Preview
FILED
7/17/2023 11:53 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Debra Clark DEPUTY
CAUSE NO. DC-23-03798
LORI MARTINEZ, IN THE DISTRICT COURT OF
Plaintiff,
Vv, DALLAS COUNTY, TEXAS
AIRBNB, INC. and LYDIA MILLER,
Defendants. 134th JUDICIAL DISTRICT
DEFENDANT AIRBNB INC.’S SPECIAL APPEARANCE TO PRESENT
MOTION OBJECTING TO JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Defendant Airbnb, Inc. (“Airbnb”), and makes this Special Appearance to
the claims of Lori Martinez (“Plaintiff”), pursuant to Texas Rule of Civil Procedure 120a for the
purpose of objecting to the exercise of personal jurisdiction over Airbnb, and for grounds thereof,
would respectfully show the Court as follows:
INTRODUCTION
Plaintiff alleges that she used the Airbnb website to book a stay at an accommodation where
she allegedly suffered injury when she tripped on a cement pathway. On these facts, Plaintiff has
sued Airbnb in this Texas state court. But the case cannot proceed in this forum because Plaintiff
has failed to meet her burden to show personal jurisdiction over Airbnb.
To exercise personal jurisdiction, this Court must find that Airbnb is subject to either
general or specific personal jurisdiction under Texas’s long-arm statute and that exercising
personal jurisdiction comports with the Fourteenth Amendment to the United States Constitution.
Plaintiff cannot establish that Airbnb—a Delaware corporation with its principal place of business
in California—is essentially “at home” in Texas for purposes of general personal jurisdiction. Nor
can Plaintiff establish that Airbnb—an out-of-state defendant that operates a website accessible to
anyone in the world with internet access—had sufficient “minimum contacts” with Texas that
relate to Plaintiff's claims for purposes of specific personal jurisdiction. For these reasons,
exercising personal jurisdiction over Airbnb in Texas would also violate federal principles of due
process. Thus, this Court should dismiss Plaintiff's petition against Airbnb pursuant to TEX. R.
Cv. P. 120a and TEX. CIV. PRAC.& REM. CODE 17.041 et seq., because this Court lacks personal
jurisdiction over Airbnb.
BACKGROUND
A Airbnb and the Airbnb Website
Airbnb is a corporation formed under the laws of Delaware with its principal place of
business in San Francisco, California. Declaration of Monique Chauvet in Support of Defendant’s
Special Appearance to Present Motion Objecting to Jurisdiction (hereinafter “Chauvet Decl.”) { 2;
Exhibits B-C. Airbnb provides a website accessible through an internet connection anywhere in
the world. /d. § 3. The website is not specifically targeted to any particular jurisdiction or forum
and simply connects individuals who wish to offer accommodations, known as “hosts,” with those
seeking to book accommodations, known as “guests.” Id. Hosts and guests are collectively
referred to as “Members.” /d. A guest who wants to book an accommodation can sign up and use
Airbnb’s website to communicate directly with a property’s host to request a booking. Jd.
Airbnb’s role is limited to providing the website. See id. 4 6. In other words, Airbnb
“facilitates the marketplace for property rentals and payment for bookings but is otherwise not
involved in the interaction between a host and guest.” Selden v. Airbnb, Inc., 4 F.4th 148, 152
(D.C. Cir. 2021); Chauvet Decl. {fj 3-6. The host decides whether
to list the accommodations and
on what terms. Selden, 4 F.4th at 152; Chauvet Decl. § 4. Airbnb simply allows hosts and guests
to connect with each other to transact, make payments, and communicate. See Airbnb, Inc. v. Cty.
& Cnty. of San Francisco, 217 F. Supp. 3d 1066, 1069 (N.D. Cal. 2016) (noting that “Airbnb does
not own, manage or operate any of the host properties, and is not a party to the rental agreements”);
Carroll v. Am. Empire Surplus Lines Ins. Co., 289 F. Supp. 3d 767, 772 (E.D. La. 2017) (same);
see also Chauvet Decl. § 6.
B. Defendant Lydia Miller
Defendant Lydia Miller is alleged to be a Texas resident. Petition 95. Lydia Miller is an
Airbnb Member and host, who lists a property she owns at 2923 W Ledbetter Drive, Dallas, Texas
75233 (the “Property”) for booking through the website. See Petition§ 5; Chauvet Decl. 411. As
a host, Lydia Miller “operate[s] as an independent, third-party contractor, and not an employee,
agent, joint venturer or partner of Airbnb.” See Chauvet Decl. § 11, Ex. A § 5.3.
Cc Plaintiff’s Insufficient Allegations
Plaintiff, in her Original Petition (“Petition”), fails to satisfy her burden of pleading
allegations sufficient to demonstrate why Airbnb may be haled into this forum. Plaintiff merely
makes conclusory statements that Airbnb conducts business in the forum and owns/operates the
Property, which is demonstrably false. Petition §{] 4, 7, 13, 18. Even so, Plaintiff makes no
allegations that Airbnb is subject to jurisdiction based on these alleged interactions with the forum
state.
In fact, the following this Court does not have personal jurisdiction over Airbnb for at least
the following reasons:
a. Airbnb is a non-resident of Texas and is a Delaware corporation with its principal
place of business in San Francisco, California. In addition, Airbnb is not registered
to do business in Texas. Chauvet Decl. § 2, Exs. B, C.
Airbnb has no office, facility, or other place of business in Texas. Chauvet Decl. {
2;
Airbnb is not required to maintain and does not maintain an agent for service of
process in Texas. Chauvet Decl. 4/2.
Airbnb has no telephone listing in Texas or a Texas address. Chauvet Decl. § 2.
Airbnb neither owns nor leases property in the State of Texas. Chauvet Decl. § 2.
Airbnb has not committed any tort, in whole or in part, in Texas.
Airbnb has no connection with Texas arising from any action or conduct of Airbnb
purposely directed toward Texas.
Plaintiff’s claims do not arise from and are not related to any activity conducted by
Airbnb in Texas.
No specific jurisdiction exists because any wrongful act allegedly committed by
Airbnb did not occur within the State of Texas, either in whole or in part.
Airbnb has not had substantial, continuous, and systematic contacts with Texas,
and has not purposely availed itself of the benefits and protections of Texas law.
As an out-of-state defendant that simply operates the website, accessible to anyone in the
world with internet access, Airbnb is not subject to either general or specific personal jurisdiction
in Texas. Airbnb is not essentially “at home” in Texas for purposes of general personal jurisdiction
and Plaintiff’s claim does not arise out of or relate to any “minimum” contacts Airbnb had with
Texas for purposes of specific personal jurisdiction.
EVIDENCE IN SUPPORT OF SPECIAL APPEARANCE
Attached hereto and incorporated by reference are:
a. Declaration of Monique Chauvet, Legal Investigations Coordinator (“Chauvet
Decl.”);
Terms of Service, Ex. A to Chauvet Decl.;
California Secretary of State website record for Airbnb, Inc., Ex. B to Chauvet
Decl.;
Delaware Secretary of State website record for Airbnb, Inc., Ex. C to Chauvet
Decl.;
in support of this Special Appearance.
PURPOSE OF SPECIAL APPEARANCE
This special appearance is made to the entire proceeding.
SPECIAL APPEARANCE FILED FIRST
This special appearance is filed prior to any motion to transfer or any other plea, pleading,
or motion filed by Airbnb.
LEGA STANDARD
A Texas court may exercise personal jurisdiction over a nonresident if: “(1) the Texas long-
arm statute authorizes the exercise of jurisdiction and (2) the exercise of jurisdiction is consistent
with federal due-process guarantees.” Luciano v. SprayFoamPolymers.com, LLC, 625 8.W.3d 1,
8 (Tex. 2021). The Texas long-arm statute authorizes the exercise of jurisdiction over nonresidents
“doing business” in Texas insofar as “the federal constitutional requirements of due process will
allow.” Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007); TEX. CIv. PRAC.
& REM. CODE § 17.042. Because Texas courts interpret the long-arm statute’s language as
coextensive with the Fourteenth Amendment of the United States Constitution, Plaintiff must
establish that personal jurisdiction over Airbnb comports with due process—in other words, that
Airbnb is subject to either general or specific personal jurisdiction in Texas. Luciano, 625 S.W.3d
at 8; Moki Mac, 221 8.W.3d at 575.
Under federal due process standards, general jurisdiction exists when the defendant has
continuous and systematic contacts with the forum which render it essentially “at home” there.
Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). If such contacts do
not exist, a court may exercise specific jurisdiction only over claims arising from or relating to the
defendant’s contacts with the forum. /d. However, federal due process standards mandate that for
specific jurisdiction to exist there must be “some act by which the defendant purposefully avails
itself of the privilege of conducting activities within the forum State, thus invoking the benefits
and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d
1283 (1958); Luciano, 625 S.W.3d at 9. And, in any case, the exercise of jurisdiction over Airbnb
must comport with traditional notions of fair play and substantial justice. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475-76 (1985); Moncrief Oil Intern. Inc. v. OAO Gazprom, 414 S.W.3d
142, 149 (Tex. 2013); Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338
(Tex. 2009).
As demonstrated below, Airbnb is not subject to either general or specific jurisdiction in
Texas under this state’s long-arm statute. And even if it was, exercising such jurisdiction over
Airbnb would violate federal due process protections. Thus, the Court should dismiss Plaintiff's
Petition and claims against Airbnb for lack of personal jurisdiction.
