
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1360                        THERESA AQUILINO AND DANIEL AQUILINO,                               Plaintiffs, Appellants,                                          v.                            HARRAH'S ATLANTIC CITY, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. A. David Mazzone, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                           Boudin and Stahl, Circuit Judges,                                             ______________                             and Fuste,* District Judge.                                         ______________                                 ____________________            George F.  Parker, III  with whom  Kelly A.  Kalandyk and  Badger,            ______________________             __________________      _______        Dolan, Parker & Cohen were on brief for appellants.        _____________________            Jocelyn  M. Sedney  with  whom  Richard  E.  Brody  and  Morrison,            __________________              __________________       _________        Mahoney & Miller were on brief for appellee.        ________________                                 ____________________                                  September 14, 1993                                 ____________________        ____________________        *Of the District Court of Puerto Rico, sitting by designation.                      STAHL,  Circuit Judge.   In  this  "slip and  fall"                              _____________            case, plaintiffs Theresa  and Daniel  Aquilino challenge  the            district   court's  decision   granting  defendant   Harrah's            Atlantic City, Inc.'s ("Harrah's") motion to dismiss for lack            of  personal jurisdiction.  Finding no  error in the decision            below, we affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                      Sometime in March  1988, plaintiffs were  overnight            guests at Harrah's  Marina ("the Hotel"), a hotel  and casino            in  Atlantic  City,   New  Jersey,  owned  and   operated  by            defendant.   Every three  or four months  for the  next year,            defendant  mailed various  marketing brochures  regarding the            Hotel to  plaintiffs'  residence  in  Weston,  Massachusetts.            This   promotional   literature    contained,   inter   alia,                                                            _____   ____            descriptions   and  photographs   of  Hotel   accommodations,            including photographs  of guest  rooms in  "the Atrium,"  the            section of the Hotel where  the injuries in this lawsuit were            allegedly  sustained.1     The  literature   also  emphasized            certain attributes of the Hotel, including the convenience of            its  gambling facilities  and  the  casino's  late  hours  of            operation.                                            ____________________            1.  Defendant's Massachusetts-based solicitation efforts also            included  regular advertisements  in  the  Boston  Globe  and                                                       ______  _____            mailings to plaintiffs' son, who,  like his parents, had also            previously stayed at the Hotel.                                         -2-                                          2                      In  March 1989,  after  reviewing this  literature,            plaintiffs made reservations to stay for one night, March 16,            1989, at the Hotel, this time in the Atrium.  Plaintiffs made            the  reservations over the telephone and charged the expenses            to  Daniel Aquilino's credit card, a  card issued through the            Bank of New England in Boston, Massachusetts.                      At around 7:30  p.m. on March 16,  1989, plaintiffs            arrived at the Hotel.   After having dinner, Daniel  Aquilino            went to their  room for the  evening, while Theresa  Aquilino            visited the  casino.   Several  hours  and one  drink  later,            Theresa also retired to the room for the evening.  As she was            dosing off, she  began to feel  uncomfortable and decided  to            retrieve an extra pillow from the closet.  On her way back to            the bed, she tripped on telephone and/or electrical  cords on            the floor between the bed and nightstand, sustaining injuries            which required medical attention.                      On  March 3, 1992,  plaintiffs filed this diversity            action  in district  court,  alleging claims  for negligence,            breach of  contract, and  loss of consortium.2   On  June 18,            1992, defendant filed a motion  to dismiss based upon lack of            personal  jurisdiction,  which  motion   the  district  court                                            ____________________            2.  Suit  was  originally brought  against  Harrah's  and its            parent company, Promus  Companies, Inc.  After  learning that            Promus was not  a proper party to the  suit, plaintiffs filed            an amended complaint on May 1, 1992, dropping Promus.                                         -3-                                          3            granted on February  22, 1993.  After an  unsuccessful motion            to reconsider, plaintiffs filed this appeal.                                            II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                      In their  appeal, plaintiffs advance  the following            arguments:   (1) that  both Massachusetts long-arm  statutes,            Mass. Gen. L. ch. 223   38 and Mass. Gen. L. ch. 223A   3(a),            confer personal jurisdiction over defendant; and (2) that the            district   court   abused   its   discretion  in   dismissing            plaintiffs'    complaint    without    allowing   discovery.3            Unfortunately for plaintiffs, we have recently rejected these            very arguments in a  case closely on  point.  See Crocker  v.                                                          ___ _______            Hilton Int'l Barbados  Ltd., 976 F.2d 797,  798-801 (1st Cir.            ___________________________            1992) (citing Fournier v. Best W. Treasure Island Resort, 962                          ________    ______________________________            F.2d 126, 126-27 (1st Cir.  1992); Marino v. Hyatt Corp., 793                                               ______    ___________            F.2d 427,  428-31 (1st Cir. 1986)).4  As  that case is on all            fours with  this one, it  is controlling.5   Accordingly, for                                            ____________________            3.  Plaintiffs  also contend  that the  exercise of  personal            jurisdiction would not offend the Fourteenth Amendment's  Due            Process clause.   Because  we find infra,  however, that  the                                               _____            state  long-arm statutes fail to confer jurisdiction, we need            not reach the merits of their constitutional argument.            4.  Much of plaintiffs' brief is devoted to arguing that  the            First Circuit's interpretation of the Massachusetts  long-arm            statutes is patently mistaken.  This panel is, however, bound            by prior panel decisions  closely on point.   E.g., Fournier,                                                          ____  ________            962 F.2d at 127.              5.  Plaintiffs attempt  to distinguish  Crocker, both on  the                                                    _______            issue of Massachusetts long-arm jurisdiction and the issue of            discovery, by pointing out  various factual differences which                                         -4-                                          4            the reasons therein  stated, we reject plaintiffs'  appeal as            meritless.                      Affirmed.  Costs to appellee.                      Affirmed.  Costs to appellee.                      _________  __________________                                            ____________________            they contend  have legal  significance.   We have  considered            each of these contentions and find them to be without merit.                                         -5-                                          5
