744 F.2d 665 (9th Cir. 1984), 83-6241, Cubbage v. Merchent

Docket Nº:83-6241.
Citation:744 F.2d 665
Party Name:Jen D. CUBBAGE, Plaintiff-Appellant, v. Michael MERCHENT, S.W. Meyer, Parker Community Hospital, Defendants-Appellees.
Case Date:May 11, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 665

744 F.2d 665 (9th Cir. 1984)

Jen D. CUBBAGE, Plaintiff-Appellant,


Michael MERCHENT, S.W. Meyer, Parker Community Hospital,


No. 83-6241.

United States Court of Appeals, Ninth Circuit

May 11, 1984

Argued and Submitted April 3, 1984.

Argued and Submitted July 24, 1984.

Opinion on Rehearing Oct. 3, 1984.

Page 666

Steven B. Stevens, Gantz & Forer, Beverly Hills, Cal., for plaintiff-appellant.

James P. Muehlberger, Snell & Wilmer, Phoenix, Ariz., J.E. Holmes, III, Geoffrey H. Hopper, Thompson & Colegate, Riverside, Cal., for defendants-appellees.

Appeal from the United States District Court Central District of California.

Before KILKENNY, HUG and BOOCHEVER, Circuit Judges.

KILKENNY, Circuit Judge:

Appellant, a California resident, filed a medical malpractice suit in Federal District Court for the Central District of California. Jurisdiction was based on diversity. The two appellee doctors live and practice medicine in Arizona, and appellee hospital is located and licensed in Arizona. The district court dismissed the case for lack of personal jurisdiction as to all appellees. Appellant appeals, arguing that under California's long-arm statute appellees had sufficient contacts with the state to support personal jurisdiction.

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Appellee Parker Community Hospital is an Arizona corporation having its principal place of business in Parker, Arizona. The town is located in a sparsely populated desert region near the Arizona/California border. A bridge connects Parker with California. Appellee doctors Merchent and Meyer are Arizona citizens and are licensed to practice medicine there, but not in California.

During October-November of 1981, appellees treated appellant for an ulcer. Appellant was subsequently transferred to a California hospital on November 13, 1981, at the instigation of Dr. Merchent. Appellees were not responsible for any of appellant's treatment there.

The district court, in granting appellees' F.R.Civ.P. 12(b)(2) motion to dismiss for lack of personal jurisdiction, included in its findings of fact that (1) a small percentage of the hospital's employees are residents of California--in 1981 sixteen of eighty-seven were California residents; (2) appellees each maintained a listing in the white pages of the 1982 Parker telephone directory, which was distributed in that area of California lying adjacent to Arizona; (3) the hospital also maintained a yellow pages listing in that directory; (4) during a four month period in 1981, approximately 26% of the hospital's patients were California residents who travelled to Arizona for treatment; (5) Dr. Meyer sees approximately 120 patients per week, of whom about 12% are California residents; (6) the doctor appellees applied for and were issued California Medi-Cal numbers; (7) the doctor appellees have treated a small number of patients covered under the Medi-Cal program and have received reimbursement either directly or indirectly from the State of California for those patients.


Do sufficient contacts exist between appellees and the State of California to support assertion of personal jurisdiction over appellees by a district court sitting in California?


1. Standard of Review

Even though the trial court did enter findings of fact, the facts are undisputed and therefore we review the court's holding that the exercise of personal jurisdiction is inconsistent with due process de novo as a matter of law. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Clayton v. Republic Airlines, Inc., 716 F.2d 729, 730 (CA9 1983) (de novo review for order dismissing for lack of subject matter jurisdiction). Where a defendant challenges the sufficiency of personal jurisdiction, the plaintiff must bear the burden of establishing that the court does have jurisdiction. Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 (CA9 1977).

2. In Personam Jurisdiction

The district court's determination of personal jurisdiction is made by examination of the forum state's law. Hunt v. Erie Ins. Group, 728 F.2d 1244, 1246 (CA9 1984). California permits "[a] court of [the] state [to] exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." Cal.Civ.Proc.Code Sec. 410.10 (West 1973). This statute has been interpreted to confer jurisdiction coextensive with that permitted by due process. Hunt, at 1246; Data Disc, 557 F.2d at 1286. Federal law is controlling on the issue of due process. Amba Marketing Systems, Inc. v. Jobar Int'l, Inc., 551 F.2d 784, 789 (CA9 1977).

Where a defendant has "substantial" or "continuous and systematic" contacts with the state, a state court may have general personal jurisdiction, even if the cause of action is unrelated to the defendant's forum activities. Data Disc, 557 F.2d at 1287. Appellees do not have such contacts--the doctors are not California residents, are not licensed in California, and did not treat appellant in California; the

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hospital is not located, licensed or incorporated in California.

Lacking sufficient contacts to support general jurisdiction, appellees may still be subject to limited personal jurisdiction following "an evaluation of the nature and quality of the defendant's contacts in relation to the cause of action." Data Disc, 557 F.2d at 1287. This evaluation must be done on a case-by-case basis, see Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445, 72 S.Ct. 413, 418, 96 L.Ed. 485 (1952), and is derived from Int'l Shoe v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), where the Court held that a state court may subject a nonresident defendant to a judgment in personam when that defendant has certain "minimum contacts" with the forum such that maintenance of the suit there does not "offend 'traditional notions of fair play and substantial justice.' " The Shoe requirements must be met as to each defendant over whom jurisdiction is to be exercised. Rush v. Savchuk, 444 U.S. 320, 332, 100 S.Ct. 571, 579, 62 L.Ed.2d 516 (1980). Appellee doctors' contacts may be considered generally together with those of appellee hospital, as the district court's factual findings apply similarly to each and both appellees assert similar positions on appeal.

A court judging minimum contacts must focus on the relationship between the defendant, the forum, and the litigation. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977). This court has established a tripartite test for determining whether due process will allow jurisdiction: (A) some action must be taken whereby defendant purposefully avails himself or herself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of the forum's laws; (B) the claim must arise out of or result from defendant's forum-related activities; and (C) exercise of jurisdiction must be reasonable. Data Disc, 557 F.2d at 1287. We conclude that, upon analysis of these factors, due process will not be offended by assertion of personal jurisdiction over appellees.

(A) Actions by which appellees purposefully availed themselves of the privilege of conducting activities in California.

If appellees have so "purposefully availed" themselves, they should reasonably foresee being haled into California courts. See World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567.

Appellee doctors applied for and received Medi-Cal numbers from the State of California. A Medi-Cal number permits a health care provider to receive reimbursement from the state for services rendered to eligible California residents. See County v. Lackner, 97 Cal.App.3d 576, 159 Cal.Rptr....

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