Dennett v. Archuleta et al

Filing 24

OPINION AND ORDER finding as moot 5 Motion to Dismiss for Lack of Jurisdiction; denying 10 Motion to Dismiss for Lack of Jurisdiction. So Ordered by Judge William E. Smith on 1/11/13. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
)
)
Plaintiff,
)
)
v.
)
)
MICHAEL ARCHULETA,
)
JAMAL ALSAFFAR,
)
LAURIE HIGGINBOTHAM,
)
ARCHULETA & ASSOCIATES, P.C, )
d/b/a/ ARCHULETA, ALSAFFAR & )
HIGGINBOTHAM, JOHN DOE(S),
)
ABC PARTNERSHIP(S), AND
)
DEF CORPORATION(S),
)
)
Defendants.
)
______________________________)
MICHAEL DENNETT,

C.A. No. 12-424-S

OPINION AND ORDER
WILLIAM E. SMITH, United States District Judge.
Before the Court is Defendants’ motion to dismiss for lack
of

personal

jurisdiction

pursuant

Federal Rules of Civil Procedure.

to

Rule

12(b)(2)

of

the

For the reasons set forth

below, the motion is DENIED.
I.

Facts
In 2009, Michael Dennett, a resident of Middletown, Rhode

Island, was being treated by the Providence Veterans Affairs
Medical Center (the “Providence VA”) in Providence, Rhode Island
when test results showed elevated levels of a prostate-specific
antigen (“PSA”).

(First Am. Compl. ¶ 1, ECF No. 7; Pl.’s Obj.

to Defs.’ Mot. to Dismiss the Pl.’s First Am. Compl. (“Pl.’s
Obj.”) 4, ECF No. 13.)

Due to the high PSA, the Providence VA

biopsied Dennett’s prostate on May 27, 2009.
¶ 12.)
for

(First Am. Compl.

Dennett was informed that the samples tested positive

prostate

removed.

cancer,

(Id.

¶¶

so

on

June

13-14.)

18,

2009,

his

Post-operative

prostate

tests,

revealed that Dennett did not have prostate cancer.
An

investigation

into

the

discrepancy

between

was

however,

(Id. ¶ 15.)

the

two

test

results led to a comparative DNA test of the tissue samples
which revealed that the Providence VA had switched Dennett’s
biopsy sample with another patient’s sample, and it was this
patient, not Dennett, who had prostate cancer.

(Id. ¶¶ 16-17.)

This misdiagnosis and unnecessary surgery not only left Dennett
without a prostate but also left him with infection, painful
fluid

collection

in

his

pelvis,

incontinence,

and

impotence.

(Id. ¶ 22.)
Dennett began searching for an attorney who would file suit
against the Providence VA on his behalf and found the website of
Defendant Archuleta, Alsaffar & Higginbotham (“AA&H”), a Texas
law firm specializing in Federal Tort Claims Act (“FTCA”) cases.
(Id. ¶¶ 5, 19.)
Archuleta,

Jamal

Attorneys at AA&H include Defendants Michael
Alsaffar,

and

Laurie

Higginbotham

(together,

with AA&H, the “Defendants”), all of whom reside in Texas and
are licensed to practice law in Texas.
2

(Id. ¶¶ 2-4.)

None of

the Defendants are licensed in Rhode Island.
AA&H’s

website

offers

to

“represent

(Id. ¶ 9.)

[clients]

Still,

regardless

of

where [they] live” and states that the firm “handle[s] claims in
all

50

states.”

section

devoted

(Id.
to

¶

8.)

results

Indeed,

where

it

AA&H’s

website

describes

the

forums and cases in which it has participated.

has

a

different

(Pl.’s Obj. 8-

9.)
Based

on

his

review

of

the

website

and

multiple

correspondences with AA&H, Dennett decided to retain AA&H to
represent him in his FTCA claim against the Providence VA for
medical malpractice.

(First Am. Compl. ¶ 19.)

As part of this

process, Dennett sent a number of documents to Defendants in
Texas for review, including medical records, a narrative of how
the experience had affected him, responses to Defendants’ client
questionnaire, and copies of communications between Dennett and
the Department of Veterans Affairs.

(Defs.’ Mem. of Law in

Supp.

Pl.’s

of

Their

Mot.

to

Dismiss

the

First

(“Defs.’ Mem. of Law”) Ex. B, ¶ 22, ECF No. 12.)

Am.

Compl.

Dennett also

signed a Letter of Representation on October 16, 2009, and a
written contract on October 19, 2009.

