Luftman et al v. Laboratory for Kidney Pathology, Inc. et al
Filing
21
MEMORANDUM OPINION AND ORDER: (1) Dfts' Motion to Dismiss is DENIED. (2) Plas' Motion for Extension of Time is DENIED AS MOOT. (3) Pla's 18 Motion for Leave to File Supplemental Response is GRANTED. (4) Pla's 17 Motion for J urisdictional Discovery is GRANTED IN PART as to Dft Mauricio and DENIED IN PART AS MOOT as to Dft Laboratory. (5) Plas shall have 90 days in which to conduct discovery on jurisdiction as related to Dft Mauricio. (6) Dfts shall have until January 6, 2017 to renew their Motion to Dismiss for Lack of Jurisdiction as to Dft Mauricio, but in no event shall any response be due from Plas until January 27, 2017, unless Plas choose to file earlier. Signed by Judge Joseph M. Hood on September 30, 2016. (AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
MARTIN LUFTMAN and
VIRGINIA LUFTMAN,
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)
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)
)
)
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Plaintiffs,
v.
LABORATORY FOR KIDNEY
PATHOLOGY, INC. and
LILIA MAURICIO, M.D.,
Defendants.
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Action No. 5:16-cv-14-JMH
MEMORANDUM OPINION AND ORDER
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This matter is before the Court on the Defendants’ Motion to
Dismiss for Lack of Personal Jurisdiction [DE 1].
filed
a
Motion
for
Extension
of
Time
[DE
Plaintiffs have
1],
Motion
for
Jurisdictional Discovery [DE 17], and Motion for Leave to File
Supplemental Response [DE 18].
For the reasons stated below,
Defendants’ Motion to Dismiss will be denied as to Defendant
Laboratory for Kidney Pathology, Inc.; that ruling renders the
Motion for Extension of Time moot.
The Court will grant the
uncontested Motion for Leave to File Supplemental Response and
consider that additional information herein.
The Court will grant
Plaintiff’s Motion for Jurisdictional Discovery as to Defendant
Dr. Lilia Mauricio.
I.
FACTUAL BACKGROUND
This action was originally filed in Fayette Circuit Court and
removed to this court pursuant to 28 U.S.C. § 1332.
Plaintiff
Martin Luftman (“Plaintiff”) alleges he sought treatment from his
physician Dr. Thomas W. Ferguson at Baptist Health in Lexington,
Kentucky.
Plaintiff underwent a kidney biopsy and Dr. Ferguson
sent the pathology slides to Defendant Laboratory for Kidney
Pathology, Inc. (“Defendant Laboratory”), in Nashville, Tennessee.
Defendant Laboratory returned a report, signed by Defendant Dr.
Lilia Mauricio, diagnosing Plaintiff with “Early/Mild Low Grade
Focal Segmental Glomerulosclerosis.”
Plaintiff alleges that in reliance on Defendants’ report, his
physicians in Kentucky began a course of treatment and his health
deteriorated.
After several months, Plaintiff requested Defendant
Laboratory send the pathology slides and records to the Mayo
Clinic.
Plaintiff alleges, upon information and belief, that this
request caused another physician at Defendant Laboratory to review
the initial report and speak with Defendant Mauricio.
Ultimately,
Plaintiff
report
alleges,
Defendant
Mauricio
revised
forwarded the amended report to Dr. Ferguson.
the
and
The amended report
diagnosed Plaintiff with “Early Lambda Amyloidosis.”
Plaintiff filed suit, alleging the Defendants’ error in the
initial
physical
diagnosis
injuries,
caused
him
medical
pain
and
expenses,
suffering,
lost
wages,
permanent
emotional
distress, and impairment of his ability to labor and earn money.
2
Plaintiff’s spouse, Virginia Luftman, also asserts a loss of
consortium claim.
Defendants moved the Court to dismiss, arguing that the courts
of Kentucky did not have jurisdiction pursuant to Kentucky’s longarm statute, KRS 454.210.
of
Defendant
Mauricio
Defendants submitted sworn affidavits
and
a
representative
of
Defendant
Laboratory. Defendant Laboratory states it is a business organized
under the laws of Tennessee, it does not transact business in
Kentucky, is not registered to do business in Kentucky, does not
advertise in Kentucky, and does not have any offices in Kentucky,
among other arguments.
Defendant Mauricio similarly states she
does not live or work in Kentucky, is not licensed to practice
medicine in Kentucky, does not own property in Kentucky, does not
advertise her services in Kentucky, and does not transact business
in Kentucky.