ARGUMENT
1. General Personal Jurisdiction Does Not Exist.
Asan out-of-state defendant, Airbnb is not subject to general personal jurisdiction in Texas
because it is not essentially “at home” in the forum. See Schlobohm v. Schapiro, 784 S.W.2d 355,
357 (Tex. 1990) (explaining that general jurisdiction exists when its contacts with the forum are
continuous and systematic). As a Delaware corporation with its principal place of business in
California, Airbnb does not have the requisite continuous and systematic contacts with Texas to
render it essentially “at home” in the forum. See Helicopteros Nacionales De Colombia v. Hall,
466 U.S. 408, 418 (1984) (holding that Colombian company was not subject to general personal
jurisdiction in Texas because it was neither incorporated in nor had its principal place of business
in thestate); Am. Type Culture Collection, 83 S.W.3d at 807. Thus, Airbnb is not subject to general
personal jurisdiction in Texas.
2. Specific Personal Jurisdiction Does Not Exist.
Airbnb also is not subject to specific personal jurisdiction in Texas because it does not have
the requisite “minimum contacts” with Texas. To establish specific personal jurisdiction, two
elements must be satisfied: (1) Airbnb must have purposefully directed its activities at Texas and
(2) Plaintiff’s claim must arise out of and relate to those activities. Moki Mac, 221 S.W.3d at 576;
Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 787 (Tex. 2005) (finding no
specific personal jurisdiction over Indiana corporation).! As demonstrated below, Airbnb has not
purposefully directed any contact at Texas. Moreover, Plaintiff's claims, stemming from an
alleged dangerous condition at a property Airbnb did not own or control, certainly do not arise out
of or relate to any of Airbnb’s contacts with Texas. Plaintiff cannot satisfy her burden as to either
element. Thus, Airbnb is not subject to specific personal jurisdiction in Texas.
a. Airbnb Did Not Purposefully Direct Any Contact to Texas.
To establish that Airbnb purposefully directed its conduct at Texas, Plaintiff must prove
Airbnb deliberately targeted Texas—Plaintiff’s unilateral contact with Airbnb is not enough.
Luciano, 625 S.W.3d at 9; Retire Happy, L.L.C. v. Tanner, No. 07-16-00134-CV, 2017 Tex. App.
LEXIS777, at *3-4 (Tex. App.—Amarillo Jan. 27, 2017, no pet.) (explaining that “the defendant's
contacts with the forum itself are paramount, not the defendant’s contacts with the plaintiff who
resides in the forum.”). Random, isolated, and fortuitous contacts with the forum likewise fail to
establish purposeful direction. See Retire Happy, 2017 Tex. App. LEXIS at *14-18 (finding no
specific personal jurisdiction where a small percentage of foreign company’s customers resided in
' Because Airbnb did not purposefully direct any conduct at Texas and Plaintiff’s claims do not
arise out of any contact with Texas, the Court may conclude the analysis here. See Michiana, 168
S.W.3d at 794 (dismissing claims for lack of jurisdiction without analyzing traditional notions of
fair play and substantial justice where first two elements were not met). However, if the Court
were to find that these two elements existed, which they do not, the Court must also consider
whether exercising personal jurisdiction over Airbnb offends traditional notions of fair play and
substantial justice. See Moki Mac, 221 S.W.3d at 575. As detailed below, subjecting Airbnb to
personal jurisdiction in Texas would offend these important due process concerns.
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the forum, company had a globally accessible website, and plaintiff's contact with company was
only other connection to the forum). Airbnb has not purposefully directed any contact to Texas
because it simply operates a global online marketplace that permits hosts and guests from around
the globe to interact. Plaintiff’s baseless and incorrect assertions that Airbnb owns and/or controls
the Property or has a contractual relationship with Lydia Miller do not alter this conclusion.
Airbnb simply provides a global online marketplace, the website, that is accessible to
anyone, anywhere with internet access. Chauvet Decl. § 3, Ex. A at 1. The website is not
specifically targeted to Texas residents. See id. Rather, members worldwide may access and use
the website upon creating an account and consenting to the TOS, which governs each members’
access to and use of the website. See id. §8, Ex. Aat 1 & § 17. Once signed up, the website offers
a direct link for members to communicate and contract directly with each other. See id. | 6, 8, Ex.
A at 1 &§ 16. As the TOS makes clear:
(a) Airbnb is neither a party to nor a participant in the booking agreements entered
directly between guests and hosts;
(b) Airbnb “does not own, control, offer or manage any Listings or Host Services” or
have the right to access the Property;
(c) Airbnb does not warrant or guarantee the existence, safety, suitability, or legality
of any member, Host Services, or Listing;
(d) Airbnb is not acting as an agent for any member or as a real estate broker or an
insurer; and
(e) Airbnb is not an employer, partner, joint venturer, or business affiliate of any host
who lists their accommodation on the website.
See Chauvet Decl., Ex. Aat 1 & §§ 2.2, 5.1-5.3, 6.1, 6.2, 6.4-6.6, 7.2, 8.1, 16, 18. Inshort, Airbnb’s
role is limited to operating the website and nothing else.
As Texas courts have recognized, merely operating a commercially interactive website that
is accessible globally, without more, is insufficient to establish purposeful direction at the forum.
See, e.g., Skylifi, Inc. v. Nash, No. 09-19-00389-CV, 2020 Tex. App. LEXIS 3191, at *16 (Tex.
App.—Beaumont Apr. 16, 2020, no pet.) (finding no purposeful direction when “anyone
nationwide may have been able to access the website, [and] there is no evidence that [defendant]
specifically targeted Texas with advertising”); Waterman Steamship Corp. v. Ruiz, 355 S.W.3d
387, 418 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (finding interactive website alone
was not enough to subject nonresident defendant to jurisdiction). Such is the case here, as Plaintiff
offers zero facts suggesting, let alone establishing, that Airbnb used the website to target Texas
residents. See Retire Happy, 2017 Tex. App. LEXIS at *18 (“It is conceivable to suggest that the
company should have reasonably known that someone in Texas could access its site, but more is
needed than that” to sustain a finding of purposeful direction based on a globally-accessible
website). Plaintiff’s conclusory assertion that Airbnb conducts business in Dallas County, Texas
does not compel a different result. Operation of the website, without more, does not constitute
purposeful direction towards Texas.
Recognizing Airbnb’s limited role, the State Court of Fulton County, Georgia recently held
that the plaintiff's tort claims, based on injuries caused by someone else at a property a non-party
booked through Airbnb’s website, were not sufficiently related to Airbnb’s contacts with Georgia
for purposes of specific personal jurisdiction. See Mason v. Shultz, Case No. 22EV000121, Order,
at 6 (Fulton Cty. Dec. 21, 2022) (attached). Courts in other jurisdictions have also refused to
exercise personal jurisdiction over a non-resident defendant who runs a reservation website. In
both Conrad v. Benson, No. 9:20-cv-1811-RMG, 2020 U.S. Dist. LEXIS 149427, at *10-12
(D.S.C. Aug. 13, 2020) and Schwartz v. Poblete, No. 20STCV22663, 2021 Cal. Super. LEXIS
5573, at **24-25 (LA Cty. Superior Court, Feb. 22, 2021), the courts concluded that
HomeAway.com, Inc., a Texas-based reservation website, was not subject to personal jurisdiction
in South Carolina or California, respectively, because HomeAway.com did not specifically target
any forum and it did not itself lease the properties on its website in those forums. Airbnb likewise
does not lease any accommodations listed on the website, and Airbnb is not purposefully
transacting business simply because Texas residents can access the website in the state. Conrad,
2020 US. Dist. LEXIS 149427, at *10-12; Schwartz, 2021 Cal. Super. LEXIS 5573, at *25.
Plaintiff’s conclusory assertions regarding ownership and/or control of the property and
the purported contractual relationship between Airbnb and Lydia Miller are directly contradicted
by the TOS and do not change the analysis above in any event to establish any purposeful direction
to Texas. See Petition ff 7, 13, 18. First, Airbnb did not and could not purposefully direct any
contact towards Texas based on the location of Lydia Miller’s property. The TOS is clear: “As
the provider of the Airbnb website, Airbnb does not own, control, offer or manage any Listings or
Host Services”; does not even have any right to access the Property; and is not acting as an agent
for any Member, or as a real estate broker, or as an insurer. Chauvet Decl. {ff 4, 5, 7, 9, Ex. A
§§ 5-1-5.3, 6.1, 6.4-6.6, 7.2, 8.1, 16-18. The TOS is equally clear that hosts, like Lydia Miller,
operate as independent individuals and not as “an employee, agent, joint venturer or partner of
Airbnb.” Chauvet Decl. § 11, Ex. A § 5.3. Nordoes Plaintiff’s vague suggestion that Airbnb and
Lydia Miller entered an agreement to rent Lydia Miller’s property establish any purposeful
direction by Airbnb at Texas. Itis well-established that an individual’s contract with a nonresident
cannot alone establish sufficient minimum contacts in the other party’s home forum. Burger King,
471 U.S. at 478; See Hanor v. Hanor, No. 04-20-00142-CV, 2020 Tex. App. LEXIS 9891, at *8
(Tex. App.—San Antonio Dec. 16, 2020, no pet.) (finding no basis for jurisdiction and explaining
that “[t]he relationship between the defendant and the forum ‘must arise out of contacts that the
defendant himself creates with the forum State. oo ). Moreover, the only agreement that exists
between Airbnb and Lydia Miller—the TOS—applies to a// members and governs members’
“access to and use of” the website. Chauvet Decl. § 8, Ex. A at 1 & § 17. Any agreement to book
the Property fora short-term rental is between Lydia Miller and the guest who books the Property,
10
not Airbnb. See id. § 5, Ex. Aat 1 & §§ 2.2, 5.2. Thus, Plaintiff’s unsupported allegations about
an agreement do not support a finding of purposeful direction by Airbnb towards Texas.
