Aquilino v. Harrah's

                    [NOT FOR PUBLICATION]

                United States Court of Appeals
                    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.
                                

                          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.

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          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.

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granted on February  22, 1993.  After an  unsuccessful motion

to reconsider, plaintiffs filed this appeal.   

                             II.
                                

                          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

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the reasons therein  stated, we reject plaintiffs'  appeal as

meritless.

          Affirmed.  Costs to appellee.
                                       

                    

they contend  have legal  significance.   We have  considered
each of these contentions and find them to be without merit.

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