Green v. USA

Filing 99

ORDER GRANTING 81 Motion for Reconsideration. The Court VACATES the original 76 Order dated April 22, 2016 and GRANTS Defendant Oak's 60 Motion to Dismiss for Lack of Personal Jurisdiction. Defendant Oak is DISMISSED without prejudice pursuant to Rule 12(b)(2) for lack of personal jurisdiction. Signed by Judge Nancy J. Rosenstengel on 10/26/2016. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NATHANIEL GREEN,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
TIMOTHY ADESANYA, MIKE
VARNUM, NURSE GOLDSTEIN, and
DR. JACK R. OAK,
Defendants.

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Case No. 14-CV-119-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Now pending before the Court is the Motion for Reconsideration and Alternative
Motion for Leave to File Interlocutory Appeal filed by Defendant Jack R. Oak, M.D.
(“Defendant Oak”) (Doc. 81). On June 29, 2016, the undersigned sua sponte reconsidered
its ruling on the Motion for Leave to Conduct Jurisdictional Discovery (Docs. 62 and 76)
filed by Plaintiff Nathaniel Green (“Green”) and granted Green leave to propound five
interrogatories under Rule 33 and five requests to produce under Rule 34 upon
Defendant Oak relating to personal jurisdiction (See Doc. 91). In light of those discovery
responses, and for the reasons set forth below, the Court grants Defendant Oak’s Motion
for Reconsideration.
Introduction
On February 3, 2014, Green initiated this action pro se, pursuant to the Federal
Tort Claims Act (“FTCA”), alleging that healthcare providers at Greenville Federal
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Correctional Institution (“FCI Greenville”) failed to adequately treat his peripheral
artery disease, causing him to undergo an above-the-knee leg amputation. On August
13, 2014, the Court appointed attorney Catherine E. Goldhaber to represent Green in this
matter. The Court granted Green leave to file an amended complaint and, on July 2,
2015, Green filed his Second Amended Complaint (see Doc. 42), which is the operative
complaint in this matter. Currently, Green is proceeding against the United States of
America on two negligence claims, a deliberate indifference claim against Defendants
Timothy Adesanya, Nurse Goldstein, and Mike Varnum, and a medical malpractice
claim against Defendant Oak.
On October 20, 2015, Defendant Oak filed a Motion to Dismiss for Lack of
Personal Jurisdiction (Doc. 60), which this Court denied (see Doc. 76). Following the
Court’s Order, Defendant Oak filed the Motion for Reconsideration now before the
Court (Doc. 81). In his motion, Defendant Oak asks the Court to reconsider its ruling on
his Motion to Dismiss pursuant to Rule 59(e) of the Federal Rules of Civil Procedure
asserting that the Court’s reasoning was not in accord with binding Supreme Court
precedent. In the alternative, Defendant Oak asks the Court for leave to file an
interlocutory appeal to resolve the issue. Green timely responded to Defendant Oak’s
motion (Doc. 89).
On June 29, 2016, the undersigned, recognizing that discovery may be necessary
to ascertain additional information on the circumstances surrounding Defendant Oak’s
treatment of Green, sua sponte reconsidered its ruling on Green’s Motion for Leave to
Conduct Jurisdictional Discovery (Docs. 62 and 76) and granted Green leave to

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propound five interrogatories under Rule 33 and five requests to produce under Rule 34
upon Defendant Oak relating to personal jurisdiction (See Doc. 91). This discovery was
limited to the following topics initially suggested by Green: how Defendant Oak was
located, who at FCI Greenville spoke with Defendant Oak, whether Defendant Oak
entered into a contract or agreement with FCI Greenville to treat Green and/or other
prisoners, and how and by whom Defendant Oak was compensated for his treatment of
Green and/or other FCI Greenville prisoners.
After engaging in discovery, on August 23, 2016, Defendant Oak filed a
“Supplemental Memorandum Re Motion to Reconsider” (Doc. 96). On August 26, 2016,
Green filed a Supplemental Response in Opposition to Defendant Oak’s Motion for
Reconsideration (Doc. 97). On September 9, 2016, Defendant Oak filed a Reply to Green’s
Supplemental Response in Opposition to Defendant Oak’s Motion for Reconsideration
(Doc. 98). The reply brief properly set forth exceptional circumstances that justify the
filing of a reply brief in accordance with Local Rule 7.1(c). Accordingly, Defendant Oak’s
reply brief will be considered by the Court.
Legal Standard
Although Defendant Oak brings his motion for reconsideration citing to Federal
Rule of Civil Procedure 59(e), the motion is governed by Rule 54(b) because the order
denying the motion to dismiss did not adjudicate all claims and final judgment has not
been entered. FED. R. CIV. P. 54(b) (Non-final orders “may be revised at any time before
the entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities.”); see also Encap, LLC v. Scotts Co., LLC, No. 11-C-685, 2014 WL 6386910, at *1