Because Airbnb simply operates a globally accessible website, it has not purposefully
directed any contact towards Texas, and Plaintiff’s baseless allegations do not change that
conclusion. Thus, the Court should dismiss Airbnb for lack of specific personal jurisdiction.
b. Plaintiff’s Claim Does Not Arise Out of or Relate to Any Contact Airbnb had
with Texas.
In addition, Plaintiff’s claims do not arise out of or relate to Airbnb’s alleged contacts with
Texas. As the provider of the globally accessible website that does not own, operate, or control
any listing, any contact Airbnb had with Texas is unrelated to the claims asserted here. ShopStyle,
Inc. v. rewardStyle, Inc., No. 05-19-00736-CV, 2020 Tex. App. LEXIS 5638, at *37 (Tex. App.
July 21, 2020) (finding that “[a] website, even an interactive one, cannot support specific
jurisdiction where, as in this case, it does not have the requisite substantial relationship to the
plaintiff's claims.”). That Plaintiff’s alleged injuries occurred in the forum, without more, is
insufficient to establish that her claims arise out of or relate to Airbnb’s contact with Texas. See
Walden v. Fiore, 571 U.S. 277, 285 (2014) (holding that “the plaintiff cannot be the only link
between the defendant and the forum”); See Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d
1210, 1223-24 (11th Cir. 2009) (holding that defendant’s operation of booking website did not
give rise to plaintiffs tort claim based on use of a boat that defendant did not own or operate).
Thus, for this additional reason, the Court should dismiss Airbnb for lack of specific personal
jurisdiction.
3. Exercising personal jurisdiction over Airbnb would offend traditional notions of fair
play and substantial justice.
Because Plaintiff has failed to demonstrate any minimum contacts between Airbnb and
Texas, or that her claims arise out of or relate to any such contacts, personal jurisdiction over
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Airbnb in Texas does not exist. But even if the court were to decide otherwise, Plaintiff cannot
show that the exercise of jurisdiction would comport with “traditional notions of fair play and
substantial justice.” International Shoe Co. v. State of Wash., 326 U.S. 310, 316 (1945); BMC
Sofiware, 83 S.W.3d at 799. In determining whether it is fair to force Airbnb into this Court, the
Court may consider factors such as: (i) the burden on Airbnb in litigating in Texas; (ii) the interest
in the Texas courts in adjudicating this dispute; and (iii) Plaintiff’s interest in obtaining relief.
Rudzewicz, 471 U.S. at 476-77; cf Moncrief Oil, 414 S.W.3d at 149 (finding that burden on
nonresident defendant did not violate traditional notions of fair play and substantial justice when
defendant had established a subsidiary headquartered in the forum, was familiar with operating
under the laws of the forum, and frequently traveled there).
It would be highly burdensome for Airbnb to litigate in this forum as a Delaware
corporation with its principal office in California. First, it would be unduly burdensome for
Airbnb’s witnesses to travel to Texas to present testimony and otherwise be involved in the
litigation. Second, Plaintiff has not stated how Texas has any particular interest in adjudicating
this suit, and in fact, it should not. None of Airbnb’s activity in operating the website particularly
concems Texas or relates to Plaintiff’s claimed injury in this case, and Airbnb has not committed
a tort in whole or in part in Texas. And third, Plaintiff has made no suggestion that she would be
unable to obtain relief in another forum. In fact, the TOS includes an arbitration provision that
applies to Plaintiffs claims. See Ex. A § 23.4. As such, although Plaintiff's claims against Airbnb
lack merit, Plaintiff may pursue them in the arbitral forum. Plaintiff may also continue to pursue
her claims in this forum against Lydia Miller, who, as the owner of the premises, bears
responsibility, if any, forthe Property. Thus, dismissal of Airbnb for lack of personal jurisdiction
in Texas will not prevent Plaintiff from seeking relief for her claims. As such, exercising personal
12
jurisdiction over Airbnb in Texas would offend traditional notions of fair play and substantial
justice, and for this additional reason, Airbnb should be dismissed for lack of personal jurisdiction.
CONCLUSION
Airbnb thus requests that the Court set this motion for hearing on notice to Plaintiff, and
that after hearing, the Court sustain Airbnb, Inc.’s Special Appearance, and dismiss the entire
proceeding as against Airbnb for want of jurisdiction.
13
DATED this 14th day of July, 2023.
DAVIS GRAHAM & STUBBS LLP
By /s/ Madeline J. Smart
Madeline J. Smart (TX Bar # 24105352)
Jacqueline V. Roeder (not admitted in TX)
1550 Seventeenth Street, Suite 500
Denver, CO 80202
Telephone: (303) 892-9400
Facsimile: (303) 893-1379
madeline.smart@dgslaw.com
jackie.roeder@dgslaw.com
Attorneys for Defendant Airbnb, Inc.
NOTICE OF FILING OF DECLARATION
Pursuant to section 132.001, TEX. CIV. PRAC & REM. CODE, Monique Chauvet, Legal
Investigations Coordinator, has submitted this date a declaration in support of Airbnb, Inc.’s
Special Appearance to Present Motion Objecting to Jurisdiction. The declaration, incorporated
herein by reference, supports the grounds for lack of personal jurisdiction set forth in this special
appearance.
/s/ Madeline J. Smart
Attorney for Airbnb, Inc.
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VERIFICATION
State of Colorado §
County of Denver
Before me, the undersigned authority, on this day personally appeared Monique Chauvet, who,
after being duly sworn, says that the above and foregoing is true and correct to the best of her
knowledge and belief.
Signed and [sworn Girmeyy to before me onJuly 14 _, 2023 by Monique Chauvet
Monique Chauwel
Monique Chauvet
Kevin Wa th
Notary’s Official Signature KEVIN MARK WOHLFARTH
NOTARY PUBLIC - STATE OF COLORADO
Title of Office: Davis Graham & Stubbs LLP NOTARY ID 20224024363
MY COMMISSION EXPIRES JUN 22, 2026
My Commission Expires: 6/22/2026
Completed via Remote Online Notarization using 2 way Audio/Video technology.
15
NotaryCam Doc ID: 52a8757c-9554-4
1 f5-92bb-23b8fc2e9a6b
CERTIFICATE OF SERVICE
As required by Tex. R. Civ. P. 21a(a)(1) or (2), I hereby certify that on the 16" day of July,
2023, I served the foregoing document upon counsel of record and all parties, listed below, as
follows:
Charles A. Bennett
Via:
Andrew J. Klopfer
Electronic E-Service
Omar B. Itani
Electronic Filing Manager
Bennett Injury Law
U.S. Mail
12770 Coit Road, Suite 720
Certified Mail, R.R.R.
Dallas, TX 75251
Fax
cbennett@bennettinjurylaw.com
E-Mail
aklopfer@bennettinjurylaw.com
omar@bennettinjurylaw.com
Attorney for Plaintiff
Lori Martinez
/s/ Madeline J. Smart
Madeline J. Smart
16
Mason v. Shultz
Case No. 22EV000121
Order
(Fulton Cty. Dec. 21, 2022)
17
State Court of Fulton County
*“E-FILED**
22EV000121
12/21/2022 2:59 PM
Donald Talley, Clerk
Civil Division
IN THE STATE COURT OF FULTON COUNTY
STATE OF GEORGIA
JAELYN MASON,
Plaintiff,
Vv. Civil Action File No. 22EV000121
KELSEY P. SHULTZ, AIRBNB, INC.,
AND ABC CORPORATION.,
Defendants.
ORDER DENYING DEFENDANT AIRBNB, INC.’S MOTION TO COMPEL
ARBITRATION AND GRANTING AIRBNB’S MOTION TO DISMISS
This matter came before the Court on Defendant Airbnb, Inc.’s (“Airbnb”) Motion to
Compel Arbitration and Dismiss. Airbnb moves the Court to compel this matter to arbitration
under the Federal Arbitration Act (“FAA”) and to otherwise dismiss or stay this action while such
arbitration is pending, or in the alternative, to dismiss this matter for lack of personal jurisdiction
or failure to state a claim upon which relief can be granted pursuant to O.C.G. A. §§ 9-11-12(b)(2)
and (b)(6). Having considered the briefs of counsel, the record, and relevant law, the Court
DENIES Airbnb’s Motion to compel arbitration and GRANTS Airbnb’s Motion to dismiss for
the reasons that follow.
L BACKGROUND
Airbnb is an online marketplace that connects “hosts” (property owners or managers who
list their properties on the Airbnb marketplace) to “guests” (people who seek to find
accommodations using the Airbnb marketplace account). After booking, the guest
communicates directly with the host. Plaintiff alleges that she was shot by an unknown assailant
while an invitee at a house owned by Defendant Kelsey P. Shultz (the “host’”). The house was
18
Page 1 of 7
booked by a non-party (the “guest”) through Airbnb’s web platform. Plaintiff now seeks to hold
Airbnb liable under theories of premises liability, nuisance, and negligent hiring or supervision.
Airbnb has moved to compel arbitration, arguing that Plaintiff agreed to arbitrate all
disputes relating to Airbnb. Airbnb argues in the alternative that the Court should dismiss
Plaintiff's claims for lack of personal jurisdiction over Airbnb, or because Plaintiff's Complaint
fails to state a claim.
IL. ANALYSIS
A Plaintiff is Not Contractually Required to Arbitrate This Dispute.
