HENDERSON v. LASER SPINE INSTITUTE LLC et al
Filing
18
ORDER denying 15 Motion to Dismiss for Lack of Personal Jurisdiction and for Change of Venue; dismissing without prejudice 15 Motion to Dismiss for Failure to Comply with Maine Health Safety Security Act. Count VII dismissed as to Defendant Stefan Prada By JUDGE JOHN A. WOODCOCK, JR. (jgw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DALE HENDERSON,
Plaintiff,
v.
LASER SPINE INSTITUTE
LLC, et al.,
Defendant.
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1:11-cv-00015-JAW
ORDER ON MOTION TO DISMISS FOR LACK OF PERSONAL
JURISDICTION, CHANGE OF VENUE AND ON MOTION TO DISMISS FOR
FAILURE TO COMPLY WITH FLORIDA MEDICAL MALPRACTICE
STATUTES OR THE MAINE HEALTH SECURITY ACT
In 2008, Dale Henderson flew to Florida for expensive back surgery at the
Tampa facility of the Laser Spine Institute, hoping for recovery and reimbursement.
He got neither. In 2010, Mr. Henderson filed a nine-count complaint against the
Laser Spine Institute and Stefan Prada, the surgeon. The Defendants moved to
dismiss for lack of personal jurisdiction, for improper venue (and alternatively for a
transfer of venue), for failure to comply with Florida medical malpractice statutes,
and for failure to comply with the pre-litigation notice and screening requirements
of the Maine Health Security Act.
The Court concludes that personal jurisdiction exists over the Defendants,
that venue is proper in the District of Maine, and that the Florida statute of
limitations is not applicable. However, the Court also concludes that the Plaintiff
must first comply with the pre-litigation requirements of the Maine Health Security
Act. Although the Court denies most of the motion to dismiss, it dismisses without
prejudice the part of the motion that is based on the failure of the Plaintiff to
comply with the Maine Health Security Act and stays the action to allow the
Plaintiff to comply with the pre-litigation screening requirements of Maine law.
I.
STATEMENT OF FACTS
A.
Procedural History
On December 2, 2010, Dale Henderson, a resident of Orrington, Maine, filed
suit in Penobscot County Superior Court against Laser Spine Institute (LSI), a
Florida limited liability company, and Dr. Stefan Prada, a Florida resident
(collectively Defendants), in connection with medical treatment Mr. Henderson
received from them. Mr. Henderson alleged fraud (Count I), breach of contract
(Count II), unjust enrichment (Count III), unfair trade practices (Count IV),
fraudulent concealment (Count V), negligent misrepresentation (Count VI),
negligence (Count VII), intentional infliction of emotional distress (Count VIII), and
negligent infliction of emotional distress (Count IX). Compl. (Docket # 2). The
Defendants removed the action to this Court on January 13, 2011.
Notice of
Removal (Docket # 1).
On January 24, 2011, the Defendants moved to dismiss for lack of personal
jurisdiction and for change of venue, or alternatively, to dismiss the action for
failure to comply with Florida‟s medical malpractice statute or the Maine Health
Security Act (MHSA), 24 M.R.S. § 2501, et seq. Defs.’ Mot. to Dismiss for Lack of
Pers. Jurisdiction and for Change of Venue, or, in the Alternative, to Dismiss for Pl.’s
Failure to Comply with Fla. Med. Malpractice Statutes or the Me. Health Sec. Act
2
(Docket # 12) (Defs.’ Mot.).1 On February 18, 2011, the Plaintiff objected. Pl. Dale
Henderson’s Opp’n to Defs.’ Mot. to Dismiss Compl. for Lack of Pers. Jurisdiction
and for Change of Venue, or in the Alternative to Dismiss for Failure to Comply with
Fla. Med. Malpractice Statutes or Me. Health Sec. Act (Docket # 16) (Pl.’s Opp’n).
On March 4, 2011, the Defendants replied. Defs.’ Reply in Support of its Mot. to
Dismiss (Docket # 17) (Defs.’ Reply).
B.
Factual Background2
In September 2008, Dale Henderson, through his personal assistant, Judy
Sawyer, contacted LSI, a limited liability company that provides spinal surgery
services based in Tampa, Florida, seeking relief from chronic and nearly
unendurable back pain. Pl.’s Opp’n Attach. 1 ¶¶ 3, 8 (Henderson Decl.); Pl.’s Opp’n
Attach. 2 ¶¶ 5-7 (Sawyer Decl.); Compl. ¶¶ 1-2; Defs.’ Mot. Attach. 1 ¶ 4 (Bollinger
Decl.). LSI instructed Ms. Sawyer to forward Mr. Henderson‟s MRI records to their
facilities for review. Sawyer Decl. ¶ 7. Ms. Sawyer sent the MRIs. Id. Time passed
and LSI did not get back to Mr. Henderson regarding potential treatment. Id. ¶ 8.
Ms. Sawyer then contacted Richard “Bud” Anderson, an Ellsworth, Maine resident,
who had initially recommended LSI to Mr. Henderson. Id.; Henderson Decl. ¶¶ 5-6,
10. Mr. Anderson contacted LSI on Mr. Henderson‟s behalf to inquire as to the
status of Mr. Henderson‟s request for a consultation. Henderson Decl. ¶ 11.
The Court cites the Defendants‟ original and now sealed January 24, 2011 Motion, at Docket # 12; a
redacted version of the Motion, filed January 28, 2011, is available at Docket # 15.
2 The Court recites these facts in accordance with the “prima facie evidentiary standard.” Astro-Med,
Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009).
1
3
Later that month, LSI telephoned Mr. Henderson in Maine to schedule an
appointment and discuss the costs of treatment. Id. ¶ 12. Mr. Henderson asserts
that during that conversation, “Audrey,” an LSI employee, assured him that his
insurance would cover the treatment costs but informed him that he would have to
pay $30,000 in advance. Id. ¶¶ 12-13. LSI sent a facsimile to Mr. Henderson,
providing him with a list of hotels where he could stay while in Tampa, Florida for
his treatment.
Id. ¶ 14.
LSI also faxed Mr. Henderson a patient registration
package comprised of several forms for him to fill out and send back to LSI. Id. ¶
15.
In early October 2008, Mr. Henderson traveled to Florida for treatment at
LSI. Id. ¶ 17. On October 6, 2008, Mr. Henderson received a consultation at LSI
and surgery was scheduled for the following day. Id. During the consultation, LSI
informed Mr. Henderson that, in order for the first treatment to be effective, he
would need a second treatment several days after the first.
Id.
The second
treatment required a $25,500 advance. Id. ¶ 18. Mr. Henderson agreed to both
treatments and asked Ms. Sawyer in Maine to wire the necessary funds to LSI in
Florida.
Id. ¶ 18-19.
Concerned that the wired funds had not gone through
properly, LSI communicated with Ms. Sawyer by telephone to obtain the funds for
Mr. Henderson‟s further treatment.
Sawyer Decl. ¶¶ 16-17.
Mr. Henderson
underwent the second treatment on October 14, 2008 and, several days later,
returned to Maine. Henderson Decl. ¶ 23.
4
By December 2008, Mr. Henderson‟s back pain had returned. Id. ¶ 24. He
made a number of calls to LSI in December 2008 and January 2009 to speak with
Dr. Prada, but was unable to reach him. Id. ¶ 25. In January 2009, Dr. Prada
telephoned Mr. Henderson in Maine and directed him to obtain another MRI and to
send the results to him in Florida. Id. ¶ 26. Two weeks after sending the MRI
results to Dr. Prada, Mr. Henderson, at LSI‟s direction and while in considerable
pain, returned to Florida for another consultation at LSI which took place on
February 18, 2009. Id. ¶¶ 27-29; Compl. ¶43. Even though Dr. Prada had the MRI
results for approximately two weeks, Mr. Henderson believed he was reviewing
them for the first time during the consultation. Id. ¶ 30. Dr. Prada informed Mr.
Henderson that there were no further surgical treatments that LSI could provide
him for his back condition but that he could administer a steroid injection for the
pain.
Id.
Even though Dr. Prada conducted no physical examination of Mr.
Henderson, he reached this conclusion in less than three minutes of reviewing the
MRI results. Id. Mr. Henderson received the injection and returned to Maine, but
he asserts he never would have traveled to Florida if he had known that the only
available treatment was steroid injection because such a treatment was available in
Maine. Id. ¶¶ 31-32.
During this same time, Mr. Henderson became concerned that his insurer,
Aetna, had not reimbursed him for his first two LSI treatments in October 2008.
Id. ¶ 33. When Ms. Sawyer, at Mr. Henderson‟s request, asked Aetna about the
status of his reimbursement, Aetna told her that it lacked the necessary
5
information from LSI. Id. ¶ 34. Ms. Sawyer telephoned LSI and requested the
missing information and LSI assured her that the information had been sent to
Aetna. Id. ¶ 35.
In February 2009, Aetna denied Mr. Henderson‟s claim for reimbursement.
Id. ¶ 36.
Ms. Sawyer again contacted LSI regarding Aetna‟s denial of Mr.
Henderson‟s claim. Id. ¶ 37. Steven Torres, an LSI employee, advised Ms. Sawyer
that Mr. Henderson should appeal Aetna‟s denial. Id. To assist with the appeal,
Mr. Torres emailed Mr. Henderson‟s patient ledger to Ms. Sawyer in Maine. Id. ¶
38. The patient ledger itemized the costs of treatment and detailed the services
provided totaling $124,979.95, reduced by $55,500.00 to reflect Mr. Henderson‟s two
advance payments. Id. In addition to the email, LSI faxed Ms. Sawyer in Maine a
form letter to be edited and sent to Aetna. Ms. Sawyer completed and mailed LSI‟s
form letter on February 27, 2009. Id. ¶ 39.
The appeals process with Aetna continued and in March 2009, Mr.
Henderson employed the assistance of Maine attorney, Timothy Pease. Pl.’s Opp’n
Attach. 3 ¶ 5 (Pease Decl.). Throughout the remainder of 2009, Mr. Pease was in
contact with LSI in an attempt to have Aetna cover the LSI treatments. Id. ¶¶ 622. These contacts included numerous telephone calls and emails from LSI to Mr.
Pease in Maine. Id. On October 23, 2009, Aetna denied Mr. Henderson‟s claim a
second time because it determined that the treatments provided by Dr. Prada and
LSI were “experimental or investigational.” Henderson Decl. ¶ 49; Sawyer Decl.
¶ 29.
Mr. Henderson requested an external review of the second denial, which
6
Medwork Independent Review conducted. Henderson Decl. ¶ 50. On October 19,
2010, Aetna, LSI, and Mr. Henderson participated in a telephone hearing, and, nine
days later, the independent reviewer issued a written decision denying coverage.
