Greco v. Northwell Health Inc

[2] FILED IN THE U.S. DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON Feb 22, 2022 [4] SEAN F. MCAVOY, CLERK [5] 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON [8] 9 ANNE MARIE GRECO and IAN DAVID 10 SUTHERLAND, No. 2:21-CV-00188-SAB 11 Plaintiffs, 12 v. ORDER GRANTING 13 NORTHWELL HEALTH, INC., DEFENDANT’S MOTION TO 14 Defendant. DISMISS; CLOSING FILE [17] 18 Before the Court are Plaintiffs’ Motion for Summary Judgment, ECF No. 7, 19 and Defendant’s Motion to Dismiss Pursuant to FRCP 12 and FRCP4, ECF No. 9. 20 Plaintiffs are representing themselves in this matter. Defendant is represented by 21 Jennifer Oetter. The Court has determined that oral argument is not necessary. 22 Local Rule 7.1(i)(3)(B)(iii). 23 Plaintiffs filed this action on June 10, 2021, ECF No. 1. Plaintiffs are 24 Washington residents residing in Danville, Washington. Defendant is a non-profit 25 corporation based in New York state. Defendant is the corporate parent of several 26 hospitals and outpatient facilities in New York. It appears the basis of Plaintiff’s 27 claims arise out of medical care provided between June 4-9, 2019 in Huntington, 28 New York. 1 On January 14, 2022, Plaintiffs filed a Declaration of Service indicating that 2 Defendant was served on December 20, 2021. ECF No. 4. In his Declaration, Mark 3 A. Gloade, Senior Vice President and Deputy General Counsel for Defendant, 4 stated that on December 21, 2021, an individual from ABC Legal Hand delivered a 5 document titled “Summons in Civil Action” to a legal assistant in Defendant’s 6 Office of Legal Affairs. ECF No. 10. However, the document was one page, and 7 did not include a copy of the Complaint. 8 In their Complaint, Plaintiffs make several allegations, but fail to provide the 9 specific factual allegations, including who, what, when, where and how. For 10 instance, the following allegations are presented in Plaintiffs’ Complaint: (1) 11 Defendant administered opioids of dosage sufficient for other medical 12 professionals to describe the dosage as “attempted murder;” (2) Defendant failed to 13 provide adequate monitoring of Plaintiff’s vitals per standard medical procedure or 14 Defendant’s own posted policies; (3) Defendant failed to follow medical advice 15 suggested by Defendant’s relevant medical specialists; (4) Defendant refused to 16 update Plaintiff’s Do Not Resuscitate Order upon Plaintiff’s request; (5) Defendant 17 failed to follow Plaintiff’s wishes to speak with medical proxy instead of Plaintiff 18 when Plaintiff felt incapable of informed consent; (6) Defendant made misleading 19 and libelous statements in their medical records and inadequately portrayed 20 Plaintiff’s medical condition; (7) Defendant failed to provide medical records in a 21 reasonable and timely fashion upon Plaintiffs’ request, providing Plaintiffs with 22 printed copies of several thousand pages of medical records several weeks after the 23 initial request, rather than the digital copies requested, and then proceeded to 24 request cop fees in excess of $2,000; (8) Defendant administered medication 25 known by modern medical knowledge to be inadvisable for Plaintiff’s condition; 26 (9) Defendant referenced an employee as an expert despite their statements that 27 Plaintiff’s condition does not cause pain, which is a primary part of the diagnostic 28 criteria for Plaintiff’s condition; (10) Defendant refused to follow the advise of 1 experts in Plaintiff’s condition who previously treated Plaintiff; and (11) 2 Defendant handled Plaintiff’s medical marijuana despite not being registered as 3 Plaintiff’s caretaker. 4 1. Plaintiff’s Motion for Summary Judgment 5 On January 21, 2022, Plaintiffs filed a Motion for Summary Judgment. 6 Plaintiff did not file any accompanying Affidavits or Declarations in support of 7 their Motion.1 8 It appears that the basis for Plaintiffs requesting summary judgment is that 9 because Defendant failed to respond to the Complaint, all facts asserted in their 10 motion are taken as undisputed and as such, Plaintiffs are entitled to their requested 11 remedies. Defendant asserts that a motion for summary judgment is premature, and 12 questions of fact remain whether the Court has personal jurisdiction over 13 Defendant, whether the Complaint was served on time, and whether the service of 14 process was sufficient. Defendant also argues it would be inappropriate to consider 15 the facts settled as discovery has not yet begun. 