Airbnb seeks to compel Plaintiff to arbitrate her claims under Georgia law, based on
Plaintiff's purported acceptance of Airbnb’s Terms of Service after creating her own Airbnb
account on March 1, 2018.! The Agreement to Arbitrate, contained in Section 19.4 of Airbnb’s
Terms of Service, states:
Agreement to Arbitrate. You and Airbnb mutually agree that any dispute, claim, or
controversy arising out of or relating to these Terms or the breach, termination,
enforcement or interpretation thereof, or to the use of the Airbnb Platform, the Host
Services, or the Collective Content (collectively, “Disputes”) will be settled by
binding arbitration (the “Arbitration Agreement”). If there is a dispute about
whether this Arbitration Agreement can be enforced or applies to our Dispute, you
and Airbnb agree that the arbitrator will decide that issue.
Here, Airbnb, as the party seeking arbitration, carries the burden to prove the existence of
a valid and enforceable agreement to arbitrate. Emory Healthcare. Inc. v. van Engelen, 362 Ga.
App. 818, 820-21 (2022). The FAA codifies a strong federal policy favoring arbitration, making
arbitration provisions “valid, irrevocable, and enforceable, save upon such grounds as exist at law
' Monique Chauvet, a Legal Investigations Coordinator for Airbnb, Inc., submitted an affidavit in
support of Airbnb’s Motion. According to Ms. Chauvet’s affidavit, Airbnb’s records establish that
Plaintiff assented to Airbnb’s Terms of Service the same day she created her Airbnb account on
March 1, 2018. Ms. Chauvet included exhibits showing the Terms of Service and the initial sign-
up screen that Plaintiff would have seen while creating her account.
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or in equity for the revocation of any contract.” 9 U.S.C. § 2; see Am. Exp. Co. v. Italian Color:
Rest., 570 U.S. 228, 233 (2013) (“[C]onsistent with th[e] text [of the FAA], courts must ‘rigorously
enforce’ arbitration agreements according to their terms . . . .”); see also American Gen. Financial
Sves. v. Jape, 291 Ga. 637, 638 (2012) (“The [FAA] applies in state and federal courts to all
contracts containing an arbitration clause that involves or affects interstate commerce.”).
Importantly, although “Georgia has a robust policy of favoring the resolution of legal
disputes through arbitration . . the presumption of arbitrability—as strong as it is—cannot
displace the traditional rule of contract formation.” Emory Healthcare, Inc. v. Farrell, 359 Ga.
App. 621, 621 (2021). To settle disputes where the Court is asked to compel arbitration based on
an arbitration agreement, the Court must first determine whether the parties agreed to arbitrate that
dispute. To determine whether a party or parties agreed to arbitrate, the Court examines any
formation challenge to the contract’s arbitration agreement. It is well established that, under both
Georgia and federal law, arbitration is “a matter of contract and a party cannot be required to
submit to arbitration any dispute which he has not agreed so to submit.” Yates v. CACV of Colo.
LLC, 303 Ga. App. 425, 430 (2010) (punctuation omitted); accord Pickle v. Rayonier Forest Res.,
L.P., 282 Ga. App. 295, 296 (2006).
Airbnb argues that Plaintiff assented to a valid arbitration agreement and that assent can be
established by either actual or contractual knowledge of contract terms. The Court disagrees.
When courts need to determine whether there was mutual assent, an objective theory of intent is
applied, whereby one party’s intent is deemed to be that meaning a reasonable person in the
position of the other contracting party would ascribe to the first party’s manifestation of assent, or
that meaning which the other contracting party knew the first party ascribed to his or her
manifestation of assent. Legg v. Stovall Tire & Marine, 245 Ga. App. 594, 538 (2000).
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There is no evidence in the record that Plaintiff used the Airbnb platform to reserve the
property in question, saved it to her profile, or was related to any role as a “host” or “guest” of this
property. Even if Plaintiff agreed to the Terms of Service as a “host” or “guest,” there is nothing
to show that she agreed that the Terms of Service would apply to her as an invitee of the property.
The Terms of Service do not indicate that the agreement applies to a party when they enter an Airbnb
residence as an invitee. The agreement to arbitrate in the Terms of Service also does not include a
clause for invitees that have created an Airbnb account. Plaintiff could not assent to the Terms of
Service as an invitee simply by entering premises that she did not know had been reserved by some
other party through the Airbnb platform. Because the Arbitration Agreement does not require
Plaintiff, as an invitee, to arbitrate this dispute, Airbnb’s Motion to Compel Arbitration is
DENIED.
B This Court Lacks Personal Jurisdiction Over Airbnb.
Although Plaintiff is not bound to arbitrate her claims against Airbnb, that does not mean
that her claims against Airbnb may proceed in this Court. In the alternative, Airbnb asserts that
Plaintiffs claims must be dismissed because Airbnb lacks the requisite minimum contacts with
Georgia to establish the Court’s exercise of personal jurisdiction over Airbnb. The Court agrees.
“In Georgia, a defendant filing a motion to dismiss based upon a lack of personal
jurisdiction bears the burden of proof.” Pascarelli v. Koehler, 346 Ga. App. 591, 591-92 (2018)
(citing Home Depot Supply v. Hunter Mgmt., 289 Ga. App. 286 (2008)). The court must grant a
motion to dismiss for lack of personal jurisdiction “if there are insufficient facts to support a
reasonable inference that defendant can be subjected to the court’s jurisdiction.” Sol Melia v.
Brown, 301 Ga. App. 760, 761 (2009). In addition to the allegations in the complaint, a defendant
may also raise matters outside of the pleadings if accompanied by supporting affidavits. Yukon
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Ptnrs v. Lodge Keeper Group, 258 Ga. App. 1, 2 (2002). A court’s consideration of matters
outside of the pleadings does not convert a motion to dismiss for lack of personal jurisdiction to a
motion for summary judgment. Laibe Corp. v. Gen. Pump & Well, Inc., 317 Ga. App. 827, 830-
31 (2012) (citations omitted).
The Georgia Long-Arm Statute, at O.C.G.A. § 9-10-91, confers jurisdiction over
nonresidents to the maximum extent permitted by due process. That Code section provides:
A court of this state may exercise personal jurisdiction over any nonresident or his
or her executor or administrator, as to a cause of action arising from any of the acts,
omissions, ownership, use, or possession enumerated in this Code section, in the
same manner as if he or she were a resident of the state, if in person or through an
agent, he or she:
(1) Transacts any business within this state;
@) Commits a tortious act or omission within this state, except as to a
cause of action for defamation of character arising from the act;
(G3) Commits a tortious injury in this state caused by an act or omission
outside this state if the tort-feasor regularly does or solicits business,
or engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services
rendered in this state ....
Plaintiff contends that personal jurisdiction over Airbnb is established here under the
“transacts any business” prong of Georgia’s Long Arm Statute with is governed by the following
three-part test:
[JJurisdiction exists on the basis of transacting business in this state if (1) the
nonresident defendant has purposefully done some act or consummated some
transaction in this state, (2) if the cause of action arises from or is connected with
such act or transaction, and (3) if the exercise of jurisdiction by the courts of this
state does not offend traditional fairness and substantial justice.
Pascarelli, 346 Ga. App. at 593 (quoting Amerireach.com v. Walker, 290 Ga. 261, 269 (2011)).
All three factors must be satisfied before the exercise of personal jurisdiction is proper. Id.
(quoting Paxton v. Citizens Bank & Trust of West Georgia, 307 Ga. App. 112, 116 (2010)).
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The first two factors are aimed at determining whether the foreign defendant has
established the requisite minimum contacts with Georgia. Id. “[I]t is essential in each case that
there be some act by which the defendant purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its laws.” Id.
(quoting Aero Toy Store, LLC, 279 Ga. App. 515, 518).
The Court finds that Plaintiffs claims in the instant case are not sufficiently related to any
minimal contacts Airbnb has with Georgia. Airbnb’s only alleged involvement in Plaintiff's injury
is that an unknown third party (not named in the lawsuit) committed a criminal act while Plaintiff
was an invitee of someone (also not named in this lawsuit) who themselves contracted with the
host to book the premises, who in turn had listed the premises on Airbnb’s platform. That is far
too attenuated a connection to Plaintiff's alleged injury to satisfy the second prong’s requirement
that the cause of action be related to Airbnb’s activity in Georgia. See Sol Melia v. Brown, 301
Ga. App. 765, 765-66 (2009) (holding that defendant’s relevant contacts with Georgia—i.e., its
Internet website—and the negligence of a taxi driver where the taxi and/or taxi driver was neither
owned, operated, nor compensated by the defendant, was not related to the defendant’s minimum
contact activities). “It follows that the exercise of personal jurisdiction would violate
constitutional due process.” Id. at 766. Accordingly, Airbnb’s Motion to dismiss Plaintiff's claims
against it is GRANTED.”
TIL. CONCLUSION
For all of the above reasons, Defendant Airbnb’s Motion to Compel Arbitration is
DENIED and Airbnb’s Motion to Dismiss is GRANTED. Accordingly, there being no just reason
? Because the Court is granting Airbnb’s Motion to dismiss on jurisdictional grounds, the Court
need not address the substance of Airbnb’s arguments as to Plaintiff’s individual causes of action.
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for delay, Airbnb is hereby DISMISSED from this action, and the caption of this matter shall be
amended to reflect same.
SO ORDERED, this 21st day of December, 2022.
