Chicosky v. Presbyterian Medical Center

• Decision Date: 01 October 1997
• Docket Number: No. CIV. A. 97-2814.,CIV. A. 97-2814.
• Citation: 979 F.Supp. 316
• Parties: Frances G. CHICOSKY, individually and as Executrix of the Estate of Donald M. Chicosky, Deceased, Plaintiff, v. PRESBYTERIAN MEDICAL CENTER, Philadelphia Heart Institute, Francis Marchlinski, M.D., individually and as employee of Philadelphia Heart Institute, Ventritex and Medtronic, Inc., Defendants.
• Court: U.S. District Court — District of New Jersey

979 F.Supp. 316

Frances G. CHICOSKY, individually and as Executrix of the Estate of Donald M. Chicosky, Deceased, Plaintiff, v. PRESBYTERIAN MEDICAL CENTER, Philadelphia Heart Institute, Francis Marchlinski, M.D., individually and as employee of Philadelphia Heart Institute, Ventritex and Medtronic, Inc., Defendants.

No. CIV. A. 97-2814.

United States District Court, D. New Jersey.

October 1, 1997.

Robert F. Gaskill, Begley, McCloskey & Gaskill, Moorestown, NJ, for Plaintiff, Frances G. Chicosky.

Dominic A. DeLaurentis, Jr., Susan L. Fleming, Law Offices of Stanley P. Stahl, Voorhees, NJ, for Defendant, Francis Marchlinski, M.D.

James A. Young, Michael J. Burns, Christie, Parabue, Mortensen & Young, Cherry Hill, NJ, for Defendant, Presbyterian Medical Center.

David J. Cooner, McCarter & English, Newark, NJ, for Defendant, Pacesetter, Inc.

John P. Lavelle, Jr., Hangley, Aronchick, Segal & Pudlin, Cherry Hill, NJ, for Defendant, Medtronic, Inc.

ORLOFSKY, District Judge:

This case presents the Court with the intricate question of when and exactly how a case which has been removed from a state to a United States district Court may be transferred to another District Court where the first District Court does not have personal jurisdiction over two of the indispensable party defendants.¹

Plaintiff, Frances G. Chicosky, individually and as Executrix of the Estate of Donald M. Chicosky, Deceased, ("Mrs.Chicosky"), has moved under Local Civil Rule 7.1(g)² for reconsideration of this Court's August 1, 1997, unpublished Opinion and Order dismissing the Complaint as against Defendants, Presbyterian Medical Center ("PMC") and Francis Marchlinski, M.D. ("Marchlinski"), for lack of personal jurisdiction. In the alternative, Mrs. Chicosky has moved for a change of venue to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1406(a). For the reasons set forth below, the motion for reargument will be denied and the motion to transfer will be granted.

I. Factual and Procedural Background

This is a malpractice action in which Mrs. Chicosky claims that Marchlinski, who was the treating physician of the Plaintiff's deceased husband, Donald M. Chicosky ("Mr. Chicosky"), was negligent in rendering medical advice. Specifically, Mrs. Chicosky claims that Marchlinski was negligent in failing to advise Mr. Chicosky to seek immediate medical attention, after Mr. Chicosky had reported receiving a powerful shock from a defibrillator which had been implanted in 1991. This omission allegedly occurred during a telephone conversation between Marchlinski and Mrs. Chicosky on April 29, 1995 during which the Chicoskys were physically located in New Jersey. Early in the morning on April 30, 1997, Mr. Chicosky "suffered a coronary which left [him] with catastrophic injuries from which he never recovered." See Complaint (dated April 29, 1997).

On April 29, 1997, exactly two years after the allegedly negligent medical advice was rendered, Mrs. Chicosky filed a complaint in the Superior Court of New Jersey, Burlington County, Law Division. On May 30, 1997, Defendants, Marchlinski and PMC, filed a notice of removal pursuant to 28 U.S.C. § 1441(b), claiming that none of the defendants was a citizen of New Jersey, the state in which the action was originally brought, and that this Court could properly exercise jurisdiction under 28 U.S.C. § 1332. The action was removed to "the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a).

On August 1, 1997, Defendants, Marchlinski and PMC, moved to dismiss the Complaint under Rule 12(b) of the Federal Rules of Civil Procedure. They alleged two grounds for dismissal, lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2), and improper venue, Fed.R.Civ.P. 12(b)(3). As alternative relief, they moved for a change of venue under 28 U.S.C. § 1404(a) to the Eastern District of Pennsylvania, if the Court found that it had personal jurisdiction over either Marchlinski, PMC, or both. Mrs. Chicosky responded to the motion by arguing that the Court could exercise personal jurisdiction over Defendants, Marchlinski and PMC, and by arguing that the statute authorizing removal, 28 U.S.C. § 1441 et seq., contains in section 1441(a) "a grant of venue." Plaintiff's Memorandum of Law in Opposition (dated June 24, 1997). Finally, Mrs. Chicosky argued on grounds of judicial economy that transfer under 28 U.S.C. § 1404(a) to the Eastern District of Pennsylvania was improper.

