Estate of Vada Ramsey Carol Leary, Administrator v. UPMC Shadyside et al

Filing 19

REPORT AND RECOMMENDATION/OPINION re: #9 MOTION to Dismiss filed by UPMC Shadyside, Forozan Navid, #1 Complaint filed by Estate of Vada Ramsey, Carol Leary, Administrator: The Magistrate RECOMMENDS that Defendants' #9 Motion to Dismiss be granted and that the Estate's #1 Complaint be dismissed without prejudice. Written objections may be filed within 14 days after being served. Signed by Magistrate Judge John S. Kaull on 5/6/14. (Attachments: #1 Certified Mail Return Receipt)(copy Plaintiff)(cnd) Modified document type on 5/6/2014 (cnd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ESTATE OF VADA RAMSEY,
CAROL LEARY, ADMINISTRATOR,
Plaintiff,
v.

Civil Action No. 1:14-cv-40

UPMC SHADYSIDE;
FOROZAN NAVID,
Defendants.
REPORT AND RECOMMENDATION/OPINION
I.

Procedural History

On March 10, 2014, pro se Plaintiff Estate of Vada Ramsey, Carol Leary, Administrator (“the
Estate”), filed a Complaint in this Court. (Docket No. 1.) In that Complaint, the Estate asserts that
Defendants, UPMC Shadyside and Dr. Forozan Navid committed medical malpractice and wrongful
death against Vada Ramsey during her stay at UPMC Shadyside,1 located in Pittsburgh,
Pennsylvania. The Estate seeks $10 million in damages for “expenses incurred” and “loss of
enjoyment of life, mental anguish and unbearable suffering.” (Id.)
On April 4, 2014, Defendants filed a “Motion to Dismiss.” (Docket No. 9.) On April 11,
2014, this matter was referred to the undersigned by United States District Judge Irene M. Keeley.
(Docket No. 12.) That same day, the undersigned entered notice pursuant to Roseboro v. Garrison,
528 F.2d 309, 310 (4th Cir. 1975), notifying the Estate of its right to respond to the Motion to
Dismiss. (Docket No. 13). The undersigned directed the Estate to file a response within thirty (30)

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According to Defendants, the correct name of the hospital is UPMC Presbyterian
Shadyside. (Docket No. 9 at 1.)

days of the date of the Roseboro notice. The Estate filed an “Opposition to Motion to Dismiss” on
May 1, 2014. (Docket No. 18.) Accordingly, Defendant’s Motion to Dismiss is ripe for disposition.
II.

Contentions of the Parties

Defendants assert that the Estate’s Complaint should be dismissed because:
1.

The Court lacks personal jurisdiction over Defendants;

2.

The Northern District of West Virginia is an improper venue; and

3.

The Estate failed to comply with W. Va. Code § 55-7B-6 by failing to serve
a notice of claim and pre-suit Screening Certificate of Merit.

(Docket No. 9-1 at 2-11.)
In its response, the Estate indicates that as a pro se Plaintiff, it was “uncertain or confused
by certain guidelines” and “believed [it] could file in either the state the plaintiffs or defendants
resided in. If it pleases the court, we will file a motion for a change of venue.” (Docket No. 18 at
1.) As to Defendants’ claim regarding failure to comply with W. Va. Code § 55-7B-6, the Estate
asserts that “[d]ue to the nature of the claim, primarily an E Coli infection that is verified by
defendants [sic] own records, a formal complaint filed with the Joint Commission in PA, and
conversations with personnel at the time of incident, we believe that it meets the criteria for a wellestablished legal theory of liability.” (Id. at 2.)
III.
A.

Analysis

Personal Jurisdiction
Once a defendant challenges personal jurisdiction, the plaintiff has the burden of producing

facts that support the existence of jurisdiction. See Carefirst of Md., Inc. v. Carefirst Pregnancy
Crisis Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (“When personal jurisdiction is properly

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challenged under Rule 12(b)(2), the jurisdictional question is to be resolved by the judge, with the
burden on the plaintiff.”).