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(E.D. Wis. Nov. 14, 2014) (“Fed. R. Civ. P. 59(e) is not applicable here since no final
judgment has been entered.”). Regardless, “motions to reconsider an order under Rule
54(b) are judged by largely the same standard as motions to alter or amend a judgment
under Rule 59(e).” Woods v. Resnick, 725 F. Supp. 2d 809, 828 (W.D. Wisc. 2010).
A motion to reconsider is proper where the Court has misunderstood a party,
where the Court has made a decision outside the adversarial issues presented to the
Court by the parties, where the Court has made an error of apprehension (not of
reasoning), where a significant change in the law has occurred, or where significant new
facts have been discovered. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185,
1191 (7th Cir. 1990). The Court has the inherent power to reconsider non-final orders, as
justice requires. Akzo Coatings, Inc. v. Aigner Corp., 909 F. Supp. 1154, 1160 (N.D. Ind.
1995) (“[A] motion to reconsider an interlocutory order may be entertained and granted
as justice requires”). A motion to reconsider “essentially enables a district court to
correct its own errors, sparing the parties and the appellate courts the burden of
unnecessary appellate proceedings.” Russell v. Delco Remy Div. of Gen. Motors Corp., 51
F.3d 746, 749 (7th Cir. 1995). “Disposition of a motion for reconsideration is entrusted to
the district court’s discretion.” Hamzah v. Woodman’s Food Market, Inc., No.
13-cv-491-wmc, 2016 WL 3248608, at *2 (W.D. Wisc. Jun. 13, 2016) (citing Caisse Nationale
de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996)).
Discussion
In conducting a specific personal jurisdiction analysis, the Court initially found
that it could exercise personal jurisdiction over Defendant Oak because it appeared that

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“Defendant Oak accepted [Green] as a patient and treated [Green] knowing that [Green]
was a federal inmate housed at FCI Greenville, located in Illinois.” (Doc. 76, p. 6). The
Court also emphasized that it appeared that Defendant Oak “effectively entered into an
agreement with FCI Greenville, a facility located in Illinois, to treat an Illinois resident.”
(Id.).
Discovery has since revealed, however, that Defendant Oak first became aware of
Green “when the office staff [at St. Louis Surgical Consultants] set up an appointment.”
(Doc. 96-1, pp. 1). Defendant Oak elaborated that he “had no direct contact with anyone
at the prison at anytime prior to seeing the patient.” (Id.). After Defendant Oak met with
Green, he cannot recall whom he spoke with or whether he had any communication
with anyone at FCI Greenville, however, he states that it is generally his “practice to call
back the referring entity/person and likely to send the referring entity/person a copy of
his office note.” (Doc. 96-1, p. 2). Additionally, Defendant Oak has no knowledge of how
this specific treatment was paid for, but he believes that a bill would have been sent to
the prison facility and it would have been paid by the facility or its insurer (Id.).
Defendant Oak also indicated that he never personally entered into a verbal
agreement or written contract with anyone at FCI Greenville or the Bureau of Prisons to
treat inmates at the FCI Greenville facility (Id.). Defendant Oak was unable to provide
any items responsive to Green’s Request for Production, indicating that he is unaware of
any written agreements or contracts concerning the treatment of Green or inmates at FCI
Greenville (Doc. 96-2, p. 1). Defendant Oak is no longer employed with St. Louis Surgical