SL
Judge Eric A. Richardson,
State Court of Fulton County
cc:
Served electronically
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CAUSE NO. DC-23-03798
LORI MARTINEZ, IN THE DISTRICT COURT OF
Plaintiff,
V. DALLAS COUNTY, TEXAS
AIRBNB, INC. and LYDIA MILLER,
Defendants. 134th JUDICIAL DISTRICT
DECLARATION OF MONIQUE CHAUVET IN SUPPORT OF DEFENDANT
AIRBNB, INC.’S SPECIAL APPEARANCE TO PRESENT MOTION OBJECTING TO
JURISDICTION
I, Monique Chauvet, hereby declare as follows:
1 Iam over the age of 18 and am nota party to this litigation. Iam currently employed
by Airbnb, Inc. (‘Airbnb”) as a Legal Investigations Coordinator. As an Airbnb Legal
Investigations Coordinator, 1 work with, and am familiar with, the website pages maintained by
Airbnb including, but not limited to, the pages that display Airbnb’s account sign-up screens and
the subsequent events that require user assent or consent (“Consent Events”) on both computer
and mobile devices. I am also familiar with the manner in which Airbnb maintains its records of
user assent and account creation in the ordinary course of its business, as well as the manner in
which Airbnb regularly maintains records pertaining to bookings made through the Airbnb
website. I have personal knowledge of the facts set forth below except those facts set forth upon
information and belief. As to those facts, I believe them to be true. If called as a
Preview
FILED 7/17/2023 11:53 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Debra Clark DEPUTY CAUSE NO. DC-23-03798 LORI MARTINEZ, IN THE DISTRICT COURT OF Plaintiff, Vv, DALLAS COUNTY, TEXAS AIRBNB, INC. and LYDIA MILLER, Defendants. 134th JUDICIAL DISTRICT DEFENDANT AIRBNB INC.’S SPECIAL APPEARANCE TO PRESENT MOTION OBJECTING TO JURISDICTION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Defendant Airbnb, Inc. (“Airbnb”), and makes this Special Appearance to the claims of Lori Martinez (“Plaintiff”), pursuant to Texas Rule of Civil Procedure 120a for the purpose of objecting to the exercise of personal jurisdiction over Airbnb, and for grounds thereof, would respectfully show the Court as follows: INTRODUCTION Plaintiff alleges that she used the Airbnb website to book a stay at an accommodation where she allegedly suffered injury when she tripped on a cement pathway. On these facts, Plaintiff has sued Airbnb in this Texas state court. But the case cannot proceed in this forum because Plaintiff has failed to meet her burden to show personal jurisdiction over Airbnb. To exercise personal jurisdiction, this Court must find that Airbnb is subject to either general or specific personal jurisdiction under Texas’s long-arm statute and that exercising personal jurisdiction comports with the Fourteenth Amendment to the United States Constitution. Plaintiff cannot establish that Airbnb—a Delaware corporation with its principal place of business in California—is essentially “at home” in Texas for purposes of general personal jurisdiction. Nor can Plaintiff establish that Airbnb—an out-of-state defendant that operates a website accessible to anyone in the world with internet access—had sufficient “minimum contacts” with Texas that relate to Plaintiff's claims for purposes of specific personal jurisdiction. For these reasons, exercising personal jurisdiction over Airbnb in Texas would also violate federal principles of due process. Thus, this Court should dismiss Plaintiff's petition against Airbnb pursuant to TEX. R. Cv. P. 120a and TEX. CIV. PRAC.& REM. CODE 17.041 et seq., because this Court lacks personal jurisdiction over Airbnb. BACKGROUND A Airbnb and the Airbnb Website Airbnb is a corporation formed under the laws of Delaware with its principal place of business in San Francisco, California. Declaration of Monique Chauvet in Support of Defendant’s Special Appearance to Present Motion Objecting to Jurisdiction (hereinafter “Chauvet Decl.”) { 2; Exhibits B-C. Airbnb provides a website accessible through an internet connection anywhere in the world. /d. § 3. The website is not specifically targeted to any particular jurisdiction or forum and simply connects individuals who wish to offer accommodations, known as “hosts,” with those seeking to book accommodations, known as “guests.” Id. Hosts and guests are collectively referred to as “Members.” /d. A guest who wants to book an accommodation can sign up and use Airbnb’s website to communicate directly with a property’s host to request a booking. Jd. Airbnb’s role is limited to providing the website. See id. 4 6. In other words, Airbnb “facilitates the marketplace for property rentals and payment for bookings but is otherwise not involved in the interaction between a host and guest.” Selden v. Airbnb, Inc., 4 F.4th 148, 152 (D.C. Cir. 2021); Chauvet Decl. {fj 3-6. The host decides whether to list the accommodations and on what terms. Selden, 4 F.4th at 152; Chauvet Decl. § 4. Airbnb simply allows hosts and guests to connect with each other to transact, make payments, and communicate. See Airbnb, Inc. v. Cty. & Cnty. of San Francisco, 217 F. Supp. 3d 1066, 1069 (N.D. Cal. 2016) (noting that “Airbnb does not own, manage or operate any of the host properties, and is not a party to the rental agreements”); Carroll v. Am. Empire Surplus Lines Ins. Co., 289 F. Supp. 3d 767, 772 (E.D. La. 2017) (same); see also Chauvet Decl. § 6. B. Defendant Lydia Miller Defendant Lydia Miller is alleged to be a Texas resident. Petition 95. Lydia Miller is an Airbnb Member and host, who lists a property she owns at 2923 W Ledbetter Drive, Dallas, Texas 75233 (the “Property”) for booking through the website. See Petition§ 5; Chauvet Decl. 411. As a host, Lydia Miller “operate[s] as an independent, third-party contractor, and not an employee, agent, joint venturer or partner of Airbnb.” See Chauvet Decl. § 11, Ex. A § 5.3. Cc Plaintiff’s Insufficient Allegations Plaintiff, in her Original Petition (“Petition”), fails to satisfy her burden of pleading allegations sufficient to demonstrate why Airbnb may be haled into this forum. Plaintiff merely makes conclusory statements that Airbnb conducts business in the forum and owns/operates the Property, which is demonstrably false. Petition §{] 4, 7, 13, 18. Even so, Plaintiff makes no allegations that Airbnb is subject to jurisdiction based on these alleged interactions with the forum state. In fact, the following this Court does not have personal jurisdiction over Airbnb for at least the following reasons: a. Airbnb is a non-resident of Texas and is a Delaware corporation with its principal place of business in San Francisco, California. In addition, Airbnb is not registered to do business in Texas. Chauvet Decl. § 2, Exs. B, C. Airbnb has no office, facility, or other place of business in Texas. Chauvet Decl. { 2; Airbnb is not required to maintain and does not maintain an agent for service of process in Texas. Chauvet Decl. 4/2. Airbnb has no telephone listing in Texas or a Texas address. Chauvet Decl. § 2. Airbnb neither owns nor leases property in the State of Texas. Chauvet Decl. § 2. Airbnb has not committed any tort, in whole or in part, in Texas. Airbnb has no connection with Texas arising from any action or conduct of Airbnb purposely directed toward Texas. Plaintiff’s claims do not arise from and are not related to any activity conducted by Airbnb in Texas. No specific jurisdiction exists because any wrongful act allegedly committed by Airbnb did not occur within the State of Texas, either in whole or in part. Airbnb has not had substantial, continuous, and systematic contacts with Texas, and has not purposely availed itself of the benefits and protections of Texas law. As an out-of-state defendant that simply operates the website, accessible to anyone in the world with internet access, Airbnb is not subject to either general or specific personal jurisdiction in Texas. Airbnb is not essentially “at home” in Texas for purposes of general personal jurisdiction and Plaintiff’s claim does not arise out of or relate to any “minimum” contacts Airbnb had with Texas for purposes of specific personal jurisdiction. EVIDENCE IN SUPPORT OF SPECIAL APPEARANCE Attached hereto and incorporated by reference are: a. Declaration of Monique Chauvet, Legal Investigations Coordinator (“Chauvet Decl.”); Terms of Service, Ex. A to Chauvet Decl.; California Secretary of State website record for Airbnb, Inc., Ex. B to Chauvet Decl.; Delaware Secretary of State website record for Airbnb, Inc., Ex. C to Chauvet Decl.; in support of this Special Appearance. PURPOSE OF SPECIAL APPEARANCE This special appearance is made to the entire proceeding. SPECIAL APPEARANCE FILED FIRST This special appearance is filed prior to any motion to transfer or any other plea, pleading, or motion filed by Airbnb. LEGA STANDARD A Texas court may exercise personal jurisdiction over a nonresident if: “(1) the Texas long- arm statute authorizes the exercise of jurisdiction and (2) the exercise of jurisdiction is consistent with federal due-process guarantees.” Luciano v. SprayFoamPolymers.com, LLC, 625 8.W.3d 1, 8 (Tex. 2021). The Texas long-arm statute authorizes the exercise of jurisdiction over nonresidents “doing business” in Texas insofar as “the federal constitutional requirements of due process will allow.” Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007); TEX. CIv. PRAC. & REM. CODE § 17.042. Because Texas courts interpret the long-arm statute’s language as coextensive with the Fourteenth Amendment of the United States Constitution, Plaintiff must establish that personal jurisdiction over Airbnb comports with due process—in other words, that Airbnb is subject to either general or specific personal jurisdiction in Texas. Luciano, 625 S.W.3d at 8; Moki Mac, 221 8.W.3d at 575. Under federal due process standards, general jurisdiction exists when the defendant has continuous and systematic contacts with the forum which render it essentially “at home” there. Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). If such contacts do not exist, a court may exercise specific jurisdiction only over claims arising from or relating to the defendant’s contacts with the forum. /d. However, federal due process standards mandate that for specific jurisdiction to exist there must be “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958); Luciano, 625 S.W.3d at 9. And, in any case, the exercise of jurisdiction over Airbnb must comport with traditional notions of fair play and substantial justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (1985); Moncrief Oil Intern. Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex. 2013); Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex. 2009). As demonstrated below, Airbnb is not subject to either general or specific jurisdiction in Texas under this state’s long-arm statute. And even if it was, exercising such jurisdiction over Airbnb would violate federal due process protections. Thus, the Court should dismiss Plaintiff's Petition and claims against Airbnb for lack of personal jurisdiction. ARGUMENT 1. General Personal Jurisdiction Does Not Exist. Asan out-of-state defendant, Airbnb is not subject to general personal jurisdiction in Texas because it is not essentially “at home” in the forum. See Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990) (explaining that general jurisdiction exists when its contacts with the forum are continuous and systematic). As a Delaware corporation with its principal place of business in California, Airbnb does not have the requisite continuous and systematic contacts with Texas to render it essentially “at home” in the forum. See Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 418 (1984) (holding that Colombian company was not subject to general personal jurisdiction in Texas because it was neither incorporated in nor had its principal place of business in thestate); Am. Type Culture Collection, 83 S.W.3d at 807. Thus, Airbnb is not subject to general personal jurisdiction in Texas. 2. Specific Personal Jurisdiction Does Not Exist. Airbnb also is not subject to specific personal jurisdiction in Texas because it does not have the requisite “minimum contacts” with Texas. To establish specific personal jurisdiction, two elements must be satisfied: (1) Airbnb must have purposefully directed its activities at Texas and (2) Plaintiff’s claim must arise out of and relate to those activities. Moki Mac, 221 S.W.3d at 576; Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 787 (Tex. 2005) (finding no specific personal jurisdiction over Indiana corporation).! As demonstrated below, Airbnb has not purposefully directed any contact at Texas. Moreover, Plaintiff's claims, stemming from an alleged dangerous condition at a property Airbnb did not own or control, certainly do not arise out of or relate to any of Airbnb’s contacts with Texas. Plaintiff cannot satisfy her burden as to either element. Thus, Airbnb is not subject to specific personal jurisdiction in Texas. a. Airbnb Did Not Purposefully Direct Any Contact to Texas. To establish that Airbnb purposefully directed its conduct at Texas, Plaintiff must prove Airbnb deliberately targeted Texas—Plaintiff’s unilateral contact with Airbnb is not enough. Luciano, 625 S.W.3d at 9; Retire Happy, L.L.C. v. Tanner, No. 07-16-00134-CV, 2017 Tex. App. LEXIS777, at *3-4 (Tex. App.—Amarillo Jan. 27, 2017, no pet.) (explaining that “the defendant's contacts with the forum itself are paramount, not the defendant’s contacts with the plaintiff who resides in the forum.”). Random, isolated, and fortuitous contacts with the forum likewise fail to establish purposeful direction. See Retire Happy, 2017 Tex. App. LEXIS at *14-18 (finding no specific personal jurisdiction where a small percentage of foreign company’s customers resided in ' Because Airbnb did not purposefully direct any conduct at Texas and Plaintiff’s claims do not arise out of any contact with Texas, the Court may conclude the analysis here. See Michiana, 168 S.W.3d at 794 (dismissing claims for lack of jurisdiction without analyzing traditional notions of fair play and substantial justice where first two elements were not met). However, if the Court were to find that these two elements existed, which they do not, the Court must also consider whether exercising personal jurisdiction over Airbnb offends traditional notions of fair play and substantial justice. See Moki Mac, 221 S.W.3d at 575. As detailed below, subjecting Airbnb to personal jurisdiction in Texas would offend these important due process concerns. 7 the forum, company had a globally accessible website, and plaintiff's contact with company was only other connection to the forum). Airbnb has not purposefully directed any contact to Texas because it simply operates a global online marketplace that permits hosts and guests from around the globe to interact. Plaintiff’s baseless and incorrect assertions that Airbnb owns and/or controls the Property or has a contractual relationship with Lydia Miller do not alter this conclusion. Airbnb simply provides a global online marketplace, the website, that is accessible to anyone, anywhere with internet access. Chauvet Decl. § 3, Ex. A at 1. The website is not specifically targeted to Texas residents. See id. Rather, members worldwide may access and use the website upon creating an account and consenting to the TOS, which governs each members’ access to and use of the website. See id. §8, Ex. Aat 1 & § 17. Once signed up, the website offers a direct link for members to communicate and contract directly with each other. See id. | 6, 8, Ex. A at 1 &§ 16. As the TOS makes clear: (a) Airbnb is neither a party to nor a participant in the booking agreements entered directly between guests and hosts; (b) Airbnb “does not own, control, offer or manage any Listings or Host Services” or have the right to access the Property; (c) Airbnb does not warrant or guarantee the existence, safety, suitability, or legality of any member, Host Services, or Listing; (d) Airbnb is not acting as an agent for any member or as a real estate broker or an insurer; and (e) Airbnb is not an employer, partner, joint venturer, or business affiliate of any host who lists their accommodation on the website. See Chauvet Decl., Ex. Aat 1 & §§ 2.2, 5.1-5.3, 6.1, 6.2, 6.4-6.6, 7.2, 8.1, 16, 18. Inshort, Airbnb’s role is limited to operating the website and nothing else. As Texas courts have recognized, merely operating a commercially interactive website that is accessible globally, without more, is insufficient to establish purposeful direction at the forum. See, e.g., Skylifi, Inc. v. Nash, No. 09-19-00389-CV, 2020 Tex. App. LEXIS 3191, at *16 (Tex. App.—Beaumont Apr. 16, 2020, no pet.) (finding no purposeful direction when “anyone nationwide may have been able to access the website, [and] there is no evidence that [defendant] specifically targeted Texas with advertising”); Waterman Steamship Corp. v. Ruiz, 355 S.W.3d 387, 418 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (finding interactive website alone was not enough to subject nonresident defendant to jurisdiction). Such is the case here, as Plaintiff offers zero facts suggesting, let alone establishing, that Airbnb used the website to target Texas residents. See Retire Happy, 2017 Tex. App. LEXIS at *18 (“It is conceivable to suggest that the company should have reasonably known that someone in Texas could access its site, but more is needed than that” to sustain a finding of purposeful direction based on a globally-accessible website). Plaintiff’s conclusory assertion that Airbnb conducts business in Dallas County, Texas does not compel a different result. Operation of the website, without more, does not constitute purposeful direction towards Texas. Recognizing Airbnb’s limited role, the State Court of Fulton County, Georgia recently held that the plaintiff's tort claims, based on injuries caused by someone else at a property a non-party booked through Airbnb’s website, were not sufficiently related to Airbnb’s contacts with Georgia for purposes of specific personal jurisdiction. See Mason v. Shultz, Case No. 22EV000121, Order, at 6 (Fulton Cty. Dec. 21, 2022) (attached). Courts in other jurisdictions have also refused to exercise personal jurisdiction over a non-resident defendant who runs a reservation website. In both Conrad v. Benson, No. 9:20-cv-1811-RMG, 2020 U.S. Dist. LEXIS 149427, at *10-12 (D.S.C. Aug. 13, 2020) and Schwartz v. Poblete, No. 20STCV22663, 2021 Cal. Super. LEXIS 5573, at **24-25 (LA Cty. Superior Court, Feb. 22, 2021), the courts concluded that HomeAway.com, Inc., a Texas-based reservation website, was not subject to personal jurisdiction in South Carolina or California, respectively, because HomeAway.com did not specifically target any forum and it did not itself lease the properties on its website in those forums. Airbnb likewise does not lease any accommodations listed on the website, and Airbnb is not purposefully transacting business simply because Texas residents can access the website in the state. Conrad, 2020 US. Dist. LEXIS 149427, at *10-12; Schwartz, 2021 Cal. Super. LEXIS 5573, at *25. Plaintiff’s conclusory assertions regarding ownership and/or control of the property and the purported contractual relationship between Airbnb and Lydia Miller are directly contradicted by the TOS and do not change the analysis above in any event to establish any purposeful direction to Texas. See Petition ff 7, 13, 18. First, Airbnb did not and could not purposefully direct any contact towards Texas based on the location of Lydia Miller’s property. The TOS is clear: “As the provider of the Airbnb website, Airbnb does not own, control, offer or manage any Listings or Host Services”; does not even have any right to access the Property; and is not acting as an agent for any Member, or as a real estate broker, or as an insurer. Chauvet Decl. {ff 4, 5, 7, 9, Ex. A §§ 5-1-5.3, 6.1, 6.4-6.6, 7.2, 8.1, 16-18. The TOS is equally clear that hosts, like Lydia Miller, operate as independent individuals and not as “an employee, agent, joint venturer or partner of Airbnb.” Chauvet Decl. § 11, Ex. A § 5.3. Nordoes Plaintiff’s vague suggestion that Airbnb and Lydia Miller entered an agreement to rent Lydia Miller’s property establish any purposeful direction by Airbnb at Texas. Itis well-established that an individual’s contract with a nonresident cannot alone establish sufficient minimum contacts in the other party’s home forum. Burger King, 471 U.S. at 478; See Hanor v. Hanor, No. 04-20-00142-CV, 2020 Tex. App. LEXIS 9891, at *8 (Tex. App.