Id. ¶¶ 50-51; Compl. ¶ 39. On November 20, 2009, Mr. Henderson and Mr. Pease
held a conference call with the Director of Patient Financial Services for LSI, David
Neal, in an effort to get additional information from LSI and discuss the level of
care Mr. Henderson had received at LSI. Pease Decl. ¶¶ 7, 16. After the November
20 call, Mr. Neal emailed Mr. Pease indicating again that LSI would do its best to
resolve Mr. Henderson‟s issues. Id. ¶ 17. On December 10, 2009, Dotty Bollinger,
the Senior Vice President of Medical Operations at LSI, and Mr. Pease participated
in a conference call to discuss information supplied by LSI to support Mr.
Henderson‟s attempts for reimbursement from Aetna, as well as to discuss Mr.
Henderson‟s treatment at LSI. Id. ¶ 19; Bollinger Decl. ¶ 1. The next day, Ms.
Bollinger emailed Mr. Pease providing advice on tactics he could employ to obtain
coverage from Aetna. Pease Decl. ¶ 20. She also offered to pay Mr. Henderson
$10,000 for poor customer service he received from LSI. Id.
During these efforts to obtain reimbursement for the LSI treatments, Mr.
Henderson traveled to Massachusetts to undergo further back surgery at the Lahey
Clinic. Henderson Decl. ¶¶ 44. The treatment finally alleviated his chronic back
pain and Aetna covered the Lahey Clinic procedures. Id. ¶¶ 44, 46.
II.
THE PARTIES’ POSITIONS
A.
The Defendants’ Position
1.
General Personal Jurisdiction
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The Defendants move to dismiss for lack of personal jurisdiction, asserting
that LSI does not have the minimum “continuous and systematic contacts with the
state of Maine or any Maine-based contacts” necessary to sustain personal
jurisdiction.
Defs.’ Mot. at 3.
Defendants argue that “LSI does not transact
business or hold any licenses in Maine; own real estate or have a plant, office, or
facility in Maine; provide medical services in Maine or employ anyone providing
medical services in Maine; or have a telephone listing or a mailing address in
Maine.” Id. at 5. They analogize the facts of this case to those of Cossaboon v.
Maine Medical Center, 600 F.3d 25 (1st Cir. 2010), where the First Circuit found
general personal jurisdiction lacking in New Hampshire because of insufficient
Maine contacts. LSI contends that its website provides only information and so is
less interactive than the Maine Medical Center website that the First Circuit found
insufficient to support general jurisdiction. Id. at 7. In addition, the Defendants
assert that the number of Maine patients treated by LSI is “even less substantial”
than the 1.23% of New Hampshire patients treated by Maine Medical Center in
Cossaboon.
Id. at 7-8.
They further argue that Plaintiff “unilaterally chose to
travel to and receive medical treatment at LSI‟s facility.” Id. at 8.
2.
Specific Personal Jurisdiction
Turning to specific personal jurisdiction, the Defendants provide three factors
that must be considered: whether the claim directly relates to or arises out of
Defendants‟ contact with the forum, whether the contact constitutes purposeful
availment of the forum‟s laws, and whether the exercise of jurisdiction is
reasonable. The Defendants assert that there is no nexus between Plaintiff‟s claim
8
and their contact with the state of Maine.
Id. at 9.
They claim that Mr.
Henderson‟s numerous causes of action all stem from events that occurred at LSI‟s
facility in Tampa, Florida. Id. at 9-10. The Defendants contend that the “notions of
fair play and substantial justice” weigh against this Court exercising specific
personal jurisdiction. Id. at 10. They assert that it would be “onerous” for them to
travel to Maine to appear and defend this matter. Id. at 11. Furthermore, the
Defendants assert that Maine has no interest in adjudicating this dispute, as the
events that prompted the Plaintiff‟s claims occurred outside the state‟s borders. Id.
at 11.
3.
Venue
The Defendants also contend that venue is not proper in this Court. In their
view, the events giving rise to Mr. Henderson‟s claims all occurred in Florida.
Consequently, the Defendants move to have the matter dismissed pursuant to Rule
12(b)(3), or transferred to an appropriate venue in Florida. Id. at 11-12.
4.
Statute of Limitations:
a.
Florida medical malpractice statutes
Alternatively, the Defendants argue Plaintiff‟s claims are statutorily barred.
The Defendants concede that under traditional choice of law rules, the statute of
limitations of the forum determines the timeliness of an action, even if the
substantive law of another state applies to the case.
Thus, Maine‟s statute of
limitations would normally apply to this matter. However, the Defendants cite
Siegemund v. Shapland, 247 F. Supp. 2d 1, 6 (D. Me. 2003), as reflecting an
exception to the traditional rule where the claim is predicated on a foreign statutory
9
enactment.
Id. at 12.
In the Defendants‟ view, Mr. Henderson‟s claims are
predicated on Florida Statute § 95.11(4)(b)3 and are therefore subject to Florida‟s
statute of limitations which is measured “from the time the incident giving rise to
the action occurred or within 2 years from the time the incident is discovered.” Id.
at 12-13. The Defendants argue that Mr. Henderson‟s claims became time barred in
October 2010, “weeks before the complaint was filed in the Penobscot County
Superior Court.” Id. at 13-14.
b.
Maine Health Security Act
The Defendants further argue that if the Court finds that Florida law does
not apply, then the Maine Health Security Act (MHSA) governs his claims because
they feature allegations of “professional negligence.”4 Id. at 14. According to the
Defendants, Mr. Henderson failed to comply with the “paramount „procedural
requirement‟ of the MHSA” by failing to “[s]erve[] and file[] a written notice of claim
under oath in accordance with section 2853 and submit his claim to the medical
malpractice pre-litigation screening panel process.” Id. at 15 (quoting 24 M.R.S.
§2903(1)). The Defendants argue that dismissal is justified because the function of
MHSA‟s oath requirement is to prevent a plaintiff from filing a “frivolous, untrue,
inflated or mistaken claim.” Id. at 16.
B.
Dale Henderson’s Position
Fla. Stat. § 95.11 is titled “Limitations other than for the recovery of real property.” The relevant
portion, § 95.11(4)(b), reads: “An action for medical malpractice shall be commenced within 2 years
from the time the incident giving rise to the action occurred or within 2 years from the time the
incident is discovered, or should have been discovered with the exercise of due diligence.”
4 24 M.R.S. § 2853 provides the procedure for the submission of claims: “A person may commence an
action for professional negligence by . . . . ”
3
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1.
Jurisdiction
Mr. Henderson does not address the Defendants‟ general jurisdiction
argument. Instead, he maintains that this Court has specific personal jurisdiction
over the Defendants. Pl.’s Opp’n. at 2-3. Looking to Maine law, Mr. Henderson
applies the three-part test outlined in Connelly v. Doucette, 909 A.2d 221 (Me.
2006), and concludes that all three conditions for specific jurisdiction are satisfied
because: “(1) Maine has a legitimate interest in the subject matter of the litigation;
(2) the defendant, by his or her conduct, reasonably could have anticipated litigation
in Maine; and (3) the exercise of jurisdiction by Maine‟s courts comports with
traditional notions of fair play and substantial justice.”
Id. at 3, 9 (quoting
Connelly, 909 A.2d at 223).
Regarding the first condition, Mr. Henderson argues that Maine has a
legitimate interest in affording its citizens, such as Mr. Henderson, a forum to
redress injuries caused by nonresidents. In addition, he says that Maine has an
interest in the subject matter of this litigation because he suffered in Maine from
the effects of the Defendants‟ negligent treatment, he underwent medical testing in
Maine at the Defendants‟ direction, and many of the corresponding witnesses and
medical records are located in Maine. Id. at 3-4. Moreover, Mr. Henderson asserts
that Maine has an interest in protecting him from the economic harms he suffered
at the hands of the Defendants due to their alleged misrepresentations regarding
insurance coverage. Id. at 4.
Applying the second prong of the analysis, Mr. Henderson argues that the
Defendants reasonably could have anticipated litigation in Maine because they were
11
aware of the continuing detrimental impact their conduct was having in Maine. Id.
Mr. Henderson submits that LSI falsely indicated that Aetna would cover the costs
of treatment and was aware of the harmful impact of its misrepresentations after
he informed LSI of Aetna‟s denial of his claim. Id. at 5. Mr. Henderson emphasizes
that the Defendants‟ communications into Maine after knowledge of his insurance
claim denial “perpetuated LSI‟s fraudulent representations that there would be
insurance coverage.” Id. Mr. Henderson insists that LSI‟s efforts, after receiving
knowledge of Aetna‟s denial of coverage, were an attempt to “deflect attention away
from its knowing misrepresentations” and to “delay any potential legal action.” Id.
He argues that this behavior, coupled with LSI‟s voluntary contacts with him and
his attorney via telephone, email, fax, website, and national publications,
constitutes conduct that satisfies the second part of the personal jurisdiction
inquiry―the Defendants could have reasonably anticipated litigation in Maine. Id.
at 5-8.
As to the third part of the analysis, Mr. Henderson contends that the fair
play and substantial justice inquiry is also met. Id. at 8-9. He submits that once
the plaintiff has satisfied the first two prongs of the jurisdictional analysis, the
burden then shifts to the defendant to prove that notions of fair play and
substantial justice would be offended. Id. at 8. In his view, the Defendants cannot
meet this burden as all factors weigh in favor of exercising jurisdiction. Id. at 9.
Mr. Henderson asserts that the nature and purpose of the Defendants‟ contacts
with Maine were “to induce [him] to travel to Florida to receive medical treatments,
12
to ensure that those treatments were paid for in advance, and to obfuscate
wrongdoing with regard to the issue of insurance coverage.” Id. at 9. According to
Mr. Henderson, all contacts LSI had with Maine are directly related to his cause of
action.
Although Mr. Henderson concedes that Florida has an interest in the
controversy because “most of the wrongful activities occurred there,” he contends
that these factors do not trump all the other factors weighing in favor of Maine
exercising jurisdiction. Id. at 9. Regarding the convenience and fairness to both
parties, Mr. Henderson asserts that LSI is a corporate entity and Dr. Prada is a
practicing physician, suggesting they have the funds to travel to and litigate in
Maine. Id. By contrast, Mr. Henderson explains that he has significant difficulty
traveling and that enduring a long flight or drive would be particularly painful
given his history of back pain. Id. Thus, Mr. Henderson concludes that convenience
and fairness weigh in his favor. Id.
Turning to federal law, Mr. Henderson asserts that the three-part due
process inquiry of specific jurisdiction is also satisfied because his claims are
directly related to LSI‟s contacts with Maine, LSI‟s contacts constitute purposeful
availment, and jurisdiction is reasonable under the First Circuit‟s “gestalt” factors.