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Consultants, and he states that he does not have access to any past correspondence,
records, or bills relating to this case (Doc. 96-2, p. 2).
Defendant Oak cites to the Supreme Court decision of Walden v. Fiore, 134 S. Ct.
1115 (2014), to argue that the Court lacks personal jurisdiction over him because he did
not create the contact with Illinois. In Walden, the Supreme Court considered whether the
defendant police officer who seized the plaintiff’s property in Georgia could be hauled
into court in Nevada. 134 S. Ct. 1115 (2014). More specifically, the defendant-officer in
Walden seized a large amount of cash from the plaintiffs while they were in a Georgia
airport awaiting a flight to Nevada. Id. at 1119. After the plaintiffs returned to their
Nevada residence, the defendant-officer helped draft a probable cause affidavit in
support of the funds’ forfeiture and forwarded it to a United States Attorney’s Office in
Georgia. Id. The plaintiffs filed suit against the defendant-officer in Nevada, which the
district court dismissed for lack of personal jurisdiction, and the Ninth Circuit reversed.
Id. at 1120.
The Supreme Court reversed the Ninth Circuit. In finding that Nevada could not
assert personal jurisdiction over the defendant-officer, the Supreme Court reiterated that
in order “[f]or a State to exercise jurisdiction consistent with due process, the
defendant’s suit-related conduct must create a substantial connection with the forum
State,” and said relationship “must arise out of contacts that the ‘defendant himself’
creates with the forum State.” Id. at 1121-22 (citation omitted). Further, the Supreme
Court clarified that the “‘minimum contacts’ analysis looks to the defendant’s contacts

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with the forum State itself, not the defendant’s contacts with persons who reside there.”
Id. at 1122 (citations omitted).
The recent discovery reveals that Defendant Oak did not purposefully direct his
activities to Illinois. There is no evidence that Defendant Oak solicited patients from
Illinois or initiated the contact with Green. The office staff of St. Louis Surgical
Consultants added Green’s name to Defendant Oak’s schedule following a referral from
Defendant Adesanya. Defendant Oak then received Green as a patient when he first
treated him on October 14th.
Further, there is no evidence that Defendant Oak had any sort of contract with
FCI Greenville or the Bureau of Prisons to receive inmate patients. Instead, the only
contact Defendant Oak had with Illinois was the possible phone call to FCI Greenville
concerning Defendant Oak’s office note. But this does not amount to the minimum
contacts necessary for personal jurisdiction to exist. See Unterreiner v. Pernikoff, 961
N.E.2d 1, 3 (Ill. App. Ct. 2011) (the defendant’s follow-up consultation to the plaintiff
over the phone while the plaintiff was in Illinois did not amount to minimum contacts
necessary for personal jurisdiction); see generally Fisher v. A.C.J. Chaston, No. 95 C 3127,
1995 WL 571400, at *2 (N.D. Ill. Sept. 25, 1995) (telephone communications by themselves
are generally not enough to establish minimum contacts with Illinois). The only other
thing tying Defendant Oak to Illinois is the fact that Green lives there, but this alone
cannot support the exercise of personal jurisdiction over Defendant Oak. Walden, 134 S.
Ct. at 1122 (“the plaintiff cannot be the only link between the defendant and the forum.

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Rather, it is the defendant’s conduct that must form the necessary connection with the
forum State that is the basis for its jurisdiction over him.”).
To the extent Green argues that Defendant Oak has changed his story over the
course of discovery, the Court disagrees. The Court has compared Defendant Oak’s
original affidavit (Doc. 61-2) with his discovery responses (Docs. 96-1 and 96-2), and the
Court does not see any inconsistencies, just further elaboration on the circumstances
surrounding Defendant Oak’s treatment of Green. Nor is the Court convinced by
Green’s argument that convenience and efficiency warrant this Court’s exercise of
jurisdiction over a defendant who has no contacts, ties, or relations to Illinois.
Thus, upon reconsideration, and with the benefit of discovery, the Court finds
that it does not have jurisdiction over Defendant Oak in this action.
Conclusion
For the reasons set forth above, the Court GRANTS Defendant Oak’s Motion for
Reconsideration (Doc. 81). The Court VACATES the original Order dated April 22, 2016
and GRANTS Defendant Oak’s Motion to Dismiss for Lack of Personal Jurisdiction
(Doc. 60). Defendant Oak is DISMISSED without prejudice pursuant to Rule 12(b)(2)
for lack of personal jurisdiction.
IT IS SO ORDERED.
DATED: October 26, 2016
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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