The opinion of the court was delivered by: Giles, C.J.
Maria and Alfredo Guardi bring this diversity action for negligence and
bailment against Defendant Paula Desai, M.D., seeking compensatory and
exemplary damages as well as interest, costs, and attorney's fees. Now
before the court is a motion of Defendant to dismiss the complaint for
lack of personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2). For the
reasons that follow, Defendant's motion to dismiss is denied.
The material facts are not in contention. On June 9, 1997, Plaintiffs'
counsel, Joanna Hamill Flum ("Ms. Flum") sent Defendant Paula Desai
("Dr. Desai") an unsolicited package to her home in Colorado containing
(1) a letter asking Dr. Desai whether she would be willing to review
certain materials in connection with Maria Guardi's ("Mrs. Guardi")
potential medical negligence action in Pennsylvania; (2) a letter setting
forth the facts of Mrs. Guardi's potential medical negligence action; and
(3) the original mammogram films of Mrs. Guardi from September 21, 1990,
September 20, 1991, October 27, 1992, and June 29, 1995. (Compl. ¶
8; Pls.' Br. in Supp. of Resp. to Def.'s Mot. to Dismiss at 1-2.) The
letter relating the basis for the potential medical negligence action
stated, "I would ask that you please return these films to me [Ms. Flum]
at the completion of your review, as they are the original films from the
hospital and we have no other copies in our office." (Pls.' Br. in Supp.
of Resp. to Def.'s Mot. to Dismiss, Ex. C.)
On August 26, 1997, Dr. Desai mailed to Ms. Flum her report, dated July
27, 1997, opining that the June 29, 1995 mammogram was improperly
interpreted by Dr. Bernard Lewin ("Dr. Lewin"). (Compl. ¶ 9.) Dr.
Desai sent a letter accompanying this report which included the following
statement: "I hope that you will consider me for the evaluation of future
cases for which you will need the assistance of a radiologist." (Pls.'
Br. in Supp. of Resp. to Def.'s Mot. to Dismiss, Ex. D.) Ms. Flum's law
partner did attempt to use Dr. Desai as an expert in a later case. (Id. at
After Plaintiffs received Dr. Desai's report, Ms. Flum contacted Dr.
Desai to discuss the report in late August 1997. (Id.) During this
conversation, Ms. Flum requested that Dr. Desai keep the mammograms for a
short period of time in case Plaintiffs needed an addendum to Dr. Desai's
report. (Id.) Dr. Desai agreed to keep the mammogram films but apparently
lost them. (Id.)
A medical negligence action was filed by Plaintiffs on March 5, 1998 in
a Pennsylvania state court against various defendants including Dr.
Lewin, alleging that Dr. Lewin failed to properly interpret the mammogram
performed on June 29, 1995. (Compl. ¶ 5.) On December 8, 2000, the
instant action was filed against Dr. Desai alleging that without the
original mammogram films, Plaintiffs will be deprived of monetary damages
that would have been obtained through a lawsuit because they are unable
to prosecute their claim against Dr. Lewin. (Id. ¶ 10.)
Defendant moves to dismiss the complaint on the grounds that the court
may not exercise personal jurisdiction over her. When a defendant raises
the defense of the court's lack of personal jurisdiction, the plaintiff
has the burden of bringing forward sufficient jurisdictional facts to
establish with reasonable particularity that there were sufficient
contacts between the defendant and the forum to make jurisdiction
proper. See Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217,
1223 (3d Cir. 1992). For purposes of this motion, the court must accept
as true the plaintiff's version of the facts, and draw all inferences
from the pleadings, affidavits, and exhibits in plaintiff's favor. See
DiMark Mktg., Inc. v. Louisiana Health Serv. & Indem. Co.,
913 F. Supp. 402, 405 (E.D.Pa. 1996). The third circuit has repeatedly
held that courts should take a "highly realistic" view when deciding
whether to assert personal jurisdiction over a non-resident defendant.
Farino, 960 F.2d at 1224. Courts should take into account "the
relationship among the forum, the defendant and the litigation . . ."
There is a two-part test to determine if personal jurisdiction exists
over an out-of-state defendant. First, the court must determine whether
the long-arm statute of the forum state would allow courts of that state
to exercise jurisdiction over the defendant. Fed.R.Civ.P. 4(e). Second,
if the forum state would allow jurisdiction, then the court must
determine if exercising personal jurisdiction comports with the due
process clause of the U.S. Constitution. See IMO Indus. v. Kiekert AG,
155 F.3d 254, 259 (3d Cir. 1998). Since the Pennsylvania long-arm
statute, 42 Pa. C.S.A. § 5322(b), permits Pennsylvania courts to
exercise personal jurisdiction to the constitutional limits, the
jurisdictional inquiry turns on whether the exercise of personal
jurisdiction complies with constitutional due process.*fn1 See Verotex
Certainteed Corp. v. Consolidates Fiber Glass Prods. Co., 75 F.3d 147,
150 (3d Cir. 1996); Farino, 960 F.2d at 1221.
There is a two-part test for a court to apply in determining whether
the court can exercise specific jurisdiction. First, a plaintiff must
demonstrate that the defendant has sufficient "minimum contacts" with
Pennsylvania. See IMO, 155 F.3d at 259 (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985)). A defendant establishes minimum
contacts with the forum state through affirmative acts directed at
residents of the forum; there must be some act by which the defendant
purposefully avails him or herself of the privilege of conducting
activities within the forum state, thus invoking the benefits and
protections of its laws. See Burger King, 471 U.S. at 474-75. Minimum
contacts are established where "defendant's conduct and connection are
such that [defendants] should reasonably anticipate being haled into
court there." Burger King, 471 U.S. at 474. Second, if minium contacts
exist, the court must ...