Jones et al v. Dallas Neurosurgical and Spine Associates PA et al

Filing 41

ORDER denying 39 Motion to Enlarge Time; granting 10 Motion to Dismiss for Lack of Jurisdiction; granting 13 Motion to Dismiss; granting 18 Motion to Dismiss for Failure to State a Claim without prejudice. Again (see doc. 38 ), we stron gly urge plaintiffs to seek the advice of counsel. It is difficult for a party to successfully manage the complexities of a lawsuit unaided by a lawyer. Lawyers serve the important function of evaluating a case and guiding parties through the legal process. In light of plaintiffs' claims of medical problems, they especially would do well to obtain a lawyer. The clerk is directed to enter final judgment dismissing this action without prejudice. Signed by Judge Frederick J Martone on 2/13/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiffs,
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vs.
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Dallas Neurosurgical and Spine Associates)
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et al.,
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Defendants.
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Alan W. Jones et al.,

No. CV 12-02286-PHX-FJM
ORDER

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We have before us defendants Texas Health Presbyterian Hospital of Dallas and Lora
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Jean Enty's ("Hospital Defendants") motion to dismiss (doc. 10), defendants Dr. Jeremy
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Denning, Dr. Richard Jackson, and Dallas Neurosurgical & Spine Associates' ("Doctors")
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motion to dismiss (doc. 13), notice of errata and supplement to Doctors' motion to dismiss
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(doc. 21), defendant Medtronic Sofamor Danek USA Inc.'s ("Medtronic") motion to dismiss
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(doc. 18), Medtronic's notice of supplemental authority (doc. 23), Medtronic's second notice
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of supplemental authority (doc. 40), and plaintiffs' motion to enlarge time (doc. 39).
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On January 29, 2012, we denied plaintiffs' motion for a six month enlargement of time
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and granted plaintiffs an extension up to and including February 8, 2013 to file responses to
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defendants' motions to dismiss. See Doc. 38. Therefore, we construe plaintiffs' motion to
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enlarge time (doc. 39) as a motion for reconsideration. A court “will ordinarily deny a
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motion for reconsideration of an Order absent a showing of manifest error or a showing of
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new facts or legal authority that could not have been brought to its attention earlier with

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reasonable diligence.” LRCiv 7.2(g). We have already considered plaintiffs' arguments

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regarding their medical condition. While we are sensitive to medical issues, a six month

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extension of time in all events is unreasonable. The motion for reconsideration is denied

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(doc. 39). Retention of counsel would solve plaintiffs' claim of present inability to prosecute

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this case.

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Plaintiffs have failed to respond to any of defendants' motions and the time for doing

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so has expired. See LRCiv 12.1(b), LRCiv 7.2(c). Plaintiffs' failure to respond to the

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motions may be deemed a consent to the granting of the motions and we may dispose of the

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case summarily. LRCiv 7.2(i). Moreover, the basis for granting the motions is so plain that

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we can do so without a response.

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As an initial matter, we note that plaintiffs' complaint fails to satisfy the standards of

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Rule 8, Fed. R. Civ. P. A complaint must contain “a short and plain statement of the claim

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showing that the pleader is entitled to relief.” Rule 8(a)(2), Fed. R. Civ. P. Plaintiffs' sixty-

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nine page complaint does not clearly identify causes of action or the relief plaintiffs are

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entitled to. Moreover, it is unclear whether the long excerpts of Arizona and Texas case law

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followed by plaintiffs' commentary are intended to form the basis of a claim. The complaint

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fails to meet the requirement that “[e]ach allegation must be simple, concise, and direct.”

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Rule 8(d)(1), Fed. R. Civ. P.

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Medtronic and the Hospital Defendants seek dismissal on the ground that plaintiffs

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have failed to state a claim upon which relief can be granted. A complaint may survive a

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motion to dismiss only if, taking all well-pleaded factual allegations as true, it contains

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enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

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U.S. 663, 129 S.Ct. 1937, 1940, 173 L. Ed.2d 868 (2009) (citation omitted). As discussed

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above, plaintiffs fail to identify causes of action. Instead they seek a declaratory judgment

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tolling the statue of limitations. Defendants contend that plaintiffs have failed to establish

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the "case or controversy" necessary to allow the court to rule on a request for declaratory

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judgment. The Declaratory Judgment Act confers jurisdiction on federal courts to enter

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declaratory judgments in cases where the controversy requires "specific relief through a

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decree of a conclusive character, as distinguished from an opinion advising what the law

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would be upon a hypothetical state of facts." Calderon v. Ashmus, 523 U.S. 740, 740-741,

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118 S. Ct. 1694, 1695-1696 (1998) (citation omitted). Here, rather than seeking a conclusive

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determination of the underlying controversy – whether defendants are liable to plaintiffs for

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any of the alleged harm – plaintiffs seek a declaratory judgment that renders the statute of

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limitations (an affirmative defense) inapplicable to causes of action which have not been

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identified. The Declaratory Judgment Act cannot be used to obtain an advance ruling on an

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affirmative defense. See id. at 747. Therefore, plaintiffs' claim for relief is not justiciable,

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and must be dismissed under Rule 12(b)(6), Fed. R. Civ. P.

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Doctors and Hospital Defendants move to dismiss for lack of personal jurisdiction.

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The plaintiff bears the burden of establishing that a court has personal jurisdiction over a

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defendant. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).

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General jurisdiction exists only where the defendant has "substantial" or "continuous and

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systematic general business contacts," Helicopteros Nacionales v. Hall, 466 U.S. 408, 415-

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16, 104 S. Ct. 1868, 1872-73 (1984), that "approximate [a] physical presence" in the forum

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state. Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000).

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Specific jurisdiction exists only when (1) the non-resident defendant purposefully directs its

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activities toward the forum or resident thereof; (2) the claim arises out of or relates to the

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defendant's forum-related activities; and (3) the exercise of jurisdiction is reasonable. Harris

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Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003)

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(citation omitted). The Doctors and Hospital Defendants contend that they are not subject

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to general or specific jurisdiction in an Arizona court because they are not residents of the

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State of Arizona, they have never conducted business-related activities in Arizona, and they

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have never purposefully directed activities toward the state. Plaintiffs concede that the

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healthcare services which form the basis of their complaint occurred exclusively in Texas,

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and they do not allege that the Doctors or Hospital Defendants purposefully directed any
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activities toward Arizona. Complaint at ¶ 13-28. Therefore, plaintiffs have not met their

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burden of establishing that personal jurisdiction exists in this court.

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IT IS ORDERED DENYING plaintiffs' motion to enlarge time (doc. 39).

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IT IS FURTHER ORDERED GRANTING Hospital Defendants' motion to dismiss

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for lack of personal jurisdiction (doc. 10), GRANTING Doctors' motion to dismiss (doc. 13),

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and GRANTING Medtronic's motion to dismiss for failure to state a claim (doc. 18) without

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prejudice.

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Again (see doc. 38), we strongly urge plaintiffs to seek the advice of counsel. It is

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difficult for a party to successfully manage the complexities of a lawsuit unaided by a lawyer.

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Lawyers serve the important function of evaluating a case and guiding parties through the

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legal process. In light of plaintiffs' claims of medical problems, they especially would do

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well to obtain a lawyer.

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The clerk is directed to enter final judgment dismissing this action without prejudice.

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DATED this 13th day of February, 2013.

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