United States District Court, N.D. Georgia, Eastern Division.
DONALD DWAYNE HARDMAN, as personal representative of the Estate of Brandy Lee Hardman, Deceased, Plaintiff,
THE SOUTHEAST PERMANENTE MEDICAL GROUP, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER
Russ Walker, United States Magistrate Judge.
case was originally filed in the Circuit Court of Tallapoosa
County, Alabama. See Docs. 1, 1-1. Defendants
removed the case to this court on the basis of diversity,
see Doc. 1, and then filed a motion to transfer
venue and an alternative motion to dismiss for lack of
personal jurisdiction. See Doc. 2. Plaintiff has
filed a consolidated response in opposition to both motions.
See Doc. 11. For the reasons stated below, the court
finds that the motion is due to be granted in part.
case arises out of an automobile accident that occurred in
Alexander City, Alabama and resulted in the death of
plaintiff's decedent. See Doc. 1 at 1-2.
Plaintiff, who is a resident of Alabama, is the widower of
the decedent, Brandy Lee Hardman, and is the personal
representative of her estate. See Doc. 1-1 at 2.
Defendant Malcolm Thomas Simpson, M.D.
(“Simpson”) is a citizen of Georgia, where he
lives, works, and is licensed to practice medicine.
See Docs. 1; 1-1; 1-3. Defendant The Southeast
Permanente Medical Group, Inc. (“Southeast
Permanente”), of which Simpson is alleged to be an
employee or agent, is a citizen of Georgia. See
Docs. 1; 1-1.
alleges that non-party Michael Lewis Hawkins is an interstate
commercial truck driver and a patient of Simpson's.
See Doc. 1-1 at 3. Hawkins operates and drives for
his two-man trucking company, Hawkins Brothers, L.L.C.
Id. According to plaintiff, Hawkins and his trucking
company are governed by the United States Department of
Transportation (“DOT”), which requires that
Hawkins maintain a valid commercial driver's license. On
an annual basis, Hawkins must undergo and pass a DOT physical
examination, which is to be administered by a certified
medical examiner. Id.
to plaintiff, on April 29, 2016, Simpson “purported to
perform a DOT physical examination of … Hawkins and
signed and executed a medical examiner's certificate,
whereby he certified that he had examined … Hawkins in
accordance with applicable DOT safety regulations and that
… Hawkins was qualified to safely operate a commercial
vehicle in interstate commerce … .” Id.
However, plaintiff alleges, at the time Simpson performed the
examination, Simpson had not been certified to do so and was
not listed on the National Registry of Certified Medical
Examiners; thus, he did not have the requisite authority to
perform the examination. Id. at 3-4. Plaintiff also
alleges that Simpson “knew or should have known”
that Hawkins “lacked the visual, physical, and medical
capability to satisfy the requirements of a DOT physical
examination” because he is a “an
insulin-dependent diabetic patient who was not exempt from
regulations prohibiting his maintaining a [commercial
driver's license.]” Id. at 4.
further alleges that on December 8, 2016, while Hawkins was
driving a “DOT regulated commercial tractor-trailer on
U.S. Highway 280 in Alexander City, Alabama, his medical,
physical, and visual deficiencies caused him to run a red
stoplight so that his tractor-trailer crushed [the
decedent's] vehicle as she was lawfully stopped and
waiting on the traffic control device to green.”
Id. The decedent died as a result of the collision.
alleges three claims arising out of Alabama state law:
negligence against both defendants (count one), wantonness
against both defendants (count two), and negligent
supervision against Southeast Permanente (count
party has requested a hearing on the defendants' motion
to dismiss for lack of personal jurisdiction, and the court
has determined that no such hearing is required. See
Fed. R. Civ. P. 12(b)(2); Maximum Efficiency Squared, LLC
v. Samsara Works, Corp., 2015 WL 5053758, *3 (M.D. Ala.
2014); Robinson v. Giarmarco & Bill, P.C., 74
F.3d 253, 255 (11th Cir. 1996)).
Rule 12(b)(2) motion to dismiss for lack of personal
[t]he plaintiff bears the burden of establishing personal
jurisdiction over a non-resident defendant. See S &
Davis Intern., Inc. v. The Republic of Yemen, 218 F.3d
1292, 1303 (11th Cir.2000). When the issue of personal
jurisdiction is decided on the briefs and accompanying
evidence, but without a discretionary evidentiary hearing, a
plaintiff satisfies his or her burden by demonstrating a
“prima facie case of jurisdiction.”
Francosteel Corp., Unimetal-Normandy v. M/V Charm, Tiki,
Mortensen & Lange, 19 F.3d 624, 626 (11th Cir.1994);
Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990).
A plaintiff establishes a prima facie case by
submitting evidence sufficient to defeat a motion for
judgment notwithstanding the verdict. See DeLong Equip.
Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845
(11th Cir.1988). Consonant with that standard of review, the
court construes the allegations in the complaint as true if
they are uncontroverted by affidavits or deposition
testimony. See Bracewell v. Nicholson Air Serv.,
Inc., 748 F.2d 1499, 1504 (11th Cir.1984). The Eleventh
Circuit has explained on more than one occasion that,
“[i]f a plaintiff pleads sufficient material facts to
establish a basis for personal jurisdiction and a defendant
then submits affidavits controverting those allegations,
‘the burden traditionally shifts back to the plaintiff
to produce evidence supporting jurisdiction[, ] unless those
affidavits contain only conclusory assertions that the
defendant is not subject to jurisdiction.'”
Whitney Information Network, Inc. v. Xcentric Venture,
LLC, Slip No. 06-11888, 2006 WL 2243041, *3 (11th Cir.
Aug .1, 2006) (quoting Meier v. Sun Int'l Hotels,
Ltd., 288 F.3d 1264, 1269 (11th Cir.2002)). If the
evidence conflicts, the court makes reasonable inferences in
favor of the plaintiff, particularly when the jurisdictional
questions are seemingly intertwined with the merits of the
case. See DeLong, 840 F.2d at 845.
Id. at *3 (quoting Ashton v. Florala Mem.
Hosp., 2006 WL 2864413, *2 (M.D. Ala. 2006)).
noted above, the plaintiff has the burden to establish a
prima facie case of personal jurisdiction over a
non-resident defendant. See Andy's Music, Inc. v.
Andy's Music, Inc., 607 F.Supp.2d 1281, 1285 (S.D.
Ala. 2009)(citing The Mitchell Company, Inc. v.
Campus, 2008 WL 183344, *13 (S.D. Ala. 2008)(quoting
Meier v. Sun International Hotels, Ltd., 288 F.3d
1264, 1268 (11th Cir. 2002)). “Plaintiff's burden
in alleging personal jurisdiction is to plead sufficient
material facts to establish the basis for exercise of such
jurisdiction.” Id. (citing The Mitchell
Company, 2008 WL 183344 at *13)(quoting Future
Technology Today, Inc., v. OSF Healthcare Systems, Inc.,
218 F.3d 1247, 1249 (11th Cir. 2000)). “Finally, a
federal district court sitting in diversity may exercise
personal jurisdiction to the extent authorized by the law of
the state in which it sits… .” Id.
(internal citations omitted).
jurisdiction in this action is based on the Alabama long-arm
statute, which provides:
An appropriate basis exists for service of process outside of
this state upon a person or entity in any action in this
state when the person or entity has such contacts with this
state that the prosecution of the action against the person
or entity in this state is not inconsistent with the
constitution of this state or the Constitution of the United
States … .
Ala. R. Civ. P. 4.2(b).
sister district court summarized the law applicable to this
case in Andy's Music, 607 ...