(First Am. Compl. ¶ 19.)

Both of these documents were signed by Dennett in Rhode Island.
(Pl.’s Obj. Ex. 1 (“Aff. of Michael Dennett”) ¶¶ 21-22.)
the

representation

claims,

Defendants

was

explicitly

promised

to
3

limited

help

to

Dennett

Though

Dennett’s
locate

a

FTCA
local

attorney to pursue other avenues of recovery, such as individual
suits against the non-affiliated doctors and surgeons.
On October 29, 2009, Defendants filed two claims pursuant
to

the

FTCA

–

one

with

the

Providence

with

the

(First Am. Compl. ¶ 20.)

Providence VA Regional Office.

VA

and

one

In

connection with these claims, Defendants communicated from their
Texas office with both the Department of Veterans Affairs in
Providence and Dennett.

(Defs.’ Mem. of Law Ex. B ¶ 25.)

Defendants’

the

request,

transferred

on

March

23,

claims

2010

to

were

the

At

administratively

VA

Office

of

General

Counsel in Washington, D.C. (the “Washington VA”) because the
Washington office had the authority to settle for larger amounts
than

the

Providence

Negotiations

branch

continued

did.

outside

(First
of

Am.

Rhode

Compl.
Island

¶

21.)

between

Defendants (in Texas) and the Washington VA, and on August 3,
2010, Defendants settled Dennett’s claim for $300,000.
25,

27.)

Island.

Dennett

signed

the

settlement

agreement

(Aff. of Michael Dennett ¶¶ 36-37.)

settlement,

Dennett

contacted

Defendants

to

(Id. ¶¶
in

Rhode

Following the
follow

up

on

Defendants’ earlier promise to locate a Rhode Island attorney
who

could

individual

help

Dennett

physicians

pursue

and

additional

surgeons;

Defendant

Dennett in contact with his current counsel.
¶¶ 24, 28.)
4

claims

against

the

Archuleta

put

(First Am. Compl.

Dennett

eventually

became

unhappy

with

the

settlement

negotiated by Defendants and filed suit for legal malpractice in
Rhode

Island

Superior

Court

on

May

2,

2012.

subsequently removed the case to this Court.

Defendants

(Id. ¶¶ 10-11.)

On July 23, 2012, Defendants filed the instant motion to dismiss
for lack of personal jurisdiction.

(Defs.’ Mot. to Dismiss the

Pl.’s First Am. Compl., ECF No. 10.)
II.

Discussion
When a defendant challenges the Court’s jurisdiction over

him,

the

First

Circuit

applies

the

prima

facie

standard

determine whether personal jurisdiction is proper.

to

Hainey v.

World AM Commc’ns, Inc., 263 F. Supp. 2d 338, 341 (D.R.I. 2003).
This approach places the burden on the plaintiff to “make the
showing as to every fact required to satisfy ‘both the forum’s
long-arm

statute

Constitution.’”

and

the

due

process

clause

of

the

Id. (quoting Boit v. Gar-Tec Prods., Inc., 967

F.2d 671, 675 (1st Cir. 1992)); see also Henry v. Sheffield, 749
F. Supp. 2d 3, 9 (D.R.I. 2010).

Because Rhode Island’s long-arm

statute claims jurisdiction to the maximum extent permitted by
the Fourteenth Amendment, 1 however, “the question becomes whether
asserting

personal

jurisdiction

1

over

Defendants

is

consistent

Rhode Island General Laws section 9-5-33(a) states that a
defendant “shall be subject to the jurisdiction of the state of
Rhode Island . . . in every case not contrary to the provisions
of the constitution or laws of the United States.”
R.I. Gen.
Laws § 9-5-33(a).
5

with the Due Process Clause.”

Hainey, 263 F. Supp. 2d at 341

(citing Almeida v. Rodavsky, 506 A.2d 1373, 1374 (R.I. 1986)).
In

making

this

determination,

the

Court

must

“accept[]

the

plaintiff’s properly documented evidentiary proffers as true.”
Id.

(citing

Daynard

v.

Ness,

Motley,

Loadholt,

Richardson

&

Poole, P.A., 290 F.3d 42, 45 (1st Cir. 2002); Mass. Sch. of Law
at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir.
1998)).
Under the Due Process Clause, personal jurisdiction exists
when there are “minimum contacts between a nonresident defendant
and the forum such that the maintenance of the suit does not
offend

‘traditional

justice.’”

notions

of

fair

play

and

substantial

Ne. Land Servs., Ltd. v. Schulke, 988 F. Supp. 54,

57 (D.R.I. 1997) (quoting Int’l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945)).
ways:

general

jurisdiction.
personal

This can be established through one of two
personal

jurisdiction

or

specific

personal

Dennett’s argument, however, emphasizes specific

jurisdiction

over

Defendants.

