BULLINGTON v. PRECISE et al
ORDER denying 5 Motion to Dismiss Complaint, denying 15 Request and Application for Hearing on Defendant's Motion. Bullington is ordered to amend his complaint by 10/5/20016. Ordered by US DISTRICT JUDGE W LOUIS SANDS on 9/21/2016. (bcl)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
KENNETH E. BULLINGTON,
M.C. PRECISE, DMD;
JON F. STRENGTH, DMD;
DAVID N. STRENGTH, DMD, and
MICHAEL C. PRECISE, DMD, PA
d/b/a DIXIELAND DENTAL,
CASE NO.: 1:15-CV-176 (WLS)
Before the Court is Defendants M.C. Precise, D.M.D.; Jon F. Strength, D.M.D.;
David N. Strength, D.M.D.; and Michael C. Precise, D.M.D., P.A. d/b/a Dixieland
Dental’s 1 Motion to Dismiss (Doc. 5). Plaintiff Kenneth E. Bullington filed the instant
action alleging professional negligence and vicarious liability against Dixieland Dental on
September 23, 2015 in the Superior Court of Dougherty County, Georgia. (Doc. 1-1 at 8–
25.) Dixieland Dental removed the case to this court on October 28, 2015 on the basis of
diversity jurisdiction. (Doc. 1 at 2–4.) Dixieland Dental filed the instant motion to dismiss
the case on November 4, 2015. (Doc. 5.) Bullington filed a response opposing the Motion
on February 23, 2016 (Doc. 12) and an amended response on February 26, 2016 (Doc. 17).
Dixieland Dental filed a reply on March 8, 2016. (Doc. 19.) Bullington requested (Doc. 20)
and was granted (Doc. 21) leave to file a sur-reply, which he did on March 30, 2016 (Doc.
22). The Motion to Dismiss (Doc. 5) is now ripe for review.
Bullington has also filed a Request and Application for Hearing on Defendant’s
Motion to Dismiss. (Doc. 15.) The Court finds that a hearing on the Motion to Dismiss is
unnecessary and DENIES Bullington’s Motion (Doc. 15).
Hereinafter collectively referred to as “Dixieland Dental” or “Dixieland.”
Plaintiff Kenneth E. Bullington is a survivor of oral cancer. (Doc. 1-1 at 11.) In 2009
he underwent several rounds of radiation therapy which eliminated the cancerous tumor. (Id.
at 11–12.) Bullington is now cancer free. (Id. at 12.)
Following his treatment, Bullington sought out dental care. He worked as a travelling
salesman and became familiar with Dixieland Dental through a large billboard in Alabama
which advertised the business and its “1-800” phone number. (Doc. 12-14 at 1.) Bullington
first saw Dr. M.C. Precise at Dixieland on July 28, 2010 to make a treatment plan. (Doc. 1-1
at 12.) He returned on August 11, 2010 to have two teeth extracted by Dr. Jon F. Strength.
(Id. at 13.) Bullington alleges that Strength did not prescribe or refer Bullington for
hyperbaric oxygen, consult with Bullington’s radiation oncologist, receive proper informed
consent from Bullington, or obtain a proper medical history. (Id.)
Bullington was seen again by either Dr. Jon F. Strength or Dr. David N. Strength on
September 22, 2010, October 27, 2010, November 17, 2010, December 8, 2010, and March
16, 2011. (Id. at 14.) He saw Dr. M.C. Precise again on May 11, 2010. (Id.) On none of these
visits was Bullington’s jaw x-rayed; nor was he referred for hyperbaric oxygen. (Id.)
Bullington visited a second dentist’s office, King Family Dental Care, in Albany,
Georgia on September 25, 2012. (Id. at 15.) During a series of subsequent visits, he had
twelve teeth extracted. (Id.) He visited Dixieland again on September 10, 2013, where Dr.
David N. Strength performed a panoramic x-ray. (Id.) Strength noted that the x-ray was
normal; however Bullington contends that, at the time, he was developing an area of
necrosis in his right mandible. (Id.)
In 2014, Bullington began experiencing serious pain along his right mandible. (Id. at
16.) He was diagnosed with osteoradionecrosis, a condition consisting of bone death due to
radiation and loss of blood due to infection. (Id. at 17.) Ultimately, the disease led to a
mandibulectomy, suprahyoid neck dissection, and a tracheostomy, and three other surgeries.
