PITTSBURGH – A Kentucky company has filed its second dismissal motion on the topics of venue and jurisdiction, in a wrongful death lawsuit filed by the survivor of a fatal ATV accident in West Virginia.
Christine O’Keefe (individually and as Administrator of the Estate of Cynthia Fischer, deceased) of Glenshaw first filed suit in the U.S. District Court for the Western District of Pennsylvania on Aug. 15 versus Rustic Ravines, LLC of Genoa, W.Va. and Premier Powersports Rental, LLC, of Louisa, Ky.
“The instant civil action arose from a fatal ATV rollover that took place on April 25, 2021 at approximately 12:03 p.m. along the Hatfield-McCoy Trails System, located in southwestern West Virginia. The Hatfield-McCoy Trail System which consists of 800 miles of mountainous, rugged trails, wherein ATV accidents involving fatalities and/or serious injuries are known to commonly occur. On that date, decedent and her boyfriend, Ryan Wingerson, were guests and therefore business invitees at Rustic Ravines, which is located near the Cabwaylingo State Park trail head that connects with the Hatfield-McCoy Trails System,” the suit said.
“Rustic Ravines promotes itself as a premier log cabin resort that offers ATV rentals and guided ATV tours of the various trails in the surrounding area. Upon information and belief, Premier Powersports contracted with Rustic Ravines to supply the ATVs and helmets being offered by Rustic Ravines to its guests. Rustic Ravines permits their guests and/or business invitees to purchase trail riding permits, rent ATVs and helmets from Rustic Ravines and/or Premier Powersports for the purpose of riding onto the nearby Hatfield-McCoy Trails System.”
The suit added that Rustic Ravines and Premier Powersports “knowingly and recklessly chose not to provide full-face helmets to Rustic Ravines’ guests, despite having the opportunity to do so”, and on the date in question, the defendants provided “decedent with an ATV that was too large for her weight and height” – and that “neither Rustic Ravines nor Premier Powersports provided any training or warning to decedent and her boyfriend about their helmets, how to operate the ATVs, or about the rules, conditions, and dangers of the Hatfield-McCoy Trails Systems.”
“Specifically, neither Rustic Ravines nor Premier Powersports instructed decedent or her boyfriend about the significance of using four-wheel drive, instead of two-wheel drive high speed, on the rugged trails of the Hatfield-McCoy Trails System. On the above date, decedent and her boyfriend left Rustic Ravines’ property and proceeded to ride ATVs onto the Cabwaylingo Trail within the Hatfield-McCoy Trails System. Decedent and her boyfriend were unfamiliar with the Trails System and were unaware of the slippery, dangerous conditions of the mountainous trails. On the above date and time, decedent operated her ATV up a hill on Trail 82 that had a blind left-hand turn. At that time, the conditions of the trails were slippery due to recent rain,” the suit stated.
“At that time, decedent’s ATV was in two-wheel high gear, but should have been in four-wheel low gear. Decedent’s ATV went up the left hillside, which caused the ATV to flip back and land on decedent in the right eye area, fracturing the skull. Decedent’s right eye area was crushed, which resulted in profuse bleeding from the head, brain matter to leak from the eye socket area, and decedent laboring to breathe. Decedent’s boyfriend attempted to resuscitate her with CPR for several minutes, but he was unsuccessful. Decedent stopped breathing at some point after the crash.”
Defendant Premier Powersports Rental, LLC filed a motion to dismiss the complaint on Nov. 17, countering that the complaint should be thrown out for lack of specific and personal jurisdiction, in addition to improper venue.
“Pursuant to Federal Rule of Civil Procedure 12(b)(2), plaintiff’s complaint should be dismissed for lack of jurisdiction in that Premier is a Kentucky limited liability company, lacks contacts with Pennsylvania and the events giving rise to the cause of action occurred in West Virginia. Therefore, there is insufficient contacts or basis for general or specific jurisdiction to exist in Pennsylvania and this Court,” the dismissal motion stated.
“Moreover, pursuant to Federal Rule of Civil Procedure 12(b)(3), this Court is not the proper venue for this action with respect to Premier. Plaintiff cannot establish that this Court has personal jurisdiction over Premier. Plaintiff has also failed to establish any basis for venue in the Western District of Pennsylvania against Premier. Plaintiff has not made any assertions against Premier that any of its acts or omissions took place in Pennsylvania or that it resided here. Further, plaintiff’s assertion that Premier targeted advertisements to southwestern and western Pennsylvania are false and, notwithstanding, insufficient to confer jurisdiction on Premier. Premier is not a resident of Pennsylvania and no substantial portion of the events giving rise to plaintiff’s complaint occurred at a time when Premier was subject to personal jurisdiction in Pennsylvania. Therefore, venue is improper in the Western District of Pennsylvania.”
