Hardman v. The Southeast Permanente Medical Group, Inc. et al (CONSENT)
Filing
20
MEMORANDUM OPINION AND ORDER: it is hereby ORDERED as follows:(1) Defendants' motion to transfer venue and alternative motion to dismiss for lack of personal jurisdiction is GRANTED in part and DENIED in part, as follows: a. The motion is GRA NTED with respect to defendants request for transfer to the United States District Court for the Northern District of Georgia. b. In all other respects, the motion is DENIED without prejudice. (2) The Clerk of Court is DIRECTED to take all necessary steps to TRANSFER this case to the United States District Court for the Northern District of Georgia for all further proceedings and to close this file. Signed by Honorable Judge Susan Russ Walker on 3/23/2018. (kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
DONALD DWAYNE HARDMAN,
as personal representative of the Estate
of Brandy Lee Hardman, Deceased,
Plaintiff,
v.
THE SOUTHEAST PERMANENTE
MEDICAL GROUP, INC., et al.,
Defendants.
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CIVIL ACTION NO.: 3:17-cv-316-SRW
MEMORANDUM OPINION AND ORDER1
This case was originally filed in the Circuit Court of Tallapoosa County, Alabama.
See Docs. 1, 1-1. Defendants removed the case to this court on the basis of diversity, see
Doc. 1, and then filed a motion to transfer venue and an alternative motion to dismiss for
lack of personal jurisdiction. See Doc. 2. Plaintiff has filed a consolidated response in
opposition to both motions. See Doc. 11. For the reasons stated below, the court finds that
the motion is due to be granted in part.
FACTS
This case arises out of an automobile accident that occurred in Alexander City,
Alabama and resulted in the death of plaintiff’s decedent. See Doc. 1 at 1-2. Plaintiff, who
is a resident of Alabama, is the widower of the decedent, Brandy Lee Hardman, and is the
The parties previously consented to final dispositive jurisdiction by a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). See Docs. 16 and 17.
1
personal representative of her estate. See Doc. 1-1 at 2. Defendant Malcolm Thomas
Simpson, M.D. (“Simpson”) is a citizen of Georgia, where he lives, works, and is licensed
to practice medicine. See Docs. 1; 1-1; 1-3.2 Defendant The Southeast Permanente Medical
Group, Inc. (“Southeast Permanente”), of which Simpson is alleged to be an employee or
agent, is a citizen of Georgia. See Docs. 1; 1-1.3
Plaintiff does not allege Simpson’s citizenship. See Doc. 1-1 at 2 (“[M]alcolm Thomas Simpson
… is a natural person over the age of nineteen years and is a licensed medical doctor. … Upon
information and belief, defendant Simpson is a physician in the Southeast Permanente group
and/or an employee and agent thereof.”). Defendants attach to their notice of removal an affidavit
executed by Simpson demonstrating that he is a citizen of Georgia for diversity purposes. See Doc.
1-3 (“I am a physician licensed by the State of Georgia, and I practice exclusively in Georgia. […]
I reside in Atlanta, Dekalb County, Georgia.”).
2
3
A corporation is “a citizen of every State and foreign state by which it has been incorporated and
of the State or foreign state where it has its principal place of business … .” 28 U.S.C. § 1332(c)(1).
Plaintiff does not allege facts sufficient to show Southeast Permanente’s citizenship. See Doc. 1-1
at 2 (“[S]outheast Permanente Medical Group, Inc. … is a foreign corporation headquartered in
Atlanta, Georgia. … [S]outheast Permanente is a large multi-specialty medical group providing
physicians in a large portion of Georgia, listing its service as a 28-county area of metro-Atlanta.”)
Defendant states in its notice of removal that Southeast Permanente is a “foreign corporation
incorporated in the State of Georgia with its principal place of business in the State of Georgia.”
See Doc. 1 at 4. Defendants do not – as they did with Simpson – attach proof of the same, and
instead, cite to the complaint for this information; however, as noted previously, the complaint is
silent as to Southeast Permanente’s place of incorporation or principal place of business.
The court is nonetheless satisfied that Southeast Permanente is a citizen of Georgia. It takes
judicial notice of the fact that the online records of the Georgia Secretary of State show that
Southeast Permanente is a domestic professional corporation that was formed in Georgia and has
a
principal
office
address
in
Georgia.
See
https://ecorp.sos.ga.gov/BusinessSearch/BusinessInformation?businessId=687505&businessTyp
e=Domestic%20Professional%20Corporation (last visited March 21, 2018); Birmingham
Plumbers & Steamfitters Local 91 Pension Plan v. Iron Mountain Construction, Inc., 2016 WL
4137972,*3 n. 2 (N.D. Ala. 2016)(“Federal Rule of Evidence 201 provides that a court may take
judicial notice of a fact that is not subject to reasonable dispute if it ‘can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.’ Fed. R. Evid.