(Id. at 18–19.) Bullington contends that Dixieland’s failure to consult with his oncologist,
receive informed consent, prescribe hyperbaric oxygen, and perform and accurately read an
x-ray on his jaw constituted professional negligence and was the proximate cause of his
subsequent diagnosis and surgeries. (Id. at 20–22.)
Dixieland Dental is a registered entity in Alabama, with its sole office located in
Midland City, Alabama. (Doc. 5-1 at ¶¶ 2–3.) It advertises on two local TV stations located
in Dothan, Alabama and on a local call-in cable TV show. (Doc. 5-1 at ¶¶ 5, 9.) The two
local TV stations broadcast over the air into Georgia. (Docs. 12-12; 12-10). However, in the
advertisement, Dixieland says “call today to see why south Alabama chooses Dixieland
Dental.” (Doc. 12-6.) The rest of Dixieland’s advertising is solely in Alabama. It has a
billboard in Alabama (Doc. 12-3) and sponsors sports teams in Alabama (Doc. 5-1 at ¶ 8). It
does not mail paper marketing into Georgia, bill or receive payments from Georgia, or pay
for any other sort of advertising in Georgia. (Id. at ¶¶ 10–11.)
However, Dothan, Alabama is near the Georgia border and Dixieland is the dentist
office of choice for a number of Georgia residents. Fourteen percent of Dixieland’s patients
report a Georgia zip code. 2 (Docs. 5-1 at ¶ 12; 12-11; 12-7.) While no bills are sent across
state lines, Dixieland does call into and receive calls from patients in Georgia regularly. In
2015, an average of 359 calls were made to Dixieland from Georgia per month and 55 calls
were made from Dixieland into Georgia per month. (Doc. 12-4.) Bullington himself spoke
with Dixieland by phone several times to schedule appointments. (Doc. 12-14 at 2.)
Bullington has also produced a document he alleges was created by Dixieland which
shows general directions to Dixieland from cities in Alabama, Georgia, and Florida. (Doc.
At some point prior to the instant litigation, Bullington and Dixieland began
discussing a potential settlement. On August 6, 2015, they entered into an agreement to “toll
the running of any and all statutes of limitations or statutes of repose which may be
applicable to any claims . . . .” (Doc. 12-9.) Dixieland noted it “would prefer to avoid having
a lawsuit filed against it,” so Bullington agreed to forego filing a lawsuit while the action was
purportedly tolled. (Id.) The original agreement proposed by the parties only purported to
toll the statute of limitations; however, it was revised by Bullington’s counsel to include the
statute of repose as well. (Doc. 19-1.) Ultimately the settlement efforts failed and Bullington
Bullington estimates that they account for $462,000 of revenue annually based on the total revenue of $3.3
million Dixieland brings in annually. (Doc. 17 at 3 n.3.) The Court is unwilling assume that the average
Georgia customer brings in the same amount of revenue as the average non-Georgia customer in the absence
of evidence. See Thomas v. Strange Eng'g, Inc., No. CV 111-074, 2012 WL 993244, at *3 (S.D. Ga. Mar. 22, 2012)
(refusing to accept estimate of percentage of sales into Georgia based on percentage of U.S. population living
filed suit against Dixieland Dental on September 23, 2015 in the Superior Court of
Dougherty County, Georgia. (Doc. 1-1 at 8–25.)
Standard of Review
Dixieland Dental first asserts that under Federal Rule of Civil Procedure 12(b) the
Court is without subject-matter jurisdiction to consider Bullington’s claim due to Georgia’s
five-year statute of repose for medical malpractice actions. O.C.G.A. § 9-3-71(b). “Rule
12(b)(1) permits a party to assert by motion the defense that the Court is without subjectmatter jurisdiction to consider a claim.” 3 Carmichael v. Kellogg, Brown & Root Servs., Inc., 572
F.3d 1271, 1279 (11th Cir. 2009). A challenge may be either facial or factual. “Facial attacks
challenge subject matter jurisdiction based on the allegations in the complaint, and the
district court takes the allegations as true in deciding whether to grant the motion. Factual
attacks challenge subject matter jurisdiction in fact, irrespective of the pleadings.” Morrison v.
Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003) (citations omitted). “When considering
such challenges, the court must . . . take the complaint's allegations as true. However, where
a defendant raises a factual attack on subject matter jurisdiction, the district court may
consider extrinsic evidence such as deposition testimony and affidavits.” Carmichael, 72 F.3d
at 1279. Dixieland’s challenge is facial. Although the affidavit of Michael C. Precise, D.M.D.
is attached as an exhibit to the Motion, it only addresses Dixieland Dental’s personal
jurisdiction defense. Dixieland has not introduced any extrinsic evidence addressing their
subject-matter defense. See Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1238 (11th Cir. 2002)
3 Though Dixieland Dental’s Motion only mentions Rule 12(b) (Doc. 5 at 3) and not specifically 12(b)(1), it is
clear from the language of the Motion that it intends to make this a subject-matter challenge. (Doc. 5 at 4
(“This Court has no subject[-]matter jurisdiction”), 5 (“This Court, sitting in diversity jurisdiction, cannot
exercise subject[-]matter jurisdiction over a nonexistent state claim”).) It is unclear the procedurally correct
way to raise a statute of repose. At times it is raised as an affirmative defense analogous to a statute of
limitations under Rule 8(b). Montgomery v. Wyeth, 580 F.3d 455, 468 (6th Cir. 2009). Other times it’s raised
under Rule 12(b)(6) as making plaintiff’s claim unable to be granted relief. Witham v. Whiting Corp., 975 F.2d
1342, 1345 (7th Cir. 1992). Still other times it’s raised under Rule 12(b)(1). Huddleston v. United States, 485 F.
App'x 744, 745 (6th Cir. 2012). Bullington has not challenged Dixieland’s characterization. (See Docs. 17; 22).
Dixieland is correct that Georgia’s statute of repose is jurisdictional. “[T]ime limits can either completely
extinguish [a] right or simply bar the remedy for enforcement. In the former case, jurisdiction does not exist
because the cause of action has been totally extinguished.” Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703,
706 (11th Cir. 1998). The statute of repose at issue here would completely extinguish Bullington’s right.
Wright v. Robinson, 426 S.E.2d 870, 871–72 (Ga. 1993).
(considering 12(b)(1) claim facially when, in the same motion, defendants also made factual
Under Georgia law, “in no event may an action for medical malpractice be brought
more than five years after the date on which the negligent or wrongful act or omission
occurred.” O.C.G.A. § 9-3-71(b) (emphasis added). The statute is one of ultimate repose,
rather than limitation. “A statute of limitation is a procedural rule limiting the time in which
a party may bring an action for a right which has already accrued. A statute of ultimate
repose delineates a time period in which a right may accrue. If the injury occurs outside that
period, it is not actionable.” Hill v. Fordham, 367 S.E.2d 128, 131 (Ga. Ct. App. 1988). Upon
expiration, it acts “as an unyielding barrier to a plaintiff's right of action.” Wright v. Robinson,
426 S.E.2d 870, 871–72 (Ga. 1993) (“The statute of repose destroys the previously existing
rights so that . . . the cause of action no longer exists.”).
Bullington alleges that he had two teeth extracted by Jon F. Strength on August 11,
2010. (Doc. 1-1 at 12–13.) The instant action was not filed until September 23, 2015, outside
of the five-year statute of repose. The complaint does not allege any facts which would allow
the statute to be extended. (See Doc. 1-1.)
However, in his brief in opposition, Bullington asserts that the parties had entered an
agreement which purported to temporarily toll the statutes of limitations and repose in an
effort to settle Bullington’s claims. (Doc. 17 at 13.) Bullington offered a copy of the
agreement as an exhibit. (Doc. 12-9.)
A complaint “must contain . . . a short and plain statement of the grounds for the
court's jurisdiction . . . .” F.R.C.P. 8(a)(1). Because this is a facial challenge to jurisdiction, the
Court does not look beyond the four corners of the complaint. Any claims related to the
extractions on August 11, 2010 are outside of the statute of repose and the complaint
provides no grounds for giving the Court jurisdiction. (See Doc. 1-1.)
