United States District Court for the Eastern District of New York Susznne Uebler, Plaintiff, v. Boss Media, AB a/k/a/ Boss Media Groups, Cybercroupier Sweden AB a/k/a/ Cybercroupier Group, and Cybercroupier, Ltd. t/a Oriental Casino, Defendants. No. 03 Civ. 4790 (ADS) (MLO) This case, premised on diversity jurisdiction, involves allegations by the Plaintiff Susanne Uebler ("Uebler" or the "Plaintiff") that Boss Media AB a/k/a Boss Media Group ("Boss Media"), CyberCroupier Sweden AB a/k/a CyberCroupier Group and CyberCroupier, Ltd. t/a Oriental Casino ("CyberCroupier"), (collectively, the "Defendants") failed to pay prize money to her in the amount of $ 913,333.42 owed to her from winning the "Win a Million" trivia contest from an online gambling website known as the "Oriental Casino." Presently before the Court is a motion by the Boss Media to dismiss the claims against it in their entirety for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(2). I. BACKGROUND In a case such as this where the parties have not yet engaged in discovery, for purposes of analyzing a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2), the Court accepts the allegations in the amended complaint to be true. The Court may also consider the Plaintiff's "affidavits and supporting materials" in determining whether a prima facie showing of personal jurisdiction has been established. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). A recitation of the facts follows. A. The Parties The Plaintiff is an adult individual residing in Coram, New York. Boss Media is a corporation or other legal entity organized under the laws of Sweden whose principal place of business is located in Vaxjo, Sweden. According to the Amended Complaint, Boss Media is one of the world's leading suppliers of systems for online gambling casinos and other digitally distributed gaming entertainment. In that regard, Boss Media owns and/or controls numerous gambling casino enterprises through a combination of direct investment and license agreements throughout the world, including the United States. According to the 2000 Annual Report which is affixed to the Plaintiff's opposition papers: Apart from the parent company, Boss Media AB, the Group consists of the wholly-owned and operating subsidiaries Boss Casinos Ltd. and Webdollar Ltd. (Antigua & Barbuda) and Boss Media Investment AB. The Group also includes the dormant subsidiaries Boss Media N.V. (Netherlands Antilles), Webdollar LLC (Nevada) and Boss Gibraltar Ltd. (Gibraltar).The Group's activities are divided into four divisions; Software, Service & Support, Gold Club Casino and Casino.com. The activities of the divisions are run in the operating companies Boss Media AB, Boss Casinos Ltd. and Webdollar Ltd. The amended complaint alleges that Boss Media oversaw and controlled the online gaming activities of CyberCroupier, its licensee. CyberCroupier allegedly operated the "Oriental Casino," an online gaming enterprise which conducts online gaming activities accessible to customers residing in the United States, including residents of the State of New York. B. Factual Background The Amended Complaint alleges that at all times relevant to this action, the Defendants owned and/or operated Oriental Casino, an online casino. In or about June 2000, Uebler logged on to the Oriental Casino and subscribed to their service. To subscribe, Uebler provided the Defendants with her name, age, address and other requested personal information. In or about July 2000, the Defendants sponsored a "Fortune Cookie" promotion on the Oriental Casino website. As to this website, persons who logged on to the site were invited to send a "Fortune Cookie" e-mail to others who might be interested in the Oriental Casino. These e-mails promoted Oriental Casino and also provided to the Oriental Casino the e-mail addresses of other potential customers. Individuals who sent "Fortune Cookie" e-mails were eligible to be chosen as contestants in the "Win a Million" promotional trivia contest (the "Contest"). Thus, the winner of the Contest would receive a total prize of $ 1 million in cash payable in equal monthly installments over a period of twenty-five years. Sending "Fortune Cookie" e-mails was the only condition of eligibility in order to win the Contest. The Plaintiff alleges that the Contest was sponsored by the Defendants as part of a marketing strategy to promote the Oriental Casino and their other online gaming internet enterprises. Uebler participated in the Contest by sending "Fortune Cookie" e-mails to several of her friends and acquaintances. On or about January 16, 2001, a representative of the Defendants called Uebler. This individual, whose name and affiliation is not identified in the Amended Complaint, told the Plaintiff that she was one of five persons who had been randomly chosen to compete for the $ 1 million prize. She was further told that she would receive a call from the Casino Gazette online radio station and would be asked a trivia question. She was advised that if she correctly answered the question she would win the $ 1 million, payable in equal monthly installments of $ 3333.33 over a period of twenty five years. At the Defendants' request, Uebler provided the Defendants with, among other information, detailed personal information about herself, including the fact that she is a resident of Long Island, New York. On or about January 19, 2001, Uebler was called by Mike Craig of the Casino Gazette online radio station. She correctly answered the trivia question and was told that she won the $ 1 million prize. The Defendants confirmed her winning the contest by e-mail. The source of this e-mail is not identified in the amended complaint, but attachment's to the Plaintiff's opposition papers indicates that the Plaintiff's primary contact with respect to this contest was an individual namedMorten Skelborg from Cybercroupier. The Defendants also told the Plaintiff that the prize money would be held in an escrow account from which the monthly payments would be disbursed. From January 19, 2001, the day the Plaintiff won the Contest, through April 2003, the Defendants posted the Plaintiff's photo on the Oriental Casino website The accompanying profile identified the Plaintiff as a resident of Long Island, New York. This website also included statements attributed to her in an effort to
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