Nichols v. MMIC Ins. Inc.

• Decision Date: 17 December 2014
• Docket Number: No. 4:14–CV–04025–KES.,4:14–CV–04025–KES.
• Parties: Nicole NICHOLS and Robert Nichols, Plaintiffs, v. MMIC INSURANCE INC., Michael P. Woods, M.D., and Bellevue Obstetrics & Gynecology Associates, P.C., Defendants.
• Court: U.S. District Court — District of South Dakota

68 F.Supp.3d 1067

Nicole NICHOLS and Robert Nichols, Plaintiffs

v.MMIC INSURANCE INC., Michael P. Woods, M.D., and Bellevue Obstetrics & Gynecology Associates, P.C., Defendants.

No. 4:14–CV–04025–KES.

United States District Court, D. South Dakota, Southern Division.

Signed Dec. 17, 2014.

Mark D. Fitzgerald, Fitzgerald, Vetter, & Temple, Norfolk, NE, Timothy Lee James, James Law, PC, Yankton, SD, for Plaintiffs.

Eric J. Steinhoff, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, MN, Kathryn Jean Hoskins, Jeffrey L. Bratkiewicz, Siegel, Barnett & Schutz, L.L.P., Sioux Falls, SD, William R. Settles, Lamson Dugan and Murray, LLP, Omaha, NE, for Defendants.

ORDER GRANTING DEFENDANTS WOODS AND BELLEVUE'S MOTION TO DISMISS AND GRANTING IN PART AND DENYING IN PART DEFENDANT MMIC'S MOTION TO DISMISS

KAREN E. SCHREIER, District Judge.

Plaintiffs, Nicole and Robert Nichols, bring claims against defendant Dr. Michael P. Woods and Bellevue Obstetrics & Gynecology Associates, P.C., (Bellevue) alleging medical malpractice, negligent infliction of emotional distress, and loss of consortium. Additionally, plaintiffs bring claims against defendant MMIC Insurance, Inc., (MMIC) alleging intentional interference with a business relationship and intentional infliction of emotional distress, as well as seeking punitive damages. Woods and Bellevue move to dismiss for lack of personal jurisdiction or, alternatively for dismissal or transfer of the case due to improper venue. MMIC moves to dismiss for lack of subject matter jurisdiction or, alternatively, to dismiss for failure to state a claim.¹ For the following reasons, Woods and Bellevue's motion to dismiss is granted, and MMIC's motion is granted in part and denied in part.

BACKGROUND

The facts, according to the amended complaint (Docket 17),² are as follows:

Plaintiffs are residents of South Dakota. Defendant MMIC is a Minnesota corporation with its principal place of business in Minneapolis, Minnesota. Defendant Woods is a licensed medical physician who currently resides in Iowa. During the events giving rise to this dispute, however, Woods was a resident of and licensed physician in the state of Nebraska, with medical malpractice insurance provided by MMIC. Additionally, during this time, Woods was employed by defendant Bellevue, a Nebraska corporation.

On approximately March 16, 2012, Woods performed a cystourethroscopy³

on Nicole Nichols in Bellevue, Nebraska. Following this procedure, Woods diagnosed Nicole with interstitial cystitis.⁴

Subsequently, Woods obtained Nicole's consent to perform a series of bladder instillations⁵ as part of Woods' recommended treatment regime. On June 15, 2012, Woods recommended and performed a hysterectomy

in order to resolve Nicole's condition. After the procedure, however, Woods informed Nicole that additional bladder instillations would still be required. Following the treatment and procedures Woods performed, Nicole began to suffer from bladder irritation, infection, incontinence, loss of sensation, and vaginal pain.

Sometime after the hysterectomy

procedure, Nicole discontinued receiving care from Woods. In August 2012, Nicole began a physician-patient relationship with Dr. Andrew E. Bourne, a urologist at Siouxland Urology Associates, P.C., in Dakota Dunes, South Dakota. On September 11, 2012, Bourne performed a cystourethroscopy on Nicole, which revealed no evidence of a condition that would support a diagnosis of interstitial cystitis. Further, Bourne informed Nicole of his belief that Woods' diagnosis and treatment amounted to professional negligence.

Plaintiffs subsequently informed Bourne of their intention to bring legal action against Woods and asked if Bourne would be willing to testify as an expert witness on their behalf. Bourne agreed and, on August 23, 2013, plaintiffs engaged counsel for the purpose of initiating a malpractice action against Woods. Bourne continued to treat Nicole during this time and, up until January 29, 2014, discussed aspects of plaintiffs' claims against Woods with plaintiffs and their counsel.

On September 25, 2013, Woods received notice of plaintiffs' malpractice suit. On November 1, 2013, MMIC advised plaintiffs' counsel that it provided malpractice insurance to Woods and requested medical authorization to investigate plaintiffs' claims. On November 19, 2013, plaintiffs provided MMIC with signed authorization to obtain Nicole's medical records.

