Cepeda v. Kass, No. 02-P-791 (MA 12/30/2004)

• Decision Date: 30 December 2004
• Docket Number: No. 02-P-791.,02-P-791.
• Citation: 62 Mass. App. Ct. 732
• Parties: OLGA CEPEDA, individually and as administratrix, 1 vs . DAVID M. KASS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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OLGA CEPEDA, individually and as administratrix,¹ vs. DAVID M. KASS.

No. 02-P-791.

Court of Appeals of Massachusetts.

Bristol.

September 5, 2003.

December 30, 2004.

Jurisdiction, Personal, Nonresident. Practice, Civil, Burden of proof, Motion to dismiss. Due Process of Law, Jurisdiction over nonresident. Evidence, Prima facie evidence.

Civil action commenced in the Superior Court Department on October 16, 2000.

Motions to dismiss and for reconsideration were heard by Elizabeth M. Fahey, J., and questions of law were reported by her.

Robert C. Zaffrann for the plaintiff.

William F. White for the defendant.

Present: Gelinas, Green, & Trainor, JJ.

TRAINOR, J.

In this negligence case, the defendant² made a motion to dismiss for lack of personal jurisdiction pursuant to Mass.R.Civ.P. 12(b)(2), 365 Mass. 755 (1974). In allowing the defendant's motion to dismiss, the judge found that "there are insufficient uncontroverted facts in this jurisdictional record on which to base personal jurisdiction." After denying the plaintiff's motion for reconsideration, which contended that the judge should have held an evidentiary hearing or in the alternative should have taken as true all disputed facts in deciding the motion to dismiss, the judge reported two questions pursuant to G. L. c. 231, § 111, and Mass.R.Civ.P. 64(a), as amended, 423 Mass. 1403 (1996).

The reported questions are:

"(1) In considering a motion to dismiss for lack of jurisdiction over the person, what is the appropriate standard for a trial court to apply in evaluating the record of material jurisdictional facts contained in the affidavits, sworn deposition testimony, and discovery materials presented by the parties where all those facts are disputed?

"(2) Should the trial court hold an evidentiary hearing and make findings of fact as to the relative credibility of the evidence presented by each party for the limited purpose of determining personal jurisdiction when all material jurisdictional facts contained in the affidavits, sworn deposition testimony, and discovery materials are disputed?³"

Background. The complaint alleges the following facts. From June, 1997, until the time of his death in May, 1998, Silverio Gonzalez was under the care of and was a resident at the Judge Rotenberg Educational Center (JREC) in Canton. Gonzalez was sixteen years of age during his stay at the JREC and suffered from various psychiatric, mental health, behavioral, and neurological disorders. Specifically, he had been diagnosed as a paranoid schizophrenic, with acute exacerbation, and he was mildly to moderately mentally retarded. Additionally, he suffered from attention deficit hyperactivity disorder and Tourette's Disorder. When he entered the JREC, he had been prescribed and was taking various anti-psychotic drugs to control his behavior. After he entered the JREC, these medications were reduced and finally eliminated. He died of head injuries sustained as a result of his having jumped from a moving school bus on Interstate Route 95 in May of 1998. Olga Cepeda, his mother and the plaintiff, brought an action against several employees of the JREC, two physicians, and one psychologist alleging negligence in the care and treatment of her son. The plaintiff's claims arise from the decision of health-care providers to wean her son from behavior-modification medication and the medical care and supervision both before and after the making of that decision.

Counts XI and XII of the complaint allege negligence, gross negligence, and reckless disregard on the part of the defendant, David M. Kass, M.D. (Dr. Kass). Dr. Kass is a psychiatrist who resides and is licensed to practice medicine in the State of Rhode Island. Dr. Kass moved to dismiss the complaint for lack of personal jurisdiction pursuant to Mass.R.Civ.P. 12(b)(2), 365 Mass. 755 (1974), and supported the motion with an affidavit. The judge allowed discovery on the jurisdictional facts pursuant to the plaintiff's opposition. See Heins v. Wilhelm Loh Wetzlar Optical Mach. GmbH & Co. KG, 26 Mass. App. Ct. 14, 15 (1988). The plaintiff took depositions of Dr. Kass, Doris Baron, Robert Worsham, and Matthew Isreal.⁴ The plaintiff also received answers to interrogatories and certain documents from Baron⁵ and the JREC. Dr. Kass filed an affidavit regarding his relationship to the JREC.