Id. at 10. Applying the first prong of the federal analysis, Mr. Henderson contends
that LSI‟s direct contacts with Maine underlie the claims in his Complaint. Id. He
cites the telephone calls LSI made to him in Maine to discuss his anticipated
treatment and to confirm that his insurer would cover the cost of treatment, the
13
contacts by LSI to Ms. Sawyer in Maine to ensure receipt of advance payment, and
Dr. Prada‟s telephone call instructing Mr. Henderson to obtain an MRI and to have
the results sent to him. Id. He asserts that he never would have traveled to Florida
for treatment if he had not received these contacts from the Defendants. Id.
As to the second prong of the federal analysis, Mr. Henderson maintains that
the Defendants‟ contacts with Maine represent a purposeful availment of the
benefits and protections of Maine laws. Id. at 11. He argues that the Defendants
voluntarily and knowingly solicited business from Maine when they followed up on
his initial inquiry with several phone calls and facsimiles meant to induce Mr.
Henderson to undergo treatment in Florida. Id. Moreover, Mr. Henderson submits
that LSI‟s awareness that he expected his insurance to cover his treatment and that
Aetna found the treatments problematic made it foreseeable and should have put
the Defendants on notice that they may be held accountable in Maine. Id. at 12.
Furthermore, Mr. Henderson maintains that LSI‟s minimum contacts demonstrate
that the Defendants purposefully availed themselves of the benefits of doing
business in Maine and have the reciprocal obligation to submit to Maine‟s
jurisdiction. Id. at 13.
Turning to the third prong of the federal analysis, Mr. Henderson maintains
that asserting personal jurisdiction over the Defendants would comport with
notions of fair play and substantial justice.
Id. at 14. Reviewing the so-called
gestalt factors, Mr. Henderson explains that, having satisfied the first two prongs, it
is the burden of the Defendants to make a “„compelling case‟ that litigation in Maine
14
would be unreasonable and unfair.”
He argues that the Defendants cannot
shoulder this load. Id. at 13-14.
2.
Venue
Mr. Henderson opposes the Defendants‟ motion to dismiss for improper
venue.
He asserts that venue is proper in the District of Maine because a
substantial part of the events giving rise to his claims occurred in Maine pursuant
to 28 U.S.C. § 1391(a)(2). Id. at 15. Mr. Henderson highlights his claims of fraud,
unfair trade practices, fraudulent concealment, and negligent misrepresentation as
claims arising directly from the Defendants‟ contacts with the District of the Maine.
Id. Mr. Henderson also opposes their alternative request to have venue transferred
to Florida, claiming that the Defendants cannot carry the “substantial burden” for a
change of venue because “[w]itnesses are to be found in both Maine and Florida, as
are documents and records.” Id.
3.
Statute of Limitations
Turning to the Defendants‟ alternative motion for dismissal on substantive
grounds, Mr. Henderson urges the Court to consider now only the jurisdictional
question. Id. at 16. Nonetheless, he opposes the Defendants‟ assertion that the
claims must be dismissed pursuant to Florida‟s two year statute of limitations. Id.
Mr. Henderson also opposes the Defendants‟ contention that he has failed to comply
with the MHSA and that dismissal is appropriate. Id.
a.
Florida medical malpractice statutes
Mr. Henderson disputes that the Florida medical malpractice statute applies
and instead submits that Maine‟s six-year statute of limitations applies to this case.
15
Id. He agrees with the Defendants that under the general choice of law rule, the
statute of limitations of the forum controls, yet disagrees that the claims fall under
the “foreign statutory enactment” exception to the traditional rule. Id. at 16-17.
Mr. Henderson contends that none of the claims set forth in his Complaint is
predicated on a foreign statutory enactment.
Id. at 17.
He argues that the
statutory provision cited by the Defendants is merely “Florida‟s statute of
limitations for causes of action other than for the recovery of real property” and that
the substantive claims of his complaint arise under Maine common law. Id. Mr.
Henderson reasons that if the case were transferred to Florida for lack of personal
jurisdiction, choice of law rules would dictate that Maine‟s statute of limitations
applied.
Id. at 17-18.
Therefore, according to Mr. Henderson, to accept the
Defendants‟ assertion that Florida Statute § 95.11(4)(b) applies would lead to the
illogical result of applying Maine‟s statute of limitations to a lawsuit in Florida and
Florida‟s statute of limitations to a lawsuit in Maine. Id. at 18 n.3.
b.
Maine Health Security Act
Mr. Henderson asserts that the Maine Health Security Act (MHSA) does not
apply to LSI as LSI is not “licensed or otherwise authorized by the laws of this
State” as the Act requires for its application. Id. at 19. Mr. Henderson withdraws
Count VII, his claim of negligence against Dr. Prada, as it is the only count that, in
his view, could trigger the MHSA statute of limitations. Id. at 19-20.
III.
DISCUSSION
A.
Jurisdiction
1.
Legal Standard
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“To hear a case, a court must have personal jurisdiction over the parties, „that
is, the power to require the parties to obey its decrees.‟” Astro-Med, Inc. v. Nihon
Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009) (quoting United States v. Swiss Am.
Bank, Ltd., 191 F.3d 30, 35 (1st Cir. 1999)). On a motion to dismiss for lack of
personal jurisdiction, pursuant to Rule 12(b)(2), “the plaintiff ultimately bears the
burden of persuading the court that jurisdiction exists.” Id. In resolving the issue,
district courts have at their disposal “a trio of standards, each corresponding to a
level of analysis, that might usefully be employed when a trial court comes to grips
with a motion to dismiss for want of personal jurisdiction.” Foster-Miller, Inc. v
Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir. 1995). Of these standards—
prima
facie,
preponderance-of-the-evidence,5
and
likelihood-of-existence-of-
necessary-facts6—the Court employs the prima facie evidence standard as it is the
To apply the preponderance-of-the-evidence standard, the court must “embark on a factfinding
mission in the traditional way, taking evidence and measuring the plaintiff‟s jurisdictional showing.”
Foster-Miller, 46 F.3d at 145. The standard is properly employed when the court
5
determines that in the circumstances of a particular case it is unfair to force an outof-state defendant to incur the expense and burden of a trial on the merits in the
local forum without first requiring more of the plaintiff than a prima facie showing of
facts essential to in personam jurisdiction. A court may so determine, for example,
when the proffered evidence is conflicting and the record is rife with contradictions,
or when a plaintiff's affidavits are “patently incredible . . . .”
Id. at 145-46 (quoting Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 676 (1st Cir. 1992)). Because the
standard requires “a full-blown evidentiary hearing at which the court will adjudicate the
jurisdictional issue definitively before the case reaches trial,” the First Circuit warns that it “must be
used discreetly.” Id. at 146.
6 The “likelihood standard” strikes a middle ground between the prima facie and preponderance
standards. Id. It is used
“[i]n the special circumstance in which the assertion of jurisdiction is bound up with
the claim on the merits, the possibility of preclusion renders use of the
preponderance standard troubling, while the possibility of permitting a dubious case
to proceed beyond the pleading stage, and even to trial, though the court eventually
17
“most conventional” and is “a useful means of screening out cases in which personal
jurisdiction is obviously lacking.” Id.; see Astro-Med, 591 F.3d at 8 (“[A] district
court „may choose from among several methods for determining whether the
plaintiff has met its burden‟”) (quoting Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir.
2007))).
Under the prima facie standard, a district court may consider “only whether
the plaintiff has proffered evidence that, if credited, [is] enough to support findings
of all facts essential to personal jurisdiction.”
Id. (internal quotation marks
omitted). The court “must accept the plaintiff‟s (properly documented) evidentiary
proffers as true for the purpose of determining the adequacy of the prima facie
jurisdictional showing.”
Id. (internal quotation marks omitted).
The court also
“construe[s those proffers] in the light most congenial to the plaintiff‟s jurisdictional
claim.” Id. The facts put forward by the defendant are considered “only to the
extent that they are uncontradicted.” Id. Applying this standard, the Court accepts
as true the facts alleged in Mr. Henderson‟s pleadings, affidavits, and other
documents, and construes them in a jurisdictionally friendly light. The Court also
considers the uncontroverted facts asserted by LSI.
In any case arising under diversity jurisdiction, a federal court‟s jurisdiction
is “the functional equivalent of a state court sitting in the forum state.”
will be found to lack jurisdiction, renders use of the prima facie standard
undesirable.”
Foster-Miller, 46 F.3d at 146. Under this standard, the court asks “whether the plaintiff has
shown a likelihood of the existence of each fact necessary to support personal jurisdiction.”
Id. (quoting Boit, 967 F.2d at 676).
18
N.
Laminate Sales, Inc. v. Davis, 403 F.3d 14, 24 (1st Cir. 2005) (internal quotation
marks omitted). Therefore, to establish personal jurisdiction over the Defendants,
Mr. Henderson must demonstrate that Maine‟s long-arm statute allows jurisdiction
and that its exercise does not offend the Due Process Clause of the United States
Constitution. See id. “[T]o insure maximum protection to citizens of this State,”
Maine‟s long-arm statute, extends “to the fullest extent permitted by the due
process clause of the United States Constitution.” 14 M.R.S. § 7040A(1). Because
Maine‟s jurisdictional statute is coextensive with the limits of the Due Process
Clause of the Fourteenth Amendment, the two inquiries merge.
Harlow v.
Children’s Hosp., 432 F.3d 50, 57 (1st Cir. 2005); see also Elec. Media Int’l v. Pioneer
Commc’ns of Am., Inc., 586 A.2d 1256, 1256 (Me. 1991). The due process inquiry
thus determines the limits of the Court‟s jurisdictional reach in this diversity case.
Due process “requires only that in order to subject a defendant to a judgment
in personam, if he be not present within the territory of the forum, he have certain
minimum contacts with it such that the maintenance of the suit does not offend
„traditional notions of fair play and substantial justice.‟” Astro-Med, 591 F.3d at 9
(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)). The Due Process
Clause provides two bases by which a non-resident defendant may be subject to the
jurisdiction of a court: general and specific jurisdiction. General jurisdiction exists
for a “cause of action [which] may be unrelated to the defendant‟s contacts, [when]
the defendant [has] continuous and systematic contacts with the state.” Lechoslaw
v. Bank of Am., N.A., 618 F.3d 49, 54 (1st Cir. 2010) (quoting Harlow, 432 F.3d at
19
57. Specific jurisdiction requires that “the plaintiff‟s claim must be related to the
defendant‟s contacts.” Id.
The Defendants assert that the Court lacks both general and specific
jurisdiction to hear this case. Defs.’ Mot. at 3. Mr. Henderson contends that only
specific jurisdiction exists. Pl.’s Opp’n at 2-14; Defs.’ Reply at 1. The Court regards
any assertion of general jurisdiction as waived and considers only specific
jurisdiction.
See Astro-Med, 591 F.3d at 19 (“[I]ssues adverted to . . . in a
perfunctory manner, unaccompanied by some developed argumentation, are deemed
to have been abandoned” (internal quotation marks omitted)); United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[A] litigant has an obligation „to spell out
its arguments squarely and distinctly, or forever hold its peace.‟” (quoting RiveraGomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988))).
2.
