The opinion of the court was delivered by: William Q. Hayes United States District Judge
The matter before the Court is the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2) and (3), or in the Alternative, to Transfer Venue ("Motion to Dismiss or Transfer"), filed by Defendant Harrah's Hotel & Casino Las Vegas ("Harrah's Las Vegas"). (ECF No. 4).
On April 1, 2010, Plaintiffs Dwayne Day and Juana Day initiated this action by filing a Complaint in California Superior Court. (Giusso Decl., Ex A, ECF No. 1-1).
A. Allegations of the Complaint
Plaintiffs "are husband and wife who went to the Harrah's Hotel & Casino located in Las Vegas Nevada for their 13th wedding anniversary." Id. ¶ 1. "On or about June 29, 2008," Plaintiff Juana Day "went to Harrah's Hotel and Casino in order to get a facial and a body massage at the spa. While at the spa, Juana's spa technician suggested that she get an eyebrow waxing, so she did." Id. ¶ 8. The waxing resulted in Juana Day feeling pain and having a "burned area on her brow." Id. ¶ 9. Juana Day told the spa manager about the incident, and the manager "gave Juana his business card and wrote, '2 free body massages.'" Id. "On or about June 29, 2008," Plaintiffs "decided to upgrade the [free] basic massages to the Chocolate Hot Stone Massage." Id. ¶ 10. During the massage, "[t]he spa technician placed a hot stone directly on Dwayne['s] back and right away Dwayne began to feel the penetrating heat and pain. The spa technician removed the stone." Id. ¶ 11. "Dwayne told the spa technician about his injury. The spa technician did not do anything to render first aid to Dwayne and there was no emergency protocol posted." Id. "Dwayne reported his injury to the front desk. Dwayne was given gau[z]e and antibiotics by the EMT and they instructed Dwayne to see his private physician and get treatment." Id.
Dwayne Day "suffered ... a deep burn to the area in his lower back where the hot stone [was] applied by the spa technician, permanent scarring to his lower back, pain and suffering, los[t] wages, [and] medical expenses." Id. ¶ 14. Defendant's actions "have caused and continue to cause Plaintiffs great mental, physical and nervous pain and suffering. The Plaintiffs are informed and believe that such injuries will result in some permanent disability to the Plaintiff's health." Id. Plaintiffs assert causes of action for negligence and loss of consortium, and seek damages and attorney's fees.
B. Motion to Dismiss or Transfer
On August 20, 2010, Defendant filed a Notice of Removal in this Court pursuant to 28 U.S.C. §§ 1332(a) and 1441(a). (ECF No. 1).
On August 27, 2010, Defendant filed the Motion to Dismiss or Transfer. (ECF No. 4). Defendant contends that this action should be dismissed because "there is no proper basis for this Court to assert personal jurisdiction over ... Defendant" and "there is no proper basis for venue within the Southern District of California." (ECF No. 4-1 at 7). Alternatively, Defendant contends that the case should be transferred to the District of Nevada pursuant to 28 U.S.C. § 1404(a). Defendant submits an affidavit from a Vice-President of Harrah's Operating Company, Inc., which states that "Defendant Harrah's Las Vegas, Inc. is a Nevada corporation, with its principal place of business in Nevada," and Defendant "does not have offices in California, does not conduct business in California, does not have employees in California, does not own property in California, and does not have a registered agent for service of process in California." (Holloway Decl. ¶¶ 3-4, ECF No. 4-3 at 2).
On September 29, 2010, Plaintiffs filed a response in opposition to the Motion to Dismiss or Transfer. (ECF No. 12). Plaintiffs contend that "Defendant Harrah's Las Vegas Inc. and Harrah's Rincon San Diego personally invited Plaintiffs to stay at their hotel in Las Vegas using their Total Rewards points accumulated by playing at Harrah's Rincon in San Diego, California." Id. at 2. Plaintiffs contend that the Court has personal jurisdiction over Defendant because "Harrah's Las Vegas is doing business and has minimum contacts with California through Harrah's Rincon," and "Harrah's Rincon and Harrah's Las Vegas are one and the same. These entities are engaged as subsidiaries, partners and affiliates to the ... company Harrah's Entertainment, Inc., doing business in California including but not limited to a 'Total Rewards' program for their customers." Id. at 3, 10. Plaintiffs submit numerous exhibits, including affidavits from each Plaintiff and brochures for "Harrah's Rincon San Diego North" which reference a "Total Rewards" program that applies in "nearly 40 casinos coast-to-coast." (ECF No. 12-3 at 2, 3).
On October 6, 2010, Defendant filed a reply in support of the Motion to Dismiss or Transfer and objections to Plaintiffs' evidence. (ECF No. 13).
"In opposition to a defendant's motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper." Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (citation omitted). In the absence of an evidentiary hearing, "the plaintiff need only make a prima facie showing of the jurisdictional facts." Id. (quotation omitted). "Uncontroverted allegations in the plaintiff's complaint must be taken as true. Conflicts ...