Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pennella v. Acumen Assessments

United States District Court, D. Kansas

October 27, 2017

SAMUEL C. PENNELLA, M.D., Plaintiff,
v.
ACUMEN ASSESSMENTS, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         On June 5, 2017, pro se[1] 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, [2] 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.

         I. Factual Background

         Plaintiff alleges that Acumen Assessments performed a psychiatric evaluation of him between May and June 2013. Plaintiff also alleges that defendants, [3] when making three separate diagnoses, ignored the medications that plaintiff was taking. Finally, plaintiff alleges that defendant[4] developed an inappropriate and incorrect treatment plan that does not coincide with the correct diagnosis. Plaintiff contends defendants' actions violated Kansas medical malpractice law.

         Plaintiff 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.

         II. Motion to Dismiss for Lack of Personal Jurisdiction

         Mr. 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.

         A. Legal Standard

         A 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).

         Where, 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.

         To 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 Cir. 1995).

         B. Analysis

         Plaintiff 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 quotations omitted)).

         This 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.

         Mr. 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)).

         Here, 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.

         Plaintiff 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.

         Neither 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 him.

         In sum, 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.

         III. Motions to Dismiss for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.