201(b)(2). The information found on the website of the Alabama Secretary of State falls within the
purview of Rule 201(b)(2).”). See also Arnold v. Nationstar Mortgage LLC, 2017 WL 5986233,
n. 3 (N.D. Ga. 2017)(“In deciding a motion to dismiss, the [c]ourt can properly take judicial notice
of public records maintained by the Georgia Secretary of State.”)(citing Davis v. Nat’l Consumer
Servs. Corp., 2015 WL 11236558, *4 (N.D. Ga. 2015)(taking judicial notice of records of Georgia
2
Plaintiff alleges that non-party Michael Lewis Hawkins is an interstate commercial
truck driver and a patient of Simpson’s. See Doc. 1-1 at 3. Hawkins operates and drives for
his two-man trucking company, Hawkins Brothers, L.L.C. Id. According to plaintiff,
Hawkins and his trucking company are governed by the United States Department of
Transportation (“DOT”), which requires that Hawkins maintain a valid commercial
driver’s license. On an annual basis, Hawkins must undergo and pass a DOT physical
examination, which is to be administered by a certified medical examiner. Id.
According to plaintiff, on April 29, 2016, Simpson “purported to perform a DOT
physical examination of … Hawkins and signed and executed a medical examiner’s
certificate, whereby he certified that he had examined … Hawkins in accordance with
applicable DOT safety regulations and that … Hawkins was qualified to safely operate a
commercial vehicle in interstate commerce … .” Id. However, plaintiff alleges, at the time
Simpson performed the examination, Simpson had not been certified to do so and was not
listed on the National Registry of Certified Medical Examiners; thus, he did not have the
requisite authority to perform the examination. Id. at 3-4. Plaintiff also alleges that Simpson
“knew or should have known” that Hawkins “lacked the visual, physical, and medical
capability to satisfy the requirements of a DOT physical examination” because he is a “an
insulin-dependent diabetic patient who was not exempt from regulations prohibiting his
maintaining a [commercial driver’s license.]” Id. at 4.
Secretary of State on motion to dismiss), report and recommendation adopted, 2015 WL 11257483
(N.D. Ga. 2015)).
3
Plaintiff further alleges that on December 8, 2016, while Hawkins was driving a
“DOT regulated commercial tractor-trailer on U.S. Highway 280 in Alexander City,
Alabama, his medical, physical, and visual deficiencies caused him to run a red stoplight
so that his tractor-trailer crushed [the decedent’s] vehicle as she was lawfully stopped and
waiting on the traffic control device to green.” Id. The decedent died as a result of the
collision. Id.
Plaintiff alleges three claims arising out of Alabama state law: negligence against
both defendants (count one), wantonness against both defendants (count two), and
negligent supervision against Southeast Permanente (count three).4
STANDARD OF REVIEW
No party has requested a hearing on the defendants’ motion to dismiss for lack of
personal jurisdiction, and the court has determined that no such hearing is required. See
Fed. R. Civ. P. 12(b)(2); Maximum Efficiency Squared, LLC v. Samsara Works, Corp.,
2015 WL 5053758, *3 (M.D. Ala. 2014); Robinson v. Giarmarco & Bill, P.C., 74 F.3d
253, 255 (11th Cir. 1996)).
On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction,
[t]he plaintiff bears the burden of establishing personal jurisdiction
over a non-resident defendant. See S & Davis Intern., Inc. v. The Republic of
Yemen, 218 F.3d 1292, 1303 (11th Cir.2000). When the issue of personal
jurisdiction is decided on the briefs and accompanying evidence, but without
a discretionary evidentiary hearing, a plaintiff satisfies his or her burden by
demonstrating a “prima facie case of jurisdiction.” Francosteel Corp.,
Unimetal–Normandy v. M/V Charm, Tiki, Mortensen & Lange, 19 F.3d 624,
626 (11th Cir.1994); Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990).
A plaintiff establishes a prima facie case by submitting evidence sufficient
4
Plaintiff has not named as defendants either Hawkins or his trucking company.
