Clasen v. Nat'l Bd. of Osteopathic Med. Examiners, Inc.
| Decision Date | 30 December 2015 |
| Docket Number | No. 4:15-CV-625-DBB,4:15-CV-625-DBB |
| Court | U.S. District Court — Eastern District of Texas |
| Parties | ROBERT JONATHAN CLASEN, Plaintiffs v. NATIONAL BOARD OF OSTEOPATHIC MEDICAL EXAMINERS, INC., NOVA SOUTHEASTERN UNIVERSITY, HEATH PROFESSIONS DIVISION, Defendants. |
Before the Court are motions to dismiss filed by Defendant National Board of Osteopathic Medical Examines, Inc. ("NBOME") (Dkt. 14) and Defendant Nova Southeastern University ("NSU") (Dkt. 33) for lack of personal jurisdiction pursuant to Rule 12(b)(2) and and/or improper venue pursuant to Rule 12(b)(3). Alternatively, NSU moves to dismiss for insufficient service under 12(b)(5), and NBOME moves to transfer to the Southern District of Indiana. Having reviewed the motions, the responses, the applicable authorities, and the record in this case, the Court finds that NBOME's motion (Dkt. 14) and NSU's motion (Dkt. 33) should be GRANTED in part and DENIED in part.
In this case, pro se Plaintiff filed suit against NBOME and NSU, as well as the American Association of Colleges of Osteopathic Medicine ("ACOM"). Plaintiff later dropped ACOM from the suit. Dkt. 15. NSU is a private non-profit university organized and existing under the laws of Florida. Dkt. 33 at 6. Among other academic programs, NSU offers a doctoral degree in osteopathic medicine. Id. at 7. Its main campus and administrative offices are in Fort Lauderdale-Davie, Florida; it also operates regional campuses in Fort Myers, Jacksonville, Miami-Kendall, Miramar, Orlando, Palm Beach, and Tampa, Florida, and in San Juan, Puerto Rico. Id. at 6. NBOME is a non-profit corporation organized and existing under the laws of Indiana, with offices in Chicago, Illinois and Conshohocken, Pennsylvania. Dkt. 14 at 5. NBOME develops and provides a three-level "Comprehensive Osteopathic Medical Licensing Examination" ("COMLEX-USA") for osteopathic medical students and graduates, which is accepted by state licensing boards for osteopathic physicians. Id.
Plaintiff's claims arise from his enrollment as a student at NSU beginning in the fall of 2011. See Dkt. 1 at ¶ 8. In his complaint, Plaintiff recites a number of allegations related to his work as a "school-approved" tutor at NSU (Dkt. 1 at ¶ 15), his failure of the second two levels of COMLEX-USA administered by NBOME1 (see Dkt. 1 at ¶¶ 31, 32, 40, 42, 48, and 50), alleged harassment and retaliation by NSU and NBOME (see Dkt. 1 at ¶¶ 37, 48, 53, and 55), and, ultimately, his dismissal from NSU in March 2015 without earning a diploma (Dkt. 1 at ¶¶ 28-30). Plaintiff's claims against Defendants include violations of 18 U.S.C. §§ 1961-1968 (the "Racketeer Influenced and Corrupt Organization Act" or "RICO"), 18 U.S.C. § 1343 (), and 18 U.S.C. § 1346 (), and breach of contract. Dkt. 1 at 9-11. Plaintiff also alleges "violation of antitrust legislation." Id. at 11. However, he identifies no particular statutory provisions in his antitrust allegations.
Defendants NBOME and NSU both argue that because this Court has does not have personal jurisdiction over them, the case should be dismissed pursuant to Rule 12(b)(2) for lack of personal jurisdiction. Alternatively, they both also argue that venue is improper pursuant to 28 U.S.C. § 1391 or 28 U.S.C. § 1965. Alternatively, NSU further argues that it was not properlyserved under Rule 4(h). Alternatively, NBOME argues to transfer all claims to Indiana pursuant to 28 U.S.C. § 1404(a).