Specific Jurisdiction
The First Circuit has divided the specific jurisdiction and subsequent
minimum contacts analysis into three inquires: (1) relatedness; (2) purposeful
availment; and (3) reasonableness.
See N. Am. Catholic Educ. Programming
Found., Inc., v. Cardinale, 567 F.3d 8, 16 (1st Cir. 2009) (“[A]llowing jurisdiction to
be asserted as to a specific claim, can be established where the defendants availed
themselves of the opportunity to do business in the state, the claim in question is
related to that access and the so-called gestalt factors are consistent with requiring
an out-of-state defendant to defend within the state.”).
a.
Relatedness
20
“[R]elatedness is the divining rod that separates specific jurisdiction cases
from general jurisdiction cases. . . .
[I]t ensures that the element of causation
remains in the forefront of the due process investigation.” Nowak v. Tak How Invs.,
Ltd., 94 F.3d 708, 714 (1st Cir. 1996) (citing Ticketmaster-New York, Inc. v. Alioto,
26 F.3d 201, 206 (1st Cir. 1994)). The relatedness inquiry asks whether “the claim
underlying the litigation directly arises out of, or relates to, the defendant‟s forumstate activities.” Astro-Med, 591 F.3d at 9 (quoting N. Laminate Sales, 403 at 25).
It is a “flexible, relaxed standard.” N. Laminate Sales, 403 F.3d at 25.
The fact that the Defendants‟ Maine-based contacts occurred remotely,
primarily through fax and telephone conversations, is not necessarily fatal to a
finding of jurisdiction. The First Circuit explained that “forum-state contacts need
not involve physical presence,” Phillips Exeter Acad. v. Howard Phillips Fund, Inc.,
196 F.3d 284, 290 (1st Cir. 1999), and “[t]he transmission of information into [the
forum state] by way of telephone . . . or mail is unquestionably a contact for
purposes of [the jurisdiction] analysis.” Sawtelle v. Farrell, 70 F.3d 1381, 1389-90
(1st Cir. 1995).7
i.
Breach of Contract
Count II of Mr. Henderson‟s Complaint alleges breach of contract.
Mr.
Henderson alleges two separate breaches: (1) a breach of the Defendants‟ agreement
to “provide medically accepted treatment for Plaintiff‟s diagnosed condition”; and (2)
The First Circuit has also noted that “there is a natural blurring of the relatedness and purposeful
availment inquiries in cases (like this one) in which the alleged contacts are less tangible than
physical presence.” Phillips Exeter, 196 F.3d at 289. Nonetheless, the relatedness and purposeful
availment inquiries are different. Id.
7
21
a breach of their agreement to “take all reasonable actions to ensure Aetna covered
the treatment Defendants provided to Plaintiff.” Compl. ¶¶ 57-58. “To satisfy the
relatedness prong this claim must arise out of or relate to [the Defendants‟] contacts
with Maine. This requirement is met in a breach of contract claim where [the
Defendants‟] forum-based activities are „instrumental either in the formation of the
contract or in its breach.‟” New Life Brokerage Servs., Inc. v. Cal-Surance Assocs.
Inc., 222 F. Supp. 2d 94, 102 (D. Me. 2002) (quoting Phillips Exeter, 196 F.3d at
289). However, “the mere existence of a contractual relationship between an out-ofstate defendant and an in-state plaintiff does not suffice, in and of itself, to
establish jurisdiction in the plaintiff‟s home state.” Phillips Exeter, 196 F.3d at 290.
Rather, as the Supreme Court explained in Burger King Corp. v. Rudzewicz, “prior
negotiations and contemplated future consequences, along with the terms of the
contract and the parties‟ actual course of dealing . . .
must be evaluated in
determining whether the defendant purposefully established minimum contacts
within the forum.”
471 U.S. 462, 479 (1985); Phillips Exeter, 196 F.3d at 290
(quoting the Supreme Court‟s rule and approving the district court‟s focus on the
defendant‟s forum-based activities rather than on the contractual relationship).
The
Defendants‟
relevant
forum-based
activities
consist
of
their
communications with Mr. Henderson while he was in Maine before his initial trip to
Florida in October 2008. However, not all communications between LSI staff and
Mr. Henderson touch upon his breach of contract claim. It was not until September
2008—after several attempts by Mr. Henderson and his representatives to attract
22
the Defendants‟ attention—that the relevant communications began. At this point,
LSI finally returned Mr. Henderson‟s calls to discuss the cost of his potential
treatment and to schedule an appointment.
During that conversation, LSI
represented to Mr. Henderson that he would have to pay $30,000 for his treatment
in advance, but that his insurance provider, Aetna, would reimburse the costs and
cover the treatment.
Henderson Decl. ¶¶ 12-13; Sawyer Decl. ¶ 10.
Shortly
thereafter, LSI again contacted Mr. Henderson in Maine via facsimile with a list of
hotels where he could stay while in Florida during his treatment. Henderson Decl.
¶ 14; Sawyer Decl. ¶ 10. LSI also faxed Mr. Henderson a patient registration packet
with several forms for him to fill out and return to Florida.8 Henderson Decl. ¶ 15;
Sawyer Decl. ¶ 11.
When Mr. Henderson traveled to LSI‟s office in Florida to
receive a consultation and surgery, LSI communicated numerous times with Ms.
Sawyer in Maine to ensure LSI‟s receipt of payment. Henderson Decl. ¶¶ 21-22;
Sawyer Decl. ¶¶ 16-17. Under the “flexible, relaxed standard” of the relatedness
test, these contacts are sufficient.
ii.
Tort Claims
The Court turns to Mr. Henderson‟s tort claims.9 The relatedness inquiry
here focuses on proximate cause; the court “must probe the causal nexus between
the defendant‟s contacts and the plaintiff‟s cause of action.” Astro-Med, 591 F.3d at
9 (quoting Phillips Exeter, 196 F.3d at 289). “The defendant‟s in-state conduct must
Under the prima facie standard, the patient forms that LSI sent from Florida to Maine and that
Mr. Henderson completed in Maine and returned to LSI in Florida form part of their contract.
9 For specific jurisdiction, the Court must separately analyze each claim against each defendant.
Phillips Exeter, 196 F.3d at 289.
8
23
form an „important, or at least material, element of proof‟ in the plaintiff‟s case.”
Harlow, 432 F.3d at 61 (quoting Marino v. Hyatt Corp., 793 F.2d 427, 430 (1st Cir.
1986)).
The Defendants‟ relevant in-state activities consist of LSI‟s communications
through the telephone, email and facsimile directed into Maine before and after Mr.
Henderson‟s initial treatment. In addition to the communications regarding Mr.
Henderson‟s contract claim, the Defendants directed contacts toward Maine after
Mr. Henderson‟s October 2008 treatment in Florida.
For example, when Mr.
Henderson‟s back pain returned and he repeatedly contacted LSI during December
2008 and January 2009,10 Dr. Prada eventually called Mr. Henderson back and
directed him to obtain an MRI and to send him the results as a precursor to
subsequent treatment.
Henderson Decl. ¶ 24-26.
In addition, the Defendants
directly contacted Mr. Pease, Ms. Sawyer, and Mr. Henderson, all in Maine, to
assist Mr. Henderson in obtaining insurance coverage. Pease Decl. ¶¶ 7-9, 15-22;
Henderson Decl. ¶¶ 38-39, 47-48, 50; Sawyer Decl. ¶¶ 23-24, 27-28.
The Defendants assert that their post-October 2008 contacts with Maine are
“not relevant to the Court‟s inquiry because they took place well after the alleged
wrongdoing in October 2008.”
Defs.’ Mot. at 9 n.3.
Presumably, the alleged
wrongdoing to which the Defendants refer is the initial treatment Mr. Henderson
received in Florida.
They assert that evidence of post-tort contact after Mr.
Henderson‟s initial trip to Florida is irrelevant to the specific jurisdiction analysis.
Mr. Henderson‟s Declaration does not specify the number of times he called LSI attempting to
reach Dr. Prada. Henderson Decl. ¶ 25.
10
24
Id. (citing Harlow, 432 F.3d at 61).
However, the First Circuit‟s statements in
Harlow were not so simplistic. The Court explained that the “specific jurisdiction
analysis require[s] that the proper focus be on those contacts leading up to and
surrounding the claimed injury . . . .” Harlow, 432 F.3d at 61. Unlike this case, the
bulk of post-tort evidence of contacts with Maine in Harlow was “simply not related
at all to the alleged malpractice,” and consisted of evidence of contacts between the
defendant and Maine more than five years after the alleged tort occurred. Id.
Mr. Henderson‟s Complaint alleges tort claims stemming from the
Defendants‟ representations that his insurer would reimburse the costs of his
treatments and his claims that the Defendants performed medically unnecessary
procedures on him.
The contacts LSI had with the state of Maine after Mr.
Henderson‟s October 2008 surgery concerned the effectiveness of the surgery, the
possibility of additional treatment, and Mr. Henderson‟s attempts to obtain
insurance reimbursement from Aetna. They are directly related to Mr. Henderson‟s
tort claims and “form an important, or at least material, element of proof in the
plaintiff‟s case.” Mr. Henderson satisfies the first jurisdictional hurdle.
b.
Purposeful Availment
To satisfy the second prong of the minimum contacts analysis, “the
defendant‟s in-state contacts must represent a purposeful availment of the privilege
of conducting activities in the forum state, thereby invoking the benefits and
protections of that state‟s laws and making the defendant‟s involuntary presence
before the state‟s courts foreseeable.”
Astro-Med, 591 F.3d at 10 (quoting N.
Laminate Sales, 403 F.3d at 25). “The question is whether a defendant has followed
25
a course of conduct directed at the society or economy existing within the
jurisdiction of a given sovereign, so that the sovereign has the power to subject the
defendant to judgment concerning that conduct.”
J. McIntyre Mach. Ltd. v.
Nicastro, 131 S. Ct. 2780, 2789 (2011).
The purposeful availment inquiry ensures “that personal jurisdiction is not
premised solely upon a defendant‟s „random, isolated, or fortuitous‟ contacts with
the forum state.” Sawtelle, 70 F.3d at 1391 (quoting Keeton v. Hustler Magazine,
Inc., 564 U.S. 770, 774 (1984)). “The inquiry is „highly idiosyncratic, involving an
individualized assessment and factual analysis of the precise mix of contacts that
characterize each case.‟” Cossaboon, 600 F.3d at 33. The “cornerstones upon which
the concept of purposeful availment rest are voluntariness and foreseeability.”
Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 61 (1st
Cir. 2002) (citations omitted).
i.
LSI-Henderson Contacts
I.
Voluntariness
“The focus of the purposeful availment inquiry is the defendant‟s
intentionality.” Adams v. Adams, 601 F.3d 1, 6 (1st Cir. 2010). “Voluntariness
requires that the defendant‟s contacts with the forum state proximately result from
actions by the defendant himself. The contacts must be deliberate, and not based on
the unilateral actions of another party.” Id. (emphasis in original) (quoting Phillips
v. Prairie Eye Ctr., 530 F.3d 22, 28 (1st Cir. 2008) (internal citations omitted).
