SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 17T3 ANTHONY DELGATTO and T HERESA DELGATTO , his wife, Plaintiff s - Appellants ,

v. THE GREENBRIER SPORTING CLUB , d/b/a T HE GREENBRIER , Defendant

- Respondent,
and
PGA TOUR , INC. , d/b/a PGA TOUR S , Defendant.

_______ _______________________

Submitted January 16, 2019

– Decided Before Judges Koblitz and Mayer. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L

- 10261

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. Sekas Law Group, LLC , attorney s for appellant s ( Nicholas G. Sekas and Louis M. Gerbino, on the brief s ). NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

- 3.

Febru ary 6, 20192 A

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- 17T3 Kaufman Borgeest & Ryan, LLP , attorney s for respondent ( John J. Leo III, on the brief)

. PER CURIAM Plaintiffs Anthony Delgatto and Theresa Delgatto appeal from a May 9, 2017 order dismissing their complaint against defendant Greenbrier Sporting Club d/b/a T he Greenbrier (Greenbrier) for lack of jurisdiction. In addition, plaintiffs appeal from an August 2, 2017 order denying their motion for reconsideration. 1 We affirm. Plaintiffs learned of Greenbrier's golf course and hotel , located in West Virginia, whi le watching the Golf Channel

. 2 Plaintiffs also saw advertisements for Greenbrier during golf events broadcast on national network television station s , and in nationally circulated g olf magazines. Greenbrier does not advertise on local New Jersey televis ion stations or in local New Jersey magazines. Friends who had s tayed at Greenbrier suggested plaintiffs would enjoy the resort and its amenities. Theresa Delgatto visited Greenbrier's website to obtain

1 On appeal, plaintiffs fail to address the denial of their reconsideration motion. Issues not briefed on appeal are deemed waived. Gormley v. Wood

- E l , 218 N.J. 72, 95 n.8 (2014).

2 The Golf Channel is a national cable television channel broadcasting golf related programming throughout the country.3 A

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hotel information . She then contacted American Ex press Travel Services to reserve a room at Greenbrier

. P laintiffs made dinner arrangements through Greenbrier's website and telephoned Greenbrier's golf course to schedule tee

times. While staying at Greenbrier in September 2014, Anthony Delgatto slipped and fell on the golf course , suffering significant injuries. H e was treated for his injuries i n New Jersey and New York City. Plaintiffs filed personal injury and per qu o d claims against Greenbrier in November 2015. Greenbrier filed an answer and asserted affirmative defenses, including lack of jurisdiction. In 2016, Greenbrier filed a motion to dismiss based on lack of jurisdiction. Plaintiffs opposed the motion and filed a cross

- motion seeking jurisdictional discovery. The court denied Gree nbrier's motion to dismiss and granted plaintiffs' motion to compel discovery on the issue of jurisdiction. J urisdictional discovery was to be completed by the end of June 2016. However, the parties

a greed to extend the time for discovery to August 5, 20 16. Greenbrier did not produce discovery until December 7, 2016

. 3 By that date , the statute of

3 Greenbrier was unable to provide discovery earlier due to a significant flood event at its property

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limitations for filing a personal injury action in West Virginia expired. See W. Va. Code. § 55

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- 12 (b)

. In its discovery responses, Greenbrier asserted it had no direct advertisements on any New Jersey television stations or in any New Jersey magazines

. Greenbrier stated its ad vertisements were limited to national ly televised media sources, national golf ma gazines , and social media pages. Greenbrier claimed its only direct contact with New Jersey was through letters and e

- mails sent to New Jersey residents who previously stayed at Greenbrier

. In January 2017 , G reenbrier renewed its motion to dismiss for lack of jurisdiction. On May 9, 2017, the trial court granted Greenbrier's motion to dismiss based on lack of jurisdiction

. The judge found Greenbrier did not target any activities directed to plaintiffs in New Jersey. Greenbrier's television and magazine advertising was disseminated national ly

. Any mailing by Greenbrier to New Jersey residents was sent only to individuals who previously stayed at
the hotel . Plaintiffs admit ted they never received a direct mailing fro m Greenbrier. The judge found Greenbrier's discovery delay did not support a finding that New Jersey had jurisdiction over plaintiffs' claims arising from an accident5 A