4
to defeat a motion for judgment notwithstanding the verdict. See DeLong
Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th
Cir.1988). Consonant with that standard of review, the court construes the
allegations in the complaint as true if they are uncontroverted by affidavits
or deposition testimony. See Bracewell v. Nicholson Air Serv., Inc., 748 F.2d
1499, 1504 (11th Cir.1984). The Eleventh Circuit has explained on more than
one occasion that, “[i]f a plaintiff pleads sufficient material facts to establish
a basis for personal jurisdiction and a defendant then submits affidavits
controverting those allegations, ‘the burden traditionally shifts back to the
plaintiff to produce evidence supporting jurisdiction[,] unless those affidavits
contain only conclusory assertions that the defendant is not subject to
jurisdiction.’” Whitney Information Network, Inc. v. Xcentric Venture, LLC,
Slip No. 06–11888, 2006 WL 2243041, *3 (11th Cir. Aug .1, 2006) (quoting
Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir.2002)). If the
evidence conflicts, the court makes reasonable inferences in favor of the
plaintiff, particularly when the jurisdictional questions are seemingly
intertwined with the merits of the case. See DeLong, 840 F.2d at 845.
Id. at *3 (quoting Ashton v. Florala Mem. Hosp., 2006 WL 2864413, *2 (M.D. Ala. 2006)).
DISCUSSION
A.
Personal Jurisdiction
As noted above, the plaintiff has the burden to establish a prima facie case of
personal jurisdiction over a non-resident defendant. See Andy’s Music, Inc. v. Andy’s
Music, Inc., 607 F. Supp. 2d 1281, 1285 (S.D. Ala. 2009)(citing The Mitchell Company,
Inc. v. Campus, 2008 WL 183344, *13 (S.D. Ala. 2008)(quoting Meier v. Sun International
Hotels, Ltd., 288 F.3d 1264, 1268 (11th Cir. 2002)). “Plaintiff’s burden in alleging personal
jurisdiction is to plead sufficient material facts to establish the basis for exercise of such
jurisdiction.” Id. (citing The Mitchell Company, 2008 WL 183344 at *13)(quoting Future
Technology Today, Inc., v. OSF Healthcare Systems, Inc., 218 F.3d 1247, 1249 (11th Cir.
2000)). “Finally, a federal district court sitting in diversity may exercise personal
5
jurisdiction to the extent authorized by the law of the state in which it sits… .” Id. (internal
citations omitted).
Personal jurisdiction in this action is based on the Alabama long-arm statute, which
provides:
An appropriate basis exists for service of process outside of this state upon a
person or entity in any action in this state when the person or entity has such
contacts with this state that the prosecution of the action against the person
or entity in this state is not inconsistent with the constitution of this state or
the Constitution of the United States … .
Ala. R. Civ. P. 4.2(b).
A sister district court summarized the law applicable to this case in Andy’s Music,
607 F. Supp. 2d at 1286-87. It explained:
In a diversity action such as the present one, “a federal court may
assert jurisdiction over a nonresident defendant only to the extent permitted
by the long-arm statute of the forum State, and only if the exercise of
jurisdiction comports with the requirements of the Due Process Clause of the
Fourteenth Amendment.” Vermeulen v. Renault, U.S.A., Inc., 975 F.2d 746,
753 (11th Cir.1992), opinion modified and superseded on other grounds by
Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534 (11th Cir.1993), cert.
denied sub nom. Regie Nationale Des Usines Renault S.A. v. Vermeulen, 508
U.S. 907, 113 S.Ct. 2334, 124 L.Ed.2d 246 (1993); see also Olivier v. Merritt
Dredging Co., 979 F.2d 827, 830 (11th Cir.1992) (panel of the Eleventh
Circuit states that in determining whether a district court may assert personal
jurisdiction depends upon whether the district court could obtain personal
jurisdiction over the defendants pursuant to the applicable state long-arm
statute and whether the exercise of personal jurisdiction would violate the
Due Process Clause of the Fourteenth Amendment), cert. denied sub nom.
South Carolina Property & Casualty Ins. Guar. Ass’n v. Olivier, 507 U.S.
983, 113 S.Ct. 1577, 123 L.Ed.2d 145, and cert. denied sub nom. Louisiana
Ins. Guar. Ass’n v. Olivier, 508 U.S. 910, 113 S.Ct. 2342, 124 L.Ed.2d 252
(1993).
Where, as here, the courts of the forum state have interpreted the
forum’s long-arm statute to confer jurisdiction to the limits allowed by
federal due process, Ruiz de Molina v. Merritt & Furman Ins. Agency, Inc.,
6
207 F.3d 1351, 1355–56 (11th Cir.2000) (“Alabama permits its courts to
exercise jurisdiction over nonresidents to the fullest extent allowed under the
Due Process Clause of the Fourteenth Amendment to the Constitution.”); Ex
parte Lagrone, 839 So.2d 620, 623 (Ala.2002) (“Rule 4.2, Ala.R.Civ.P.,
Alabama’s long-arm rule, ‘extends the personal jurisdiction of Alabama
courts to the limits of due process under the federal and state constitutions.’