“Promotional correspondence intended to solicit business represents voluntary
26
availment of a forum, regardless of whether Plaintiff initiated the contact.” Lucerne
Farms v. Baling Techs., Inc., 226 F. Supp. 2d 255, 260 (D. Me. 2002).
Mr. Henderson initiated the contact with the Defendants when his personal
assistant called the company in Florida.
The company voluntarily returned his
phone call and began a series of promotional correspondence―multiple phone calls,
faxes, and emails―intended to solicit Mr. Henderson‟s business and induce him to
come to Florida for LSI‟s advertised surgery.
LSI actively worked with Mr.
Henderson and his staff to facilitate his surgeries in Florida, including sending him
a list of hotels where he could stay during his Florida treatment and working with
him to persuade Aetna to pay for the treatments. Such intentional contacts with a
potential patient-customer, although in response to Mr. Henderson‟s initial inquiry,
constitute a voluntary solicitation of Maine business.
II.
Foreseeability
“Foreseeability requires that the contacts with the forum state be of a nature
that the defendant could reasonably anticipate being haled into court there.”
Adams, 601 F.3d at 6 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980)) (internal quotation marks omitted). See also Lucerne Farms, 226
F. Supp. 2d at 260 (“Given these voluntary decisions to avail itself of the forum,
Defendant should have reasonably anticipated litigation in Maine.”).
A
“[d]efendant‟s continuing relationship with the forum indicates that litigation in
Maine was foreseeable.” Id. The foreseeability inquiry also “explores whether the
27
defendant benefited from the forum-based contacts in a way that made jurisdiction
foreseeable.” New Life Brokerage, 222 F. Supp. 2d at 106.
The Defendants voluntarily undertook their Maine contacts with the
intention of becoming a provider of services to Mr. Henderson and so could
reasonably anticipate being haled into court in this forum. Further, the Defendants
embarked upon a continuing relationship with the forum through an exchange of
phone calls, emails, faxes, payments, and other transmissions between Mr.
Henderson in Maine and LSI in Florida. As medical providers, LSI and Dr. Prada
also provided ongoing instructions for further testing in anticipation of the possible
consequences of Mr. Henderson‟s surgery, including the event that happened―his
back pain returning and necessitating further LSI treatments.
Moreover, LSI
clearly benefited from the Maine-based contact. The Defendants received at least
$55,500 from performing Mr. Henderson‟s back surgery. It was foreseeable that
LSI could end up in a Maine courtroom.11
ii.
National print advertising by LSI
Mr. Henderson has more than just the traditional forms of purposeful
availment to support his claim of personal jurisdiction over the Florida-based
company. The Defendants also reached into Maine through national advertising,
In fact, it would seem to be highly foreseeable to LSI that it could be haled into a non-Florida court
given that there are at least two recently decided cases from other forum states dealing with the outof-state treatment patients received from LSI. See Bond v. Laser Spine Inst., LLC, No. 10-1086,
2010 WL 3212480 (E.D. Pa. 2010) (denying LSI‟s motion to dismiss for lack of personal jurisdiction);
Morilla v. Laser Spine Inst., LLC, No. 2:10-cv-01882, 2010 WL 3258312 (D.N.J. 2010) (granting LSI‟s
motion to dismiss for lack of personal jurisdiction).
11
28
including the two ads that contributed to Mr. Henderson calling the institute: an
advertisement in the DuPont Registry and one in the SkyMall catalog.
Nationwide advertising does not guarantee personal jurisdiction.
The
Supreme Court has not ruled specifically on jurisdiction based on national
advertising, but it has sustained specific jurisdiction based on magazine
distribution in forum states where the tort alleged is libel. See Keeton, 465 U.S.
781.
Some of the Court‟s language suggests that personal jurisdiction could be
sustained for other torts related to distribution within the forum state.
For
example, the Court noted that “the victim of any . . . tort, may choose to bring suit
in any forum with which the defendant has „certain minimum contacts such that the
maintenance of the suit does not offend traditional notions of fair play and
substantial justice.‟” Id. at 780 (quoting Int’l Shoe, 326 U.S. at 316). It held that
where a defendant “has continuously and deliberately exploited [the forum state‟s]
market, it must reasonably anticipate being haled into court there . . . . [Defendant]
produces a national publication aimed at a nationwide audience.
There is no
unfairness in calling it to answer for the contents of that publication wherever a
substantial number of copies are regularly sold and distributed.” Id.
In a companion libel case to Keeton, the Court again upheld specific
jurisdiction over a nationwide magazine in an out-of-state forum. Calder v. Jones,
465 U.S. 783 (1984). The Court rejected the magazine‟s assertion that “[t]he mere
fact that they can „foresee‟ that the article will be circulated and have an effect in
[the forum state] is not sufficient for an assertion of jurisdiction.” Id. at 789. The
29
Court stated that the responsible parties at the magazine “knew that the brunt of
[their actions] would be felt by [the plaintiff] in the State in which she lives and
works” so the magazine must “reasonably anticipate being haled into court there to
answer for the truth of the statements made in their article.” Id. at 790.
In 1996, the First Circuit held that a Hong Kong hotel was subject to specific
jurisdiction because it had purposefully availed itself of the Massachusetts forum.
Nowak, 94 F.3d at 716-19.
The Court found that “[w]hether prompted or
unprompted, [the defendant hotel group‟s] ongoing correspondence and relationship
with [the plaintiff‟s employer] designed to bring Massachusetts residents into Hong
Kong, rendered foreseeable the possibility of being haled into a Massachusetts
court.” Id. at 717. Mentioning that the direct correspondence with the plaintiff‟s
employer alone “certainly” would have been enough to render jurisdiction
foreseeable, the court went on to detail “an even more substantial attempt . . . to
purposefully avail itself of the privilege of conducting business activities in the
state.”
Id.
The defendant “advertised its hotel in national and international
publications that circulated in Massachusetts; it solicited by direct mail some of its
previous guests residing in Massachusetts; and [it] listed its hotel in various hotel
guides used at travel agencies in Massachusetts.” Id. The First Circuit concluded
that jurisdiction was appropriate “where the defendant purposefully derives
economic benefits from its forum-state activities.” Id. (internal citations omitted).12
Cossaboon v. Me. Med. Ctr., 600 F.3d 25 (1st Cir. 2010), cited by the Defendants, determined that
the Maine-based defendant‟s advertising in New Hampshire was insufficient to support a finding of
general jurisdiction. The court distinguished Cossaboon from Soares v. Roberts, 417 F. Supp. 304
12
30
Other circuit courts give national advertising varying degrees of weight in
the purposeful availment analysis. Williams v. Bowman Livestock Equip. Co., 927
F.2d 1128, 1131 (10th Cir. 1991) (“By itself . . . national advertising that reaches the
forum state is not always sufficient to establish minimum contacts”); Federated
Rural Elec. Ins. Corp. v. Kootenai Elec. Coop., 17 F.3d 1302, 1305 (10th Cir. 1994)
(“evidence of mere placement of advertisements in nationally distributed papers or
journals does not rise to the level of purposeful contact with a forum required by the
Constitution in order to exercise personal jurisdiction over the advertiser”); Mesalic
v. Fiberfloat Corp., 897 F.2d 696, 700 (3rd Cir. 1990) (“The marketing strategy
provides, at best, tangential support for the assertion of personal jurisdiction. We
have no evidence of [defendant‟s] solicitation in [the nationwide] magazine nor do
we know how much business the [defendant] derives from its national
advertising”);13 Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 573 (2d
Cir. 1996) (finding exercise of general personal jurisdiction proper and citing as one
of the reasons the “national advertising that reaches [the forum state of] Vermont
and direct marketing to at least three Vermont firms”); Bridgeport Music, Inc. v.
Still N The Water Publ'g, 327 F.3d 472, 481 (6th Cir.2003) (“advertising is among
(D.R.I. 1976), where “[t]he Soares court exercised specific jurisdiction over the defendant . . . noting
that the facility‟s advertising had „a direct connection with the case at bar‟ because the plaintiff was
„within the class of persons‟ the advertising was designed to reach.” Cossaboon, 600 F.3d at 34
(quoting Soares at 307-08). Personal jurisdiction, therefore, “extended „at least to those individuals
whose business the solicitation was designed to obtain.‟” Id. at 34-35.
13 One district court in the Third Circuit has gone further and held that a national advertising
campaign can provide the basis for specific jurisdiction if the advertisement is not passive but
induces the individual to establish direct contact with a company―where the advertisements “bait
the hook for potential customers to make more interactive contact.” Bragg v. Linden Research, Inc.,
No. 06-4925, 2007 WL 1549013 (E.D. Pa. May 30, 2007).
31
the activities that constitute „reaching out‟ to forum state residents”); Indianapolis
Colts, Inc. v. Metro. Baltimore Football Club Ltd. P’ship, 34 F.3d 410, 412 (7th Cir.
1994) (analogizing to Calder and holding that national television broadcast into
forum state was sufficient for personal jurisdiction).
In U.S. S.E.C. v. Carrillo, 115 F.3d 1540 (11th Cir. 1997), the Eleventh
Circuit addressed a case with advertising similar to that of LSI‟s SkyMall
solicitation.
There, foreign defendants “placed advertisements promoting [their]
securities in American Way, the complimentary in-flight magazine of American
Airlines, and Lacsa's World, a similar publication of Costa Rica's Lacsa Airlines.”
Carrillo, 115 F.3d at 1541. The government brought suit in Florida district court
and the defendants moved for and received a dismissal based on lack of personal
jurisdiction. Id. The Eleventh Circuit reversed. The court began its purposeful
availment analysis by citing World-Wide Volkswagen, 444 U.S. at 295, for the “well
settled” idea that “advertising that is reasonably calculated to reach the forum may
constitute purposeful availment of the privileges of doing business in the forum.”
Id. at 1545.
The Carrillo Court went on to note that “[i]t is clear that the advertisements
placed by [the defendant] in the complimentary magazine of American Airlines were
reasonably calculated to reach readers in the American forum.”
Id.
Even the
Lacsa’s World advertisements “were reasonably calculated to be read in the forum,
in light of the fact that the ads and articles were in English and that the airline has
numerous flights to and from the United States.”
32
Id.
The court also found it
“relevant to the purposeful availment inquiry that the advertisements were
published on sixteen occasions in two separate magazines over a span of two years.”
Id.
The Carrillo defendants argued “that the advertisements constituted only
fortuitous or random contacts with the United States because they were placed in
the in-flight magazines of airlines that fly around the world.” Id. at 1546 n. 8. The
Court responded:
We find that it is irrelevant that the advertisements might have
reached other forums in addition to the United States. The key point
is that advertisements placed by [the defendant] in the complimentary
magazine of American Airlines and ads in English in Lacsa‟s World
were clearly calculated to reach the United States.
