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Kolb v. Daruda

Court of Appeals of Georgia, Second Division

June 20, 2019

KOLB et al.
v.
DARUDA.

          MILLER, P. J., RICKMAN and REESE, JJ.

          RICKMAN, JUDGE.

         Susan Kolb, MD and her professional corporations (hereinafter "Kolb") filed suit alleging claims of tortious interference with contractual and business relations and defamation against Nicole Daruda, a Canadian citizen and resident of British Columbia. Ultimately, the trial court granted Daruda's motion to dismiss for lack of personal jurisdiction. Kolb appeals, contending that the trial court erred by dismissing the action without allowing Kolb to take limited discovery related to the issue of the court's jurisdiction over Daruda. For the reasons that follow, we vacate the trial court's order and remand for further proceedings.

         Our review of a decision on a motion to dismiss is de novo, and we construe the facts in favor of the party asserting personal jurisdiction. Pascarelli v. Koehler, 346 Ga.App. 591, 598 (2) (816 S.E.2d 723) (2018).

         So construed, the record shows that Kolb filed suit on April 12, 2017. Regarding jurisdiction, Kolb alleged that "Daruda transacts business in Georgia, has engaged in a persistent course of conduct in Georgia, and has committed tortious acts in Georgia." On the merits, Kolb alleged that through the use of a website and a Facebook forum that Daruda owned, controlled and administered, Daruda published false, malicious and harmful comments about Kolb designed to injure her renowned Georgia-based, medical practice of plastic surgery and breast implant illness surgery. Kolb alleged that such actions constituted tortious interference with her business and contractual relations and defamation, thereby causing irreparable harm, injury, and damage to her.

         After entering a special appearance and without waiving or consenting to jurisdiction of the court, Daruda filed an answer and defenses, including the defense of lack of personal jurisdiction, and she also moved to dismiss the complaint on that ground.[1]

         Kolb then noticed Daruda's deposition and requested that Daruda produce documents, including documents that might show various contacts between Daruda and Georgia.[2] In an amended notice of deposition, Kolb set Daruda's deposition for late July 2017 in Vancouver, British Columbia. And Kolb asked for additional documents related to jurisdiction.[3]

         Daruda responded with an emergency motion for a protective order "to relieve [her] from having to appear" for her deposition or produce documents in response to Kolb's notice of deposition and discovery requests. Daruda argued that she had no contact with Georgia whatsoever, that an eight-hour round trip from her home to Vancouver for the deposition was unreasonable, and that the document requests exceeded the scope of discovery. Among other things, Daruda asked that if discovery were allowed, the court limit it to written discovery requests.

         Kolb responded to the motion to dismiss, asserting that the court had jurisdiction over Daruda under the Georgia Long Arm Statute and that Daruda "regularly referred Georgia residents to Georgia breast explant surgeons and provided medical advice to Georgia residents on her websites." Kolb asked that the court allow her to take Daruda's deposition and conduct discovery under OCGA § 9-11-12 (j) (4), [4] "which efforts have been thwarted to date." Kolb also asked the court to refrain from ruling on Daruda's motion to dismiss until she could "depose Daruda to address the allegations raised in her affidavit and otherwise discover her relationship with the state of Georgia."[5] Separately, Kolb responded to Daruda's emergency motion for a protective order and asked that the court "order[ Daruda] to sit for her deposition within fourteen days of the date of the Court's order."

         After five months passed with no activity in the case, Kolb served a second set of discovery requests on Daruda. Two weeks later, the parties filed a consent motion requesting that the court "stay discovery in this action until such time as Defendant's Motion to Dismiss is adjudicated by this Court" and for an extension of the original six-month discovery period under Uniform Superior Court Rule 5.1. (Emphasis in original.) The joint motion also stated that "[a]s the [motion to dismiss] remains pending, the parties have agreed to abstain from discovery until such time as the [motion to dismiss] is adjudicated by the Court." The trial court signed an order granting the consent motion; the order restated the parties' agreement to abstain from discovery until the motion to dismiss was resolved. Daruda did not withdraw her motion for a protective order in response.

         Then, without addressing Daruda's motion for a protective order or Kolb's requests for court intervention in the dispute over jurisdictional discovery, the trial court granted Daruda's motion to dismiss. In its order and "[a]fter considering the evidence presented," the trial court ultimately held that it was "undisputed that [Daruda] committed no acts within the State of Georgia even if injury may have occurred here." The court further found no other link between Daruda and Georgia sufficient to establish personal jurisdiction. In a footnote at the end of the order, the court added,

This Court recognizes that [Kolb] asked for jurisdictional discovery. This Court finds that, pursuant to Hawkins v. Blair, [334 Ga.App. 898');">334 Ga.App. 898, 901 (2015), ] [Kolb] has not articulated specific evidence which she hopes that jurisdictional discovery would uncover that would be relevant to the issue, and as such, jurisdictional discovery is not required.

(Emphasis supplied.).

         1. Daruda has moved to dismiss the appeal on the ground that Kolb gave up any claim that she was entitled to the limited jurisdictional discovery provided by OCGA § 9-11-12 (j) by consenting to a stay of ...


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