”); see also Steel Processors, Inc. v. Sue’s Pumps, Inc. Rentals, 622 So.2d
910, 911 (Ala.1993); Sieber v. Campbell, 810 So.2d 641 (Ala.2001); and
Duke v. Young, 496 So.2d 37 (Ala.1986), state law need not be applied: this
Court “need only ask whether the exercise of jurisdiction over the
nonresident defendant comports with due process.” Vermeulen, supra, 975
F.2d at 753; see also Olivier, supra, 979 F.2d at 830 (same) and Morris v.
SSE, Inc., 843 F.2d 489, 492 n. 3 (11th Cir.1988) (“This case presents no
need to examine Alabama’s long-arm jurisdictional statute because that
statute authorizes a court to assert personal jurisdiction to the limits of federal
due process.... We recognize that it is well-established in this circuit that in a
diversity case, a federal district court adjudicating a motion to dismiss for
lack of personal jurisdiction must determine whether [the] assertion of
jurisdiction comports with both state law and the due process requirements
of the United States Constitution.... However, where the forum’s courts
interpret the forum’s long-arm statute to the limits of federal due process, we
believe it is not necessary to apply state law; application of the federal
International Shoe two-part analysis will suffice.”).
Turning to that seminal case, one can see that a nonresident defendant
is amenable to a forum’s jurisdiction if “(1) it possesses sufficient minimum
contacts with the forum State to satisfy due process requirements, and (2) the
forum’s exercise of jurisdiction comports with ‘traditional notions of fair
play and substantial justice.’ ” Vermeulen, supra, 975 F.2d at 754 (quoting
International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158,
90 L.Ed. 95 (1945), in turn quoting Milliken v. Meyer, 311 U.S. 457, 463, 61
S.Ct. 339, 343, 85 L.Ed. 278 (1940)). As stated in Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80
L.Ed.2d 404 (1984) (citations omitted), “[d]ue process requirements are
satisfied when in personam jurisdiction is asserted over a nonresident
corporate defendant that has certain minimum contacts with [the forum] such
that the maintenance of the suit does not offend ‘traditional notions of fair
play and substantial justice.’ ” See also Ruiz de Molina, supra, 207 F.3d at
1356 (“The Due Process Clause permits a court to summon a nonresident to
defend himself in the forum so long as that person has some minimum
contacts with that state and the exercise of personal jurisdiction over the
defendant would not offend traditional notions of fair play and substantial
7
justice.”); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct.
199, 2 L.Ed.2d 223 (1957) (same).
As this court has stated elsewhere, “[j]urisdiction may be either
general or specific,” with general jurisdiction applying where a defendant’s
activities in the forum state are “substantial or continuous and systematic,
regardless of whether those activities gave rise to the lawsuit” and specific
jurisdiction where “a defendant has had few contacts with the forum state,
but those contacts gave rise to the lawsuit.” Campus, 2008 WL 183344, at
*15 (quoting Leventhal v. Harrelson, 723 So.2d 566, 569 (Ala.1998)). To aid
in this analysis, the Supreme Court has stated that when a cause of action is
related to or arises out of a nonresident defendant’s contacts with the forum,
“the relationship among the defendant, the forum, and the litigation is the
essential foundation of in personam jurisdiction.” Helicopteros, supra, 466
U.S. at 414, 104 S.Ct. at 1872 (quoting Shaffer v. Heitner, 433 U.S. 186, 204,
97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977)). Moreover, the Eleventh Circuit
has stated:
Specific jurisdiction arises out a party’s activities in the forum
that are related to the cause of action alleged in the complaint.
It has long been recognized that a court has the minimum
contacts to support specific jurisdiction only where a defendant
purposely avails itself of the privilege of conducting activities
within the forum State, thus invoking the benefits and
protections of its laws. The requirement that there be minimum
contacts is grounded in fairness. It assures that “the defendant’s
conduct and connection with the forum State [is] such that he
should reasonably anticipate being haled into court there.”
Consolidated Development Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th
Cir.2000) (internal citations omitted) (emphasis added), cert. denied, 534
U.S. 827, 122 S.Ct. 68, 151 L.Ed.2d 34 (2001). See also Dillon Equities v.
Palmer & Cay, Inc., 501 So.2d 459, 462 (Ala.1986) (quoting World–Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490
(1980)) (“The foreseeability that is critical to due process analysis ... is that
the defendant’s conduct and connection with the forum state are such that he
should reasonably anticipate being haled into court there.”).
Id. at 1286-1287.
