Doe v. Cigna Corporation, et al

Filing 35

ORDER granting 21 motion to dismiss. Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff shall file an amended complaint by August 2, 2017. Signed by Judge Susan C Bucklew on 7/19/2017. (GAG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN DOE a/k/a P.A.D.,
Plaintiff,
v.

Case No.: 8:17-cv-700 T-24 AEP

CIGNA CORP. and PAMELA
JASPER a/k/a PAMELA JACQUES,
Defendants.
_________________________________/
ORDER
This cause comes before the Court on Defendant Cigna Corporation’s (“Cigna”) and
Defendant Pamela Jasper a/k/a Pamela Jacques’s (“Jasper”) Motion to Dismiss (Doc. 21) and
Plaintiff John Doe a/k/a P.A.D.’s response thereto (Doc. 34). For the following reasons,
Defendants’ Motion to Dismiss is GRANTED, and Plaintiff’s complaint is DISMISSED
WITHOUT PREJUDICE.
The complaint in this action, removed from state court, alleges that Cigna and Jasper, a
purported employee of Cigna, unlawfully disclosed protected health information in connection
with their review of Plaintiff’s eligibility for long-term disability benefits pursuant to a plan
underwritten by Cigna and provided by Plaintiff’s employer. (See Doc. 2). The complaint
contains counts against Defendants for invasion of privacy, negligence per se, negligence,
intentional infliction of emotional distress, and negligent infliction of emotional distress. (See
Doc. 2). Defendants now move to dismiss the complaint for lack of personal jurisdiction, lack of
subject-matter jurisdiction, and failure to state a claim upon which relief can be granted. (Doc.
21).

1

Courts typically address personal jurisdiction issues before subject-matter jurisdiction,
failure to state a claim, and venue because a “court without personal jurisdiction is powerless to
take further action.” Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 n.6 (11th Cir. 1999); see
also Read v. Ulmer, 308 F.2d 915, 917 (5th Cir. 1962) 1 (“It would seem elementary that if the
court has no jurisdiction over a defendant, the defendant has an unqualified right to have an order
entered granting its motion to dismiss.”). In order to survive a motion to dismiss, a plaintiff must
allege “sufficient facts to support a reasonable inference that the defendant can be subjected to
the jurisdiction of the court.” Jackam v. Hosp. Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579
(11th Cir. 1986) (citation omitted).
The Court applies a two-part test in determining whether the exercise of personal
jurisdiction over a non-resident defendant is proper. 2 Horizon Aggressive Growth, L.P. v.
Rothstein–Kass, P.A., 421 F. 3d 1162, 1166 (11th Cir. 2005). First, the Court must determine
whether the Florida long-arm statute provides a basis for personal jurisdiction. Sculptchair, Inc.
v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir. 1996). If such a basis does exist, the court must
then determine whether sufficient minimum contacts exist between the defendants and the forum
state so as to satisfy “traditional notions of fair play and substantial justice” under the Due
Process Clause of the Fourteenth Amendment. Id. (citations omitted).
As relevant here, Florida’s long-arm statute provides:
(1)(a) A person, whether or not a citizen or resident of this state, who
personally or through an agent does any of the acts enumerated in
this subsection thereby submits himself or herself and, if he or she
is a natural person, his or her personal representative to the

1
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as
binding precedent all decisions of the former Fifth Circuit rendered prior to the close of business on September 30,
1981.
2
While Plaintiff never alleges the residency of Defendants in his complaint, he does not dispute in his response
Defendants’ affidavits which state neither Cigna nor Jasper are residents of Florida. (See Docs. 22-1 and 22-2).

