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Bond v. Laser Spine Institute

August 11, 2010

JEFFREY BOND AND MARY ANN BOND, PLAINTIFFS,
v.
LASER SPINE INSTITUTE, LLC, DEFENDANT.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: DEFENDANT'S MOTION TO QUASH SERVICE OF PROCESS AND TO DISMISS, OR IN THE ALTERNATIVE, TO TRANSFER VENUE

I. Introduction

In this case, Plaintiffs Jeffrey and Mary Ann Bond bring claimsarising out of allegedly deficient medical care rendered to Jeffrey Bond by Defendant Laser Spine Institute, LLC ("LSI") (Doc. No. 1). Presently before the Court is Defendant's Motion to Quash Service of Process and to Dismiss, or in the Alternative, to Transfer Venue (Doc. No. 7). For the reasons discussed below, the Court will deny Defendant's motion in its entirety.

II. Factual Background and Procedural History

Plaintiffs, Jeffrey and Mary Ann Bond, commenced this action on March 11, 2010 (Doc. No. 1), bringing their claims against Defendant LSI as a result of allegedly deficient surgery rendered to Mr. Bond at LSI's facility in Tampa, Florida on April 29, 2008, and as a result of LSI's allegedly negligent follow-up care. Mr. Bond first began suffering from tingling sensations in his left hand in 2007, and subsequently underwent EMG and MRI studies that showed he had bilateral atrophy of his triceps and degenerative disk disease. (Pls.' Resp. 2.) Mr. Bond began exploring minimally invasive treatment options by reviewing the LSI website. (Pls.' Resp. 2.) Mr. Bond eventually contacted LSI in March 2008 and spoke with a caseworker who advised him to send his EMG and MRI reports to Dr. Michael Perry, an LSI physician licensed in Pennsylvania. (Pls.' Resp. 2, Ex. C.) Dr. Perry called Mr. Bond and suggested that LSI could perform endoscopic surgery in Florida to relieve Mr. Bond's spinal pain. (Pls.' Resp. 2.) LSI assisted Mr. Bond with his travel plans from Pennsylvania to Florida, and Mr. Bond traveled to Tampa on April 27, 2008. (Pls.' Resp. 2.)

On April 29, 2008, Mr. Bond underwent endoscopic surgery performed by Dr. Michael Weiss at an LSI facility in Tampa, Florida. (Pls.' Resp. Ex. A.) After surgery, Mr. Bond returned home to Pennsylvania, and allegedly began experiencing "severe pains shooting through his body, some of which left him feeling completely debilitated." (Pls.' Resp. 2.) Several times in May 2008, Mr. Bond called LSI and spoke with Dr. Weiss' head nurse, who suggested that the pain was part of the healing process, and who called in a steroid prescription to Mr. Bond's Pennsylvania pharmacy after consulting with Dr. Weiss. (Pls.' Resp. Ex. A.) Mr. Bond took the steroids for seven days, but the pain allegedly increased in intensity. (Pls.' Resp. 2.) After at least two more phone calls to LSI, Dr. Weiss concluded that Mr. Bond should fly back to Tampa for an examination, but he suggested that Mr. Bond get an MRI first. (Pls.' Resp. 3.) However, after Mr. Bond sent Dr. Weiss new MRI results on June 6, 2008, Dr. Weiss determined that LSI could not assist Mr. Bond. (Pls.' Resp. 3.) Dr. Weiss instead told Mr. Bond to see a neurosurgeon at Bryn Mawr Hospital in Pennsylvania. (Pls.' Resp. 3.) Plaintiffs contend that Dr. Weiss also stated that LSI would send the records to the neurological group at Bryn Mawr Hospital; however, LSI allegedly failed to do so. (Pls.' Resp. 3.)

While Mr. Bond was at Bryn Mawr Hospital in early June 2008, the emergency room technician spoke with Dr. Vernon Morris (Pls.' Resp. 3), a doctor at LSI and "lead[er of] the Pennsylvania LSI surgical team." (Pls.' Resp. Ex. C). Dr. Morris recommended to the Bryn Mawr Hospital technician that Mr. Bond be prescribed more steroids. (Pls.' Resp. 3.)

Mr. Bond finally saw a non-LSI neurosurgeon in late June 2008, who recommended immediate cervical fusion surgery, which Mr. Bond underwent at Pennsylvania Hospital on June 29, 2008. (Pls.' Resp. 3.) Mr. Bond alleges that he currently "has difficulty gripping, walking, and can no longer engage in the type of physical activities in which he was engaged prior to his procedure at the Laser Spine Institute." (Pls.' Resp. 3).

On March 11, 2010, Mr. Bond and his wife filed suit against LSI alleging deficient medical care (Doc. No. 1). On April 6, 2010, LSI filed a Motion to Quash Service of Process and to Dismiss, or in the Alternative, to Transfer Venue (Doc. No. 7). Plaintiffs filed their response on April 22, 2010 (Doc. No. 16), and Defendant filed its reply on May 5, 2010 (Doc. No. 18).

III. Basis of Federal Jurisdiction

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a) based on diversity of citizenship, since the parties are citizens of different states and the amount in controversy exceeds $75,000. Plaintiffs are residents of Pennsylvania and Defendant is a Florida limited liability company with its principal place of business in Tampa, Florida (Doc. No. 1).