2

Specific

personal

jurisdiction is established through a three-part test:
First, the claim underlying the litigation must
directly arise out of, or relate to, the defendant’s
forum-state activities.
Second, the defendant’s instate contacts must represent a purposeful availment
of the privilege of conducting activities in the forum
2

Dennett’s papers do argue for both general and specific
personal jurisdiction, but the Court finds no evidence to
support a finding of general personal jurisdiction.
6

state, thereby invoking the benefits
of that state’s laws and making
involuntary
presence
before
the
foreseeable.
Third, the exercise
must, in light of the Gestalt factors,

and protections
the defendant’s
state’s
courts
of jurisdiction
be reasonable.

Hainey, 263 F. Supp. 2d at 341-42 (quoting Sawtelle v. Farrell,
70 F.3d 1381, 1389 (1st Cir. 1995)).
A.

Relatedness

The first prong, relatedness, “focuses on the nexus between
the defendant’s contacts and the plaintiff’s cause of action.”
Id. at 342 (quoting Ticketmaster-New York, Inc. v. Alioto, 26
F.3d

201,

206

(1st

Cir.

1994)).

It

is

met

if

“the

claim

underlying the litigation . . . directly arise[s] out of, or
relate[s]

to,

the

defendant’s

forum-state

activities.”

Id.

(quoting Daynard, 290 F.3d at 61).
Here, Defendants’ contacts with Rhode Island are intimately
related

to

Dennett’s

claim.

Dennett

retained

Defendants

to

represent him in an FTCA case arising out of a botched diagnosis
and operation by the Providence VA.

The diagnosis occurred in

Rhode Island, as did the operation; thus any fact gathering and
discovery – a necessity regardless of whether the case went to
trial

or

Defendants

settled

early

establishing

–

would

contacts

in

have

necessarily

Rhode

Island.

involved
Moreover,

under the FTCA, Dennett was required to file suit in the United
States District Court for the District of Rhode Island, which
would in turn be required to apply Rhode Island substantive law.
7

See 28 U.S.C. §§ 1402, 1346(b)(1).

As a result, Defendants’

preparation of the case must have (or at least should have)
included researching Rhode Island law.
with

respect

settlement
contacts

to

damages,

the

key

It

is

negotiations.

with

Rhode

Island

are

This is especially true

issue
hard

at
to

play
argue

unrelated

for

during
that

the

these

jurisdictional

purposes.
Indeed,

at

oral

argument

Defendants

essentially

conceded

that these contacts would ordinarily be sufficient to establish
specific

personal

jurisdiction.

According

to

Defendants,

however, the Court is presented with a unique situation because
the

First

Amended

Complaint

only

alleges

malpractice

arising

from the narrow act of specifically negotiating the settlement
amount with the Washington VA.
are

therefore

because
wrong

irrelevant

there

is

no

related

to

the

would

to

Any contacts with Rhode Island
Dennett’s

allegation

that

information

undoubtedly

claim,

Defendants

gathering

implicate

and

they

contend,

did

anything

case

workup,

actions

that

contacts

with

Island.

Rhode

This argument, while creative, is unpersuasive.

First, Defendants construe the First Amended Complaint too
narrowly.

In Count I, the First Amended Complaint states that

“Defendants failed to exercise the degree of skill and diligence
required

of

such

average

attorneys

and

negligently

caused

Plaintiff to negligently compromise Plaintiff’s claims for far
8

less

than

includes,

they
but

were
is

worth”

not

and

limited

that

to,

“Defendants’

consummating

an

negligence
inadequate

settlement payment from the United States . . . and failing to
inform Plaintiff of the fair and reasonable value of his claim.”
(First Am. Comp. ¶¶ 32-33.)

These allegations go well beyond

the narrow claim of malpractice articulated by Defendants and
encompass the Rhode Island contacts necessary to prepare for the
settlement.

The

remaining

Defendants.

Counts

II

counts

and

III,

are

even

involving

less

helpful

allegations

to

that

Defendants failed to obtain informed consent from Dennett, go
well beyond a failure to properly negotiate with the Washington
VA.

(Id.

¶¶

35-39.)

