Gale Woerman v. SSC West Point Operating Company LLC, et al
MEMORANDUM AND ORDER granting the 6 MOTION to Dismiss of SAVASENIOR CARE, LLC (Erroneously Sued as SAVA SENIORCARE LLC d/b/a West Point Living Center. The claims asserted against Defendant SavaSeniorCare LLC are dismissed, with prejudice, and the Clerk of the Court is directed to remove Defendant SavaSeniorCare LlC d/b/a West Point Living Center from the case caption. Ordered by Chief Judge Laurie Smith Camp. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GALE WOERMAN, Special
Administrator of the Estate of Ralph
CASE NO. 4:13CV3126
SSC WEST POINT OPERATING
COMPANY, LLC d/b/a WEST POINT
LIVING CENTER, A Skilled Nursing
Facility, SAVASENIORCARE LLC d/b/a
WESTPOINT LIVING CENTER, and
JOHN DOES 1-10,
This matter is before the Court on the Motion to Dismiss of SavaSeniorCare, LLC
(Erroneously Sued as Sava SeniorCare LLC d/b/a West Point Living Center) (Filing No.
6). Defendant SavaSeniorCare, LLC (“Sava”), seeks to be dismissed from this action
pursuant to Federal Rule of Civil Procedure 12(b)(2). For the reasons stated below,
Sava’s Motion will be granted.
From on or about June 3, 2011, to on or about June 21, 2011, Ralph Woerman
(“Mr. Woerman”) was a resident of West Point Living Center, a nursing home. He was
89 years old at the time.
Acting as the special administrator of the estate of Mr.
Woerman, Plaintiff initiated this action in the District Court of Cuming County, Nebraska,
on May 17, 2013, alleging that during Mr. Woerman’s eighteen day stay at West Point
Living Center, Mr. Woerman sustained various physical injuries, and later died on
August 2, 2012, as a result of the Defendants’ negligence. Plaintiff alleged that:
At all relevant times herein, [Sava], doing business as “West Point Living
Center” . . . was a corporation, incorporated under and pursuant to the
laws of the State of Delaware, maintaining its principal place of business
in West Point, Cuming County, Nebraska, holding itself out to the public as
a corporation furnishing skilled nursing treatment, care and attention to
patients for a fee, while assuming a duty of exercising reasonable care
towards its patients in the rendering of its services.
(Filing No. 1-1 at ¶ 4.)
On June 27, 2013, the Defendants removed the action to this Court. (Filing No.
1), noting that Plaintiff erroneously sued Sava under the name “SavaSeniorCare LLC,
d/b/a West Point Living Center.” On July 3, 2013, Sava filed its Motion and a supporting
brief and index of evidence. Sava’s evidence indicates that it is not doing business as
West Point Living Center and is not authorized to do business in Nebraska; that it “does
not directly own any real or personal property in Nebraska . . . and has not entered into
any contracts in the State of Nebraska”; that it “has no agents, offices, or employees in
Nebraska” and “does not employ the services of any medical directors, registered or
licensed practical nurses or other healthcare providers in Nebraska”; that “the West
Point Living Center . . . is operated by the separate legal entity, Defendant SCC West
Point Operating Company LLC, d/b/a West Point Living Center”; that Sava “was not
engaged in the operation of SCC West Point Operating Company LLC in any way, and
did not control [its] day to day operations . . . in any way during the time that Mr.
Woerman was a resident at West Point Living Center”; that Sava “is not (and at all times
pertinent to this action, was not) involved in skilled nursing treatment, or in care and
attention to patients for a fee in Nebraska,” and “[i]n particular, . . . was not involved in
the skilled nursing treatment, or in the care and attention of, the late Ralph Woerman or
in any of the alleged acts or omissions which Plaintiff alleges caused Mr. Woerman’s
death.” (Aff. of Wynn G. Sims, Filing 8-1.)
Plaintiff has not responded to Sava’s Motion within the time permitted by the
Court’s local rules. See NECivR 7.1(b)(1)(B). See also id. at 7.1(b)(1)(C) (“Failure to
file an opposing brief . . . precludes the opposing party from contesting the moving
party’s statement of facts.”)
