United States District Court, D. Kansas
SAMUEL C. PENNELLA, M.D., Plaintiff,
ACUMEN ASSESSMENTS, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
5, 2017, pro se plaintiff Dr. Samuel Pennella filed a
Complaint alleging that defendants Acumen Assessments, Dr.
Scott Stacy, Dr. John Whipple, and Mr. Jim Wieberg committed
medical malpractice. All defendants moved to dismiss the
claims in their entirety. They asserted differing reasons for
dismissal. Mr. Wieberg moved for dismissal on the grounds
that the court lacks personal jurisdiction over him, the
Complaint fails to state a claim upon which relief may be
granted,  and the statute of limitations bars any
claims against him. Doc. 13. Mr. Wieberg also moves to strike
plaintiff's Response (Doc. 30) to his motion. Acumen
Assessments, Dr. Stacy, and Dr. Whipple also moved for
dismissal on the ground that the statute of limitations bars
plaintiff's claims. Doc. 16; Doc. 24. For reasons
discussed below, the court grants defendants' Motions to
Dismiss, but denies Mr. Wieberg's Motion to Strike.
alleges that Acumen Assessments performed a psychiatric
evaluation of him between May and June 2013. Plaintiff also
alleges that defendants,  when making three separate diagnoses,
ignored the medications that plaintiff was taking. Finally,
plaintiff alleges that defendant developed an inappropriate
and incorrect treatment plan that does not coincide with the
correct diagnosis. Plaintiff contends defendants' actions
violated Kansas medical malpractice law.
also asserts that Saba University relied on the results of
the psychiatric evaluation to make a decision about
plaintiff's medical school suspension. Plaintiff alleges
that he would have graduated and secured employment if
defendants had ordered proper treatment. Plaintiff thus
alleges that defendant's incorrect treatment plan caused
him to lose income.
Motion to Dismiss for Lack of Personal Jurisdiction
Wieberg moved for dismissal of the claims against him under
Fed.R.Civ.P. 12(b)(2), asserting that this court lacks
personal jurisdiction over him.
plaintiff bears the burden to establish personal jurisdiction
over each defendant named in the action. Rockwood Select
Asset Fund XI (6)-1, LLC v. Devine, Millimet &
Branch, 750 F.3d 1178, 1179-80 (10th Cir. 2014)
(citation omitted). But in the preliminary stages of a case,
a plaintiff's burden to prove personal jurisdiction is
light. AST Sports Sci., Inc. v. CLF Distrib. Ltd.,
514 F.3d 1054, 1056 (10th Cir. 2008) (citation omitted).
as here, the court is asked to decide a pretrial motion to
dismiss for lack of personal jurisdiction without conducting
an evidentiary hearing, plaintiff, to survive the motion,
must make no more than a prima facie showing of jurisdiction.
Id. at 1056-57 (citing OMI Holdings, Inc.,
149 F.3d at 1091). “The plaintiff may make this prima
facie showing by demonstrating, via affidavit or other
written materials, facts that if true would support
jurisdiction over the defendant.” OMI Holdings,
Inc., 149 F.3d at 1091.
defeat a plaintiff's prima facie showing of personal
jurisdiction, defendants “must present a compelling
case demonstrating ‘that the presence of some other
considerations would render jurisdiction
unreasonable.'” Id. (quoting Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)).
Where defendants fail to controvert a plaintiff's
allegations with affidavits or other evidence, the court must
accept the well-pleaded allegations in the complaint as true,
and resolve any factual disputes in plaintiff's favor.
Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th
asserts the court has subject matter jurisdiction over this
case under the diversity provision in 28 U.S.C. § 1332.
See Doc. 1 at 2. In this kind of case, a plaintiff
must show that exercising personal jurisdiction is proper
under the laws of the forum state and that doing so comports
with the Due Process Clause of the Constitution.
Federated Rural Elec. Ins. Corp. v. Kootenai Elec.
Coop., 17 F.3d 1302, 1304-05 (10th Cir. 1994) (citation
omitted). Kansas' long-arm statute is construed liberally
to permit the exercise of any jurisdiction that is consistent
with the United States Constitution. Id. at 1305;
see also K.S.A. § 60-308(b)(1)(L) & (b)(2).