And

Count

IV,

which

alleges

the

unauthorized practice of law, clearly implicates Rhode Island
activity.

(Id. ¶¶ 40-43.)

Second, Defendants’ reliance on Sawtelle v. Farrell, for
the proposition that in-forum contacts are not relevant where a
settlement negotiation occurs out-of-forum, is misplaced.

In

Sawtelle, New Hampshire residents, acting as the administrators
of the estate of a pilot who died in a plane crash, brought a
wrongful death action in Florida.
settled.

70 F.3d at 1386.

The case

The plaintiffs subsequently learned that the estate of

another victim of the same plane crash settled for more than
twice as much as their claim.

Id. at 1386-87.

Angered by this

substantial discrepancy, they filed a legal malpractice claim
9

against their California-based attorneys in New Hampshire.

The

First Circuit recognized that while there were contacts between
the

defendant

law

firm

and

New

Hampshire

during

the

legal

representation, very few were related to the plaintiffs’ legal
malpractice

claim

and

thus

jurisdictional purposes.

were

not

Id. at 1389.

to

be

considered

for

According to the court,

the only relevant New Hampshire contact was the transmission of
information via telephone or mail, and this was not enough to
support personal jurisdiction.
jurisdictional

contact,

investigation,
judgment

in

about

settlement.

meanwhile,

Florida

the

Id. at 1389-90.

and

amount

was

Virginia,

and

The relevant

“the

which

propriety

defendants’

informed

of

the

their

proposed

In short, it was the aggregate of the defendants’

allegedly negligent acts and omissions which caused the Florida
injury,

and

the

out-of-forum

cause.”

negligence

was

the

effective

Id. at 1390.

The alleged injury in Sawtelle - the consummation of an
inadequate settlement amount - is the same allegation made by
Dennett.

Contrary

to

Defendants’

does not support their position.
acknowledge

that

not

every

argument,

however,

Sawtelle

While the First Circuit did
contact

is

relevant

for

jurisdictional purposes, it also emphasized that pre-settlement
investigation

into

the

case

is

the

necessary

allegations of an inadequate settlement.
10

See id.

contact

for

The reason

personal jurisdiction did not exist in New Hampshire was because
the

pre-settlement

Florida

and

contrast,

investigation

implicated
all

of

Virginia

the

took
and

place
Florida

pre-settlement

in

Virginia

law.

and

Here,

investigation

preparation involved Rhode Island and no other forum.

by
and

So while

it is true that the actual settlement negotiation took place
between Texas and Washington, D.C., the critical pre-settlement
activities, which led to the settlement, all occurred in Rhode
Island.
Case law throughout the country supports this conclusion.
To support their respective positions, both parties cite to a
number of cases (often the same ones) involving out-of-forum
attorneys being sued for malpractice who allege lack of personal
jurisdiction in the forum.

See generally Phillips Exeter Acad.

v. Howard Phillips Fund, Inc., 196 F.3d 284 (1st Cir. 1999);
Robinson

v.

Giarmarco

&

Bill,

P.C.,

74

F.3d

253

(11th

Cir.

1996); Sawtelle, 70 F.3d 1381; Klump v. Duffus, 71 F.3d 1368
(7th Cir. 1995); Sher v. Johnson, 911 F.2d 1357 (9th Cir. 1990);
Kowalski v. Doherty, Wallace, Pillsbury & Murphy, Attorneys at
Law, 787 F.2d 7 (1st Cir. 1986); Wadlington v. Rolshouse, Civ.
Action

No.

3:05CV-558-H,

2008

WL

1712293

(W.D.

Ky.

Apr.

9,

2008); Litchfield Fin. Corp. v. Buyers Source Real Estate Grp.,
389 F. Supp. 2d 80 (D. Mass. 2005); Allen v. James, 381 F. Supp.
2d 495 (E.D. Va. 2005); Alonso v. Line, 846 So. 2d 745 (La.
11

2003); Cerberus Partners, L.P. v. Gadsby & Hannah, LLP, 836 A.2d
1113

(R.I.

2003).

Though

personal

jurisdiction

is

a

fact-

specific inquiry, and no two cases are identical, a thorough
reading of all these cases reveals a common theme:
legal

malpractice

original

action

claim

is

serving

filed

as

in

the

the

same

predicate

where the

forum

for

as

the

the

legal

malpractice (or where it would have been filed), jurisdiction is
found; where the legal malpractice claim is filed in a different
forum, jurisdiction is lacking. Here, Dennett filed his legal
malpractice

claim

in

Rhode

Island,

the

same

forum

that

his

medical malpractice claim was statutorily required to be filed
in.