—San Antonio Dec. 16, 2020, no pet.) (finding no basis for jurisdiction and explaining that “[t]he relationship between the defendant and the forum ‘must arise out of contacts that the defendant himself creates with the forum State. oo ). Moreover, the only agreement that exists between Airbnb and Lydia Miller—the TOS—applies to a// members and governs members’ “access to and use of” the website. Chauvet Decl. § 8, Ex. A at 1 & § 17. Any agreement to book the Property fora short-term rental is between Lydia Miller and the guest who books the Property, 10 not Airbnb. See id. § 5, Ex. Aat 1 & §§ 2.2, 5.2. Thus, Plaintiff’s unsupported allegations about an agreement do not support a finding of purposeful direction by Airbnb towards Texas. Because Airbnb simply operates a globally accessible website, it has not purposefully directed any contact towards Texas, and Plaintiff’s baseless allegations do not change that conclusion. Thus, the Court should dismiss Airbnb for lack of specific personal jurisdiction. b. Plaintiff’s Claim Does Not Arise Out of or Relate to Any Contact Airbnb had with Texas. In addition, Plaintiff’s claims do not arise out of or relate to Airbnb’s alleged contacts with Texas. As the provider of the globally accessible website that does not own, operate, or control any listing, any contact Airbnb had with Texas is unrelated to the claims asserted here. ShopStyle, Inc. v. rewardStyle, Inc., No. 05-19-00736-CV, 2020 Tex. App. LEXIS 5638, at *37 (Tex. App. July 21, 2020) (finding that “[a] website, even an interactive one, cannot support specific jurisdiction where, as in this case, it does not have the requisite substantial relationship to the plaintiff's claims.”). That Plaintiff’s alleged injuries occurred in the forum, without more, is insufficient to establish that her claims arise out of or relate to Airbnb’s contact with Texas. See Walden v. Fiore, 571 U.S. 277, 285 (2014) (holding that “the plaintiff cannot be the only link between the defendant and the forum”); See Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1223-24 (11th Cir. 2009) (holding that defendant’s operation of booking website did not give rise to plaintiffs tort claim based on use of a boat that defendant did not own or operate). Thus, for this additional reason, the Court should dismiss Airbnb for lack of specific personal jurisdiction. 3. Exercising personal jurisdiction over Airbnb would offend traditional notions of fair play and substantial justice. Because Plaintiff has failed to demonstrate any minimum contacts between Airbnb and Texas, or that her claims arise out of or relate to any such contacts, personal jurisdiction over 11 Airbnb in Texas does not exist. But even if the court were to decide otherwise, Plaintiff cannot show that the exercise of jurisdiction would comport with “traditional notions of fair play and substantial justice.” International Shoe Co. v. State of Wash., 326 U.S. 310, 316 (1945); BMC Sofiware, 83 S.W.3d at 799. In determining whether it is fair to force Airbnb into this Court, the Court may consider factors such as: (i) the burden on Airbnb in litigating in Texas; (ii) the interest in the Texas courts in adjudicating this dispute; and (iii) Plaintiff’s interest in obtaining relief. Rudzewicz, 471 U.S. at 476-77; cf Moncrief Oil, 414 S.W.3d at 149 (finding that burden on nonresident defendant did not violate traditional notions of fair play and substantial justice when defendant had established a subsidiary headquartered in the forum, was familiar with operating under the laws of the forum, and frequently traveled there). It would be highly burdensome for Airbnb to litigate in this forum as a Delaware corporation with its principal office in California. First, it would be unduly burdensome for Airbnb’s witnesses to travel to Texas to present testimony and otherwise be involved in the litigation. Second, Plaintiff has not stated how Texas has any particular interest in adjudicating this suit, and in fact, it should not. None of Airbnb’s activity in operating the website particularly concems Texas or relates to Plaintiff’s claimed injury in this case, and Airbnb has not committed a tort in whole or in part in Texas. And third, Plaintiff has made no suggestion that she would be unable to obtain relief in another forum. In fact, the TOS includes an arbitration provision that applies to Plaintiffs claims. See Ex. A § 23.4. As such, although Plaintiff's claims against Airbnb lack merit, Plaintiff may pursue them in the arbitral forum. Plaintiff may also continue to pursue her claims in this forum against Lydia Miller, who, as the owner of the premises, bears responsibility, if any, forthe Property. Thus, dismissal of Airbnb for lack of personal jurisdiction in Texas will not prevent Plaintiff from seeking relief for her claims. As such, exercising personal 12 jurisdiction over Airbnb in Texas would offend traditional notions of fair play and substantial justice, and for this additional reason, Airbnb should be dismissed for lack of personal jurisdiction. CONCLUSION Airbnb thus requests that the Court set this motion for hearing on notice to Plaintiff, and that after hearing, the Court sustain Airbnb, Inc.’s Special Appearance, and dismiss the entire proceeding as against Airbnb for want of jurisdiction. 13 DATED this 14th day of July, 2023. DAVIS GRAHAM & STUBBS LLP By /s/ Madeline J. Smart Madeline J. Smart (TX Bar # 24105352) Jacqueline V. Roeder (not admitted in TX) 1550 Seventeenth Street, Suite 500 Denver, CO 80202 Telephone: (303) 892-9400 Facsimile: (303) 893-1379 madeline.smart@dgslaw.com jackie.roeder@dgslaw.com Attorneys for Defendant Airbnb, Inc. NOTICE OF FILING OF DECLARATION Pursuant to section 132.001, TEX. CIV. PRAC & REM. CODE, Monique Chauvet, Legal Investigations Coordinator, has submitted this date a declaration in support of Airbnb, Inc.’s Special Appearance to Present Motion Objecting to Jurisdiction. The declaration, incorporated herein by reference, supports the grounds for lack of personal jurisdiction set forth in this special appearance. /s/ Madeline J. Smart Attorney for Airbnb, Inc. 14 VERIFICATION State of Colorado § County of Denver Before me, the undersigned authority, on this day personally appeared Monique Chauvet, who, after being duly sworn, says that the above and foregoing is true and correct to the best of her knowledge and belief. Signed and [sworn Girmeyy to before me onJuly 14 _, 2023 by Monique Chauvet Monique Chauwel Monique Chauvet Kevin Wa th Notary’s Official Signature KEVIN MARK WOHLFARTH NOTARY PUBLIC - STATE OF COLORADO Title of Office: Davis Graham & Stubbs LLP NOTARY ID 20224024363 MY COMMISSION EXPIRES JUN 22, 2026 My Commission Expires: 6/22/2026 Completed via Remote Online Notarization using 2 way Audio/Video technology. 15 NotaryCam Doc ID: 52a8757c-9554-4 1 f5-92bb-23b8fc2e9a6b CERTIFICATE OF SERVICE As required by Tex. R. Civ. P. 21a(a)(1) or (2), I hereby certify that on the 16" day of July, 2023, I served the foregoing document upon counsel of record and all parties, listed below, as follows: Charles A. Bennett Via: Andrew J. Klopfer Electronic E-Service Omar B. Itani Electronic Filing Manager Bennett Injury Law U.S. Mail 12770 Coit Road, Suite 720 Certified Mail, R.R.R. Dallas, TX 75251 Fax cbennett@bennettinjurylaw.com E-Mail aklopfer@bennettinjurylaw.com omar@bennettinjurylaw.com Attorney for Plaintiff Lori Martinez /s/ Madeline J. Smart Madeline J. Smart 16 Mason v. Shultz Case No. 22EV000121 Order (Fulton Cty. Dec. 21, 2022) 17 State Court of Fulton County *“E-FILED** 22EV000121 12/21/2022 2:59 PM Donald Talley, Clerk Civil Division IN THE STATE COURT OF FULTON COUNTY STATE OF GEORGIA JAELYN MASON, Plaintiff, Vv. Civil Action File No. 22EV000121 KELSEY P. SHULTZ, AIRBNB, INC., AND ABC CORPORATION., Defendants. ORDER DENYING DEFENDANT AIRBNB, INC.’S MOTION TO COMPEL ARBITRATION AND GRANTING AIRBNB’S MOTION TO DISMISS This matter came before the Court on Defendant Airbnb, Inc.’s (“Airbnb”) Motion to Compel Arbitration and Dismiss. Airbnb moves the Court to compel this matter to arbitration under the Federal Arbitration Act (“FAA”) and to otherwise dismiss or stay this action while such arbitration is pending, or in the alternative, to dismiss this matter for lack of personal jurisdiction or failure to state a claim upon which relief can be granted pursuant to O.C.G. A. §§ 9-11-12(b)(2) and (b)(6). Having considered the briefs of counsel, the record, and relevant law, the Court DENIES Airbnb’s Motion to compel arbitration and GRANTS Airbnb’s Motion to dismiss for the reasons that follow. L BACKGROUND Airbnb is an online marketplace that connects “hosts” (property owners or managers who list their properties on the Airbnb marketplace) to “guests” (people who seek to find accommodations using the Airbnb marketplace account). After booking, the guest communicates directly with the host. Plaintiff alleges that she was shot by an unknown assailant while an invitee at a house owned by Defendant Kelsey P. Shultz (the “host’”). The house was 18 Page 1 of 7 booked by a non-party (the “guest”) through Airbnb’s web platform. Plaintiff now seeks to hold Airbnb liable under theories of premises liability, nuisance, and negligent hiring or supervision. Airbnb has moved to compel arbitration, arguing that Plaintiff agreed to arbitrate all disputes relating to Airbnb. Airbnb argues in the alternative that the Court should dismiss Plaintiff's claims for lack of personal jurisdiction over Airbnb, or because Plaintiff's Complaint fails to state a claim. IL. ANALYSIS A Plaintiff is Not Contractually Required to Arbitrate This Dispute. Airbnb seeks to compel Plaintiff to arbitrate her claims under Georgia law, based on Plaintiff's purported acceptance of Airbnb’s Terms of Service after creating her own Airbnb account on March 1, 2018.! The Agreement to Arbitrate, contained in Section 19.4 of Airbnb’s Terms of Service, states: Agreement to Arbitrate. You and Airbnb mutually agree that any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the Airbnb Platform, the Host Services, or the Collective Content (collectively, “Disputes”) will be settled by binding arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Airbnb agree that the arbitrator will decide that issue. Here, Airbnb, as the party seeking arbitration, carries the burden to prove the existence of a valid and enforceable agreement to arbitrate. Emory Healthcare. Inc. v. van Engelen, 362 Ga. App. 818, 820-21 (2022). The FAA codifies a strong federal policy favoring arbitration, making arbitration provisions “valid, irrevocable, and enforceable, save upon such grounds as exist at law ' Monique Chauvet, a Legal Investigations Coordinator for Airbnb, Inc., submitted an affidavit in support of Airbnb’s Motion. According to Ms. Chauvet’s affidavit, Airbnb’s records establish that Plaintiff assented to Airbnb’s Terms of Service the same day she created her Airbnb account on March 1, 2018. Ms. Chauvet included exhibits showing the Terms of Service and the initial sign- up screen that Plaintiff would have seen while creating her account. 