To survive a motion to dismiss for lack of personal jurisdiction under Federal
Rule of Civil Procedure 12(b)(2), “the plaintiff must state sufficient facts in the complaint
to support a reasonable inference that defendants may be subjected to jurisdiction in
the forum state.”
Steinbuch v. Cutler, 518 F.3d 580, 585 (8th Cir. 2008).
jurisdiction has been challenged, however, “the plaintiff has the burden of proving facts
supporting personal jurisdiction.” Miller v. Nippon Carbon Co., Ltd., 528 F.3d 1087,
1090 (8th Cir. 2008). The plaintiff's showing is “tested, not by the pleading alone, but by
the affidavits and exhibits presented” in support of and in opposition to the motion to
dismiss for lack of personal jurisdiction. Coen v. Coen, 509 F.3d 900, 904-05 (8th Cir.
2007) (internal quotations omitted). When considering these evidentiary materials, the
Court must view the facts in the light most favorable to the plaintiff and resolve all
factual conflicts in its favor. Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d
1384, 1387 (8th Cir. 1991).
In determining whether this Court has personal jurisdiction over a nonresident
defendant, two issues are presented: (1) whether the requirements of the Nebraska
long-arm statute are satisfied and (2) whether the exercise of jurisdiction over this
Defendant will violate the Fourteenth Amendment Due Process Clause.
F.3d at 905. Because Nebraska’s long-arm statute, Neb. Rev. Stat. § 25-536,2 has
been interpreted to extend jurisdiction over nonresident defendants to the fullest degree
allowed by the Due Process Clause of the United States Constitution, Wagner v.
Unicord Corp., 526 N.W.2d 74, 77-78 (Neb. 1995), the Court need only determine
whether the assertion of jurisdiction offends constitutional limits. In order to exercise
personal jurisdiction over a nonresident defendant, due process requires that the
defendant have “minimum contacts” with the forum state such that maintenance of a
suit against that defendant does not offend “‘traditional notions of fair play and
substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
“The Supreme Court has recognized two theories for evaluating personal
jurisdiction: general and specific jurisdiction.”
Steinbuch, 518 F.3d at 586 (citing
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414–15 (1984)).
“Under the theory of general jurisdiction, a court may hear a lawsuit against a defendant
Neb. Rev. Stat. § 25-536 provides:
A court may exercise personal jurisdiction over a person:
(1) Who acts directly or by an agent, as to a cause of action arising from the
(a) Transacting any business in this state;
(b) Contracting to supply services or things in this state;
(c) Causing tortious injury by an act or omission in this state;
(d) Causing tortious injury in this state by an act or omission outside this state if
the person regularly does or solicits business, engages in any other persistent course
of conduct, or derives substantial revenue from goods used or consumed or services
rendered, in this state;
(e) Having an interest in, using, or possessing real property in this state; or
(f) Contracting to insure any person, property, or risk located within this state at
the time of contracting; or
(2) Who has any other contact with or maintains any other relation to this state
to afford a basis for the exercise of personal jurisdiction consistent with the
Constitution of the United States.
who has ‘continuous and systematic’ contacts with the forum state, even if the injuries at
issue in the lawsuit did not arise out of the defendant's activities directed at the forum.”
Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1073 (8th Cir. 2004) (quoting
Helicopteros, 466 U.S. at 415–16); see also Bell Paper Box, Inc. v. U.S. Kids, Inc., 22
F.3d 816, 819 (8th Cir. 1994) (alteration in original) (quoting Sondergard v. Miles, Inc.,
985 F.2d 1389, 1392 (8th Cir. 1993)) (“‘[g]eneral jurisdiction . . . refers to the power of a
state to adjudicate any cause of action involving a particular defendant, regardless of
where the cause of action arose.’”) On the other hand, under the theory of specific
jurisdiction, “the injury giving rise to the lawsuit [must have] occurred within or had some
connection to the forum state.” Dever, 380 F.3d at 1073 (citing Helicopteros, 466 U.S.
at 414; Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 819 (8th Cir. 1994)). In
other words, a court will have specific jurisdiction over a cause of action “‘arising from or
related to a defendant's actions within the forum state.’” Bell Paper Box, 22 F.3d at 819
(quoting Sondergard, 985 F.2d at 1392).