Regardless of the fact that the settlement talks occurred

between

Texas

and

Washington,

D.C.,

the

claim

is

directly

related to and arises out of Defendants’ contacts with Rhode
Island, and thus the relatedness prong is satisfied.
B.

Purposeful Availment

Next

is

purposeful

availment,

which

looks

at

the

voluntariness and foreseeability of a defendant’s contacts and
actions.
F.3d

at

Hainey, 263 F. Supp. 2d at 343 (quoting Sawtelle, 70
1391).

“reasonably
jurisdiction.

This

anticipate

prong

is

being

met
haled

if

the
into

defendant
court”

should
in

the

World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286, 297 (1980).

12

There

is

little

doubt

that

Defendants

purposely

themselves of the benefits of Rhode Island.
website

offering

to

“represent

[clients]

availed

They created a

regardless

of

where

[they] live” and to “handle claims in all 50 states.”

The

website specifically listed the Providence VA.
creating

this

website

to

solicit

business

And while merely
is

not

enough

to

establish personal jurisdiction, see, e.g., McBee v. Delica Co.,
417 F.3d 107, 124 (1st Cir. 2005), agreeing to represent Dennett
is.

Defendants made themselves out to be a nationwide law firm

representing clients throughout the country.

With the benefits

of a nationwide law practice come certain risks.

When Dennett

responded to the website and retained Defendants to represent
him in his Rhode Island FTCA case, Defendants voluntarily agreed
to

investigate

his

Rhode

Island

claim,

to

communicate

with

Dennett and potential witnesses in Rhode Island, to initiate
settlement

discussions

in

Rhode

Island,

and

to

file

Rhode Island if settlement talks proved fruitless.

suit

in

From the

moment Defendants agreed to represent Dennett, they purposefully
availed themselves of the opportunity to practice law in Rhode
Island and to profit from the Providence VA’s malpractice.

It

was entirely foreseeable that if something were to go wrong with
the

representation,

Rhode

Island.

Defendants

That

the

could

ultimate

be

haled

settlement

representatives in Washington, D.C. is irrelevant.
13

into

court

occurred

in

with

C.

The Gestalt Factors

Finally,
reasonable

the

for

jurisdiction.
factors

to

Court
the

must

determine

state

to

if

it

assert

is

fair

specific

and/or

personal

The First Circuit has enumerated five “Gestalt”

be

used

in

evaluating

this

element:

“(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.”

Hainey, 263 F. Supp.

2d at 343 (citing Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 717
(1st Cir. 1996) (citing Burger King Corp. v. Rudzewicz, 471 U.S.
462, 477 (1985))).

These factors are a sliding scale, often

used as a tie-breaker to tip the jurisdictional decision one way
or another.

See Ticketmaster-New York, 26 F.3d at 210.

No “tie-breaker” is needed here.

Like the relatedness and

purposeful availment prongs, the Gestalt factors also support a
finding of personal jurisdiction.
burden
greatly

by

having

diminished

to

travel

by

to

modern

While Defendants do face a

Rhode

Island,

transportation.

this

burden

is

Moreover,

if

jurisdiction in Rhode Island did not exist, Defendants could
still be subject to jurisdiction in Washington D.C., which would
be as burdensome as Rhode Island.
14

The remaining four factors

all

favor

Rhode

Island

jurisdiction.

Rhode

Island

has

an

interest in adjudicating this dispute as it involves a Rhode
Island citizen, a Rhode Island medical facility, doctors and
surgeons living and practicing in Rhode Island, and the practice
of law by out-of-forum attorneys applying Rhode Island law and
affecting Rhode Island citizens.
law

applies,

the

nature

of

Moreover, because Rhode Island

this

type

of

suit

will

require

experts knowledgeable on Rhode Island law, specifically damage
amounts.

All

of

convenient

and

effective

neither

Texas

nor

these

factors
forum

Washington,

make

Rhode

to

resolve

D.C.

has

Island
the

the

the

dispute,

most

same

level

and
of

interest.
III. Conclusion
For the reasons stated above, Defendants’ motion to dismiss
for lack of personal jurisdiction pursuant to Rule 12(b)(2) of
the Federal Rules of Civil Procedure is DENIED.
IT IS SO ORDERED.

/s/ William E. Smith
William E. Smith
United States District Judge
Date: January 11, 2013

15