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Romah v. Scully

November 13, 2007

JOSEPH ROMAH, PLAINTIFF,
v.
DR. EDWARD SCULLY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

MEMORANDUM OPINION and ORDER

This case is a personal injury action in the field of medical malpractice stemming from an "unnecessary surgery" allegedly performed at Defendant Toronto General Hospital*fn1 on or about December 15, 2005. Plaintiff alleges that, at the time of the filing of his Complaint, he had*fn2 "a non-life threatening medical condition called Endocarditis*fn3 , an infection of the heart valve." (Docket No. 1, at ¶9). In particular, Plaintiff alleges that while under the care of an attending physician at Toronto General Hospital for pneumonia and strep throat, on or about October 11, 2005, Plaintiff was taken into custody on a warrant*fn4 issued by the United States and informed (by an unnamed individual) that "he would not be sent back to the United States without heart surgery to correct the endocarditis." (Docket No. 1, at ¶11). From October 17, 2005 to December 15, 2005, Plaintiff alleges that he refused surgery on three separate occasions, presumably all while in the custody of law enforcement authorities at Defendant Toronto General Hospital. (Docket No. 1, at ¶15). Regardless, according to the Plaintiff, "Defendant Toronto General Hospital performed the unnecessary surgery." Id. Four days thereafter, Plaintiff alleges that Defendant Toronto General Hospital transferred him to Maplehurst Correctional Institute where, on or about December 21, 2005, Plaintiff suffered a stroke.*fn5 (Docket No. 1, at ¶17). Plaintiff's factual recitation abruptly ends there.*fn6 Nevertheless, based thereon, Plaintiff filed the instant Complaint against (amongst others) Defendant UHN, the last remaining Defendant in this action. For the following reasons, Defendant UHN's Motion to Dismiss for Lack of Personal Jurisdiction and Insufficient Service of Process [DE 50] is granted.

PROCEDURAL BACKGROUND

On May 26, 2006, Plaintiff filed his Complaint, alleging one count of medical malpractice and naming the following as Defendants: Dr. Edward Scully, Maplehurst Correctional Complex ("Maplehurst"), UHN, Toronto Jail, Ministry of Community Safety and Correctional Services ("Ministry"), and Tracey Jones. On May 30, 2006, summons were issued as to all Defendants. On September 15, 2006, summons were reissued as to Defendants Maplehurst, UHN, Toronto Jail, and Ministry. On October 25, 2006, Plaintiff filed a Notice of Confirmation of Service of Canadian Defendants, which consisted of a letter from an international litigation support service company to counsel for the Plaintiff informing counsel that "the Central Authority of Canada received all six of [his] Hague requests" and that "it takes an average 2-4 months before proof service is returned from Canada." (Docket No. 3).*fn7

On January 17, 2007, Defendants Maplehurst, Toronto Jail, Ministry, and Jones filed a Motion to Dismiss, to which Plaintiff responded on March 5, 2007. On January 19, 2007, Defendant UHN filed a Motion to Dismiss for Lack of Jurisdiction and Insufficient Service of Process, to which Plaintiff responded on March 6, 2007. On March 7, 2007, after having held a telephonic status conference that same day, Judge Thomas M. Hardiman entered an Order granting with prejudice the motion to dismiss filed by Defendants Maplehurst, Toronto Jail, Ministry, and Jones,*fn8 but denying without prejudice the motion to dismiss filed by Defendant UHN. As to the latter, the Court ordered that Plaintiff shall have ninety (90) days, or until June 5, 2007, within which to take discovery limited to the issue of personal jurisdiction as to the remaining Defendants, i.e., Scully and UHN.*fn9

On August 13, 2007, the Court entered a Case Management Order and set the following deadlines (relevant here): Defendant UHN shall file a responsive pleading to Plaintiff's Complaint on or before August 27, 2007. On August 27, 2007, Defendant UHN filed the instant motion to dismiss.*fn10 On September 17, 2007, Plaintiff filed his Memorandum of Law in Opposition to Defendants' Motion to Dismiss for Lack of Personal Jurisdiction and Insufficient Service of Process. On September 19, 2007, Plaintiff filed numerous exhibits, which were sealed on September 21, 2007. Finally, on October 1, 2007, Defendant UHN filed its Reply Memorandum of Law in Support of Motion of the University Health Network to Dismiss for Lack of Personal Jurisdiction and Insufficient Service of Process.