IV. Parties' Contentions

A. Defendant

LSI first asserts that dismissal is proper for insufficient service of process. LSI argues that Mr. Bond improperly served Laser Spine Institute of Philadelphia, LLC ("LSI Philadelphia") instead of the entity named in the Complaint, LSI. (Def.'s Mot. to Quash, Dismiss, or Transfer 2-3.) LSI further contends that LSI Philadelphia is a "wholly separate entity than the Defendant," "with separate corporate activities and a separate corporate structure." (Def.'s Mot. to Quash, Dismiss, or Transfer 2.) Moreover, LSI also asserts that service was improper in the first place even if the two entities were the same because Plaintiffs served Tracey Baughey, an office manager of LSI Philadelphia, who is not an officer upon whom service can statutorily be made. (Def.'s Mot. to Quash, Dismiss, or Transfer 2, 6.)

LSI further contends that dismissal is proper for lack of personal jurisdiction because LSI has made no sales in the Commonwealth of Pennsylvania, transacted no business in the Commonwealth of Pennsylvania, and availed itself of none of the protections afforded by the Commonwealth of Pennsylvania. (Def.'s Mot. to Quash, Dismiss, or Transfer 7-8.)

Finally, LSI argues that either (a) the action should be dismissed for improper venue, or (b) transfer of venue to the Middle District of Florida is proper because LSI does not reside in the Eastern District of Pennsylvania, no substantial part of the alleged events or omissions giving rise to the claim occurred in this district, LSI is not subject to personal jurisdiction in the Eastern District of Pennsylvania, and all individuals involved in this case are in Tampa, Florida. (Def.'s Mot. to Quash, Dismiss, or Transfer 10-11.) LSI argues that the public and private factors weighed in a motion to transfer analysis weigh in favor of transfer. (Def.'s Mot. to Quash, Dismiss, or Transfer 11.)

B. Plaintiffs

Plaintiffs argue in response that service upon the Pennsylvania corporation was sufficient to serve LSI because the foreign corporation had substantial control over the local subsidiary. (Pls.' Resp. 4.) Plaintiffs contend that even if service was insufficient, the proper cure is to quash service and allow Plaintiffs to re-serve the Complaint. (Pls.' Resp. 4.) With regard to service accepted by Tracey Baughey, an individual who allegedly held herself out as the "office manager" for LSI, Plaintiffs argue that the root purpose of service is merely fair notice of the suit, which Defendant LSI received. (Pls.' Resp. 5.) Moreover, Plaintiffs argue that the issue is now effectively moot since they have since served LSI through its registered agent in Florida by registered mail on April 8, 2010. (Pls.' Resp.5; see Doc. No. 15)

Finally, Plaintiffs respond by arguing that this Court has both general and specific personal jurisdiction over Defendant, and that venue is necessarily proper in any district that has personal jurisdiction over a corporate defendant. (Pls.' Resp. 8-15.) Moreover, Plaintiffs contend that a transfer of venue would be unjust because all of the private and public interest factors weighed in a motion to transfer analysis favor denying Defendant's motion to transfer venue. (Pls.' Resp. 15-20.)

V. Legal Standards

A. Service of Process

Under Rule 4 of the Federal Rules of Civil Procedure and the corresponding Pennsylvania rules on service, the root purpose of service of process is to assure that defendant receives notice of the commencement of action against him. See Hanna v. Plumer, 380 U.S. 460, 462 n.1 (1965) (stating that actual notice is "of course" the goal of state and federal service of process rules); Gambone v. Lite-Rock Drywall Corp., 124 F. App'x 78, 79 (3d Cir. 2005) (nonprecedential) ("Rule 4 guards the objective of giving notice to the party to be served"); Ayers v. Jacobs & Crumplar, P.A., 99 F.3d 565 (3d Cir. 1996) ("[O]ne of the purposes of the rules regarding service of process is to provide notice"); Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 486 (3d Cir. 1993) (holding that the purpose behind Pennsylvania rule on service is to provide notice that litigation has commenced, and that procedures used to follow Federal Rule 4 must be "reasonably calculated to give actual notice of the proceedings to the party"); GE Med. Sys. Info. Techs., Inc. v. Ansar, Inc., 2004 WL 2988513 (E.D. Pa. Dec. 23, 2004) (holding that under Pennsylvania law, service must be reasonably calculated to give the defendant notice of the action against it). Under Federal Rule of Civil Procedure 4(h), corporations may be validly served by either "delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process," or pursuant to state law under Federal Rule of Civil Procedure 4(e)(1). Fed. R. Civ. P. 4(h). Under Pennsylvania Rule of Civil Procedure 424,*fn1 service upon a corporation may be made upon any of the following persons:

(1) an executive officer, partner or trustee of the corporation or similar entity, or

(2) the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity, or

(3) an agent authorized by the corporation or similar entity in writing to receive service of process for it.

Pa. R. Civ. P. 424.*fn2 The propriety of service under Pennsylvania law commonly depends upon the relationship between the person receiving process and the party to the litigation. See Grand Entm't Group, Ltd., 988 F.2d at 485. Additionally, Pennsylvania law provides that an ...


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