The Court dismissed the Complaint against Defendants, Marchlinski and PMC, for lack of personal jurisdiction in an unpublished Opinion and Order dated August 1, 1997, and, consequently, did not rule on the Defendants' motion to transfer the action under 28 U.S.C. § 1404(a). Subsequent to the Court's Order, Dominic A. DeLaurentis, Jr., Esq. substituted for Marchlinski's original counsel, who remained in the action as PMC's counsel.

Mrs. Chicosky has now moved pursuant to Local Civil Rule 7.1(g) asking this Court to reconsider its original decision as to personal jurisdiction and, in the alternative, to transfer the action to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1406(a). Jurisdiction is proper in this Court under 28 U.S.C. § 1332.

II. Discussion

A. Reconsideration of Dismissal for Lack of Personal Jurisdiction

Plaintiff's motion for "reconsideration," which the Court reads as a motion for reargument, is governed by Rule 7.1(g) of the Local Civil Rules for the District of New Jersey, formerly General Rule 12.1. Rule 7.1(g) provides that a party may, within ten days of the entry of an order adverse to that party, move for reargument, upon a showing that dispositive factual matters or controlling decisions of law were overlooked by the court in reaching its prior decision.

The word "overlooked" is the operative term in the Rule. See Allyn Z. Lite, New Jersey Federal Practice Rules 86 (1996 & Supp.1997). Mere disagreement with a decision of the district court should normally be raised through the appellate process and is inappropriate on a motion for reargument. Bermingham v. Sony Corp., 820 F.Supp. 834, 859 n. 8 (D.N.J.1992), aff'd, 37 F.3d 1485 (3d Cir.1994); Florham Park Chevron v. Chevron, U.S.A., 680 F.Supp. 159, 163 (D.N.J. 1988). Only where matters were overlooked and which, if considered by the Court, might reasonably have resulted in a different conclusion, will the Court entertain such a motion. See, e.g., Panna v. Firstrust Savings Bank, 760 F.Supp. 432, 435 (D.N.J.1991); G-69 v. Degnan, 748 F.Supp. 274, 275 (D.N.J. 1990) ("A party seeking reconsideration must show more than a disagreement with the Court's decision, and `recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.'") (citation omitted).

A motion for reargument "is an extremely limited procedural vehicle" and may not be used to expand the record before the court. Resorts Int'l, Inc. v. Greate Bay Hotel & Casino, 830 F.Supp. 826, 831 (D.N.J.1992) (Gerry, J.). Finally, relief under the rule is granted "very sparingly." Maldonado v. Lucca, 636 F.Supp. 621, 630 (D.N.J.1986).

The fact asserted by Mrs. Chicosky as having been overlooked is that her claim "against Dr. Marchlinski arises out of the April 29, 1995, phone call made by Dr. Marchlinski to plaintiffs at plaintiffs' home in New Jersey." Rather than focusing on something that the Court did not consider, Mrs. Chicosky's argument directs the Court's attention to a fact which was specifically considered by the Court. The motion will therefore be denied.

Mrs. Chicosky's argument is essentially that personal jurisdiction over Marchlinski may be exercised on the basis of a single telephone call from Marchlinski to Mrs. Chicosky in New Jersey. The motion for reargument now underscores that the "thrust of [her] complaint against [Defendants, Marchlinski and PMC] is the negligent medical advice given ... during a phone call initiated by [Marchlinski]." Therefore, Mrs. Chicosky argues, the claims "arise[] out of or relate[] to" Marchlinski's minimum contacts. Plaintiff's Memorandum of Law in Support of Motion for Reconsideration 2-3 & n. 1 (dated Aug. 6, 1997)

However, this argument for "specific" jurisdiction, as opposed to "general" jurisdiction, see generally Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), was made at great length in the original opposition to Marchlinski and PMC's motion to dismiss. In response to the argument, the Court noted that medical services are "personal in character and directed at the person who needs treatment, not at any particular forum." Chicosky v. Presbyterian Med. Ctr., No. 97-2814, slip op. at 8 (D.N.J. Aug.1, 1997) (emphasis added) (citation omitted). Thus, the Court concluded that a mere telephone call between Marchlinski and Mrs. Chicosky during which medical services were allegedly rendered was not a forum-directed activity, and therefore could not support specific jurisdiction.

Additionally, the Court noted that a telephone call could not be a constitutional basis for jurisdiction, either "specific" or "general," because "such contacts [are] too remote and sporadic to support jurisdiction which would comport with due process." Id. at 8 n. 1. Indeed, the notion that, in this day and age, a single telephone call from Pennsylvania to New Jersey could be considered a purposeful availment of the privilege of conducting activities within New Jersey, rather than an attenuated, random, and fortuitous contact, is, under these facts, without support. See, e.g., Lebel v. Everglades Marina, Inc., 115 N.J. 317, 558 A.2d 1252 (1989); Wolpert v. North Shore Univ. Hosp., 231 N.J.Super. 378, 381, 555 A.2d 729 (App.Div.1989); Bovino v. Brumbaugh, 221 N.J.Super. 432, 437-38, 534 A.2d 1032 (App.Div.1987). There was nothing about the "thrust" of...