Plaintiffs filed a Response [DE 16], and a Motion to File a
Supplemental Response, which this Court grants herein, with the
Supplemental Response attached [DE 18].
Plaintiffs’ Supplemental
Response included an affidavit from Dr. John F. Jansen, Director
of Anatomic Pathology at Baptist Health Lexington in Lexington,
Kentucky,
where
Plaintiff
initially
sought
treatment.
Dr.
Jansen’s sworn testimony is that it is the practice of Baptist
Health Lexington Department of Pathology to send “all” kidney
biopsy samples to Defendant Laboratory in Nashville, Tennessee,
3
and that this amounts to approximately 80 samples per year, and
this has been the practice for more than 21 years.
II.
Plaintiffs
“need
STANDARD OF REVIEW
only
make
a
prima
facie
showing
of
jurisdiction.” CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262
(6th Cir. 1996).
To meet this burden, they must establish “with
reasonable particularity sufficient contacts between [Defendants]
and the forum state to support jurisdiction.”
Neogen Corp. v. Neo
Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002) (citation
omitted).
In reviewing Defendants’ motions to dismiss pursuant to
Rule 12(b)(2), this Court relies on the pleadings and affidavits
of the parties and construes the facts in the light most favorable
to the nonmoving parties, the plaintiffs.
See Serras v. First
Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989).
“[T]the plaintiff must make only a
prima facie
showing that
personal jurisdiction exists in order to defeat dismissal . . .
the pleadings and affidavits submitted must be viewed in a light
most favorable to the plaintiff, and the district court should not
weigh the controverting assertions of the party seeking dismissal.
Air Prod. & Controls, Inc. v. Safetech Int'l, Inc., 503 F.3d 544,
549
(6th
Cir.
2007)
(internal
quotation
omitted).
4
marks
and
citations
This
Court
may
exercise
personal
jurisdiction
over
a
defendant in a diversity case only if such jurisdiction is (1)
authorized by Kentucky law and (2) otherwise consistent with the
Due Process Clause of the Fourteenth Amendment. See Youn v. Track,
Inc., 324 F.3d 409, 417 (6th Cir. 2003).
Kentucky’s long-arm
statute provides in pertinent part:
(2) (a) A court may exercise personal
jurisdiction over a person who acts directly
or by an agent, as to a claim arising from the
person’s:
1.
Transacting
any
business
in
this
Commonwealth;
2. Contracting to supply services or goods in
this Commonwealth;
3. Causing tortious injury by an act or
omission in this Commonwealth;
4.
Causing
tortious
injury
in
this
Commonwealth by an act or omission outside
this Commonwealth if he 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
Commonwealth, provided that the tortious
injury occurring in this Commonwealth arises
out of the doing or soliciting of business or
a persistent course of conduct or derivation
of substantial revenue within the Commonwealth
. . . .
KRS § 454.210(2)(a).
Kentucky courts construe the state’s long-arm statute as
coextensive with the limits of due process.
S.W.3d 589, 592 (Ky. 2002).
Wilson v. Case, 85
The Court may exercise jurisdiction
over Defendants if personal jurisdiction is consistent with the
requirements
of
federal
due
process.
5
Therefore,
personal
jurisdiction exists in the case sub judice if Defendants have
“minimum contacts” with Kentucky “‘such that maintenance of the
suit
does
not
offend
substantial justice.’”
traditional
notions
of
fair
play
and
Gateway Press, Inc. v. LeeJay, Inc., 993
F. Supp. 578, 580 (W.D. Ky. 1997) (quoting International Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945)).
Through its long-arm statute, “Kentucky has elected to assume
personal
jurisdiction
over
a
nonresident
tort-feasor
whose
activities outside the state result in injury in this state only
if that tort-feasor regularly does or solicits business within the
state or has other substantial connection to the Commonwealth.”
Pierce v. Serafin, 787 S.W.2d 705, 707 (Ky. Ct. App. 1990), quoted
in Auto Channel, Inc. v. Speedvision Network, LLC, 995 F. Supp.
761, 764 (W.D. Ky. 1997). The Kentucky Supreme Court has explained
that “[i]n practice, the precise language of the statute and the
application of its terms are much less important than the simple
fact that the statute exists.”
have
determined
jurisdiction
that
allows
‘the
Kentucky
Wilson, 85 S.W.3d at 592.
long-arm
courts
statute
to
reach
“Courts
within
to
the
this
full
constitutional limits of due process in entertaining jurisdiction
over non-resident defendants.’” Id. (quoting Mohler v. Dorado
Wings, Inc., 675 S.W.2d 404, 405 (Ky. Ct. App. 1984)).
