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M.G. v. Camp Wood Young Men's Christian Association

United States District Court, D. Kansas

February 21, 2017

M.G., as parent and next friend of D.G., a minor, Plaintiffs,



         Plaintiff M.G alleges contract and tort claims under Kansas law related to the alleged physical, sexual, and emotional abuse of her daughter, D.G., by a summer camp counselor at Camp Wood YMCA (“Camp Wood”) in June 2014. Plaintiffs bring suit against Camp Wood; the counselor, Jacob Ward; and the entities, Smaller Earth, Inc. and Camp Leaders USA, whom are alleged to have conducted a background check and otherwise vetted and facilitated Ward's employment by Camp Wood. Before the Court is Defendant Smaller Earth, Inc.'s Motion to Dismiss the First Amended Complaint for Lack of Personal Jurisdiction Pursuant to Fed.R.Civ.P. 12(b)(2) and to Dismiss Counts III, V, VI, IX, X, and XI of the First Amended Complaint for Failure to State a Claim (Doc. 42).[1] The motion is fully briefed, [2] and the Court is prepared to rule. As described more fully below, Defendant's motion to dismiss is granted for lack of personal jurisdiction. Defendants Smaller Earth, Inc. and Camp Leaders USA are therefore dismissed without prejudice. The Court does not reach Smaller Earth's motion to dismiss for failure to state a claim.

         I. Standard

         Plaintiff has the burden of establishing personal jurisdiction over Defendant.[3] In the absence of an evidentiary hearing, as in this case, the plaintiff must make only a prima facie showing of jurisdiction to defeat a motion to dismiss.[4] “The plaintiff may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant.”[5] Allegations in a complaint are accepted as true if they are plausible, non-conclusory, and non-speculative, to the extent that they are not controverted by submitted affidavits.[6] When a defendant has produced evidence to support a challenge to personal jurisdiction, a plaintiff has a duty to come forward with competent proof in support of the jurisdictional allegations of the complaint.[7] The court resolves all factual disputes in favor of the plaintiff.[8] Conflicting affidavits are also resolved in the plaintiff's favor, and “the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.”[9] “In order to defeat a plaintiff's prima facie showing of jurisdiction, a defendant must present a compelling case demonstrating ‘that the presence of some other considerations would render jurisdiction unreasonable.'”[10]

         II. Facts

         Drawing all reasonable inferences in favor of Plaintiff, the following relevant facts are taken from the First Amended Complaint, and the exhibits attached to the parties' briefs. The Court does not consider any general or conclusory allegations not supported by affidavits or other competent evidence, and has resolved all factual disputes in Plaintiff's favor.

         Plaintiff D.G. is a minor resident of Clay County, Missouri. Plaintiff M.G. is the natural mother of D.G and is also a resident of Missouri. D.G. attended summer camp at Camp Wood in Elmdale, Kansas, during the week of June 22-28, 2014. Camp Wood is a Young Men's Christian Association (“YMCA”) camp organized and existing under the laws and regulations of the State of Kansas. The YMCA owns and operates Camp Wood, and the property on which Camp Wood is situated.

         Smaller Earth, Inc. (“Smaller Earth”) is a Delaware corporation, with its principal place of business in Connecticut. Camp Leaders is a name used by Smaller Earth to conduct business in the United States. Smaller Earth works with employers in the United States that wish to employ international camp counselors and support staff for the summer. Smaller Earth provides employers in the United States with access to an online database of international individuals who have expressed interest in working at American summer camps, and who have satisfied the requirements of the American Camp Association and the United States Department of State Cultural Exchange Program. Smaller Earth's website and online database are managed, maintained, and hosted in the United Kingdom. Smaller Earth customers create a free account each year with Smaller Earth enabling them to access and query the database for potential applicants. Through the online database, United States employers review information about potential applicants.

         Other than its business relationship with Camp Wood relating to Camp Wood's employment of Ward, Smaller Earth has no ties to Kansas. Smaller Earth is not authorized or licensed to do business in Kansas, it has no agent authorized to accept service of process here, none of Smaller Earth's employees are located in Kansas, it neither owns nor leases property in Kansas, it has no bank or credit accounts in Kansas, it has no assets in Kansas, it has no telephone listing in Kansas. Camp Wood is the only Kansas employer that had access to Smaller Earth's online database in 2014.