Id. It concluded that the advertisements and articles in the in-flight magazines
constituted purposeful availment. Id. at 1546.
Here, Defendants advertised in a publication like SkyMall to reach potential
patients who travel by air, which includes residents of every state. By their very
nature, airline magazines and catalogues will be directed at forums other than
Defendant LSI‟s home state of Florida. In effect, the Defendants want to have it
both ways: for their medical practice, they purposefully avail themselves of national
advertisements to attract and prosper from a national patient base, but for legal
purposes, they insist their practice is merely local.
As the Eleventh Circuit
reasoned in Carrillo, by their placement in publications distributed in moving
aircraft that are designed to reach multiple states and jurisdictions, LSI‟s ads “were
reasonably calculated to be read” in Maine and by residents of Maine who are
33
traveling elsewhere. The fact that the ads likely reached other forums through the
same means does not defeat specific personal jurisdiction here in Maine.
Here too it is relevant to the Court‟s purposeful availment analysis that the
Defendants advertised in at least one other publication that reached Maine
residents. Like the defendants in Keeton, LSI produced a national publication―in
the form of an advertisement―aimed at a nationwide audience.
Although the
advertisements placed by the Defendants in national magazines were not the direct
cause of Mr. Henderson‟s injury, the Court has already determined that they are
related to his surgery and subsequent lawsuit.
As in Keeton and Calder, the
Defendants here must answer for these advertisements when they knew that
injuries could be felt by plaintiffs in the states where they live, work, and first saw
the national ads touting LSI‟s Florida medical practice.
Further, this Court follows the First Circuit‟s example in Nowak. It does not
matter whether Mr. Henderson prompted the initial LSI phone call. Because the
Defendants‟ “ongoing correspondence and relationship” with Mr. Henderson was
“designed to bring” him, a Maine resident, into Florida, this “rendered foreseeable
the possibility of being haled into a [Maine] court.” Like the Nowak Court, this
Court adds to the traditional analysis of phone and mail correspondence the fact
that the defendant also advertised in “national and international publications that
circulated in” Maine.
The Defendants are “purposefully deriv[ing] economic
benefits” from their activities that deliberately reach Maine―LSI‟s advertising and
contacts with Maine residents earned it at least two patients from this forum, Mr.
34
Henderson and Mr. Anderson. The Court considers national advertising to be a
relevant factor in determining whether the Defendants purposefully availed
themselves of this forum.
iii.
LSI’s website
The Defendants also operated a website aimed at bringing in patients from
other states.
The use of nationally accessible websites like this one further
complicates the purposeful availment inquiry.
The First Circuit has held that “the mere existence of a website that is visible
in a forum and that gives information about a company and its products is not
enough, by itself, to subject a defendant to personal jurisdiction in that forum.”
Cossaboon, 600 F.3d at 35 (quoting McBee v. Delica Co., 417 F.3d 107, 124 (1st Cir.
2005)). “[G]iven the omnipresence of Internet websites today, allowing personal
jurisdiction to be premised on such a contact alone would „eviscerate‟ the limits on a
state‟s jurisdiction over out-of-state or foreign defendants.” McBee, 417 F.3d at 124.
A district court in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119
(W.D. Pa. 1997) first articulated a personal jurisdiction analysis for websites, still
used by many courts today. In Auburn Mfg. v. Steiner Indus., 493 F. Supp. 2d 123,
129 n.3 (D. Me. 2007), Judge Singal described the Zippo test for Internet-based
personal jurisdiction:
The court in Zippo concluded that “the likelihood that personal
jurisdiction can be constitutionally exercised is directly proportionate
to the nature and quality of commercial activity that an entity
conducts over the Internet.” The court then set out a sliding scale of
web site interactivity to determine whether personal jurisdiction
should be exercised. On one end of the spectrum are defendants that
35
“clearly” conduct business over the Internet. . . . At this end, personal
jurisdiction is proper. At the opposite end of the spectrum are
defendants whose web sites are “passive,” meaning that the “defendant
has simply posted information on an Internet web site which is
accessible to users in foreign jurisdictions.” In this situation, personal
jurisdiction is not proper. In the middle are defendants whose
websites allow Internet users to interact with the web site by
exchanging information. Whether personal jurisdiction should be
asserted over defendants falling into this middle ground, the court
concluded, depends on “the level of interactivity and commercial
nature of the exchange of information that occurs on the Website.”
493 F. Supp. 2d at 129 n.3 (quoting Zippo, 952 F. Supp. at 1124). Judge Singal
noted that although instructive, “the Court is reluctant to adopt the Zippo test
because it is not clear why a website‟s level of interactivity should necessarily be
determinative on the issue of personal jurisdiction.” Id. The Auburn Mfg. Court
concluded that the defendant “„availed‟ itself of the Maine market by virtue of its
catalog distribution” and the fact that “during the relevant time period a
percentage―albeit a small percentage―of [defendant‟s] gross profits were derived
from catalog and Internet sales in Maine.” Id. at 130.14
The Seventh Circuit discussed website-based personal jurisdiction in uBID v.
GoDaddy, 623 F.3d 421 (7th Cir. 2010).15
The uBID court addressed whether
One Maine state court has interpreted Maine‟s long-arm statute to create jurisdiction over
internet-based transactions. The Maine Superior Court in Montalvo v. First Interstate Fin. Corp.,
2005 WL 380727, at *3 (Me. Super. Ct. Jan. 3, 2005), responded to a defendant‟s argument that
Maine jurisdiction would be unfair where “its Internet solicitations were directed broadly, that is,
nationally and internationally, but were not „purposefully‟ directed at Maine. The Court held that
“Internet advertising and sales are an example of precisely the sort of „technological progress‟
creating an increased flow of commerce between Mainers and sellers in other states that was
expressly the purpose of Maine‟s long arm statute. 14 M.R.S.A. § 704-A(1) (2003). A business cannot
escape liability for fraudulent transactions with Maine consumers simply by conducting its business
on line.” Id.
15 Recently other circuit courts have upheld the exercise of personal jurisdiction over out-of-state
businesses based on the businesses‟ use of the Internet. See, e.g., Chloe v. Queen Bee of Beverly Hills,
LLC, 616 F.3d 158 (2d Cir. 2010) (holding that the sale and shipment into New York of one
14
36
Illinois could exercise personal jurisdiction over GoDaddy, an Arizona company that
registers domain names for customers. GoDaddy‟s contacts with Illinois consisted
of marketing and the sale of registrations for Internet domain names, as well as
contracts with Illinois customers and the hosting of websites that are accessible
from Illinois. Id. at 424-25. The Court analogized to national print distribution to
find minimum contacts with Illinois sufficient to exercise specific, but not general,
jurisdiction. Id. at 427 (“Because of GoDaddy‟s extensive marketing in Illinois and
sales to Illinois customers, . . . the Supreme Court‟s analysis of specific jurisdiction
in Keeton v. Hustler Magazine . . . is most instructive here.”).
In sustaining jurisdiction, the Court noted that “GoDaddy has thoroughly,
deliberately, and successfully exploited the Illinois market. . . . This is a company
that, like the national magazine in Keeton, has conducted extensive national
advertising and made significant national sales.” Id. The Court, relying again on
Keeton, dismissed GoDaddy‟s arguments that its ads “are only part[] of a national
advertising campaign and that it does not target its advertising toward Illinois
residents in particular.” Id. at 428.
“Consistent with the reasoning of Keeton, it is easy to infer that GoDaddy‟s
national marketing campaign is intended to reach as large an audience as possible,
including the 13 million potential customers in [Illinois].” Id. Although the Court
expressed some “concern about adopting an overly expansive test of jurisdiction for
internet-based commerce,” it concluded that “[t]here is no unfairness in requiring
counterfeit handbag coupled with defendant‟s use of an interactive website to convey its products
into New York and other states was sufficient to sustain jurisdiction).
37
GoDaddy to defend [a] lawsuit in the courts of the state where, through the very
activity giving rise to the suit, it continues to gain so much.” Id. at 432-33.
Even though the LSI website is not so interactive that it rises to the Zippo
level of presumptively proper personal jurisdiction, it is more than a passive website
containing information that is just accessible for viewing by users in other states.
Under the Zippo test, the Defendants‟ website falls under the messier middle
ground where personal jurisdiction depends on “the level of interactivity and
commercial nature of the exchange of information that occurs on the website.” The
LSI website provides a form to schedule a free MRI review which may be submitted
online, as well as online contact request forms that prompt return calls from the
company. The website also boasts a section of patient testimonials “from across the
U.S. and Canada” and a claim to have “already helped tens of thousands of
patients.” Taken as a whole, the purpose of the LSI website is commercial, not
merely educational, in nature―to entice potential customers to contact the
Defendants for laser back surgery in Florida.
Therefore, a court agreeing with
Zippo’s analysis would probably uphold personal jurisdiction.
Because the District of Maine has not adopted the Zippo test, a broader look
at the Defendants‟ use of the internet in their purposeful availment of Maine
customers is appropriate.
The Court notes that, like the defendant in uBID v.
GoDaddy, the Defendants have conducted extensive national advertising and made
significant national sales.
The website campaign, like their national print
marketing, is intended to reach a large national audience, including potential
38
customers in Maine.
LSI has successfully exploited at least part of the Maine
market.
iv.
Totality of contacts
“For purposes of the general jurisdiction analysis, [the First Circuit]
consider[s] all of a defendant‟s contacts with the forum state.” Cossaboon, 600 F.3d
at 29; see also New Life Brokerage, 222 F. Supp. 2d at 107 (“the totality of contacts
is sufficient to establish purposeful availment”). It makes sense then, in a specific
jurisdiction analysis, for the Court to also consider all of the Defendants‟ contacts
with the forum state that relate to the suit at hand. The sum of these contacts
weighs in favor of specific personal jurisdiction. The Defendants‟ Maine contacts
include: (1) the traditional contacts of phone, email, and faxed solicitations to Mr.
Henderson; (2) the nationwide advertising placed in traditional magazines and farflung in-flight catalogues; and (3) the semi-interactive website claiming to have
helped “tens of thousands of people―from all 50 states.”
Employing a factual
analysis focused on the precise mix of contacts that characterize this case, the Court
finds that the Defendants‟ contacts with the state of Maine constitute a purposeful
availment of this forum. Mr. Henderson has satisfied his prima facie burden.
c.
Reasonableness
The existence of minimum contacts does not end the specific jurisdiction
analysis.
“Personal jurisdiction may only be exercised if it comports with
traditional notions of „fair play and substantial justice.‟” Nowak, 94 F.3d at 717
39
(quoting Int’l Shoe, 326 U.S. at 320). “Gauging fairness requires an assessment of
reasonableness.” Harlow, 432 F.3d at 67 (quoting Ticketmaster, 26 F.3d at 210).16
“To evaluate the reasonableness requirement, the Supreme Court has
provided a set of „gestalt factors‟ to consider.” Astro-Med, 591 F.3d at 10 (citing N.