Thus, it is unnecessary for the court to conduct a separate
personal jurisdiction analysis of Kansas law, and instead,
the court may proceed directly to the due process injury.
Federated Rural Elec. Ins. Corp., 17 F.3d at 1305;
see also Niemi v. Lasshofer, 770 F.3d 1331, 1348
(10th Cir. 2014) (where the state's long-arm statute
“confers the maximum jurisdiction permissible
consistent with the Due Process Clause . . . the first,
statutory, inquiry effectively collapses into the second,
constitutional, analysis.” (citation and internal
due process analysis involves a two-step inquiry: (1) first,
the Court must determine whether the defendant has
“minimum contacts with the forum state such that he
should reasonably anticipate being haled into court
there;” and (2) second, if the defendant's actions
establish minimum contacts, the court must then decide
“whether the exercise of personal jurisdiction over the
defendant offends traditional notions of fair play and
substantial justice.” AST Sports Sci., Inc.,
514 F.3d at 1057 (citations and internal quotations omitted).
Here, plaintiff has failed to make allegations sufficient to
establish that Mr. Wieberg has the requisite minimum contacts
with Kansas. So, he could not reasonably anticipate being
haled into court here.
Wieberg has established that he is a citizen of Missouri.
Doc. 13 at 9, ¶ 2 (The Decl. of James Wieberg). The Due
Process Clause permits a court to exercise personal
jurisdiction over a nonresident defendant so long as the
defendant purposefully has established “minimum
contacts” with the forum state. Burger King,
471 U.S. at 474. The “minimum contacts” standard
is satisfied by establishing that either specific
jurisdiction or general jurisdiction exists. Rockwood
Select Asset Fund, 750 F.3d at 1179. First, a court may
assert specific jurisdiction over a nonresident
defendant “‘if the defendant has
“purposefully directed” his activities at
residents of the forum, and the litigation results from
alleged injuries that “arise out of or relate to”
those activities.'” OMI Holdings, Inc.,
149 F.3d at 1090-91 (quoting Burger King, 471 U.S.
at 472). Second, if “a court's exercise of
jurisdiction does not directly arise from a defendant's
forum-related activities, the court may nonetheless maintain
general personal jurisdiction over the defendant
based on the defendant's general business contacts with
the forum state.” Id. at 1091 (citing
Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 415 (1984)).
plaintiff alleges that Mr. Wieberg is a citizen of Kansas.
The Declaration of James Wieberg controverts this allegation.
Doc. 13 at 9 ¶ 2 (Mr. Wieberg declares, under penalty of
perjury, that he resides in Jefferson City, Missouri). And,
plaintiff fails to assert any other facts to support his
conclusory allegation about Mr. Wieberg's citizenship.
The court thus finds that, for the purposes of this personal
jurisdictional analysis alone, Mr. Wieberg is not a resident
of Kansas. So, the court must analyze Mr. Wieberg's
contacts with Kansas to determine if it may assert personal
jurisdiction over him.
fails to allege that Mr. Wieberg has any other contacts with
Kansas. Conversely, Mr. Wieberg alleges that he does not have
the requisite minimum contacts with Kansas. Mr. Wieberg's
Declaration establishes that he is a citizen of Missouri, and
has worked in Jefferson City, Missouri as a licensed
professional counselor since 1985. Mr. Wieberg's
Declaration also establishes that Mr. Wieberg does not work
for the State of Kansas and does not solicit or advertise to
potential clients in Kansas. Finally, any services provided
to plaintiff and any communications with plaintiff occurred
while Mr. Wieberg was located in Missouri.
party has alleged facts that allow the court to assert
specific jurisdiction over Mr. Wieberg. Based on the alleged
facts in Mr. Wieberg's Declaration, he has not
purposefully directed his professional activities at
residents of Kansas. So, this litigation does not result from
alleged injuries that arise out of his professional
activities in Kansas. Similarly, no facts allege that Mr.
Wieberg has had general business contacts with Kansas that
would allow the court to assert general jurisdiction over
plaintiff has failed to show that Mr. Wieberg has the
requisite minimum contacts for the court to exercise either
specific or general jurisdiction over him. The court thus
lacks personal jurisdiction over Mr. Wieberg and dismisses
him from the action without prejudice.
Motions to Dismiss for ...