The Court’s exercise of personal jurisdiction is subject to
due process limitations.
Specific jurisdiction exists where the
6
claims in the case arise from or are related to the defendant’s
contacts with the forum state.
Kerry Steel, Inc. v. Paragon
Indus., Inc., 106 F.3d 147, 149 (6th Cir. 1997).1
The Court
addresses three criteria to determine if an exercise of specific
jurisdiction is proper.
First, Defendants must have purposefully
availed themselves of the privilege of acting in Kentucky or
purposefully caused a consequence in the state.
of
action
must
arise
from
Defendants’
Next, the cause
actions
in
Kentucky.
Finally, the exercise of jurisdiction must be reasonable.
See
Aristech Chem. Int’l Ltd. v. Acrylic Fabricators Ltd., 138 F.3d
624, 628 (6th Cir. 1998); Southern Machine Co. v. Mohasco Indus.,
Inc., 401 F.2d 374, 381 (6th Cir. 1968); Wilson, 85 S.W.3d at 592.
A court may not exercise in personam jurisdiction if the
defendant has not purposefully entered into a connection with the
forum state “such that he should reasonably anticipate being haled
into court there.”
World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297 (1980).
“This ‘purposeful availment’ requirement
ensures that a defendant will not be haled into a jurisdiction
solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’
1
General jurisdiction, on the other hand, exists when a
defendant’s “contacts with the forum state are of such a continuous
and systematic nature that the state may exercise personal
jurisdiction over the defendant even if the action is unrelated to
the defendant’s contacts with the state.” Bird v. Parsons, 289
F.3d 865, 873 (6th Cir. 2002). Plaintiffs have based their prima
facie case of personal jurisdiction on specific jurisdiction.
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contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985)(citations omitted).
III. ANALYSIS
Reading the facts in the light most favorable to Plaintiff,
as the Court must on a Rule 12(b)(2) motion, the Court finds that
the fact that Baptist Health Lexington sends approximately 80
kidney biopsy samples—or an average of 1.5 per week—to Defendant
Laboratory to be processed and returned is sufficient to exercise
specific personal jurisdiction over the Defendant Laboratory.
a. Kentucky’s Long-Arm Statute
The
Court
holds
that
processing
and
reporting
on
approximately 80 Kentucky kidney biopsy samples per year for 21
continuous years is sufficient to find that Defendant Laboratory
“regularly does or solicits business, or engages in any other
persistent course of conduct” in Kentucky. Defendant Laboratory,
on average once or twice per week for the past 21 years, has
processed biopsies from Kentucky, reported on those biopsies, and
returned a report to Kentucky.
satisfy
the
“minimum
This contact is sufficient to
contacts”
requirement
of
long-arm
jurisdiction in Kentucky.
The Court also finds there is a significant nexus between
Defendant Laboratory’s conduct with Kentucky—in this case, in
particular
injury.
Baptist
Health
Lexington—and
alleged
Defendant Laboratory regularly and repeatedly processed
8
Plaintiff’s
kidney biopsy samples for Baptist Health Lexington, including
Plaintiff’s kidney biopsy sample.
Plaintiffs claim Defendant
Laboratory’s negligent processing and/or reporting of the results
of his kidney biopsy resulted in the damages alleged in the
Complaint.
Finally, the Court finds exercise of jurisdiction would be
reasonable in this case.
The briefs note there are very few
medical testing facilities of this type in the country, and likely
due to its proximity to Kentucky, Defendant Laboratory does receive
samples from Kentucky regularly—at a minimum, around 80 per year
from Baptist Health Lexington. It is very possible, if not likely,
that discovery on this issue would reveal that other medical
providers in Kentucky utilize Defendant Laboratory’s services to
diagnose the citizens of Kentucky’s for kidney condition. Kentucky
has an interest in adjudicating a dispute between one of its
citizens and a corporate citizen in another state who is providing
(perhaps
negligently)
such
a
gravely
serious
service
to
approximately 80, if not many more, of its citizens each year.
The Court must “liberally construe[]” Kentucky’s long-arm
statute in favor of jurisdiction; based on the substantial contacts
Defendant Laboratory has with Baptist Health Lexington, the Court
holds
jurisdiction
appropriate.
pursuant
to
long-arm
statute
is
Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d
51, 56 (Ky. 2011).
9
the
b. Due Process Concerns
Regarding the due process analysis the Sixth Circuit set
forth,
the
Court
similarly
finds
that
the
facts
alleged
by
Plaintiff support asserting specific jurisdiction over Defendant
Laboratory.