When jurisdiction is not affirmatively pleaded in the complaint, the plaintiff should
be given leave to amend the complaint before it is dismissed. Kaufman v. W. U. Tel. Co., 224
F.2d 723, 725 (5th Cir. 1955). 4 “Only when . . . the pleader cannot truthfully amend to allege
The Eleventh Circuit has adopted as binding precedent all decisions issued by the former Fifth Circuit prior
to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
subject matter jurisdiction should the court dismiss without leave to replead.” 5B C. Wright
& A. Miller, Federal Practice and Procedure: Civil § 1350 (3d ed. 2004).
Georgia law provides only limited ways through which a plaintiff may bypass
O.C.G.A. § 9-3-71(b). Unlike a statute of limitations, a statute of repose may not be tolled by
a delayed discovery, infancy, incompetency, or fraud. Simmons v. Sonyika, 614 S.E.2d 27, 30
(Ga. 2005). However, a defendant may be equitably estopped from asserting a statute of
repose in two ways. First, if there is “evidence of defendant’s fraud” in concealing
information needed to bring the claim and second, based on “other conduct on which the
plaintiff reasonably relied in forbearing the bringing of a lawsuit.” Esener v. Kinsey, 522 S.E.2d
522, 524 (Ga. Ct. App. 1999); see also Hill v. Fordham, 367 S.E.2d 128, 132 (Ga. Ct. App.
1988). Dixieland Dental relies on language in subsequent cases which appears to have
eliminated the “other conduct” catch-all. See Miller v. Vitner, 546 S.E.2d 917, 919 (Ga. Ct.
App. 2001) (“For equitable estoppel to prevent the assertion of the statute of repose, only
intentional fraud of the physician preventing the plaintiff from discovering the injury will
give rise to the applicability of such doctrine.”).
Yet Miller itself cited Esener and did not purport to limit it. Id. Rather, the Miller court
clarified only that the fraud of a non-party cannot be imputed to a defendant. Id. at 918. The
holding furthers the underlying rationale of the rule: to prevent a defendant from benefiting
by “caus[ing] the plaintiff to miss the deadline imposed by the statute of repose and then
us[ing] the same statute to defeat the plaintiff’s otherwise viable action.” Rosenberg v. Falling
Water, Inc., 709 S.E.2d 227 (Ga. 2011). To act as a deterrent, the defendant must have
knowledge of their improper conduct. See Macfarlan v. Atlanta Gastroenterology Associates, Inc.,
732 S.E.2d 292, 296 (Ga. Ct. App. 2012).
While the Court is unable to find any cases in which a Georgia court has considered
what “other conduct” is sufficient to equitably estop a defendant from raising the statute of
repose, the Hill court approvingly cited Bomba v. W.L. Belvidere, Inc., 579 F.2d 1067 (7th Cir.
1067) in which the defendant sold plaintiff plots of land without filing the required
disclosures. Hill, 367 S.E.2d at 132. The plaintiffs sought to rescind the sale and were told by
the defendant that they could do so, but it would take some time for the money to be
refunded. Bomba, 579 F.2d at 1069. No refund came and the plaintiffs eventually filed suit,
but the statute of repose had run. Id. The Seventh Circuit held that the defendant was
estopped from raising the repose defense because its promise to refund caused the plaintiffs
to miss the filing deadline. Id. at 1071. “Estoppel arises where one, by his conduct, lulls
another into a false security, and into a position he would not take only because of such
The parties allegedly entered into a tolling agreement on August 6, 2015. (Doc. 12-9
at 3–4.) The agreement purported to toll “any and all statutes of limitations or statutes of
repose . . . .” (Id. at 1.) In exchange, Bullington agreed to “forego the filing of any lawsuit”
against Dixieland for the duration of agreement. (Id. at 2). The agreement was “conduct on
which the plaintiff reasonably relied in forbearing the bringing of a lawsuit.” Esener, 522
S.E.2d at 524. The agreement was made intentionally, as required by Georgia courts, in that
Dixieland intended to enter in it and did not somehow negligently enter into the agreement.
See Hutcherson v. Obstetric & Gynecologic Associates of Columbus, P.C., 543 S.E.2d 805, 807 (Ga.
Ct. App. 2000). The law only requires that the conduct itself be intentional, not that it be
done for the purpose having a plaintiff’s case dismissed. See generally id.