Laminate Sales, 403 F.3d at 26). These factors include:
(1) the defendant‟s burden of appearing, (2) the forum state‟s interest
in adjudicating the dispute, (3) the plaintiff‟s interest in obtaining
convenient and effective relief, (4) the judicial system‟s interest in
obtaining the most effective resolution of the controversy, and (5) the
common interests of all sovereigns in promoting substantive social
policies.
Harlow, 432 F.3d at 67 (citing Burger King, 471 U.S. at 477). To prevail on this
prong, the defendant “must present a compelling case that the presence of some
other considerations would render jurisdiction unreasonable.” Keds Corp. v. Renee
Int’l Trading Corp., 888 F.2d 215, 220 (1st Cir. 1989) (quoting Burger King, 471
U.S. at 477).
The Defendants protest that it “would be onerous for Defendants . . . to
appear and defend this matter in Maine.” Yet, the First Circuit observed that “it is
almost always inconvenient and costly for a party to litigate in a foreign
jurisdiction.” Nowak, 94 F.3d at 718 (citing Pritzker v. Yari, 42 F.3d 53, 64 (1st Cir.
1994)). Thus, “this factor is only meaningful where a party can demonstrate some
kind of special or unusual burden.” Pritzker, 42 F.3d at 64. The Defendants have
Ticketmaster describes a sliding scale for the reasonableness prong of the due process inquiry.
“[T]he weaker the plaintiff‟s showing on the first two prongs (relatedness and purposeful availment),
the less a defendant need show in terms of unreasonableness to defeat jurisdiction. The reverse is
equally true: an especially strong showing of reasonableness may serve to fortify a borderline
showing of relatedness and purposefulness.” Ticketmaster, 26 F.3d at 210.
16
40
made no such showing of a special or unusual burden here.
Mr. Henderson,
however, has demonstrated his own strong interest in obtaining convenient and
effective relief in his home state.17
The first and third gestalt factors favor
jurisdiction.
As to the second factor, the Defendants contend that Maine does not have an
interest in adjudicating this dispute because all activities that support Plaintiff‟s
claim occurred outside of Maine. However, Mr. Henderson is a resident of Maine
and the state “has an interest in providing its citizens a means of redress against
nonresidents.” McCain Foods Ltd. v. Lamb-Weston, Inc., No. 91-0066-B, 1992 WL
219010, at *1 (D. Me. May 5, 1992) (citing Elec. Media Int’l v. Pioneer Commc’ns of
Am., Inc., 586 A.2d 1256, 1259 (Me. 1991)); see also Burger King, 471 U.S. at 2182
(“A State generally has a „manifest interest‟ in providing its residents with a
convenient forum for redressing injuries inflicted by out-of-state actors.”). Because
Maine has such a manifest interest in protecting its citizens against out-of-state
corporations, as codified in the wording of its long-arm statute, the Court
determines that this factor favors jurisdiction.
Fourth, “nothing about this case suggests that [this Court] will have any
difficulty rendering effective relief” if Mr. Henderson prevails on his claim. See Jet
Wine & Spirits, Inc. v. Bacardi & Co., Ltd., 298 F.3d 1, 12 (1st Cir. 2002); Adelson v.
“[T]his factor requires deference to a plaintiff‟s choice of forum.” Adelson, 510 F.3d at 52 (citing
Foster-Miller, 46 F.3d at 151; Ticketmaster, 26 F.3d at 211). Mr. Henderson has further
demonstrated his interest in obtaining relief in the courts in Maine by maintaining before the Court
that he “is an individual who is unable to easily travel -- since February 2009 he has not been able to
endure any flight of more than one and a half hours.” Pl.’s Opp’n at 9.
17
41
Hananel, No. 09-2231, --- F.3d ----, 2011 WL 2698330, at *6 (1st Cir. July 13, 2011).
Fifth and finally, although Florida also has a significant interest in the medical
procedures performed within its borders, the Court sees no evidence that exercising
jurisdiction in Maine would offend due process or be contrary to traditional notions
of fair play and substantial justice. “Besides, given the relatedness and purposeful
availment demonstrated here, the weight of this one factor within „reasonableness‟
is slight.” Adelson, 2011 WL 2698330, at *5.
On balance, the gestalt factors point to jurisdiction in the District of Maine
being reasonable. Personal jurisdiction over the Defendants is proper.18
B.
Venue
1.
Determining proper venue
The Defendants argue for dismissal of Mr. Henderson‟s Complaint on the
grounds that venue is not proper in the District of Maine. Title 28 of the United
States Code, § 1391(a) governs venue in civil actions, such as this one, where
jurisdiction is founded only on diversity of citizenship.
28 U.S.C. § 1391(a). It
provides that a civil action may be brought in “a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred.” Id.
§ 1391(a)(2).
The Court is mindful that it must determine separately potential jurisdiction for each defendant
and each count of the complaint. See N. Am. Catholic, 567 F.3d at 12. However, the issue of whether
there is a justifiable distinction between Dr. Prada‟s contacts with Maine and those of his employer
LSI for purposes of specific personal jurisdiction has not been adequately presented. The Court does
not reach the question.
18
42
The First Circuit has said that in determining whether a forum “is a district
in which a substantial part of the events occurred, [the court should] look „not to a
single triggering event‟ prompting the action, but to the entire sequence of events
underlying the claim.” Astro-Med, 591 F.3d at 12 (quoting Uffner v. La Reunion
Francaise, S.A., 244 F.3d 38, 42 (1st Cir. 2001)). Not only does the First Circuit
endorse this “holistic view of the acts underlying a claim,” but it stresses that the
court is “not required to determine the best venue, merely a proper venue.” Id.; see
also Uffner, 244 F.3d at 43 (“[T]he general purpose of statutorily specified venue [is]
„to protect the defendant against the risk that a plaintiff will select an unfair or
inconvenient place of trial.‟” (quoting Leroy v. Great W. United Corp., 443 U.S. 173,
183-84 (1979))).
Here, most of the wrongful acts claimed by Mr. Henderson took place, at least
in part, in Maine. Looking to the entire sequence of events underlying his claim,
many of the claims arise out of the Defendants‟ contact with Mr. Henderson in
Maine―fraud, unfair trade practices, fraudulent concealment, and negligent
misrepresentation, as well as breach of the part of the contract that promised the
Defendants would take all reasonable actions necessary to ensure insurance
coverage. Given that a substantial part of Mr. Henderson‟s claims took place in this
state, the Court retains venue in the District of Maine.19
Plaintiff maintains that venue would be proper in Maine under 28 U.S.C. § 1391(a)(3) because
Maine would qualify as “a judicial district in which any defendant is subject to personal jurisdiction
at the time the action is commenced.” Pl.’s Opp’n at 15. This neglects the statutory words that
follow: “if there is no district in which the action may otherwise be brought.” 28 U.S.C. § 1391(a)(3).
The Court need “turn to the third alternative only in the event that the first two provisions fail to
provide an appropriate forum.” Allen v. Am. Fed’n of Gov’t Empls. AFL-CIO, 198 Fed. Appx. 16, at
19
43
2.
Transfer of venue
Even if venue is proper in the District of Maine, the Defendants request that
the Court transfer venue to the appropriate district in Florida. The change of venue
statute, 28 U.S.C. § 1404, provides, in part: “For the convenience of parties and
witnesses, in the interest of justice, a district court may transfer any civil action to
any other district or division where it might have been brought.” 28 U.S.C.
§ 1404(a). “The burden of proving the propriety of a transfer lies with the party
seeking it,” Johnson v. VCG Holding Corp., 767 F. Supp. 2d 208, 212 (D. Me. 2011)
(citing Coady v. Ashcraft & Gerel, 223 F.3d 1, 11 (1st Cir. 2000)), and “there is a
strong presumption in favor of a plaintiff‟s choice of forum.” Astro-Med, 591 F.3d at
13.
After considering the plaintiff‟s choice of forum and the convenience of parties
and witnesses, “the factors to be considered by the court include the availability of
documents; the possibility of consolidation; and the order in which the district court
obtained jurisdiction.”
Coady, 223 F.3d at 11.
Beyond that, the court has
discretion. See Demont & Assocs. v. Berry, 77 F. Supp. 2d 171, 173 (D. Me. 1999)
(“Wisely it has not been attempted to catalogue the circumstances which will justify
or require grant or denial of transfer. Given the statutory standards the decision is
left to the sound discretion of the trial judge.” (quoting 15 Charles A. Wright,
Arthur R. Miller & Edward H. Cooper, FEDERAL PRACTICE
AND
PROCEDURE § 3847,
at 368 (2d ed. 1986))).
*1 (1st Cir. 2006) (citing Uffner, 244 F.3d at 42). The Court is not presented here with a situation
where venue would not otherwise be proper in another judicial district.
44
The Court has noted that it is almost always inconvenient for one of the
parties to travel to an out-of-state forum for litigation. One side has witnesses in
Maine; the other side‟s are likely in Florida. The Defendants have failed to make
the requisite showing of inconvenience to themselves or their witnesses to overcome
the strong presumption in favor of Mr. Henderson‟s choice of forum. The motion to
transfer venue is denied.
C.
Statutory Arguments
1.
Application of Florida Statute § 95.11
The Defendants are not done. They argue that Mr. Henderson‟s claims are
barred because he failed “to comply with Florida statutes governing medical
malpractice actions.”
Federal jurisdiction in this case is premised on diversity of citizenship so the
Court applies state substantive law. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78
(1938). Maine‟s choice of law rules thus apply.20 See Walker v. Unum Life Ins. Co.
of Am., 530 F. Supp. 2d 351, 353 (D. Me. 2008) (“A federal court sitting in diversity
must apply the conflict of law rules of the state in which it sits, in this case,
Maine.”) (citing Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941);
LaPlante v. Am. Honda Motor Co., 27 F.3d 731, 741 (1st Cir. 1994)). Maine has
The Court entertains the choice-of-law question because there is an actual “conflict between the
substantive laws” of Maine and Florida. Prime Tanning Co., Inc. v. Liberty Mut. Ins. Co., 750 F.
Supp. 2d 198, 210 (D. Me. 2010) (quoting Millipore Corp. v. Travelers Indem.Co., 115 F.3d 21, 29 (1st
Cir. 1997)). “There is no conflict when the resolution of a choice-of-law determination would not alter
the disposition of a legal question.” Id. (quoting Okmyansky v. Herbalife Int’l of Am., Inc., 415 F.3d
154, 158 (1st Cir. 2005)). Here, Plaintiff‟s claims for damages would be barred by Florida‟s two-year
statute of limitations, but allowed to go forward under Maine‟s six-year limitations period. Because
resolution of this determination would vary the result of the case, the Court undertakes the choiceof-law analysis.