Ultimately, a plaintiff must establish personal jurisdiction by a

preponderance of the evidence. New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d
290, 294 (4th Cir. 2005); Carefirst of Md., Inc., 334 F.3d at 396. Where, as here, the court does not
hold a hearing and addresses the question of personal jurisdiction on the basis of motion papers,
supporting legal memoranda, and the allegations in the complaint, the plaintiff bears the burden only
of making a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional
challenge. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989).
A plaintiff must make two showings to establish personal jurisdiction over a non-consenting,
non-resident defendant. First, the plaintiff must demonstrate that a statute makes the defendant
amenable to process. See, e.g., Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 277 (4th
Cir. 2009) (“A federal district court may only exercise personal jurisdiction over a foreign
corporation if such jurisdiction is authorized by the long-arm statute of the state in which it sits and
application of the long-arm statute is consistent with the due process clause of the Fourteenth
Amendment.”). Second, maintenance of the suit in the forum at issue must be consistent with
traditional notions of fair play and substantial justice embodied in the Due Process Clause. Int’l
Shoe Co. v. Washington, 326 U.S. 310, 320 (1945).
The Fourth Circuit has recognized that “[b]ecause the West Virginia long-arm statute is
coextensive with the full reach of due process, it is unnecessary . . . to go through the normal twostep formula for determining the existence of personal jurisdiction. Rather the statutory inquiry
necessarily merges with the Constitutional inquiry.” In re Celotex Corp., 124 F.3d 619, 627-28 (4th
Cir. 1997). Therefore,
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[t]o satisfy constitutional due process, the defendant must have sufficient minimum
contacts with West Virginia so that requiring it to defend its interests here would not
“offend traditional notions of fair play and substantial justice.” . . . Those minimum
contacts necessary to confer jurisdiction are limited to those activities by which a
person “purposely avails itself of the privilege of conducting activities within the
forum state.” . . . This occurs where the contacts “proximately result form actions by
the defendant himself that create a ‘substantial connection’ with the forum state,” .
. . or where the defendant’s efforts are “purposefully directed” at the state.
Vass v. Volvo Trucks N. Am., 304 F. Supp. 2d. 851, 854 (S.D. W. Va. 2004) (internal citations
omitted).
Defendants attached two Affidavits to their Motion to Dismiss, one by Dr. Navid and one
by William Shaffner, Esq., Senior Association Counsel for UPMC. In his Affidavit, Dr. Navid states
that he does not have an “office of any kind” in West Virginia, does not hold a license to practice
medicine in West Virginia, does not treat patients or serve on the staff at any West Virginia location
or hospital, does not conduct any type of business in West Virginia, does not own any property in
West Virginia, and did not provide any medical treatment to Vada Ramsey in West Virginia.
(Docket No. 9-2 at 1-2.) Furthermore, Mr. Shaffer asserts that UPMC Presbyterian Shadyside does
not operate in West Virginia and did not provide any medical treatment to Vada Ramsey in West
Virginia. (Docket No. 9-3 at 1-2.) In its response, the Estate has failed to assert any contact by
Defendants with West Virginia, much less the minimum contacts necessary to satisfy the Due
Process Clause. Accordingly, based upon the Defendants’ motion to dismiss and the Estate’s
Complaint, the undersigned finds that the Court cannot exercise personal jurisdiction over
Defendants, as any actions taken by them occurred solely in Pennsylvania, and there is no indication
that Defendants have ever had any contact whatsoever with West Virginia.
B.

Improper Venue

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For purposes of venue, a civil action may be filed in:
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of property that is the subject of the action
is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in
this section, any judicial district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b). Under Fed. R. Civ. P. 12(b)(3), a defendant who believes that the plaintiff has
filed an action in an improper venue can file a motion challenging venue. Under 28 U.S.C. §
1406(a), the “district court of a district in which is filed a case laying venue in the wrong division
or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or
division in which it could have been brought.”
The undersigned agrees with Defendants that venue in this Court is improper under §
1391(b)(1). Under that provision, both UPMC Shadyside and Dr. Navid must be residents of West
Virginia. An individual is “deemed to reside in the judicial district in which that person is
domiciled.” 28 U.S.C. § 1391(c)(1). As noted in his Affidavit, Dr. Navid is a resident of
Pennsylvania. (Docket No. 9-2.) As to corporations,
For purposes of venue under this chapter, in a State which has more than one
judicial district and in which a defendant that is a corporation is subject to personal
jurisdiction at the time an action is commenced, such corporation shall be deemed
to reside in any district in that State within which its contacts would be sufficient to
subject it to personal jurisdiction if that district were a separate State, and, if there
is no such district, the corporation shall be deemed to reside in the district within
which it has the most significant contacts.
28 U.S.C. § 1391(d). As noted in the Affidavit of William Shaffner, Esq., Senior Associate Counsel

