[] a business or business ventures in Illinois”;
● “directly, or through agents affiliates, employees, subsidiaries, or otherwise, engaged in, transacted or carried on business transactions through their advertising, solicitation, marketing, arranging, representations, and other such actions, which constituted an act to be done or consequences to occur in [Illinois]”; and
●“itself, or through its affiliates, owns, uses, or possesses real or tangible personal property in [Illinois].”

(Id. at ¶¶ 8, 10).

         According to the affidavit submitted by Gray Line, Gray Line is incorporated under the laws of the state of Maryland with its principal place of business in Denver, Colorado and has no offices or employees in Illinois. (Dkt. 14-1 at ¶ 3). According to the affidavit submitted by Expedia, Expedia is incorporated under the laws of the state of Washington with its headquarters and principal place of business in Bellevue, Washington. (Dkt. 21-1 at ¶ 3). Expedia's officers have directed, controlled and coordinated the corporation's business from Washington since its formation in 1999. (Id. at ¶ 4). Expedia has never had its principal place of business in Illinois and, at the time this suit was filed, had no officers residing in Illinois. (Id. at ¶ 5).

         LEGAL STANDARD

         Rule 12(b)(2) permits dismissal for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). A plaintiff need not anticipate a personal jurisdiction challenge in its complaint; however, once a defendant challenges the court's exercise of personal jurisdiction, the plaintiff bears the burden of demonstrating that personal jurisdiction exists. See Jennings v. AC Hydraulic A/S, 383 F.3d 546, 548 (7th Cir.2004). Where, as here, the Court decides a motion challenging jurisdiction on the basis of written submissions, the plaintiff “need only make out a prima facie case of personal jurisdiction.” GCIU-Emp'r Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, 1023 (7th Cir.2009) (citing Purdue Res. Found., 338 F.3d at 782). In reviewing a motion to dismiss for lack of personal jurisdiction, the Court accepts all well-pleaded factual allegations in the First Amended Complaint as true unless controverted by ...


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