20
45
adopted the traditional approach of the Restatement (Second) of Conflict of Laws so
that “the statute of limitations of the forum controls, even if the substantive law of
another state applies.” Siegemund, 247 F. Supp. 2d at 6.
The Defendants believe that this case falls within an exception to the rule
that Maine‟s own statute of limitations applies. “There are two exceptions to this
rule: (1) where Maine‟s borrowing statute applies;21 and (2) where the claim is
predicated on a foreign statutory enactment.” Siegemund, 247 F. Supp. 2d at 6
(quoting Johanson v. Dunnington, 785 A.2d 1244, 1246 (Me. 2001)).
The
Defendants contend that the foreign enactment exception is applicable here. The
Court disagrees.
The foreign statutory enactment exception would permit application of
Florida‟s statute of limitations only if a Florida statute created the present cause of
action. See Tornesello v. Tisdale, 948 A.2d 1244, 1250 (Me. 2008) (citing Johanson,
785 A.2d at 1246; Hossler v. Barry, 403 A.2d 762, 765 (Me. 1979)). Florida statutory
law did not create the right sought to be enforced here. Mr. Henderson‟s “suit is not
predicated upon a foreign statutory enactment without which no action could be
maintained”; all of his claims “rest upon common-law principles” of tort, contract,
and Maine law. See id. (citing Hossler, 403 A.2d at 765; Johanson, 785 A.2d at
Maine‟s borrowing statute was enacted to prevent forum shopping. 14 M.R.S. § 866. It allows
Maine “to borrow and use the statute of limitations of another state in determining the timeliness of
an action,” but only applies where “the parties [] reside in the same state at the same time.”
Siegemund, 247 F. Supp. 2d at 6 (quoting Hossler, 403 A.2d at 765). Because the Defendants have
resided in Florida for all periods at issue, this exception does not apply.
21
46
1246). Because the suit is predicated upon the common law and not on Florida
statutory law,22 Maine‟s statute of limitations applies.
2.
Application of the Maine Health Security Act
The remaining statute of limitations question concerns whether the MHSA
applies,23 and if so, whether Mr. Henderson has complied with it.
The MHSA mandates that before a plaintiff may file suit against a medical
provider, the plaintiff must present the claim to a duly authorized pre-litigation
screening panel and receive a decision. Kidder v. Richmond Area Health Ctr., Inc.,
595 F. Supp. 2d 139, 142-43 (D. Me. 2009) (citing 24 M.R.S. §§ 2853(1), 2903(1)); see
also Daigle v. Maine Med. Ctr., Inc., 14 F.3d 684, 687 (1st Cir. 1994) (“By its terms,
the Act requires parties to submit medical malpractice claims to a prelitigation
screening panel as a condition precedent to court access, unless both sides agree to
bypass the panel hearing.”).
Failure to file the requisite pre-litigation notice
“constitutes a bar to a civil action under the MHSA.” Kidder, 595 F. Supp. 2d at
143.
However, the MHSA‟s “mandatory provisions . . . apply only to actions for
professional negligence.” Brown v. Augusta School Dept., 963 F. Supp. 39, 40 (D.
The Florida law upon which the Defendants base their statutory enactment argument details
limitations on various types of actions. See Fla. Stat. § 95.11(4)(b) (“An action for medical
malpractice shall be commenced within two years from the time the incident giving rise to the action
occurred . . . .”). To permit another state‟s statute of limitations to serve as a foreign statutory
enactment would turn almost any common law action into a foreign statutory enactment for
purposes of Maine choice of law.
23 “[T]he District of Maine has held that the MHSA applies to medical malpractice claims filed in
federal court on the basis of diversity.” Hewett v. Inland Hosp., 39 F. Supp. 2d 84, 87 (D. Me. 1999)
(concluding that the court was “precluded from hearing Plaintiff‟s malpractice claims by the present
version of the MHSA which requires submission of claims to a pre-litigation screening panel as well
as pre-litigation notice”).
22
47
Me. 1997). Under the MHSA, an “action for professional negligence” is “any action
for damages for injury or death against any health care provider . . . or health care
practitioner, . . . whether based upon tort or breach of contract or otherwise, arising
out of the provision or failure to provide health care services.”
24 M.R.S.
§ 2502(6).24 Maine courts have interpreted this provision of the MHSA broadly,
applying the MHSA “to all actions for professional negligence against a health care
provider or practitioner.” Saunders v. Tisher, 2006 ME 94, ¶ 12, 902 A.2d 830, 833
(emphasis in original).
“Professional negligence within the meaning of the MHSA is also defined
very broadly.” Id. The Maine Law Court has read the “or otherwise” language as
“reflect[ing] a legislative intent that the MHSA „occupy the field with regard to
actions against health care providers.‟” Id. (quoting Musk v. Nelson, 647 A.2d 1198,
1201 (Me. 1994)). “[T]he Legislature essentially made the MHSA applicable to any
case that could implicate medical malpractice insurance.” Id. The Law Court has
thus “found the [M]HSA‟s procedural requirements and limitations period to be
applicable in a wide variety of contexts.” Butler v. Killoran, 714 A.2d 129, 132 (Me.
1998).25
Mr. Henderson points out that the MHSA definition of “health care provider” includes only those
facilities that are somehow licensed in the state of Maine. That is true, but LSI is nonetheless
covered by the MHSA because the term “health care practitioner” does not contain such a limiter.
25 See, e.g., Brand v. Seider, 697 A.2d 846 (Me. 1997) (patient‟s claim against psychologist for breach
of confidentiality is subject to MHSA‟s procedural requirements); Dutil v. Burns, 674 A.2d 910 (Me.
1996) (strict liability and breach of warranty claims brought against health care providers are
subject to the MHSA‟s procedural requirements and limitations period); Musk, 647 A.2d 1198 (claim
for failed sterilization is subject to MHSA‟s limitations period); Thayer v. Jackson Brook Inst., 584
A.2d 653 (Me. 1991) (claim brought by plaintiff who was attacked while visiting patient care facility
is subject to MHSA‟s limitations period); Olszewski v. Mayo Regional Hosp., 2008 WL 5191734 (D.
24
48
Under this broad reading, the MHSA governs all of Mr. Henderson‟s claims
given that they are related to the medical treatment provided by the Defendants
and could implicate medical malpractice insurance.26
Count I (fraudulent
representations that the recommended treatments were effective and medically
accepted and covered by insurance), Count II (breach of a contract to provide
medically accepted treatment), Count III (unjust enrichment based on LSI‟s
retention
of
money
paid
for
medical
treatments),
Count
VI
(negligent
misrepresentation supplied to guide Mr. Henderson‟s choice of medical treatment),
Count V (fraudulent concealment based on LSI‟s knowledge of its treatments being
neither effective nor medically accepted), Count VII (negligence)27, and Counts VIII
and IX (intentional and negligent infliction of emotional distress suffered by Mr.
Henderson as a result of LSI‟s conduct) are all actions of professional negligence
brought against a healthcare provider or practitioner.
Whether Count IV―the allegation of unfair trade practices pursuant to 5
M.R.S. § 213―falls within the MHSA is less clear.
Nevertheless, because Mr.
Henderson is likely to pursue his other claims before the MHSA designated panel,
Me. 2008) (claims for assault, intentional and negligent infliction of emotional distress, breach of
fiduciary duty, and negligent supervision); cf. Dupuis v. Cancer Screening Servs., No. 96-169-P-C,
1997 U.S. Dist. LEXIS 2456, at *12 (D. Me. Feb. 13, 1997) (defendant laboratory had no contact with
patients and its evaluation and reporting of tissue sample results were not medical services so
MHSA did not apply).
26
Mr. Henderson has requested that “[t]o the extent that the Maine Health Security Act is deemed to
apply to Dr. Prada, Mr. Henderson withdraws Count VII (“Negligence”) against him, which is the
only count that could trigger the statute.” Pl.’s Opp’n at 19. The Court finds that Dr. Prada is within
the statute‟s definition of health care practitioner; the MHSA would apply to Mr. Henderson‟s action
for professional negligence against him. In accordance with Mr. Henderson‟s request, the Court
dismisses Count VII against Dr. Prada.
27 Count VII now applies to LSI only as Mr. Henderson has withdrawn the claim of negligence
against Dr. Prada.
49
the Court will not reach whether Count IV would be included as an action of
professional negligence. There is no evidence that Mr. Henderson complied with the
MHSA‟s notice and screening provisions for these professional negligence claims.
The Court turns to the question of remedy. A defense of failure to comply
with the notice and screening provisions of the MHSA is analogous to a defense
predicated on insufficient service of process or lack of subject matter jurisdiction.
Demmons v. Tritch, No. 06-140-B-W, 2007 WL 777541, at *4 (D. Me. Mar. 1, 2007)
(citing Dutil v. Burns, 687 A.2d 639, 641 (Me. 1997)). As explained by the Law
Court, “[d]ismissal is not required by the statute so long as an action is commenced
before the expiration of the statute of limitations.” Brand, 697 A.2d at 848 (holding
that the lower court erred in denying plaintiff‟s request for a stay of the court
proceedings that would permit her to serve the written notice of claim required by
the MHSA).
The Court concludes that Mr. Henderson must submit his claims to a prelitigation screening panel in compliance with the MHSA before bringing suit in this
Court. See Hewett v. Inland Hosp., 39 F. Supp. 2d 84, 88 (D. Me. 1999). The Court
further concludes that it may exercise personal jurisdiction over the Defendants,
that venue is proper in the District of Maine, and that the cited Florida statutes do
not apply.
However, Mr. Henderson has failed to comply with the mandatory
provisions of the MHSA. Following the Law Court‟s lead in Brand, the Court denies
LSI‟s motion to dismiss and stays this action to allow Mr. Henderson to complete
the mandatory pre-litigation screening under the MHSA. The Court will require a
50
report from Plaintiff‟s counsel every six months as to the status of the pre-litigation
screening process and upon completion of that process will schedule a conference of
counsel to resolve future proceedings in this Court.
IV.
CONCLUSION
The Court DENIES Defendants‟ Motion to Dismiss for Lack of Personal
Jurisdiction and for Change of Venue, or in the Alternative to Dismiss for Failure to
Comply with Florida Medical Malpractice Statutes or Maine Health Security Act,
except it DISMISSES without prejudice the Defendants‟ Motion to Dismiss for
failure to comply with the Maine Health Security Act (Docket # 15). The Court
STAYS further proceedings in this case until the parties complete mandatory prelitigation screening under the Maine Health Security Act. The Court ORDERS the
Plaintiff to file a report regarding the status of the pre-litigation screening process
with the Court every six months from today‟s date. If the Plaintiff fails to initiate a
pre-litigation screening on a timely basis, the case will be subject to dismissal. The
Court dismisses Count VII against Defendant Stefan Prada.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 28th day of September, 2011
51
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