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Anderson v. Corey

United States District Court, D. Nebraska

February 4, 2019

WENDY L. ANDERSON, Plaintiff,
v.
JOHN J. COREY, M.D.; Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP, SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Motion to Dismiss, ECF No. 3, filed by Defendant John J. Corey. For the reasons stated below, the Motion will be granted.

         BACKGROUND

         The following facts are those contained in the parties' briefs supported by citations to the pleadings, affidavits, and exhibits, and any factual disputes are, for purposes of this Motion, resolved in favor of Plaintiff Wendy Anderson.

         Anderson resides in Omaha, Nebraska, and, in August 2016, she conducted an online internet search for a doctor to perform breast augmentation surgery. She discovered Corey's professional website which advertised the services Anderson sought. Corey is a board-certified plastic surgeon licensed to practice medicine in Arizona, and he practices in Scottsdale, Arizona. After reviewing Corey's website, Anderson scheduled a consultation and flew to Arizona for the appointment. She then returned to Omaha and decided to hire Corey to perform her surgery. Anderson flew back to Arizona on October 24, 2016, and Corey performed the surgery on October 25, 2016, in Scottsdale, Arizona. Anderson had one follow-up visit with a nurse at Corey's practice before she returned to Omaha.

         On November 6, 2016, Anderson was still recovering from the operation. She called Corey's office and reported to a nurse that she was feeling ill and had an abnormally high temperature. The nurse instructed Anderson not to go to an emergency room, to take Advil, and to call back the next day. Corey reviewed images of Anderson's surgery and found no cause for concern. Later, on November 6, 2016, Anderson went to a hospital in Omaha where she was diagnosed with an infection which allegedly resulted from a contaminated implant inserted during her surgery. At some point following this diagnosis, Anderson called Corey's office again, and Corey advised Anderson not to remove the implants. Anderson filed a lawsuit against Corey with the Douglas County District Court in Omaha, Nebraska, and Corey removed the case to this Court.[1]

         STANDARD OF REVIEW

         “When challenged, ‘the plaintiff bears the burden to show that jurisdiction exists.'” Aly v. Hanzada for Imp. & Exp. Co., LTD, 864 F.3d 844, 848 (8th Cir. 2017) (quoting Fastpath, Inc. v. Arbela Techs. Corp., 760 F.3d 816, 819 (8th Cir. 2014)). “To successfully survive a motion to dismiss challenging personal jurisdiction, a plaintiff must make a prima facie showing of personal jurisdiction over the challenging defendant.” Fastpath, 760 F.3d at 820 (citing K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591 (8th Cir. 2011)). “A plaintiff's prima facie showing ‘must be tested, not by the pleadings alone, but by affidavits and exhibits supporting or opposing the motion.'” Fastpath, 760 F.3d at 820 (internal quotations omitted). If no hearing is held, the evidence must be viewed “in a light most favorable to the plaintiff” and factual disputes are resolved in the plaintiff's favor. Id. Plaintiffs cannot shift the burden of proof to the party challenging jurisdiction. Id.

         DISCUSSION

         Anderson argues Corey is subject to specific personal jurisdiction in Nebraska. “Specific personal jurisdiction can be exercised by a federal court in a diversity suit only if authorized by the forum state's long-arm statute and permitted by the Due Process Clause of the Fourteenth Amendment.” Fastpath, 760 F.3d at 820 (quoting Dairy Farmers of Am., Inc. v. Bassett & Walker Int'l, Inc., 702 F.3d 472, 475 (8th Cir. 2012)). Because Neb. Rev. Stat. § 25-536 extends jurisdiction over nonresident defendants to the fullest degree allowed by the Due Process Clause, Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d 558, 561 (8th Cir. 2003), the Court need only determine whether the assertion of jurisdiction offends due process.

         “Due process requires that a non-resident have minimum contacts with the forum state such that the maintenance of the lawsuit does not offend traditional notions of fair play and substantial justice.” Fastpath, 760 F.3d at 820 (citing World-Wide Volkswagen v. Woodson, 444 U.S. 286, 291-92 (1980)). “Sufficient minimum contacts requires some act by which the defendant ‘purposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'” Id. (quoting J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 881 (2011)). This “ensures that a defendant will not be hailed into a jurisdiction solely as the result of random, fortuitous, or attenuated contacts or of the unilateral activity of another party or a third person.” Id. (quoting Stanton v. St. Jude Med., Inc., 340 F.3d 690, 694 (8th Cir. 2003)). Thus, jurisdiction is proper “where the contacts proximately result from actions by the defendant himself that create a substantial connection with the forum state.” Id.

         Giving “significant weight” to the first three, the Court must consider five factors in determining whether it can exercise personal jurisdiction over Corey consistent with due process: “(1) the nature and quality of the contacts with the forum state; (2) the quantity of those contacts; (3) the relationship of those contacts with the cause of action; (4) [Nebraska]'s interest in providing a forum for its residents; and (5) the convenience or inconvenience to the parties.” Aly, 864 F.3d at 849 (quoting Eagle Tech. v. Expander Americas, Inc., 783 F.3d 1131, 1136 (8th Cir. 2015)).

         A. Website

         Anderson's first asserted contact is based on Corey's website. “The Eighth Circuit has adopted the test articulated in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa. 1997) for analyzing specific jurisdiction in the special cases where a defendant maintains a website accessible in the forum state.” Higgins v. Ky. Sports Radio LLC, 8:17CV367, 2018 WL 318460, at *5 (D. Neb. Jan. 5, 2018) (citing La ...


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