MMIC also provided malpractice insurance to Bourne and became aware that he was Nicole's treating urologist. On January 29, 2014, Bourne informed plaintiffs that he could no longer discuss plaintiffs' case without MMIC's approval. On January 30, 2014, Bourne further advised plaintiffs that MMIC would not allow him to act as an expert witness on their behalf. Consequently, Bourne would not be able to provide his opinion regarding the appropriate standard of care applicable to plaintiffs' malpractice suit against Woods.

I. Does This Court Have Personal Jurisdiction Over Woods and Bellevue?

The party asserting personal jurisdiction bears the burden of establishing a prima facie case, and the burden does not shift to the party challenging jurisdiction. Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 647 (8th Cir.2003) (internal citations omitted). A plaintiff's prima facie showing may be tested by reference to the pleadings, affidavits, exhibits, or other evidence. Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir.2004) (citing Block Indus. v. DHJ Indus., Inc., 495 F.2d 256, 260 (8th Cir.1974) ). Nonetheless, “[w]hile the plaintiffs bear the ultimate burden of proof, jurisdiction need not be proved by a preponderance of the evidence [.]” Epps, 327 F.3d at 647 (citing Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir.1991) ).

In a diversity action, the court “ ‘may assume jurisdiction over nonresident defendants only to the extent permitted by the long-arm statute of the forum state and by the Due Process Clause.’ ” Romak USA, Inc. v. Rich, 384 F.3d 979, 984 (8th Cir.2004) (quoting Dever, 380 F.3d at 1073 ). In South Dakota, the reach of the state's long-arm statute is coextensive with the Due Process Clause. See SDCL 15–7–2(14) ; see also Austad Co. v. Pennie & Edmonds, 823 F.2d 223, 225 (8th Cir.1987). Thus, for this court to exert personal jurisdiction over Woods and Bellevue depends on “ ‘whether the exercise of jurisdiction comports with the limits imposed by federal due process' on the State of [South Dakota].” See Walden v. Fiore, ––– U.S. ––––, 134 S.Ct. 1115, 1121, 188 L.Ed.2d 12 (2014) (quoting Daimler AG v. Bauman, –––U.S. ––––, 134 S.Ct. 746, 753, 187 L.Ed.2d 624 (2014) ).

“Due process mandates that jurisdiction be exercised only if [the] defendant has sufficient ‘minimum contacts' with the forum state, such that summoning the defendant to the forum state would not offend ‘traditional notions of fair play and substantial justice.’ ” Digi–Tel Holdings, Inc. v. Proteq Telecomms., Ltd., 89 F.3d 519, 522 (8th Cir.1996) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ). Additionally, analyzing the “minimum contacts” requirement depends on whether the court's jurisdiction over a party is said to be specific or general. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414–15, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). A forum may exercise specific jurisdiction when the cause of action is “arising out of or related to the defendant's contacts with the forum [.]” Id. at 414, 104 S.Ct. 1868. By contrast, general jurisdiction may be asserted when a defendant's contacts with the forum are said to be “continuous and systematic,” irrespective of whether the cause of action relates to the defendant's activities in the forum. Id. “Both theories of personal jurisdiction require ‘some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” Dever, 380 F.3d at 1073 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) ).

Here, plaintiffs contend this court may properly exercise specific jurisdiction over Woods and, by extension, Bellevue. Docket 29 at 4. The court's inquiry, therefore, requires an analysis of “ ‘the defendant, the forum, and the litigation.’ ” Walden, 134 S.Ct. at 1121 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) ). “[T]he defendant's suit-related conduct must create a substantial connection with the forum State.” Id. Additionally, the Eighth Circuit has established a five-factor approach to determine if the “substantial connection” test is met.See, e.g., Johnson v. Woodcock, 444 F.3d 953, 956 (8th Cir.2006) ; Porter v. Berall, 293 F.3d 1073, 1076 (8th Cir.2002). These factors are: (1) the nature and quality of a defendant's contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties. Johnson, 444 F.3d at 956. While the first three factors receive significant weight, “[t]he last two factors are considered less important and are not determinative.” Dever, 380 F.3d at 1074.

The parties do not dispute that, during the time relevant here, Woods was a licensed medical provider in the state of Nebraska. Woods further asserts, and plaintiffs do not contradict, that Woods has not provided any medical care in South Dakota, nor has he held a license to practice medicine in South Dakota. See Docket 28 at ¶ 6 (Woods Affidavit). Moreover, no challenge is made to Woods' statement that he has not advertised his services in South Dakota. Id. at ¶ 5. Further, there is no dispute that the interstitial cystitis

diagnosis, bladder instillations, and hysterectomy procedure were made or performed outside of South...