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in West Virginia. A bsent a provision for tolling the statute of limitations in West Vi rginia, the judge acknowledged "plaintiffs may be without a cause of action." The judge suggested plaintiffs raise Greenbrier's discovery delay to a court in West Virginia as a basis for tolling that state 's statute of limitations. In their May 26, 20 17 motion for reconsideration, plaintiffs argue d general jurisdiction , rather than specific jurisdiction, permitted their claims against Greenbrier in New Jersey . Even with th e change in plaintiffs' legal position, the judge concluded general jurisdiction required systematic and continuous activity in New Jersey and such activity was not shown by plaintiffs.
P laintiffs' counsel conceded he did not "have a general jurisdiction argument

. . . for the [c]ourt." On reconsideration, t he judge asked plaintiffs to identify outstanding discovery needed to proceed with a specific jurisdiction claim against Greenbrier. P laintiffs w ere unable to articulate additional discovery necessary to support specif ic jurisdiction in this case. In denyi ng reconsideration, t he judge emphasized p laintiffs were aware how they came to reserve a room at Greenbrier and no additional discovery from Greenbrier was needed

. The judge repeated her inquiry , asking what discovery "would [have] help[ed] [plaintiffs' ] arguments on specific jurisdiction because6 A

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[plaintiffs' counsel] conceded that you don't have general jurisdiction."
P laintiffs remained unable to identify such discovery. On appeal, plaintiff s argue t he trial court erred because: (1) the judge ignore d Greenbrier's "copious . . . connections" to New Jersey; (2) the judge dismissed the case prior to developing a complete record; and (3) the judge
failed to consider that dismissal of plaintiffs' complaint foreclosed any opportunity to pursue a cause of action in another forum. When considering a motion to dismiss a com plaint based on lack of jurisdiction, reviewing court s " examine [] whether the tria l court's factual findings are ' supported by substantial, credible evidence' in the record. " Patel v. Karnavati Am., LLC , 437 N.J. Super. 415, 423 (App. Div. 2014) (quoting Mastondrea v. Occidental Hotels Mgmt., S.A. , 391 N.J. Super. 261, 268 (App. Div. 2007 ) )

. W hether the facts support the exercise of jurisdiction is a question of law and is r eviewed de novo. Mastondrea , 391 N.J. Super. at 268. A plaintiff bears the burden to prove jurisdiction. Dutch Run

– Mays Draft, LLC v. Wolf Block, LLP , 450 N.J. Super. 590 , 598 (App. Div. 2017), cert if . denied , 231 N.J.
176 ( 2017 ).
A defendant " must have sufficien t contact with the forum state ' to make it reasonable and just, according to our traditional conception of fair play and7 A

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substanti al justice , ' " to exercise jurisdiction. Rippon v. Smigel , 449 N.J. Super.
344 , 360 (App. Div. 2017) (quoting In t'l Shoe Co. v. Washington , 326 U.S. 310, 320 (1945) )

. J urisdiction over a nonresident defendant exists in two forms : specific and general. Jacobs v. Walt Disney World, Co. , 309 N.J. Super. 443 , 452 (App. Div. 1998). Here, plaintiffs fail ed to establish either specific or general jurisdiction to proceed with their claims against Greenbrier in New Jersey. New Jersey may exercise specific jurisdiction " over a defendant who has 'minimum contacts' with the state " when "t he cause of action arises directly out of a defendant's contacts with [New Jersey]

. " Rippon , 449 N.J. Super . at 359 (quoting Lebel v. Everglades Marina, Inc. , 115 N.J. 317 , 323 (1989)).
M inimum contacts "focus on ' the relationship among the defendant, the forum, and the litigat ion. '" Lebel , 115 N.J. at 323 (quoting Shaffer v. Heitner , 433 U.S. 186, 204 (1977 ) )

. "[M] inimum contacts " are " satisfied so long as the contacts resulted from the defendant's purposeful conduct and not the unilateral activities of the plaintiff. " Ibid. (quoting World

- Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 297

– 98 (1980) )

.

" [W]hen the defendant is not present in the forum state, ' it is essential that there be some act by which the defendant purposefully avails [itself] of the8 A

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privilege of conduc ting activities within [New Jersey] , thus invoking the benefit and protection of its laws. '" Baanyan Software Servs., Inc. v. Kuncha , 433 N.J. Super. 466, 475 (App. D iv. 2013) (quoting Waste Mgmt. Inc. v. Admiral Ins.
Co. , 138 N.J. 106, 120 (1994 ) )

. The d efendant must " purposefully avail[] itself of the pri vilege of conducting activities" in New Jersey such that the defendant
can reasonabl y an ticipate being sued in this S tate. Dutch Run , 450 N.J. Super. at 599 (quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462 , 475 (1985)). Here, Greenbrier did not specifically target plaintiffs. Greenbrier advertised only on national television and in national magazines. Greenbrier did not solicit New Jersey residents through local golf clubs or other local golf organizations. The solicitations and e