A finding of estoppel here would be consistent with the rationale of the estoppel rule.
Dixieland should not be allowed to benefit from causing Bullington to miss the statute of
repose then moving to dismiss on that ground. Rosenberg, 709 S.E.2d at 230. The agreement
no doubt “lull[ed Bullington] into a false security” and caused him to delay the filing of the
instant action. Bomba, 579 F.2d at 1071. The documents filed by Bullington suggest
Dixieland Dental is now estopped from claiming the statute of repose as a defense.
It makes no difference that Bullington’s counsel proposed to add repose to the tolling
agreement. (Doc. 19-1.) In most estoppel cases, the plaintiff is at least partially responsible
for the delay. In Bomba, for instance, the plaintiffs could have filed suit before the statute of
repose expired regardless of the defendant’s promise of a refund. Still, the agreement here
benefited Dixieland by postponing any lawsuits and it was both parties purporting to toll the
repose period which caused Bullington’s delay. (Doc. 12-9.) Dixieland cannot now be
allowed to benefit from that delay.
Accordingly, Dixieland Dental has made a facial challenge to the Court’s jurisdiction
in this case. However, Bullington is likely able to amend his complaint to demonstrate that
Dixieland is estopped from asserting the statute of repose for claims related to the
extractions on August 11, 2010. Dixieland Dental’s Motion to Dismiss for lack of subject
matter jurisdiction is DENIED. Bullington is ORDERED to amend his complaint within
fourteen days of the filing of this order to allege an adequate factual basis for this court’s
Standard of Review
A federal court may only exercise jurisdiction over a defendant if the requirements of
the state long-arm statute are met. 5 Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 (11th Cir.
1999). Georgia’s long-arm statute, O.C.G.A. § 9-10-91, gives two grounds relevant here for
asserting jurisdiction over a nonresident. First, when the nonresident “[t]ransacts any
business within this state,” and second, when the non-resident “[c]ommits a tortious injury
in this state caused by an act or omission outside this state if the tort-feasor regularly does or
solicits business, or engages in any other persistent course of conduct, or derives substantial
revenue from goods used or consumed or services rendered in this state . . . .” O.C.G.A. § 910-91(1), (3). “A plaintiff seeking the exercise of personal jurisdiction over a nonresident
defendant bears the initial burden of alleging in the complaint sufficient facts to make out a
prima facie case of jurisdiction.” United Technologies Corp. v. Mazer, 556 F.3d 1260, 1274 (11th
Cir. 2009). “Where, as here, the defendant submits affidavits to the contrary, the burden
traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction . . . .
Where the plaintiff's complaint and supporting evidence conflict with the defendant's
affidavits, the court must construe all reasonable inferences in favor of the plaintiff.” Meier ex
rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002) (citations omitted).
The requirements of the Due Process Clause of the Fourteenth Amendment must also be met. Posner v.
Essex Ins. Co., 178 F.3d 1209, 1214 (11th Cir. 1999). Dixieland asserts in a footnote that “[b]ecause the facts in
this case do not meet the more stringent requirements of Georgia’s long-arm statute, it follows that the
requirements for due process are not met either.” (Doc. 5 at 7 n.2); but see Innovative Clinical & Consulting Servs.,
LLC v. First Nat. Bank of Ames, 620 S.E.2d 352, 355 (Ga. 2005) (recognizing that the language of § 9-10-91
“would expand the personal jurisdiction of Georgia courts beyond that permitted by constitutional due
process”). However, it fails to provide any independent analysis whatsoever of the Due Process Clause; all of
its briefing analyzes Georgia’s long-arm statute. (See Docs. 5; 19.) Accordingly, the Court restricts its analysis
to the long-arm statute as well. See Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 800 (10th Cir. 2001) (“A litigant
who fails to press a point by supporting it with pertinent authority . . . forfeits the point. The court will not do
his research for him.” (quoting Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir. 1990)).
Transacts any business within the state
The “transacts any business” prong of O.C.G.A. § 9-10-91(1) is satisfied if: “(1) the
nonresident defendant has purposefully done some act or consummated some transaction in
this state, (2) if the cause of action arises from or is connected with such act or transaction,
and (3) if the exercise of jurisdiction by the courts of this state does not offend traditional
fairness and substantial justice.” Aero Toy Store, LLC v. Grieves, 631 S.E.2d 734, 737 (Ga. Ct.