In a Dec. 14 filing, the plaintiff brought a cross-motion for venue/jurisdictional discovery, prior to any kind of a ruling on the prior move to dismiss the case.
“Plaintiff Christine O’Keefe, individually and as Administrator for the Estate of Cynthia Fischer, respectfully moves this Court for an order staying the disposition of defendants’ motions to dismiss plaintiff’s complaint and permitting plaintiff to seek venue and jurisdictional discovery from defendants Rustic Ravines, LLC and Premier Powersports Rental, LLC. Plaintiff incorporates herein by reference their brief in support of the cross-motion for venue and jurisdictional discovery. The undersigned certifies that plaintiff informed counsel for defendants of this motion and counsel for defendants informed counsel for plaintiff that defendants intend to oppose this motion,” the cross-motion stated.
On Jan. 5, U.S. District Court for the Western District of Pennsylvania Judge Arthur J. Schwab denied the prior dismissal motions without prejudice, and further granted the motion for limited jurisdictional discovery.
“The Court finds that plaintiff’s allegations are not ‘clearly frivolous.’ To this end, the Court notes it is common knowledge that unlike a passive website, there are targeted forms of social media advertising (available through social media platforms, including Facebook), which allow entities to ‘target’ specific users with a specific interest or within a particular geographic location (‘geo-targeting’). Target advertising through social media platforms enables an advertiser to present its product or service to users who are more likely to be interested in the product or service than the broader, general public,” Schwab said.
“Defendant Rustic admits to using Facebook, although it denies targeted advertising. Therefore, discovery which seeks to determine if either or both defendants engaged in targeted advertising either through Facebook or other social platforms, would assist the Court in reaching its decision as to whether specific personal jurisdiction exists in this case.”
Schwab continued that the plaintiff’s brief in support of her cross-motion indicates that defendant Rustic listed its cabins through Airbnb, though the Court is currently unclear what relationship – if any – advertising through Airbnb may have to establishing specific personal jurisdiction over defendants.
“However, if plaintiff is seeking a factual basis to demonstrate that Rustic, through its Airbnb advertising, either knowingly geo-targeted (or otherwise targeted) Plaintiff’s decedent should be permitted to discover that information to assist this Court in deciding the specific personal jurisdictional issue raised by defendants,” Schwab stated.
UPDATE
Premier Powersports Rental, LLC filed a renewed motion to dismiss the case on Feb. 10.
“Pursuant to Federal Rule of Civil Procedure 12(b)(2), plaintiff’s complaint should be dismissed for lack of jurisdiction in that Premier is a Kentucky limited liability company, lacks contacts with Pennsylvania and the events giving rise to the cause of action occurred in West Virginia. Therefore, there is insufficient contacts or basis for general or specific jurisdiction to exist in Pennsylvania and this Court,” per their second dismissal motion.
“Moreover, pursuant to Federal Rule of Civil Procedure 12(b)(3), this Court is not the proper venue for this action with respect to Premier. Plaintiff cannot establish that this Court has personal jurisdiction over Premier. Plaintiff also has failed to establish any basis for venue in the Western District of Pennsylvania against Premier. Plaintiff has not made any assertions against Premier that any of its acts or omissions took place in Pennsylvania or that it resided here. Further, plaintiff’s assertion that Premier targeted advertisements to southwestern and western Pennsylvania are false, and, notwithstanding, insufficient to confer jurisdiction on Premier. Premier is not a resident of Pennsylvania and no substantial portion of the events giving rise to plaintiff’s complaint occurred at a time when Premier was subject to personal jurisdiction in Pennsylvania. Therefore, venue is improper in the Western District of Pennsylvania.”
For multiple counts of negligence, survival, wrongful death, intentional spoliation, strict liability, breach of implied warranty, and negligent misrepresentation, the plaintiff is seeking compensatory and punitive damages in excess of $75,000, and all other damages allowed under the law.
The plaintiff is represented by Michael P. O’Day of the Law Offices of Michael P. O’Day, in Pittsburgh.
The defendants are represented by Damon R. Thomas, John M. Adkins and Michael R. Proctor of Bowles Rice in Canonsburg and Robert C. James of Flaherty Sensabaugh & Bonasso, in Wheeling, W.Va.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-01178
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com