In determining whether it may exercise personal jurisdiction over a nonresident defendant, a court must consider "both the forum state's long-arm statute and federal due process." Johnston v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir. 2008) (citing Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 418 (5th Cir. 1993)). If a state's long-arm statute "extends to the limits of federal due process," as Texas's does, the court must only perform a due process analysis. Id. (citing Wilson v. Belin, 20 F.3d 644, 647 (5th Cir. 1994)). Due process allows a federal court to exercise personal jurisdiction over a nonresident defendant only if (1) the nonresident defendant has established minimum contacts by "purposely avail[ing] himself of the benefits and protections of the forum state" and (2) "the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice." Id. (citing Wilson, 20 F.3d at 647).
Minimum contacts may be established through either specific or general jurisdiction. Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001). General jurisdiction exists if the defendant has had substantial, continuous, and systematic contacts with the forum state, regardless of whether those contacts are related to the cause of action. Johnston, 523 F.3d at 609 (citing Helicopters Nacionales de Colombia v. Hall, 466 U.S. 408, 414-19, 104 S. Ct. 1868, 80 L. Ed.2d 404 (1984)). Specific jurisdiction exists when a nonresident defendant has purposefully directed his activities at the plaintiff and the plaintiff's alleged injuries derive from those activities. Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 243 (5th Cir. 2008) () (internal citations omitted); Religious Tech. Ctr. v. Liebreich, 339 F.3d 369, 375 (5th Cir. 2003) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).
The plaintiff bears the burden of proving that the defendant has had minimum contacts with the forum state; however, the plaintiff need only make a prima facie showing of such contact. Johnston, 523 F.3d at 609 (citing Wilson, 20 F.3d at 648). The court must resolve any disputed facts in favor of the plaintiff and a finding of jurisdiction. Id. (citing Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990)). "[U]ncontroverted allegations in the plaintiff's complaint must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in the plaintiff's favor for purposes of determining whether a prima facie case for personal jurisdiction exists." Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990) (internal citations omitted). "In considering a motion to dismiss for lack of personal jurisdiction a district court may consider affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery." Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002) (internal citations omitted).
If the plaintiff successfully makes a prima facie showing of minimum contacts, the burden shifts to the defendant to show "that traditional notions of fair play and substantial justice would be violated by the exercise of jurisdiction." Johnston, 523 F.3d at 615 (citing Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir. 1999) (citations omitted)); Luv N'Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 473 (5th Cir. 2006) (citing Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 382 (5th Cir. 2002)).
Under the fairness inquiry, the court examines: "(1) the burden on the nonresident defendant, (2) the forum state's interests, (3) the plaintiff's interest in securing relief, (4) the interest of the interstate judicial system in the efficient administration of justice, and (5) the shared interest of the several states in furthering fundamental social policies." Luv N'Care, 438 F.3d at 473 (citing Felch v. Transportes Lar-Mex SA De CV, 92 F.3d 320, 324 (5th Cir. 1996)).
28 U.S.C. § 1391(b) provides generally for venue of civil cases in the federal courts:
A civil action may be brought in—
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b).
Once a defendant raises the issue of improper venue under Rule 12(b)(3), the plaintiffs have the burden to prove that the chosen venue is proper. Psarros v. Avior Shipping, Inc., 192 F.Supp.2d 751, 753 (S.D.Tex.2002). "On a Rule 12(b)(3) motion to dismiss for improper venue, the court must accept as true all allegations in the complaint and resolve all conflicts in favor of the plaintiff." Braspetro Oil Servs. Co. v. Modec (USA), Inc., 240 Fed.Appx. 612, 615 (5th Cir.2007) (citing Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1138 (9th Cir.2004)). To prevail on a motion to dismiss for improper venue, a defendant must present facts that will defeata plaintiff's assertion of venue. Id. Rule 12(b)(3) allows a case to be dismissed for improper venue. FED. R. CIV. P. 12(b)(3); see also 28 U.S.C. § 1406(a) (). If venue is improper, "a district court has broad discretion in determining whether to dismiss or transfer a case in the interest of justice." Caldwell v. Palmetto State Savs. Bank of S.C., 811 F.2d 916, 919 (5th Cir.1987).
In its motion, Defendant NBOME argues that it is not subject to personal jurisdiction in this Court because it is an Indiana corporation, a "non-resident...
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