19 Page 2 of 7 or in equity for the revocation of any contract.” 9 U.S.C. § 2; see Am. Exp. Co. v. Italian Color: Rest., 570 U.S. 228, 233 (2013) (“[C]onsistent with th[e] text [of the FAA], courts must ‘rigorously enforce’ arbitration agreements according to their terms . . . .”); see also American Gen. Financial Sves. v. Jape, 291 Ga. 637, 638 (2012) (“The [FAA] applies in state and federal courts to all contracts containing an arbitration clause that involves or affects interstate commerce.”). Importantly, although “Georgia has a robust policy of favoring the resolution of legal disputes through arbitration . . the presumption of arbitrability—as strong as it is—cannot displace the traditional rule of contract formation.” Emory Healthcare, Inc. v. Farrell, 359 Ga. App. 621, 621 (2021). To settle disputes where the Court is asked to compel arbitration based on an arbitration agreement, the Court must first determine whether the parties agreed to arbitrate that dispute. To determine whether a party or parties agreed to arbitrate, the Court examines any formation challenge to the contract’s arbitration agreement. It is well established that, under both Georgia and federal law, arbitration is “a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Yates v. CACV of Colo. LLC, 303 Ga. App. 425, 430 (2010) (punctuation omitted); accord Pickle v. Rayonier Forest Res., L.P., 282 Ga. App. 295, 296 (2006). Airbnb argues that Plaintiff assented to a valid arbitration agreement and that assent can be established by either actual or contractual knowledge of contract terms. The Court disagrees. When courts need to determine whether there was mutual assent, an objective theory of intent is applied, whereby one party’s intent is deemed to be that meaning a reasonable person in the position of the other contracting party would ascribe to the first party’s manifestation of assent, or that meaning which the other contracting party knew the first party ascribed to his or her manifestation of assent. Legg v. Stovall Tire & Marine, 245 Ga. App. 594, 538 (2000). 20 Page 3 of7 There is no evidence in the record that Plaintiff used the Airbnb platform to reserve the property in question, saved it to her profile, or was related to any role as a “host” or “guest” of this property. Even if Plaintiff agreed to the Terms of Service as a “host” or “guest,” there is nothing to show that she agreed that the Terms of Service would apply to her as an invitee of the property. The Terms of Service do not indicate that the agreement applies to a party when they enter an Airbnb residence as an invitee. The agreement to arbitrate in the Terms of Service also does not include a clause for invitees that have created an Airbnb account. Plaintiff could not assent to the Terms of Service as an invitee simply by entering premises that she did not know had been reserved by some other party through the Airbnb platform. Because the Arbitration Agreement does not require Plaintiff, as an invitee, to arbitrate this dispute, Airbnb’s Motion to Compel Arbitration is DENIED. B This Court Lacks Personal Jurisdiction Over Airbnb. Although Plaintiff is not bound to arbitrate her claims against Airbnb, that does not mean that her claims against Airbnb may proceed in this Court. In the alternative, Airbnb asserts that Plaintiffs claims must be dismissed because Airbnb lacks the requisite minimum contacts with Georgia to establish the Court’s exercise of personal jurisdiction over Airbnb. The Court agrees. “In Georgia, a defendant filing a motion to dismiss based upon a lack of personal jurisdiction bears the burden of proof.” Pascarelli v. Koehler, 346 Ga. App. 591, 591-92 (2018) (citing Home Depot Supply v. Hunter Mgmt., 289 Ga. App. 286 (2008)). The court must grant a motion to dismiss for lack of personal jurisdiction “if there are insufficient facts to support a reasonable inference that defendant can be subjected to the court’s jurisdiction.” Sol Melia v. Brown, 301 Ga. App. 760, 761 (2009). In addition to the allegations in the complaint, a defendant may also raise matters outside of the pleadings if accompanied by supporting affidavits. Yukon 21 Page 4 of 7 Ptnrs v. Lodge Keeper Group, 258 Ga. App. 1, 2 (2002). A court’s consideration of matters outside of the pleadings does not convert a motion to dismiss for lack of personal jurisdiction to a motion for summary judgment. Laibe Corp. v. Gen. Pump & Well, Inc., 317 Ga. App. 827, 830- 31 (2012) (citations omitted). The Georgia Long-Arm Statute, at O.C.G.A. § 9-10-91, confers jurisdiction over nonresidents to the maximum extent permitted by due process. That Code section provides: A court of this state may exercise personal jurisdiction over any nonresident or his or her executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he or she were a resident of the state, if in person or through an agent, he or she: (1) Transacts any business within this state; @) Commits a tortious act or omission within this state, except as to a cause of action for defamation of character arising from the act; (G3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state .... Plaintiff contends that personal jurisdiction over Airbnb is established here under the “transacts any business” prong of Georgia’s Long Arm Statute with is governed by the following three-part test: [JJurisdiction exists on the basis of transacting business in this state if (1) the nonresident defendant has purposefully done some act or consummated some transaction in this state, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice. Pascarelli, 346 Ga. App. at 593 (quoting Amerireach.com v. Walker, 290 Ga. 261, 269 (2011)). All three factors must be satisfied before the exercise of personal jurisdiction is proper. Id. (quoting Paxton v. Citizens Bank & Trust of West Georgia, 307 Ga. App. 112, 116 (2010)). 22 Page 5 of 7 The first two factors are aimed at determining whether the foreign defendant has established the requisite minimum contacts with Georgia. Id. “[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. (quoting Aero Toy Store, LLC, 279 Ga. App. 515, 518). The Court finds that Plaintiffs claims in the instant case are not sufficiently related to any minimal contacts Airbnb has with Georgia. Airbnb’s only alleged involvement in Plaintiff's injury is that an unknown third party (not named in the lawsuit) committed a criminal act while Plaintiff was an invitee of someone (also not named in this lawsuit) who themselves contracted with the host to book the premises, who in turn had listed the premises on Airbnb’s platform. That is far too attenuated a connection to Plaintiff's alleged injury to satisfy the second prong’s requirement that the cause of action be related to Airbnb’s activity in Georgia. See Sol Melia v. Brown, 301 Ga. App. 765, 765-66 (2009) (holding that defendant’s relevant contacts with Georgia—i.e., its Internet website—and the negligence of a taxi driver where the taxi and/or taxi driver was neither owned, operated, nor compensated by the defendant, was not related to the defendant’s minimum contact activities). “It follows that the exercise of personal jurisdiction would violate constitutional due process.” Id. at 766. Accordingly, Airbnb’s Motion to dismiss Plaintiff's claims against it is GRANTED.” TIL. CONCLUSION For all of the above reasons, Defendant Airbnb’s Motion to Compel Arbitration is DENIED and Airbnb’s Motion to Dismiss is GRANTED. Accordingly, there being no just reason ? Because the Court is granting Airbnb’s Motion to dismiss on jurisdictional grounds, the Court need not address the substance of Airbnb’s arguments as to Plaintiff’s individual causes of action. 23 Page 6 of 7 for delay, Airbnb is hereby DISMISSED from this action, and the caption of this matter shall be amended to reflect same. SO ORDERED, this 21st day of December, 2022. SL Judge Eric A. Richardson, State Court of Fulton County cc: Served electronically 24 Page 7 of 7 CAUSE NO. DC-23-03798 LORI MARTINEZ, IN THE DISTRICT COURT OF Plaintiff, V. DALLAS COUNTY, TEXAS AIRBNB, INC. and LYDIA MILLER, Defendants. 134th JUDICIAL DISTRICT DECLARATION OF MONIQUE CHAUVET IN SUPPORT OF DEFENDANT AIRBNB, INC.’S SPECIAL APPEARANCE TO PRESENT MOTION OBJECTING TO JURISDICTION I, Monique Chauvet, hereby declare as follows: 1 Iam over the age of 18 and am nota party to this litigation. Iam currently employed by Airbnb, Inc. (‘Airbnb”) as a Legal Investigations Coordinator. As an Airbnb Legal Investigations Coordinator, 1 work with, and am familiar with, the website pages maintained by Airbnb including, but not limited to, the pages that display Airbnb’s account sign-up screens and the subsequent events that require user assent or consent (“Consent Events”) on both computer and mobile devices. I am also familiar with the manner in which Airbnb maintains its records of user assent and account creation in the ordinary course of its business, as well as the manner in which Airbnb regularly maintains records pertaining to bookings made through the Airbnb website. I have personal knowledge of the facts set forth below except those facts set forth upon information and belief. As to those facts, I believe them to be true. If called as a