App. 2006) (quoting Robertson v. CRI, Inc., 601 S.E.2d 163, 166 (Ga. Ct. App. 2004)).
That said, a defendant need not physically enter the state. As a result, a
nonresident's mail, telephone calls, and other “intangible” acts, though
occurring while the defendant is physically outside of Georgia, must be
considered. . . . [W]e examine all of a nonresident's tangible and intangible
conduct and ask whether it can fairly be said that the nonresident has
transacted any business within Georgia.
Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1264 (11th Cir. 2010).
Dixieland Dental transacted business in Georgia related to the cause of action in this
case. Dixieland targets the State of Alabama with its advertisements. (See generally Doc. 5-1.)
However, it maintains and advertises a “1-800” number for the purpose of facilitating phone
calls from prospective patients who reside “out of town.” (Doc. 12-1 at 17–18.) Bullington
used the “1-800” number to call Dixieland from Georgia to schedule appointments on
numerous occasions. (Doc. 12-14 at 2.) Dixieland was aware from the time of Bullington’s
first appointment that he was a Georgia resident. (Doc. 12-13 at 20 (Bullington’s patient
information form listing his Georgia address).) In sum, Dixieland communicated with
Bullington in Georgia to arrange for the services it provided, derived $1,759 in revenue from
Bullington, a Georgia resident, for its services (Doc. 12-13 at 6–7), all while knowing
Bullington lived in Georgia and maintaining a phone number for the benefit of out-of-town
The facts resemble those in Power Guardian, LLC v. Directional Energy Corp., 904 F.
Supp. 2d 1313 (M.D. Ga. 2012). As here, that case involved an out-of-state corporation that
was not registered in Georgia, did not advertise in the state, and had no agents who travelled
into the state. Id. at 1316. The plaintiff there purchased two generators from the defendant,
and then met with the defendant’s agents in Florida to discuss the sale. Id. at 1317.
Subsequently, the parties discussed the sale over email, the defendant sent an invoice over
email, and the plaintiff paid by check through mail. Id. at 1318. The generators were
eventually picked up by the plaintiff in Florida. Id. The court held that it had jurisdiction
over the defendant. Id. at 1320. While no agent of the company ever entered the state, it
“intentionally s[old] generators to a specific Georgia company,” “exchanged electronic and
personal communications” with the plaintiff, and “accepted payment from a Georgia
company.” Id. at 1320–21. “It can fairly be said that this conduct constitutes the transaction
of ‘any business,’” the court concluded. Id. at 1321.
Similarly here, Dixieland intentionally sold its services to Bullington knowing from at
least the first appointment that he was a Georgia resident, spoke with him over the phone
while he was in Georgia, discussed services with him face-to-face, and accepted significantly
large payments from him, a Georgia resident. It makes no difference that the payment was
made in person in another state in this case while through the mail from Georgia in Power
Energy. In both cases, payment came from a Georgia entity after significant contact with the
plaintiff in this state. See also Wright v. Safari Club Intern., 706 S.E.2d 84, 86 (Ga. Ct. App.
2010) (Safari Club in Arizona could not show absence of jurisdiction when national
advertisement was received by Georgia resident who made a purchase from the company in
Nevada, then contacted company by email several times to discuss details of the sale).
Dixieland’s sale of services to Bullington is fairly characterized as “transacting any business”
Dixieland Dental contends that Bullington failed to allege that it transacted any
business in Georgia in his complaint. (Doc. 19 at 7.) The Court disagrees. Paragraph six of
Bullington’s complaint lays the factual foundation to satisfy the long-arm statute. (Doc. 1-1
at 10.) While he focuses on O.C.G.A. § 9-10-91(3), Bullington alleges the Defendants
“regularly seek business from Georgia residents,” “derive substantial revenue from patients
who are Georgia residents,” and “send bills to Georgia residents.” (Id.) Bullington’s
complaint need only contain “a short and plain statement of the grounds for the court's
jurisdiction.” F.R.C.P. 8(a). Those three alleged facts would weigh toward a finding of
jurisdiction under O.C.G.A. § 9-10-91(1). See Wright, 706 S.E.2d at 86 (considering whether
defendant solicited business from Georgia resident); Power Guardian, 904 F. Supp. 2d at
1320–21 (amount of revenue derived); Diamond Crystal, 593 F.3d at 1265 (billing
arrangement). Dixieland Dental should have been on notice that Bullington was alleging
jurisdiction under subsection one as well as subsection three.
