The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This diversity case involves claims that Plaintiff Marie Domond
sustained personal injuries allegedly caused by the Defendants
negligence while the Plaintiffs were attending the Defendants
amusement park in New Jersey. Presently before the Court are the
Defendants' motions to vacate the default judgment previously
entered against them, to dismiss the complaint for lack of
personal jurisdiction, and to have the case transferred to the
District of New Jersey.
Unless otherwise indicated, the following facts are taken from
the plaintiffs complaint. Because the Defendants' motion to
dismiss is based upon an alleged lack of personal jurisdiction
under Fed. R. Civ. P. 12(b)(2), the Court will also consider the
various affidavits submitted by the parties on that issue. See
Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 196-98
(2d Cir. 1990).
Marie Domond ("Marie") and Jean Domond ("Jean") are residents
of New York State. Great American Recreation, Inc., and Vernon
Valley Recreation Association, Inc., (collectively, "Great
American") are New Jersey corporations. According to the
complaint, Great American's principal place of business is
"outside of New York," although the complaint does not
specifically state where.
On August 17, 1995 the Plaintiffs paid the required admission
to Action Park, an amusement park owned and operated by Great
American in Vernon, New Jersey. They allege that, while on a ride
called the "Aqua Skoot," Marie fell backwards and struck her head
on metal rollers that make up the ride, causing her serious
On April 2, 1996, Great American filed for bankruptcy in the
United States Bankruptcy Court, District of New Jersey. On
November 20, 1996, The Plaintiffs commenced this action alleging
negligence on behalf of Marie and a claim for loss of services by
Jean. Because Great American was in bankruptcy at the time, the
Plaintiffs' action was automatically stayed pursuant to
11 U.S.C. § 362.
In September, 1997, as a consequence of the bankruptcy
proceeding, the Defendants were merged into a new entity known as
GAR, Inc., which was formed in part to resolve existing claims
against them that arose prior to the bankruptcy filing.
On December 16, 1996, United States Bankruptcy Judge Novalyn L.
Winfield directed the parties to proceed to mediation on the
Plaintiffs' claims. Between January 8, 1997 and July 6, 1998, the
Plaintiffs made four written requests to Great American
Recreation, Inc.; Skadden, Arps, Slate, Meagher, & Flom LLP,
Great American's counsel; and Evanston Insurance Company to
schedule the court-ordered mediation. Great American's only
response to the Plaintiffs' correspondence was a settlement offer
made by Michael Sangalli, the Vice President & CFO of Great
American Recreation, Inc., on July 11, 1997.
On July 6, 1998 the Bankruptcy Court granted the Plaintiffs'
motion to terminate the automatic stay as it related to this
action. On July 15, 1998 and August 6, 1998 the Plaintiffs sent
letters to Great American Recreation; its counsel; and Robert
Drexel, Esq. of GAR, Inc., advising them of the pending lawsuit
and demanding that the Great American file an answer. Great
American nevertheless did not respond to the complaint. On
November 4, 1998, this Court heard oral argument on the
Plaintiffs' motion for a default judgment. Although Mr. Drexel,
counsel for GAR, Inc. appeared at this time, no objection was
made to the relief requested by the Plaintiffs, and on November
9, 1998 a default judgment was ordered on the issue of liability.
Great American now moves to vacate the November 9, 1998 default
under Fed. R. Civ. P. 60(b) on the grounds that confusion
resulting from the bankruptcy proceedings over who was to
represent Great American and that there was a dispute over
whether the Plaintiffs' claims were covered by insurance which
caused the default. In addition, Great American argues that this
Court lacks personal jurisdiction over it, and that the complaint
should be dismissed pursuant to Fed. R. Civ. P. 12(b)(2) or, in
the alternative, the case should be transferred to the District
of New Jersey.
A. As to Personal Jurisdiction over Great American
The Court's first consideration in this case is whether
personal jurisdiction exists over Great American in New York. In
a 12(b)(2) motion the plaintiff bears the burden of demonstrating
that the court has jurisdiction over the defendant. See Bank
Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779,
784 (2d Cir. 1999); Kernan v. Kurz-Hastings, Inc.,
175 F.3d 236, 240 (2d Cir. 1999), citing Metropolitan Life Ins. Co. v.
Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). If the
court relies on pleadings and the affidavits alone, the plaintiff
is only required to make a prima facie showing of jurisdiction,
including an averment of facts that, if credited by the ultimate
trier of fact, sufficiently establishes jurisdiction over the
defendants. See Kernan v. Kurz-Hastings, Inc., 175 F.3d 236,
240 (2d Cir. 1999); Jazini v. Nissan Motor Co. Ltd.,
148 F.3d 181, 184 (2d ...