Turning to the instant matter, plaintiff makes clear that he does not contend that this
court has general jurisdiction over defendants; rather, it is his “position that the defendants
8
engaged in very deliberate and purposeful acts which gave rise to a reasonable expectation
of being haled into an Alabama court when they knowingly and unlawfully certified and
enabled an unqualified commercial truck driver to operate a tractor trailer in the State of
Alabama.” See Doc. 11 at 8. Thus, the relevant inquiry in this case is whether or not the
court has specific jurisdiction over the defendants.
The law governing specific jurisdiction in this Circuit was recently summarized in
Matson v. Steve’s Truck & Trailer Repairs, Inc., 2017 WL4472717 (N.D. Ala. 2017). The
court explained:
Where a forum seeks to assert specific personal jurisdiction over a
nonresident defendant, due process requires the defendant have ‘fair
warning’ that a particular activity may subject him to the jurisdiction of a
foreign sovereign.” Madara, 916 F.2d at 1516. The inquiry whether a forum
State may assert specific jurisdiction over a nonresident defendant focuses
on “the relationship among the defendant, the forum, and the litigation.”
Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984) (quoting Shaffer
v. Heitner, 433 U.S. 186, 204 (1977)). Specific jurisdiction does not require
a large volume of contacts with the forum state, as even a single purposeful
contact may give rise to personal jurisdiction. See McGee v. Int'l Life Ins.
Co., 355 U.S. 220, 223 (1957); see also Licciardello v. Lovelady, 544 F.3d
1280, 1285 (11th Cir. 2008) (“The Court has made clear ... that ‘[s]o long as
it creates a “substantial connection” with the forum, even a single act can
support jurisdiction.’ ” (quoting Burger King Corp. v. Rudzewicz, 471 U.S.
462, 475 n.18 (1985))).
For a state to exercise jurisdiction consistent with due process, the
defendant’s suit-related conduct must create a substantial connection with
the forum state. Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). The contacts
with the forum state must also be purposeful and created by the “defendant
himself.” Walden, 134 S. Ct. at 1122 (“We have consistently rejected
attempts to satisfy the defendant-focused ‘minimum contacts’ inquiry by
demonstrating contacts between the plaintiff (or third parties) and the forum
State.”). Due process requires that a defendant be subjected to specific
jurisdiction of a State “based on his own affiliation with the State, not based
on the ‘random, fortuitous, or attenuated’ contacts he makes by interacting
with other persons affiliated with the State.” Walden, 134 S. Ct. at 1123
9
(quoting Burger King, 471 U.S. at 475). Related to purposefulness, the Court
must determine whether the defendant has a sufficient connection to the
forum “that he should reasonably anticipate being haled into court there.”
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
If the Court finds that sufficient contacts exist to subject an out-ofstate defendant to the forum state’s courts, the Court must also consider
whether the exercise of jurisdiction would “offend ‘traditional notions of fair
play and substantial justice.’” Asahi Metal Indus. Co. v. Superior Court of
California, Solano Cty., 480 U.S. 102, 113 (1987) (quoting Int’l Shoe Co.,
326 U.S. at 316). This analysis requires weighing various factors: the burden
placed upon the defendant, the interests of the forum state in deciding the
dispute, the plaintiff’s interest in litigating in that forum, the interests of the
interstate judicial system in an efficient resolution of disputes, and the
interests of fundamental social policies. See World-Wide Volkswagen Corp.,
444 U.S. at 292; Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d
1247, 1251 (11th Cir. 2000).
Id. at *3.
The facts relevant to the jurisdictional question before the court are not in dispute.5
Southeast Permanente is a Georgia corporation in the business of providing medical
services in a specific region in Georgia. There is no allegation or evidence to suggest that
it conducts business in Alabama. Simpson is a Georgia resident who is licensed to and
practices medicine in Georgia. There is no allegation or evidence to suggest that he is
licensed to or practices medicine in Alabama or has any connections whatsoever to
Alabama. The physical examination of Hawkins, who is Georgia resident, 6 was conducted
In support of their motion to dismiss/transfer venue, defendants offer an affidavit, executed by
Simpson, which outlines facts regarding his residence, medical practice, and treatment of Hawkins.
See Doc. 2-1. In his opposition to the motion to dismiss, plaintiff comes forward with medical
records which he contends demonstrates that Simpson knew Hawkins would travel to Southeastern
states, including Alabama. See Docs. 11-1 through 11-4.
5
See Doc. 11-4 (medical record noting “[n]o mention of family, but he does have a home base here
in ATL and is in town on Wednesday and Friday”) and Doc. 19-2 at 1 (affidavit stating, “I am an
adult [sic] resident citizen of Decatur, Georgia … .”)