In the instant motion, Defendant UHN moves to dismiss the claims asserted against it for lack of jurisdiction over the person pursuant to Federal Rule of Civil Procedure 12(b)(2) and/or for insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5). As to the former theory supporting dismissal, Defendant UHN asserts that Plaintiff cannot establish personal jurisdiction over it (a non-resident Defendant) in that "UHN does not conduct business in or have any regular contacts with Pennsylvania" (general jurisdiction) and UHN "has not directed activities to Pennsylvania or had contacts with Pennsylvania in connection with Plaintiff's alleged claims" (specific jurisdiction). (Docket No. 51, at 4-5). As to the latter theory supporting dismissal, Defendant UHN asserts that service was insufficient here under Rule 4(k) because UHN is not subject to personal jurisdiction in the Commonwealth of Pennsylvania. (Docket No. 51, at 9-10). In support of its arguments, Defendant offers an Affidavit of Bella

Martin, General Counsel of UHN, in which she asserts that UHN "does not have systematic or continuous contacts with the United States or, specifically, the Commonwealth of Pennsylvania." (Docket No. 51, Exh. A., at ¶5). In particular, the affiant asserts that UHN (1) does not maintain or own, control, or operate facilities in the United States or Pennsylvania; (2) does not own any real or personal property in the United States or Pennsylvania; (3) does not maintain any bank accounts in the United States or Pennsylvania; (4) does not have any officers or employees or maintain any office or place of business in the United States or Pennsylvania; (5) does not sell goods or services or advertise for or otherwise solicit the sale of goods or services in the United States or Pennsylvania; (6) does not do business in the United States or Pennsylvania; and (7) that, as to the contracts offered by Plaintiff as a basis for jurisdiction, UHN negotiated and executed its contracts with the University of Pittsburgh in Canada and that the work performed by UHN pursuant to the contracts was performed in Canada and not in Pennsylvania. (See Docket No. 51, Exh. A., at ¶5.A-H).*fn11

STANDARD

A court may dismiss a complaint for lack of jurisdiction over the person. Fed.R.Civ.P. 12(b)(2). A defendant bears the initial burden of raising a lack of personal jurisdiction defense. See Fed.R.Civ.P. 12(h)(1); National Paintball Supply, Inc. v. Cossio, 996 F.Supp. 459, 460 (E.D. Pa. 1998). However, "[w]here the defendant has raised a jurisdictional defense, the plaintiff bears the burden of establishing either that the cause of action arose from the defendant's forum-related activities (specific jurisdiction) or that the defendant has 'continuous and systematic' contacts with the forum state (general jurisdiction)". Mellon Bank (East) PSFS, N.A. v. DiVeronica Bros., Inc., 983 F.2d 551, 554 (3rd Cir. 1993) (citations omitted). "The plaintiff meets this burden and presents a prima facie case for the exercise of personal jurisdiction by establishing with reasonable particularity sufficient contacts between the defendant and the forum state." Mellon Bank (East) PSFS, Nat. Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992) (internal quotation and citations omitted); see also Saudi v. Acomarit Maritimes Services, S.A., 245 F.Supp.2d 662, 667 (E.D. Pa. 2003). "Once the plaintiff has made out a prima facie case in favor of personal jurisdiction, the defendant 'must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.' " Carteret Sav. Bank v. Shushan, 954 F.2d 141, 150 (3d Cir. 1992) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1986)).

When deciding a motion to dismiss for lack of personal jurisdiction, the Court accepts as true all allegations in the complaint. Chocallo v. I.R.S. Dept. of the Treasury, Civil Action Nos. 04-3737, 06-539, 2007 WL 2071880, at *8 (E.D. Pa. July 16, 2007) (citing Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996)). Nevertheless, "a plaintiff may not solely rely on bare pleadings to satisfy his jurisdictional burden. Rather, the plaintiff must offer evidence that establishes with reasonable particularity sufficient contact between the defendant and the forum state to support jurisdiction." Poole, 122 F.Supp.2d at 557 (citing Carteret Savings Bank, F.A. v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992); see also Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir.1996) ("But once a defendant has raised a jurisdictional defense, a plaintiff bears the burden of proving by affidavits or other competent evidence that jurisdiction is proper"); North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 689 (3d Cir. 1990) (providing that a "plaintiff must sustain [his] burden of proof through sworn affidavits or other competent evidence") (internal quotation and citations omitted). In fact, by its nature, a motion to dismiss under "Rule 12(b)(2) 'requires resolution of factual issues outside the pleadings, i.e., whether in personam jurisdiction actually lies.' " Clark v. Matsushita Elec. Indus. Co., Ltd., 811 F.Supp. 1061, 1064 (M.D. Pa. 1993) (quoting Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984)). The Court in Time Share Vacation Club provided further explanation:

Once the defense has been raised, then the plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence. Contrary to the dissent's suggestion, therefore, at no point may a plaintiff rely on the bare pleadings alone in order to withstand a defendant's Rule 12(b)(2) motion to dismiss for lack of jurisdiction. Once the motion is made, plaintiff must respond with actual proofs, not mere allegations.

Clark, 811 F.Supp. at 1064 -1065 (quoting Time Share Vacation Club, ...


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