Bullington may also satisfy the long-arm statute through O.C.G.A. § 9-10-91(3). That
subsection grants the Court jurisdiction over a nonresident defendant who “[c]ommits a
tortious injury in this state caused by an act or omission outside this state if the tort-feasor
regularly does or solicits business, or engages in any other persistent course of conduct, or
derives substantial revenue from goods used or consumed or services rendered in this state
. . . .” Dixieland Dental contends the threshold showing was not made: Bullington was not
injured in Georgia. Rather, both the alleged tortious act and injury occurred in Alabama.
(Doc. 5 at 8.) Dixieland analogizes to statute of limitations law in which Georgia courts have
held that a misdiagnosis is coincident with the injury it creates. (Id. at 8–9); Surgery Associates,
P.C. v. Kearby, 405 S.E.2d 723, 724 (1991). Bullington argues that the alleged misreading of
the x-ray was “negligence,” not a misdiagnosis. (Doc. 17 at 17–18.)
As an initial matter, the Court agrees with Dixieland that Bullington’s claim related to
the events allegedly occurring on September 10, 2013 is one of misdiagnosis. Bullington’s
complaint alleges Dr. David N. Strength misread his x-ray as “normal,” when it actually
revealed a developing area of necrosis. (Doc. 1-1 at 15.) When a doctor gives a patient a nonthreatening diagnosis, but the patient turns out to have a serious condition which is allowed
to fester, the patient would have a misdiagnosis claim. Amu v. Barnes, 662 S.E.2d 113, 116
(Ga. 2008). The Court does not find an appreciable difference between telling a patient his
condition is “normal” and telling him he has a nonthreatening condition. Both are incorrect
diagnoses that conceal a danger to the patient.
However, the injury from the misdiagnosis occurred in Georgia, not Alabama. “In
most [misdiagnosis] cases, the injury begins immediately upon the misdiagnosis due to pain,
suffering, or economic loss sustained by the patient from the time of the misdiagnosis until
the medical problem is properly diagnosed and treated.” Kaminer v. Canas, 653 S.E.2d 691,
694 (Ga. 2007) (quoting Frankel v. Clark, 444 S.E.2d 147 (Ga. Ct. App. 1994)). There is a
well-established exception to that general rule when a patient “has a relatively benign and
treatable precursor medical condition which, as a proximate result of being misdiagnosed, is
left untreated and subsequently develops into a much more serious and debilitating
condition.” Amu, 662 S.E.2d at 117. “In order for this exception to apply,” meaning the
injury would arise subsequent to the misdiagnosis, “not only must there be evidence that the
[patient] developed a new injury, but [he or she] also must ‘remain  asymptomatic for a
period of time following the misdiagnosis.’” Id. at 116–17 (quoting Amu, 650 S.E.2d at 292).
Bullington was not complaining of any pain, suffering, or economic loss from the
necrosis when he saw Dr. David N. Strength for the tooth extractions on September 10,
2013. (Doc. 1-1 at 15.) At that time, the necrosis was only beginning to develop. (Id.)
Bullington began experiencing significant pain in early 2014, which led to the allegedly
correct diagnosis on March 10, 2014. (Id. at 17.) Because, at the time of the misdiagnosis,
Bullington had an allegedly asymptomatic, treatable condition, the “injury” did not occur
until 2014 in Georgia when the symptoms became apparent.
The Court must then decide whether Dixieland Dental “regularly does or solicits
business, or engages in any other persistent course of conduct, or derives substantial revenue
from goods used or consumed or services rendered in this state . . . .” O.C.G.A. § 9-1091(3). Only one of the prongs is relevant here. Dixieland does not render any services in
Georgia. Bullington asserts Dixieland engages in a persistent course of conduct by making
phone calls into Georgia. (Doc. 17 at 8.) However, the statute requires that the course of
conduct take place “in this state.” Dixieland’s phone calls came from Alabama, and
communication into the state does not suffice under § 9-10-91(3). Huggins v. Boyd, 697 S.E.2d
253, 255 (Ga. Ct. App. 2010) (“long history of sending out-of-state harassing e-mails” into
Georgia insufficient for jurisdiction).