6
10
in Georgia. There are no allegations that either defendant committed tortious acts in
Alabama; rather, it is undisputed that the three alleged torts occurred in Georgia.
Plaintiff does not contest these facts, but argues that this court nonetheless has
specific jurisdiction over these defendants because Simpson made a voluntary decision to
certify Hawkins for interstate travel with the knowledge that Hawkins was a truck driver
who operated in Southeastern states. Accordingly, plaintiff argues, Simpson had “fair
warning” that he could be brought into court in any state, including but not limited to,
Alabama. The court cannot agree.
The lack of contacts between defendants and Alabama compels the conclusion that
Alabama lacks specific jurisdiction over those defendants. It is clear from the record that
defendants, a Georgia corporation and Georgia doctor, have a connection to the plaintiff,
vis-à-vis the decedent, only indirectly by their contact with Hawkins, a Georgia resident
who drove his tractor-trailer in Alabama and collided with the decedent. See Matson at *4.
There is no suggestion that defendants initiated or established any direct contacts with
plaintiff or the decedent. See id. The conduct underlying the claims against them –
Simpson’s certifying that Hawkins was fit to drive a commercial vehicle and Southeast
Permanente’s supervision of Simpson – occurred in Georgia. See id.
Moreover, plaintiff has not shown that the defendants intended or knew that
Hawkins would drive his truck in Alabama. See id. Plaintiff argues in his brief that Simpson
knew at the time of the physical examination that Hawkins is a commercial truck driver
who engages in interstate driving in the southeast. Plaintiff offers as evidence a medical
record stating that Hawkins “drives interstate (SE states) for a commercial trucking
11
company, and he owns his own truck.” See Doc. 11-4. Plaintiff does not, however, offer
any evidence that Simpson knew or should have known that Hawkins would be driving in
Alabama. This court cannot conclude that Simpson knew or should have known that
Hawkins would drive his truck in Alabama simply because he knew that Hawkins drives
his truck on the interstate in southeastern states, of which there are arguably upwards of
thirteen. Plaintiff also argues that because Alabama is a “neighboring state” to Georgia,
Simpson necessarily understood that Hawkins would be driving in Alabama. See Doc. 11
at 19. The court is likewise unconvinced that Alabama’s geographic proximity to Georgia
provides a basis for a conclusion that Simpson knew or should have known that Hawkins
would drive through Alabama, as there are countless interstate routes that Hawkins could
have followed from a major hub such as Atlanta that would not have involved his traversing
this state. Moreover, even if it were technically true that defendants “could foresee” that
Hawkins would drive in Alabama, or for that matter, any other state in the contiguous
United States, “foreseeability alone has never been a sufficient benchmark for personal
jurisdiction.” Matson at *4 (quoting World-Wide Volkswagen, 444 U.S. at 295)
Ultimately, defendants’ “sole connection to Alabama is based on ‘random,
fortuitous, or attenuated” contacts caused by third parties and not by [defendants
themselves].” See Matson at *4. Therefore, plaintiff has failed to demonstrate that
12
defendants “purposefully directed” conduct towards Alabama, and that specific jurisdiction
exists.7 See id.8
Because the court has found there are insufficient contacts to support a conclusion
that this court has specific jurisdiction over the defendants, the court “need not evaluate
whether jurisdiction over [the defendants] would be fair.” Id. at * 4 (citing Hanson v.
Denckla, 357 U.S. 235, 254 (1958); World-Wide Volkswagen, 444 U.S. at 294)(“Even if
the defendant would suffer minimal or no inconvenience from being forced to litigate
before the tribunals of another State; even if the forum State has a strong interest in
applying its law to the controversy; even if the forum State is the most convenient location
The court finds that plaintiff has failed to make a prima facie showing of personal jurisdiction
over the non-resident defendants. Assuming, arguendo, such a showing had been made, plaintiff
has not come forward with evidence sufficient to withstand a motion for directed verdict on the
issue of personal jurisdiction.
7
The court has not found, and the parties have not produced, any Eleventh Circuit precedent that
is squarely on point. Indeed, it has proven difficult to find any case that addresses the narrow
factual issue presented here. However, one case from the Middle District of Louisiana is strikingly
similar. See Courville v. National Freight, 2010 WL 3718862 (M.D. La. Sept. 14, 2010). In that
case, similarly to this one, Florida doctors allegedly certified that a Florida-based truck driver was
qualified to carry a commercial driver’s license, despite the fact that he was an insulin-dependent
diabetic and was medically unqualified to operate a commercial motor vehicle under federal law.
