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Hardman v. The Southeast Permanente Medical Group, Inc.

United States District Court, N.D. Georgia, Eastern Division.

March 23, 2018

DONALD DWAYNE HARDMAN, as personal representative of the Estate of Brandy Lee Hardman, Deceased, Plaintiff,
v.
THE SOUTHEAST PERMANENTE MEDICAL GROUP, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER[1]

          Susan Russ Walker, United States Magistrate Judge.

         This 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.

         FACTS

         This 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.[2] 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.[3]

         Plaintiff 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.

         According 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.

         Plaintiff 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. Id.

         Plaintiff 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 three).[4]

         STANDARD OF REVIEW

         No 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)).

         On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction,

[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)).

         DISCUSSION

         A. Personal Jurisdiction

         As 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).

         Personal 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).

         A sister district court summarized the law applicable to this case in Andy's Music, 607 ...


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