         In 2014, Ward approached USA Summer Camp Ltd., an affiliate of Smaller Earth, in the United Kingdom to become an exchange visitor through the United States under the Department of State's J-1 Cultural Exchange Program. Ward's J-1 Visa was granted for exchange visitor status, and he was allowed to enter the United States legally. USA Summer Camp, Ltd. collected references and arranged for a police background check to establish the suitability of Ward to participate in the Cultural Exchange Program. USA Summer Camp, Ltd.'s actions took place in the United Kingdom. Ward was ultimately accepted into the Cultural Exchange Program and thereafter, United States employers could see his profile in the online database, including his references and background check.

         Camp Wood found Ward on the online database and contacted him directly in the United Kingdom and interviewed him. Camp Wood then offered Ward a camp contract for the summer of 2014 and confirmed with Smaller Earth that Ward would be placed there as an employee for the summer.

         Camp Wood electronically accepted a contract offered by Smaller Earth on its database called a Program Agreement, which discusses the services provided by Smaller Earth and provides for minimum requirements of the contract between Camp Wood and Ward. Under the Program Agreement, Camp Leaders agrees to, inter alia, “[c]onduct an interview and screening process that shall include obtaining references, and a police criminal background check” and “facilitate communications between the participant, the Camp and any alumni.”[11] Under the agreement, Camp Leaders is to invoice the Camp monthly and the Camp agrees to pay certain program fees and flight surcharges. Also, the Camp was required “[t]o arrange for Camp Leaders to be added as an insured beneficiary under [its Employer's Liability Insurance policy] and to process claims promptly on notification by either Camp Leaders or a participant.”[12]

         Smaller Earth never met with Ward and Ward was never an employee of Smaller Earth. Ward entered the United States on his J-1 Visa and performed under a camp contract of employment with Camp Wood. Ward was one of approximately 20, 000 applicants to the Cultural Exchange program for the summer of 2014. Only 5881 of these applicants secured a placement.

         III. Discussion

         Federal courts follow state law “in determining the bounds of their jurisdiction over persons.”[13] To establish personal jurisdiction over a defendant, a plaintiff must show that jurisdiction is proper under the laws of the forum state and that the exercise of jurisdiction would not offend due process.[14] The Kansas long-arm statute is construed liberally so as to allow jurisdiction to the full extent permitted by due process, therefore the Court proceeds directly to the constitutional analysis.[15]

         The due process analysis is comprised of two steps. First, the court must consider whether the defendant has such minimum contacts with the forum state “that he should reasonably anticipate being haled into court there.”[16] If the requisite minimum contacts are found, the Court will proceed to the second step in the due process analysis-ensuring that the exercise of jurisdiction “does not offend ‘traditional notions of fair play and substantial justice.'”[17]

         “Minimum contacts” can be established in one of two ways, either generally or specifically for lawsuits based on the forum-related activities:

General jurisdiction is based on an out-of-state defendant's “continuous and systematic” contacts with the forum state, and does not require that the claim be related to those contacts. Specific jurisdiction, on the other hand, is premised on something of a quid pro quo: in exchange for “benefitting” from some purposive conduct directed at the forum state, a party is deemed to consent to the exercise of jurisdiction for claims related to those contacts.[18]

         Plaintiff does not allege general jurisdiction, but instead alleges that Smaller Earth had minimum contacts with Kansas based on specific jurisdiction. The specific jurisdiction inquiry “focuses on the relationship among the defendant, the forum, and the litigation.”[19] To establish minimum contacts, the “defendant's suit-related conduct must create a substantial connection with the forum State.”[20] One aspect of this requirement is that the Court must look to “the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there.”[21] The Supreme Court has provided the following examples of instances where defendants' suit-related contact has been sufficient to establish a substantial connection:

entering a contractual relationship that “envisioned continuing and wide-reaching contacts” in the forum State, Burger King, supra, at 479-480, 105 S.Ct. 2174, or by circulating magazines to “deliberately exploi[t]” a market in the forum State, Keeton, supra, at 781, 104 S.Ct. 1473. And although physical presence in the forum is not a prerequisite to jurisdiction, Burger King, supra, at 476, 105 S.Ct. 2174, physical entry into the State-either by the defendant in person or through an ...

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