Under either theory, the defendant must have committed “‘some act by which the
defendant purposely avail[ed] itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its laws.’” Dever, 380 F.3d at
1073 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)); see also Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting Hanson, 357 U.S. at 253). The
defendant’s “purposeful availment must be sufficient to provide the defendant with fair
warning that his activities might result in his being haled into court in that jurisdiction.”
Johnson v. Woodcock, 444 F.3d 953, 955 (8th Cir. 2006) (citing Porter v. Berall, 293
F.3d 1073, 1075 (8th Cir. 2002)). That is, the defendant’s contacts with the forum state
must not be “random,” “fortuitous,” “attenuated,” or the result of the “unilateral activity of
another party or a third person.” Burger King, 471 U.S. at 475 (quotations and citations
omitted). Once it has been determined that the nonresident defendant purposefully
established minimum contacts with the forum state, such contacts must be analyzed in
light of other factors to determine whether the exercise of personal jurisdiction over the
nonresident defendant comports with “fair play and substantial justice.”
Id. at 476
(quotations and citation omitted).
Keeping the foregoing principles in mind, the Eighth Circuit instructs courts to
consider the following factors to determine whether jurisdiction comports with due
process: “(1) the nature and quality of the contacts with the forum state; (2) the quantity
of those contacts; (3) the relation of the cause of action to the contacts; (4) the interest
of the forum state in providing a forum for its residents; and (5) the convenience of the
parties.” Coen, 509 F.3d at 905 (quotations and citation omitted).1 The third factor–the
relation of the cause of action to the contacts–refers to the distinction between specific
and general jurisdiction.
In applying these factors, the central inquiry is the
“‘relationship among the defendant, the forum, and the litigation.’” Land-O-Nod Co. v.
Bassett Furniture Indus., Inc., 708 F.2d 1338, 1340 (8th Cir. 1983) (quoting Shaffer v.
See also Sybaritic, Inc. v. Interport Int'l, Inc., 957 F.2d 522, 524 (8th Cir. 1992) (citing Falkirk
Mining Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 373-74 (8th Cir. 1990)):
[W]e explained that the determination of whether personal jurisdiction comports with due
process may be guided by a careful consideration of the following five factors: (1) the
nature and quality of the contacts with the forum state; (2) the quantity of the contacts
with the forum state; (3) the relation of the cause of action to the contacts; (4) the interest
of the forum state in providing a forum for its residents; and (5) the convenience of the
parties. . . . This analytical framework incorporates the notions of both “minimum
contacts” and “fair play and substantial justice.”
Heitner, 433 U.S. 186, 204 (1977)).
Therefore, the fourth and fifth factors are of
secondary importance and not determinative. Id.; see also Coen, 509 F.3d at 905.
Sava has challenged jurisdiction and, therefore, it was Plaintiff’s burden to prove
facts that support this Court’s exercise of personal jurisdiction over Sava. See Miller,
528 F.3d at 1090. The Plaintiff has failed to do so, and Sava has pointed to evidence
indicating that it was erroneously sued as doing business as West Point Living Center,
that it is not authorized to business in Nebraska, and that it has no direct contacts with
Nebraska. While Sava may have some indirect contacts with Nebraska, Plaintiff has
failed to demonstrate how those contacts gave rise or relate to its claims. Therefore,
Sava’s Motion will be granted. Accordingly,
IT IS ORDERED:
The Motion to Dismiss of SAVASENIOR CARE, LLC (Erroneously Sued
as SAVA SENIORCARE LLC d/b/a West Point Living Center) (Filing No. 6) is granted;
The claims asserted against Defendant SavaSeniorCare LLC are
dismissed, with prejudice; and
The Clerk of the Court is directed to remove Defendant SavaSeniorCare
LLC d/b/a West Point Living Center from the case caption.
Dated this 5th day of August, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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