As in this case, the truck driver then traveled through Louisiana and was involved in an accident
with a Louisiana resident. The Louisiana plaintiff brought suit against the doctors in Louisiana,
alleging that at the time they conducted the DOT physical and issued their certification, they knew
or should have known that the driver was seeking a medical certification to drive a commercial
motor vehicle across state lines and that their failure to diagnose and report his insulin-dependent
condition was highly likely to cause a collision in Louisiana. The court in that case applied the
“effects” test that the Eleventh Circuit reserves for determining whether there is personal
jurisdiction over defendants against whom intentional torts, as opposed to torts such as negligence,
are alleged. Therefore, the court’s reasoning does not translate directly to this case. However, it
bears noting that, in Courville, the court granted the doctors’ motion to dismiss for lack of personal
jurisdiction. With facts and arguments nearly identical to those in this case, the court determined
that plaintiffs had failed to show that defendants’ connection with Louisiana was such that they
should reasonably anticipate being haled into court there. See Courville at *3-4.
8
13
for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may
sometimes act to divest the State of its power to render a valid judgment.”). See also Berry
v. Salter, 179 F. Supp. 2d 1345, 1349 (M.D. Ala. 2001).
B.
Transfer
The remaining issue is whether or not this case should be transferred to another
district in lieu of dismissal in the absence of personal jurisdiction over the defendants.
“Pursuant to 28 U.S.C. §1406(a), district courts lacking personal jurisdiction over a nonresident defendant have discretion to transfer the defendant’s case to ‘any district in which
it could have been brought,’ so long as the transfer ‘is in the interest of justice.’” Alpha
Comm Enterprises, Inc. v. Next Vision, Inc., 2014 WL 12539706 (M.D. Fla. 2014)(quoting
28 U.S.C. §1406(a)). See also Ultra Products, Inc. v. Antec, Inc., 2009 WL 10670800
(M.D. Fla. 2009)(“Section 1406(a) operates ‘where a suit is filed in federal court in a
district in which venue or personal jurisdiction is improper’”)(emphasis added)(citing
Manley v. Engram, 755 F.2d 1463, 1467 (11th Cir. 1985); Patent Holder LLC v. Lone Wolf
Distributors, Inc., 2017 WL 5032989, *3 (S.D. Fla. 2017)(holding that a transfer under §
1406 is warranted if the district is wrong, and clarifying that “[a] district is wrong within
the meaning of § 1406 whenever there exists an obstacle to expeditious and orderly
adjudication on the merits” and that “although the statute speaks only of cases where venue
in the original forum is wrong, it has been held to operate where there exists in the original
forum an obstacle – whether incorrect venue, absence of personal jurisdiction, or both – to
14
prompt adjudication on the merits.” (citing Dubin v. U.S., 380 F.2d 813, 816 (5th Cir.
1967),9 and Manley, 755 F.2d at 1467)(internal quotation marks omitted).
The fact that this case was originally filed in state court and removed to this court –
the only proper venue under the removal statute10 – does not render the court powerless to
transfer pursuant to § 1406(a). See Aguacate Consol. Mines, Inc. of Costa Rica v.
Deeprock, Inc., 566 F.2d 523, 524-525 (5th Cir. 1978)(holding that a removed action can
be transferred pursuant to § 1406(a) if personal jurisdiction over defendant cannot be
exercised in the district to which action is removed, even where venue is proper in the
removal court)11; Hollis at 1300 (11th Cir. 2001)(citing Aguancante for the proposition that
in a removal case “there may be even be a basis for requesting a transfer pursuant to §
1406(a) … .”); Harris v. Nichols Concrete Equipment Co., Inc., 2002 WL 31729490, *4-5
(E.D. LA. 2002)(citing Aguacante for the proposition that removal case involving
defendants over whom the court had no personal jurisdiction could be transferred, pursuant
to § 1406(a), to a district in which the case could have been brought).
“To transfer a case under § 1406(a), ‘it is enough simply that the court thinks
transfer is in the interest of justice.’ Vulcan Marketing, Inc. v. United Furniture Industries
Bolivia, S.A., 2010 WL 11566476, at *6 (N.D.Ala. 2010)(quoting 14D Charles Alan
9
Under Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court is
bound by cases decided by the former Fifth Circuit before October 1, 1981.
In removal cases, 28 U.S.C. § 1391 does not apply. Rather, 28 U.S.C. § 1441(a) governs the
district to which the case shall be removed. It requires removal to the district court for the district
in which the state action is pending. See 28 U.S.C. § 1441(a); Hollis v Fla. State Univ., 259 F.3d
1295, 1299-1300 (11th Cir. 2001).
10
11
See footnote 7, supra.