- mails sent by Greenbrier to New Jersey residents were directed to those individuals who previously stayed at the hotel. Greenbrier never sent e

- mails or other solicitations to plaintiffs.
Nor was logging onto G reenbrier's website sufficient to confer jurisdiction. See Lebel , 115 N.J. at 323

. Plaintiffs did not reserve a hotel room through Greenbrier's website. Thus, Greenbrier did not "purposefully avail[] itself of the privilege of conducting activities" in New Jersey to reasonably anticipate being sued in th is State

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P laintiffs were also unable to establish general jurisdiction to proceed against Greenbrier in New Jersey. Under g eneral jurisdiction , a defendant may be sued for " virtually any claim, even if unrelated to the defendant's contacts with the forum " provided " th e defendant's activities in [New Jersey] can be characterized as 'continuous and systematic' c ontacts ." Lebel , 115 N.J. at 323 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408, 416 (1984) ).
F or general jurisdiction to be applicable, a defendant's activities must be "so 'continuous and systematic' as to render [it] essentia lly at home in the forum
State." FDASmart, Inc. v. Dishman Pharm . and Chem s . Lt d

. , 448 N.J. Super. 195 , 202 (App. Div. 2016) (alteration in original) (quoting Daimler AG v.
Bauman , 571 U.S. 117, 128 (2014)). A defendant 's " prin cipal place of business and place of incorporation " generally indicates where th at defendant is " at home " and thus subject to general jurisdiction. Ibid. E st ablishing general jurisdiction requir es " extensive contacts between a defendant and a forum. " Id.
at 202

– 03 (quoting Mische v. Bracey's Supermarket , 420 N.J. Super. 487, 492 (App. Div. 2011) )

. In this case, Greenbrier has little to no contact with New Jersey generally. Greenbrier is incorporated in West Virginia . Greenbrier's facilities are locat ed10 A

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in West Virginia. The motion judge thoroughly analyzed plaintiffs' proffered evidence and found Greenbrier lacked any systematic and continuous contacts with New Jersey to establish general jurisdiction

. We next consider plaintiffs' argument s that th e judge erred by not allowing further discovery to establish jurisdiction and Greenbrier's delay in providing discovery caus ed them to suffer prejudice. D espite being given ample opportunity, pl aintiffs failed to articulate additional discovery that might have established jurisdiction to proceed with their claims against Greenbrier in New Jersey

. W hen a party asserts incomplete discovery as a defense to dismissal based on lack of jurisdiction, the party "must establish that there is a likelihood that further discovery would supply the necessary information " with "some degree of particularity." J. Josephson, Inc. v. Crum & Forster Ins. Co. , 293 N.J. Super. 170 , 204 (App. Div. 1996 )

. In its discovery responses, Greenbrier certified it did not have any advertising agreements, contracts , partnerships, or targeted campaigns in New Jersey. On reconsideration, p laintiffs were unable to explain how additional discovery would establish jurisdiction over their claims in New Jersey.
We nex t review plaintiffs' argument that the judge erred in dismissing the
action because they were left without a forum as a result of the expiration of t he11 A

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statute of limitations in West Virginia. While Greenbrier provided discovery after the expiration of West Virginia's statute of limitations for a personal injury action, nothing precluded plaintiffs from filing suit in West Virginia . Plaintiffs were aware Greenbrier asserted lack of jurisdiction to pursue claims in New Jersey based on Greenbrier's origin al motion to dismiss. Plaintiffs also knew Greenbrier was likely to renew its motion after the exchange of court

- ordered jurisdictional discovery. P laintiffs could have filed a n action in West Virginia because Greenbrier is incorporated in West Virginia, the accident occurred in West Virginia, and West Virginia has similar tort remedies to New Jersey. S ee W . Va. Code. § 55

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- 12(b)

. The judge, while recognizing the unfortunate situation resulting from dismissal of the New Jersey matter, properly conclude d Greenbrier's delay in providing discovery did not confer jurisdiction in New Jersey. Having reviewed the record, we are satisfied the judge's findings of fact are supported by substantial and credible evidence. We are satisfied de novo that those facts do not establish jurisdiction in New Jersey. T he judge accorded plaintiffs more than ample opportunity to establish New Jersey had either general or specific jurisdiction to proceed with their claims against Green brier.
Affirmed

.