16 Summary judgment is appropriate “if the movant shows that there is no 17 genuine dispute as to any material fact and the movant is entitled to judgment as a 18 matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue for trial unless 19 there is sufficient evidence favoring the non-moving party for a jury to return a 20 verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 250 21 (1986). The moving party has the initial burden of showing the absence of a 22 genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). [23] 24 1 Fed. R. Civ. P. 56(c)(1)(A) provides: (c) Procedures. 25 (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: 26 (A) citing to particular parts of materials in the record, including 27 depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), 28 admissions, interrogatory answers, or other materials. 1 If the moving party meets its initial burden, the non-moving party must go beyond 2 the pleadings and “set forth specific facts showing that there is a genuine issue for 3 trial.” Anderson, 477 U.S. at 248 . 4 In addition to showing there are no questions of material fact, the moving 5 party must also show it is entitled to judgment as a matter of law. Smith v. Univ. of 6 Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). When considering a motion 7 for summary judgment, a court may neither weigh the evidence nor assess 8 credibility; instead, “the evidence of the non-movant is to be believed, and all 9 justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255 . 10 Here, the Court declines to view the facts as undisputed as requested by 11 Plaintiffs. At this stage of the proceedings, if Plaintiffs believed Defendant’s non12 responsiveness entitled them to relief, the proper motion would be a motion for 13 default judgment pursuant to Fed. R. Civ. P. 55, rather than a motion for summary 14 judgment under Fed. R. Civ. P. 56. That said, the Court declines to entertain such a 15 motion for the following reasons. First, there are questions of fact regarding 16 whether the Complaint was properly served. Second, cases should be decided on 17 the merits when reasonably possible and therefore, it is necessary for discovery to 18 commence before entering judgment in favor of any party. Third, Plaintiffs raise 19 serious allegations of medical malpractice and are seeking significant damages. 20 Such claims should be litigated on the merits. For these reasons, the Court denies 21 Plaintiffs’ Motion for Summary Judgment. 22 2. Defendant’s Motions to Dismiss Pursuant to FRCP 12 and FRCP 4 23 Defendant asks the Court to dismiss Plaintiffs’ claims with prejudice 24 because the Court does not have personal jurisdiction over it, the Complaint was 25 not timely served, service of process was insufficiently executed, venue is 26 improper with this Court, and Plaintiffs’ fail to state a claim upon which relief may 27 be granted. Defendant also asserts that Plaintiffs have failed to join necessary 28 parties. 1 Background Facts 2 According to Defendant, it is a domestic not-for-profit corporation based in 3 New York. It is the corporate parent of several hospitals and outpatient facilities in 4 New York state. Defendant itself does not render patient care and has never 5 provided or rendered patient care. It has no facilities in Washington and does no 6 business in Washington. 7 Motion Standard 8 Rule 12(b)(2) governs the dismissal of an action based on lack of personal 9 jurisdiction. When a defendant moves to dismiss a complaint for lack of personal 10 jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is 11 appropriate. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 799 (9th 12 Cir. 2004). In ruling on a 12(b)(2) motion, the Court may, in its discretion, order 13 discovery, hold an evidentiary hearing, or rely only on the written submissions. 