The remaining question, then, is whether Dixieland Dental “solicits business . . . in
this state.” The Court concludes that it does not. Dixieland has a single office, located in
Alabama. (Doc. 5-1 at ¶ 3.) It advertises on TV, though only on channels headquartered in
Alabama. (Docs. 5-1 at ¶ 5; 12-12.) It sponsors local sports teams in Alabama and markets
itself on TV as the dental office chosen by south Alabama residents. (Docs. 5-1 at ¶ 8; 12-6.)
It does not advertise via billboards or signs in Georgia. (Doc. 5-1 at ¶ 7.) It does not mail
marketing materials into Georgia. (Id. at ¶ 10.) Bullington contends that because the TV
stations, while headquartered in Alabama, also broadcast into Georgia, it constitutes
solicitation. (Doc. 17 at 7.) But it is “well settled” in Georgia that an out-of-state defendant
has not “engaged in purposeful business activity in this state merely because he has
advertised products for sale in national trade magazines circulating in this state.” Flint v. Gust,
351 S.E.2d 95, 96 (Ga. Ct. App. 1986), rev'd on other grounds, 356 S.E.2d 513 (Ga. 1987)
(analyzing O.C.G.A. § 9-10-91(1) jurisdiction); see Turley v. Vaudeville Cafe, LLC, No. 1:10CV-2284-JEC, 2011 WL 3844361, at *3 (N.D. Ga. Aug. 26, 2011) (applying the same rule to
§ 9-10-91(3) jurisdiction). The same logic applies here. Dixieland Dental cannot be
considered to have solicited Georgia customers when, by its advertising strategy and the
content of its advertisements, it is apparent the company was solely targeting Alabama
residents. The mere fact that Georgians constitute a sizeable portion of Dixieland’s customer
base does not demonstrate otherwise. Bullington has presented no evidence that Dixieland
solicited those customers or that they became customers due to Dixieland’s TV
Bullington asserts that Dixieland Dental “developed and distributes maps showing
Georgia residents how to travel to its offices for dental services.” (Doc. 17 at 8.) Bullington
submitted a copy of the map into evidence. (Doc. 12-8.) It shows, in very general terms, the
highways to take to get to bordering towns in Georgia, Florida, and Alabama. However,
Bullington has not produced any evidence showing how, where, or when these maps were
Finally, the “1-800” number does not dictate a different outcome. While Dixieland
admitted the number was maintained to facilitate calls from potential customers who were
“out of town,” (Doc. 12-1 at 17–18), making it easier to communicate with out-of-state
customers is not the equivalent of soliciting them. The phone number is more probative
under § 9-10-91(1). There the Court focuses, in part, on the communication between the
parties during the course of their business relationship. See Diamond Crystal Brands, Inc. v. Food
Movers Int'l, Inc., 593 F.3d 1249, 1264 (11th Cir. 2010). Maintaining a phone number designed
to facilitate additional communication with a plaintiff who resides in Georgia weighs toward
a finding that Dixieland transacted business in the state. Conversely, the solicitation prong
addresses the defendant’s actions before entering into a business relationship. See Solicitation,
Black's Law Dictionary (10th ed. 2014) (“The act or an instance of requesting or seeking to obtain
something” (emphasis added)). Providing a “1-800” number, without intentionally
advertising that number to out-of-state residents, is not a solicitation.
Based on the foregoing, Bullington’s Request and Application for Hearing on
Defendant’s Motion to Dismiss (Doc. 15) is DENIED. Dixieland Dental’s Motion to
Dismiss (Doc. 5) is DENIED. Bullington is ORDERED to amend his complaint by
Wednesday, October 5, 2016, to allege an adequate factual basis for this court’s jurisdiction
regarding the statute of repose.
SO ORDERED, this 21st day of September, 2016.
/s/ W. Louis Sands______________________
W. LOUIS SANDS, SR. JUDGE
UNITED STATES DISTRICT COURT
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