United States District Court, D. Nebraska
WENDY L. ANDERSON, Plaintiff,
JOHN J. COREY, M.D.; Defendant.
MEMORANDUM AND ORDER
SMITH CAMP, SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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
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.”
“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)).
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 ...