As a result of the discovery process, the plaintiff submitted considerable evidence of Dr. Kass's connection to the JREC and, specifically, of his treatment of Gonzalez. The plaintiff alleged that Dr. Kass continued his relationship, as attending psychiatrist, with the JREC (formerly the Behavior Research Institute) when it moved from Rhode Island to Massachusetts; that Dr. Kass acted as attending psychiatrist for any JREC resident who entered the program having been prescribed behavior-modifying medications; that to assist with the implementation of the JREC's anti-medication philosophy, Dr. Kass would examine new residents, order the discontinuation of any psychiatric medications, and monitor and supervise the weaning of these residents from their medications; that Dr. Kass also authorized, when appropriate, electric shock treatment and other "Level III" aversive therapy for JREC residents; and that when court approval was required, Dr. Kass would testify in the Bristol County Probate Court on behalf of the JREC.

The plaintiff further provided evidence that the JREC nursing staff would notify Dr. Kass by telephone whenever a new resident, who was being prescribed behavior-modifying medications, entered the program. Dr. Kass would examine such new residents at his Rhode Island office and maintained a standing appointment time every Friday morning at his Rhode Island office for this purpose. The plaintiff provided evidence that Dr. Kass was the attending psychiatrist for at least one hundred such JREC residents in the five years since the JREC moved to Massachusetts. The JREC estimated that, between August, 1998, and March, 2000, Dr. Kass was the attending psychiatrist for at least sixty residents.

The motion judge, however, allowed Dr. Kass's motion to dismiss, stating that because Dr. Kass had disputed all facts material to the issue of jurisdiction, there were no uncontroverted facts on which to base a finding of jurisdiction. Relying on two decisions of this court,⁶ the motion judge stated that she could accept as true only uncontroverted facts, and that the uncontroverted facts must be sufficient to withstand due process scrutiny and must satisfy at least one of the Massachusetts long arm statutory prerequisites. C.H. Babb Co. v. A.M. Mfg. Co., 14 Mass. App. Ct. 291, 293 (1982). Ultimately, the motion judge determined that there were insufficient undisputed facts upon which to base a determination of personal jurisdiction.

Discussion. The plaintiff always bears the burden of establishing sufficient facts on which to predicate jurisdiction over a defendant when facing a motion to dismiss under Mass.R.Civ.P. 12(b)(2). Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 151 (1978). See Williams v. Episcopal Diocese of Mass., 436 Mass. 574, 577 n.2 (2002). The allocation of this burden, however, does not define the quantum of proof necessary to meet it. In the present case, the facts material to the question of personal jurisdiction have been controverted by the defendant. We are faced with the question what quantum of evidence is necessary to establish jurisdiction and what standard of proof should be used in determining the evidentiary burden when the defendant controverts the plaintiff's factual contentions. This question appears to be one of first impression so far as Mass.R.Civ.P. 12(b)(2) is concerned. See Fern v. Immergut, 55 Mass. App. Ct. 577, 580 n.7 (2002). It is appropriate, therefore, to turn for guidance to cases decided under the parallel Federal rule, Fed.R.Civ.P. 12(b)(2). See Berman v. Linnane, 434 Mass. 301, 304 n.5 (2001).

Generally, a claim of personal jurisdiction over a nonresident involves a two-pronged inquiry: "(1) is the assertion of jurisdiction authorized by statute, and (2) if authorized, is the exercise of jurisdiction under State law consistent with basic due process requirements mandated by the United States Constitution? Jurisdiction is permissible only when both questions draw affirmative responses." Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6 (1979). Due process requires that a nonresident defendant may be subjected to suit in Massachusetts, only where "there was some minimum contact with the Commonwealth which resulted from an affirmative, intentional act of the defendant, such that it is fair and reasonable to require the defendant to come into the State to defend the action" Id. at 7. A plaintiff has the burden of establishing the facts upon which personal jurisdiction over a defendant is to be predicated when confronted with a rule 12(b)(2) motion.

The Federal courts, and the courts of the Commonwealth, are afforded considerable procedural leeway in determining proof of the factual basis for the "minimum contact" requirement necessary to satisfy the "fair and reasonable" due process standard. A review of the Federal cases reveals that the Federal courts do not take any systematic or unanimous approach to this issue. See 5B Wright & Miller, Federal Practice & Procedure § 1351 (2004). The most common approach allows a court to determine a rule 12(b)(2) motion solely on affidavits and other written evidence without conducting an evidentiary hearing. Use of this prima facie standard to determine personal jurisdiction preliminarily reserves the jurisdictional issue, unless waived by the defendant, for final determination at the trial, pursuant to a preponderance of the evidence standard.⁷ See Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981).

Prima facie showing. The most typical method of resolving a motion to dismiss for lack of personal...