14 Doe v. Unocal Corp., 248 F.3d. 915, 922 (9th Cir. 2001). If the motion is based on 15 written materials rather than an evidentiary hearing, “the plaintiff need only make a 16 prima facie showing of jurisdictional facts.” Id. A prima facie showing means that 17 the plaintiff has produced admissible evidence, which if believed, is sufficient to 18 establish the existence of personal jurisdiction. Ballard v. Savage, 65 F.3d 1495 , 19 1498 (9th Cir. 1995). 20 Although the plaintiff cannot “simply rest on the bare allegations of its 21 complaint and must come forward with facts, by affidavit or otherwise, supporting 22 personal jurisdiction, uncontroverted allegations in the complaint must be taken as 23 true.” Amba Marketing Systems, Inc. v. Jobar International, Inc., 551 F.2d 784 , 24 787 (9th Cir. 1977). Conflicts between parties over statements contained in 25 affidavits must be resolved in the plaintiff’s favor. Id. 26 A. Personal Jurisdiction 27 The power of a federal court presiding over a case based on diversity of 28 citizenship to exercise personal jurisdiction over a nonresident defendant turns on 1 two independent considerations: whether an applicable state rule or statute 2 potentially confers personal jurisdiction over the defendant, and whether assertion 3 of such jurisdiction accords with constitutional principles of due process. Data 4 Disc, Inc. v. Sys. Tech. Assoc, 557 F.2d 1280, 1286 (9th Cir. 1977) (citation 5 omitted). Washington’s long-arm statute extends the court’s personal jurisdiction 6 to the broadest reach that the United States Constitution permits. Byron Nelson Co. 7 v. Orchard Management Corp., 95 Wash.App. 462, 465 (1999). Because 8 Washington’s long-arm jurisdictional statute is coextensive with federal due 9 process requirements, the jurisdictional analysis under state law and federal due 10 process are the same. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 , 11 800-01 (9th Cir. 2004). 12 The Due Process Clause protects a defendant’s liberty interest in not being 13 subject to the binding judgments of a forum with which it has established no 14 meaningful contacts, ties, or relations. Burger King Corp. v. Rudzewicz, 471 U.S. 15 462, 471-72 (1985). Thus, for a court to exercise personal jurisdiction over a 16 nonresident defendant, that defendant must have at least “minimum contacts” with 17 the relevant forum such that the exercise of jurisdiction “does not offend traditional 18 notions of fair play and substantial justice.” Id. (quoting International Shoe Co. v. 19 Washington, 326 U.S. 310, 316 (1945). In conducting the inquiry regarding the 20 minimum contacts, the court should focus on the relationship among the defendant, 21 the forum and the litigation. Walden v. Fiore, 571 U.S. 277, 284 (2014). For a 22 State to exercise jurisdiction consistent with due process, the defendant’s suit23 related conduct must create a substantial connection with the forum State. Id. This 24 means “the relationship must arise out of contacts that the defendant himself 25 creates with the forum State. Id. (emphasis in original). Additionally, the focus 26 should be on the defendant’s contacts with the forum State itself, not the 27 defendant’s contact with a person who reside there. Id. Absent consent, a basis for 28 service of a summons on the defendant is a prerequisite to the exercise of personal 1 jurisdiction. BNSF Ry. Co. v. Tyrell, __ U.S. __, 137 S.Ct. 1549 , 1556 (2017). 2 Depending on the nature of a foreign defendant’s contacts with the forum, a 3 federal court may obtain either specific or general jurisdiction over him. Glencore 4 Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co, 284 F.3d 1114, 1123 (9th 5 Cir. 2002). 6 General jurisdiction exists over a non-resident defendant when there is 7 “continuous and systematic general business contacts that approximate physical 8 presence in the forum state.” Schwarzenegger, 374 F.3d at 801 . General 9 jurisdiction over a corporation is appropriate only when the corporation’s contacts 10 with the forum state “are so constant and pervasive as to render it essentially at 11 home” in the state.” Easter v. Am. W. Fin., 381 F.3d 948 , 960-61 (9th Cir. 2004). 