The Court finds Defendant Laboratory “purposefully availed”
itself
of
the
jurisdiction
of
this
Court.
“The
purposeful
availment requirement ensures that a defendant will not be haled
into a jurisdiction solely as a result of random, fortuitous, or
attenuated contacts.”
Burger King Corp. v. Rudzewicz, 471 U.S.
462, 475 (1985)(internal quotation marks and citations omitted).
Defendant Laboratory certainly expected to receive and accept
around 80 samples from Baptist Health Lexington each year, as it
has for the last two decades, to process those samples and return
reports
of
medical
expertise
to
Kentucky;
thus
Defendant
Laboratory should not be surprised it would be subject to the
jurisdiction of Kentucky Courts.
As discussed above, it is clear that Plaintiffs’ claims for
damages
“arise
from”
Defendant
Laboratory’s
activities
in
Kentucky, namely, its long-standing relationship with Baptist
Health
Lexington
in
accepting,
processing,
reporting
on,
and
returning its numerous kidney biopsy samples each year, including
Plaintiff’s.
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Finally, and for the reasons stated above in Section a., it
is not unreasonable for this Court to exercise jurisdiction over
Defendant
Laboratory.
The
Court
recognizes
that
Defendant
Laboratory’s counsel and/or representatives will have to travel to
Kentucky to defend this lawsuit; however, the burden is on the
defendant to “present a compelling case that the presence of some
other considerations would render jurisdiction unreasonable.”
Products
and
Controls,
Inc.,
503
F.3d
2007)(quoting Burger King, 471 U.S. at 477).
544,
554
(6th
Air
Cir.
Defendant Laboratory
has not stated any particular reason it would be unreasonable for
its representatives to appear in federal court in Kentucky.
The
Court notes that since Defendants’ removal of this case to federal
court, the burden should be minimized, as federal court practice
is largely motion practice with electronic filing.
c. Jurisdiction over Defendant Dr. Lilia Mauricio
The Court does not have enough information to determine
whether the long-arm statute applies to Defendant Mauricio and
whether she “purposefully availed” herself to the jurisdiction of
Kentucky.
As the Courts of the Eastern District of Kentucky have
held,
“jurisdiction over the individual officers of
a corporation cannot be predicated merely upon
jurisdiction over the corporation.” Balance
Dynamics Corp. v. Schmitt Indus., Inc., 204
F.3d 683, 698 (6th Cir.2000) (quoting Weller
v. Cromwell Oil Co., 504 F.2d 927, 929 (6th
Cir.1974)). However, “the mere fact that the
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actions connecting defendants to the state
were undertaken in an official rather than
personal capacity does not preclude the
exercise of personal jurisdiction over those
defendants.” Balance Dynamics Corp., 204 F.3d
at 698. The Court must look at whether the
“out-of-state agent is actively and personally
involved in the conduct giving rise to the
claim” and if so, “the exercise of personal
jurisdiction should depend on traditional
notions of fair play and substantial justice;
i.e. whether [ ]he purposefully availed
[him]self of the forum and the reasonably
foreseeable consequences of that availment.”
Apex Contracting, Inc. v. Charles G. Allen Contracting Co., 2012
WL 1983991, at *4 (E.D. Ky. June 1, 2012).
The Court cannot make
determinations about whether Defendant Mauricio was “actively and
personally involved in the conduct giving rise to the claim”
without additional information.
The Court will grant Plaintiff’s
Motion to Permit Jurisdictional Discovery as related to Defendant
Mauricio.
IV.
CONCLUSION
For the reasons stated herein, and the Court being otherwise
sufficiently advised, IT IS ORDERED that:
(1)Defendants’ Motion to Dismiss [DE 1] is DENIED;
(2) Plaintiffs’ Motion for Extension of Time [DE 1] is DENIED
AS MOOT;
(3)
Plaintiff’s
Motion
for
Leave
Response [DE 18] is GRANTED; and
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to
File
Supplemental
(4) Plaintiff’s Motion for Jurisdictional Discovery [DE 17]
is GRANTED IN PART as to Defendant Mauricio and DENIED IN
PART AS MOOT as to Defendant Laboratory;
(5) Plaintiffs shall have ninety (90) days in which to conduct
discovery on jurisdiction as related to Defendant Mauricio;
and
(6) Defendants shall have until January 6, 2017, to renew
their Motion to Dismiss for Lack of Jurisdiction as to
Defendant Mauricio, but in no event shall any response be due
from Plaintiffs until January 27, 2017, unless Plaintiffs
choose to file earlier.
This the 30th day of September.
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