2

jurisdiction of the courts of this state for any cause of action arising
from any of the following acts:
1. Operating, conducting, engaging in, or carrying on a
business or business venture in this state or having an
office or agency in this state.
2. Committing a tortious act within this state.
...
6. Causing injury to persons or property within this state
arising out of an act or omission by the defendant outside
this state, if, at or about the time of the injury, either:
a. The defendant was engaged in solicitation or
service activities within this state . . . .
Fla. Stat. § 48.193. 3 “A plaintiff seeking to obtain jurisdiction over a nonresident defendant
initially need only allege sufficient facts to make out a prima facie case of jurisdiction.” Posner,
178 F.3d at 1214 (citing Electro Eng’g Prods. Co. v. Lewis, 352 So. 2d 862, 864 (Fla. 1977)).
The plaintiff bears the burden of proving “by affidavit the basis upon which jurisdiction may be
obtained” only if the defendant challenging jurisdiction files “affidavits in support of his
position.” Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989).
In their Motion to Dismiss, Defendants state that Cigna did not underwrite the long-term
disability plan at issue. (Doc. 21, p. 2). Instead, Defendants assert, Cigna’s subsidiary, the
Connecticut General Life Insurance Company (“Connecticut General”), underwrote the plan and
was Jasper’s employer. (Doc. 21, p. 2). Moreover, Defendants argue that there is a complete lack
of any jurisdictional facts concerning Cigna. (Doc. 21, p. 6). Plaintiff apparently agrees,
conceding that the Court lacks personal jurisdiction over Cigna and indicating that it will amend

3

In his response, Plaintiff quotes the Georgia long-arm statute. (Doc. 34, p. 3). The Court would remind Plaintiff
that this Court is in Florida and, therefore, Florida’s long-arm statute applies. See, e.g., Meier v. Sun Intern. Hotels,
Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002).

3

its complaint to drop Cigna and add Connecticut General 4 as a defendant. (Doc. 34, p. 2).
Accordingly, the Court finds that dismissal is proper as to Defendant Cigna. The Court would
note that even if Plaintiff did not concede to the lack of personal jurisdiction over Cigna,
Plaintiff’s complaint fails to allege sufficient facts to make out a prima facie case of personal
jurisdiction.
As to Defendant Jasper, Defendants assert that the complaint contains no jurisdictional
allegations regarding Jasper and no facts to support personal jurisdiction. (Doc. 21, p. 8).
Plaintiff argues in his response that Jasper, as the agent of Connecticut General, regularly
conducted and solicited business in Florida by way of targeting residents of Florida as a market
for Connecticut General’s insurance policies. (Doc. 34, p. 5). But Plaintiff’s complaint, as pled,
does not allege sufficient facts to make out a prima facie case of personal jurisdiction under
Florida’s long-arm statute. There are no allegations that Jasper resides in Florida, operates a
business in Florida, committed a tortious act in Florida, or was engaged in solicitation or service
activities within Florida. In fact, it is completely devoid of any allegations from which this Court
could conclude that Jasper is subject to personal jurisdiction in this Court. And Plaintiff’s
conclusory, unsworn statements in its response do not remedy this failure. Defendants have
submitted an affidavit in which Jasper testifies that she is in fact a Texas resident and does not do
business in Florida. (Doc. 22-2). It is Plaintiff’s burden to prove “by affidavit the basis upon
which jurisdiction may be obtained” if the defendant challenging jurisdiction files “affidavits in
support of his position.” Venetian Salami, 554 So. 2d at 502. Plaintiff has failed to do so.
Accordingly, the Court concludes that Plaintiff’s complaint fails to allege “sufficient facts
to support a reasonable inference” that Jasper is subject to personal jurisdiction in this Court, see

4

Because Connecticut General is not currently a defendant in this case, the Court takes no position as to whether
there is personal jurisdiction over Connecticut General.

4

Jackam, 800 F.2d at 1579, and Plaintiff’s complaint is due to be dismissed.5 To be clear, the Court
is not determining that Jasper is not subject to personal jurisdiction; instead, it concludes that the
complaint, as pled, fails to make out a prima facie case of personal jurisdiction. Thus, this dismissal
is without prejudice. Plaintiff shall file an amended complaint by August 2, 2017.
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants’ Motion to
Dismiss is GRANTED. Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE.
Plaintiff shall file an amended complaint by August 2, 2017.
DONE AND ORDERED at Tampa, Florida, this 19th day of July, 2017.

Copies to:
Counsel of Record

5

Because the Court does not have personal jurisdiction over Jasper given the allegations in the complaint as
currently pled, it does not reach Defendants’ arguments that this case should be dismissed for lack of subject-matter
jurisdiction or for failure to state a claim. See Posner, 178 F.3d at 1214 n.6.

5