12 “Put another way, a defendant must not only step through the door, it must also sit 13 down and make itself at home. Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 14 1163, 1169 (9th Cir. 2006). 15 This is an exacting standard, because, as the Ninth Circuit explains, “a 16 finding of general jurisdiction permits a defendant to be haled into court in the 17 forum state to answer for any of its activities anywhere in the world.” Id. (citation 18 omitted). “Factors to be taken into consideration are whether the defendant makes 19 sales, solicits or engages in business in the state, serves the state’s markets, 20 designates an agent for service of process, holds a license, or is incorporated 21 there.” Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th 22 Cir. 2000). 23 “The general jurisdiction inquiry does not focus solely on the magnitude of 24 the defendant’s in-state contacts.” Daimler AG v. Bauman, 571 U.S. 117 139 , n.20 25 (2014). In-state business does not suffice to permit the assertion of general 26 jurisdiction over claims that are unrelated to any activity occurring in Washington. 27 Tyrell, 137 S.Ct. at 1559. Occasional sales to residents of the forum state are 28 insufficient to create general jurisdiction. See Brand v. Menlove Dodge, 796 F.2d 1 1070, 1073 (9th Cir. 1986). The due process constraints apply to all assertions of 2 general jurisdiction over nonresident defendants; the constraint does not vary with 3 the type of claim asserted or business enterprise sued. Tyrell, 137 S.Ct. at 1558-59. 4 In order to establish specific jurisdiction over Defendant, Plaintiff must 5 show that Defendant purposely established significant contacts with Washington 6 and that the action arises out of or is related to those contacts. Burger King Corp., 7 471 U.S. at 471-73. Washington law requires that in order to establish specific 8 jurisdiction over Defendant, Plaintiff must show three factors: (1) Defendant must 9 have purposefully done some act or consummated some transaction in 10 Washington; (2) Plaintiff’s cause of action must arise from, or be connected with, 11 such act or transaction; and (3) the exercise of jurisdiction 12 must be reasonable in that it must not offend traditional notions of fair play and 13 substantial justice. See Wash. Rev. Code 4.28.185(1)(a); Failla v. FixtureOne 14 Corp., 181 Wash. 2d 642, 650 (2014) (citations omitted). 15 Here, Plaintiffs have not shown, nor can they show that the Court has 16 personal jurisdiction over Defendant. It is undisputed that Defendant does no 17 business in Washington. As such, Defendant has no contacts with Washington to 18 meet the requirement for general jurisdiction. Similarly, Plaintiffs cannot show 19 specific personal jurisdiction over Defendant. Plaintiffs have not alleged that 20 Defendant took any action in Washington that is tied to their causes of action. It 21 appears from the Complaint that the only relation Defendant has to Washington is 22 the fact that Plaintiffs sought medical care in New York, then went back to their 23 home in Washington. This is not sufficient under the law of Washington or the 24 U.S. Constitution for this Court to have personal jurisdiction over Defendant. 25 Because the Court does not have personal jurisdiction over Defendant, it 26 declines to address its remaining arguments. The above-captioned case is 27 dismissed, without prejudice. See Fed. R. Civ. P. 4(m); Grigsby v. CMI Corp., 765 28 F.2d 1369 , 1372 n.5 (9th Cir. 1985). 1 Accordingly, IT IS HEREBY ORDERED: 1. Plaintiffs’ Motion for Summary Judgment, ECF No. 7, is DENIED. 2. Defendant’s Motion to Dismiss Pursuant to FRCP 12 and FRCP4, ECF No. 9, is GRANTED. 3. The above-captioned matter is DISMISSED, without prejudice. IT IS SO ORDERED. The District Court clerk is hereby directed to enter this Order, provide copies to pro se Plaintiffs and counsel, and close the file. DATED this 22nd day of February 2022. 11 . 1 Sfuleyld Ecc toar 3 Stanley A. Bastian Chief United States District Judge [2] ORDER GRANTING DEFENDANT’S MOTON TO DISMISS; CLOSING rmatra