15
Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3811
(3d ed. 2007). “Courts generally perceive transfer to further the interests of justice more
than dismissal.” Alpha Comm at *4.
This case could have been brought in the Northern District of Georgia, as both
defendants are residents of that judicial district. See 28 U.S.C. § 1391(b)(1)(“A civil action
may be brought in – (1) a judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located[.]”) Venue is proper in the Northern
District of Georgia, and the Georgia defendants are unquestionably subject to personal
jurisdiction in that state. Moreover, the alleged torts occurred in the Northern District of
Georgia. Further, considering that the court has no reason to believe that plaintiff’s choice
to file this case in this district was made in bad faith, the court finds that the interests of
justice favor transfer, “so as to avoid the undue delay and expense associated with
dismissing this action without prejudice.” Alpha Comm at *4. “Such a transfer will also
moot the personal jurisdiction objection and facilitate the resolution of this dispute on the
merits.” Vulcan Marketing, Inc. v. United Furniture Industries, Bolivia, S.A., 2010 WL
11566476, *6 (N.D. Ala. 2010)(citing Glazier Group, Inc. v. Mandalay Corp., 2007 WL
2021762 at *14 (S.D. Tex. 2007)(transferring a case in which objections to personal
16
jurisdiction and venue were raised). Therefore, the court concludes that this case is due to
be transferred to the Northern District of Georgia.12,13
CONCLUSION
For the reasons discussed above, it is hereby ORDERED as follows:
12
The decision whether to transfer a case … pursuant to … § 1406, is left to the sound discretion
of the district court and is reviewable only for an abuse of that discretion. Id. at *3 (citing Pinson
v. Rumsfeld, 192 Fed. Appx. 811, 817 (11th Cir. 2006); Nowell v. Dick, 413 F.2d 1204, 1212 (5th
Cir. 1969)).
13
Given the court’s finding that it lacks personal jurisdiction, it also concludes that it would be in
the interests of justice to transfer this case pursuant to 18 U.S.C. § 1631, which provides:
Whenever a civil action is filed in a court as defined in section 610 of this title or
an appeal, including a petition for review of administrative action, is noticed for or
filed with such a court and that court finds that there is a want of jurisdiction, the
court shall, if it is in the interest of justice, transfer such action or appeal to any
other such court in which the action or appeal could have been brought at the time
it was filed or noticed, and the action or appeal shall proceed as if it had been filed
in or noticed for the court to which it is transferred on the date upon which it was
actually filed in or noticed for the court from which it is transferred.
§ 1631. See also Estate of Hicks ex rel. Hicks v. Wallack, 2012 WL 2254170, 11 (S.D. Ala.
2012)(in lieu of dismissal for lack of personal jurisdiction, transferring case pursuant to §
1631)(citing Trujillo v. Williams, 465 F.3d 1210, 1222 (10th Cir.2006)(A court may sua sponte
cure jurisdictional and venue defects by transferring a suit under the federal transfer statutes, 28
U.S.C. §§ 1406(a) and 1631, when it is in the interests of justice.”); Liriano v. United States, 95
F.3d 119, 122 (2nd Cir.1996)(“The legislative history of § 1631 indicates that “Congress
contemplated that the provision would aid litigants who were confused about the proper forum for
review.”); Hempstead County and Nevada County Project v. U.S. E.P.A., 700 F.2d 459, 462 (8th
Cir. 1983)(“The language of [28 U.S.C. § 1631] itself provides us with the analysis to utilize when
applying the transfer provision. First, the court where the action is originally filed must find that
there is a want of jurisdiction; second, the court must determine if it is in the interest of justice;
and third, that court shall then transfer the action to any such court in which the action could have
been brought at the time it was filed.”); Wieler v. Entrenet Nutritionals, Inc., 2004 WL 2988522,
*4 (D. Minn. 2004)(“Although the Court declines to find sufficient contacts to confer personal
jurisdiction in Minnesota, the Court finds that the interests of justice warrant transfer of this action
to the District of North Dakota. 28 U.S.C. § 1631.)).
17
(1) Defendants’ motion to transfer venue and alternative motion to dismiss for lack
of personal jurisdiction is GRANTED in part and DENIED in part, as follows:
a. The motion is GRANTED with respect to defendants’ request for transfer
to the United States District Court for the Northern District of Georgia.
b. In all other respects, the motion is DENIED without prejudice.
(2) The Clerk of Court is DIRECTED to take all necessary steps to TRANSFER this
case to the United States District Court for the Northern District of Georgia for
all further proceedings and to close this file.
Done, on this the 23rd day of March, 2018.
/s/ Susan Russ Walker_________
Susan Russ Walker
United States Magistrate Judge
18
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