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for UPMC, UPMC is a “non-profit corporation licensed in the Commonwealth of Pennsylvania with
its registered office address and principal location in Pittsburgh, Pennsylvania.” (Docket No. 9-3.)
The undersigned has already determined that this Court lacks personal jurisdiction over UPMC
Shadyside. Accordingly, because Defendants are not residents of West Virginia, venue cannot lie
with this Court pursuant to § 1391(b)(1).
The undersigned also agrees that this Court is an improper venue under § 1391(b)(2). When
“determining whether events or omissions are sufficiently substantial to support venue [under this
provision], a court should not focus only on those matters that are in dispute or that directly led to
the filing of the action. Rather, it should review the entire sequence of events underlying the claim.”
Mitrano v. Hawes, 377 F.3d 402, 405 (4th Cir. 2004) (internal citation and quotation marks omitted).
For venue to be proper, “significant events or omissions material to the plaintiff’s claim must have
occurred in the district in question, even if other material events occurred elsewhere. It would be
error, for instance, to treat the venue statute’s ‘substantial part’ test as mirroring the minimum
contacts test employed in personal jurisdiction inquiries.” Gulf Ins. Co. v. Glasbrenner, 417 F.3d
353, 357 (2d Cir. 2005).
The parties do not dispute that Vada Ramsey received the medical treatment at issue in
Pittsburgh, Pennsylvania. In the Estate’s Complaint, the only ties to West Virginia mentioned are
that Vada Ramsey was a resident of Harrison County, West Virginia and that she was transferred
“back and forth from [UPMC Shadyside] to a long term care unit in WV.” (Docket No 1.) In a
timeline attached to its opposition to Defendants’ Motion to Dismiss, the Estate indicates that on
February 8, 2012, Vada Ramsey was transferred to a long-term care facility in Charleston, West
Virginia, which is within the Southern District of West Virginia. The Estate further mentions that
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during the transport to Charleston, the ambulance had to stop in Fairmont, West Virginia, within the
Northern District of West Virginia, because Mrs. Ramsey was “having difficulty breathing and
problems with oxygen.” (Docket No. 18 at 4.) Despite these events that occurred in West Virginia,
it is apparent from the facts presented that the “substantial” events giving rise to the Estate’s claims
of medical malpractice and wrongful death occurred in Pittsburgh, Pennsylvania. Accordingly, this
Court is not a proper venue under § 1391(b)(2).2
Finally, the undersigned agrees that § 1391(b)(3) cannot save venue in this Court. As noted
above, this subsection applies only “if there is no district in which an action may otherwise be
brought as provided in this section.” However, for § 1391(b)(3) to apply, the district court must have
personal jurisdiction over the defendants. The undersigned has already found that this Court lacks
personal jurisdiction over Defendants. Accordingly, venue in this Court is also improper under §
1391(b)(3).
IV.

Conclusion

The undersigned finds that the Defendants’ Motion to Dismiss should be granted. Not only
does this Court lack personal jurisdiction over the Defendants, but this Court is also not a proper
venue for the Estate’s suit under the provisions of 28 U.S.C. § 1391(b). Having found this, the
undersigned does not consider whether the Estate failed to comply with W. Va. Code § 55-7B-6
before filing its Complaint.
V.

Recommendation

For the foregoing reasons, the undersigned recommends that Defendants’ “Motion to

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The undersigned notes that under both § 1391(b)(1) and § 1392(b)(2), the Western
District of Pennsylvania would appear to be a proper venue for the Estate’s suit.
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Dismiss” (Docket No. 9) be GRANTED and that the Estate’s Complaint (Docket No. 1) be
DISMISSED WITHOUT PREJUDICE.
Any party may, within fourteen (14) days after being served with a copy of this Report and
Recommendation/Opinion, file with the Clerk of the Court written objections identifying the
portions of the Report and Recommendation/Opinion to which objection is made, and the basis for
such objection. A copy of such objections should also be submitted to the Honorable Irene M.
Keeley, United States District Judge.

Failure to timely file objections to the Report and

Recommendation/Opinion set forth above will result in waiver of the right to appeal from a judgment
of this Court based upon such Report and Recommendation/Opinion. 28 U.S.C. § 636(b)(1); United
States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
The Clerk of the Court is directed to send a copy of this Report and
Recommendation/Opinion to any counsel of record herein and to mail a copy to the pro se Plaintiff
at its last shown address by Certified United States Mail, Return Receipt Requested.
DATED: May 6, 2014

John S. Kaull
JOHN S. KAULL
UNITED STATES MAGISTRATE JUDGE

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