Soares v. Roberts

• Decision Date: 13 July 1976
• Docket Number: Civ. A. No. 750363.
• Citation: 417 F. Supp. 304
• Parties: Louis F. SOARES, Jr. and Katherine F. Soares, Individually and on behalf of their unborn child v. Barbara ROBERTS, M. D. and Preterm, Inc.
• Court: U.S. District Court — District of Rhode Island

417 F. Supp. 304

Louis F. SOARES, Jr. and Katherine F. Soares, Individually and on behalf of their unborn child v. Barbara ROBERTS, M. D. and Preterm, Inc.

Civ. A. No. 750363.

United States District Court, D. Rhode Island.

July 13, 1976.

Alan H. Pearlman, Providence, R. I., for plaintiffs.

John A. Baglini, Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

This is a medical malpractice and breach of contract diversity action brought by Rhode Island plaintiffs against a Massachusetts medical facility and one of its staff physicians. The defendant non-profit facility, Preterm, Inc., and defendant Dr. Roberts seek dismissal of the complaint on the grounds that this Court does not have in personam jurisdiction over them.

The relevant statute is R.I.G.L. § 9-5-33,¹ Rhode Island's long arm statute. It provides jurisdiction in the Rhode Island courts over any foreign corporation or non-resident individual who has sufficient minimum contacts with this state. Jurisdiction is to be exercised up to constitutional limits. The applicable standard instructs that contacts are sufficient if maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (hereinafter Shoe); Del Sesto v. T. W. A., 201 F.Supp. 879 (D.R.I.1962). There is no precise formula for applying this standard: each case must be determined on its own facts. Scott Brass, Inc. v. Wire and Metal Specialties Corp., 344 F.Supp. 711 (D.R.I. 1972).

Dr. Roberts

The defendant doctor's argument that she has not had sufficient contact with the state of Rhode Island is quite convincing. Her affidavit establishes that she has never lived nor practiced medicine in the state of Rhode Island, and that the professional services she performed for plaintiff Katherine Soares were undertaken in Massachusetts as an employee of Preterm.

In Gelineau v. New York University Hospital, 375 F.Supp. 661 (D.N.J.1974), the New Jersey plaintiff had been treated in New York by New York defendants and attempted to obtain jurisdiction over them in New Jersey. The District Court noted that situations involving medical services are quite different from those involving manufactured goods and held that sufficient minimum contacts were not present:

"When one seeks out services which are personal in nature, such as those rendered by attorneys, physicians, dentists, hospitals or accountants and travels to the locality where he knows the services will actually be rendered, he must realize that the services are not directed to impact on any particular place, but are directed to the needy person himself. While it is true that the nature of such services is that if they are negligently done, their consequences will thereafter be felt wherever the client or patient may go, it would be fundamentally unfair to permit a suit in whatever distant jurisdiction the patient may carry the consequences of his treatment, or the client the consequences of the advice he received.

* * * * * *

. . . The residence of a recipient of personal services rendered elsewhere is irrelevant and totally incidental to the benefits provided by the defendant at his own location. It is clear that when a client or patient travels to receive professional services without having been solicited (which is prohibited by most professional codes of ethics), then the client, who originally traveled to seek services apparently not available at home ought to expect he will have to travel again if he thereafter complains that the services sought by him in the foreign jurisdiction were therein rendered improperly." Id. at 667.

The same conclusions were reached in several other cases very similar to Gelineau: Wright v. Yackley, 459 F.2d 287 (9th Cir. 1972); McAndrew v. Burnett, 374 F.Supp. 460 (M.D.Pa.1974); Aylstock v. Mayo Foundation, 341 F.Supp. 560 (D.Mont.1972). In Wright the Ninth Circuit wrote:

"The idea that tortious rendition of such services is a portable tort which can be deemed to have been committed wherever the consequences foreseeably were felt is wholly inconsistent with the public interest in having services of this sort generally available. Medical services in particular should not be proscribed by the doctor's concerns as to where the patient may carry the consequences of his treatment and in what distant lands he may be called upon to defend it. The traveling public would be ill served were the treatment of local doctors confined to so much aspirin as would get the patient into the next state." Id. at 289-290.

Relying upon the cited decisions in Kouffman v. New England Medical Center Hospital, C.A. No. 750053, unreported opin. (D.R.I. 4/6/76), this Court recently found that Rhode Island lacked in personam jurisdiction over several Massachusetts physicians who, like Dr. Roberts herein, treated the Rhode Island plaintiff in Massachusetts without taking any action to solicit her case. The fact that agents of Preterm other than Dr. Roberts solicited Rhode Island referrals does not distinguish Dr. Roberts' position from that of defendant physicians in Kouffman. In reaching this conclusion, the Court must reject plaintiffs' assertion that personal jurisdiction over Dr. Roberts may rest simply upon her status as a nonresident agent of a principal (Preterm) which itself has sufficient contacts with the forum state. This argument turns the principal-agent concept on its head. Although the activities of corporation agents in the forum state may establish minimum contacts of the nonresident corporation, see, e. g., Shoe, supra, these corporate activities cannot be used to establish minimum contacts of a nonresident corporate agent who did not participate in the forum activities in any respect. A contrary conclusion would clearly be illogical and unfair and, if applied in the extreme, would for example make a Detroit-based clerical or assembly-line employee of General Motors amenable to suit in other states to the same extent as his employer. Such a basis for jurisdiction would not comport with the Supreme Court's observation in Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958), that:

"It is essential, in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state thus invoking the benefits of its laws."

Cf. Riverhouse Publishing Co. v. Porter, 287 F.Supp. 1 (D.R.I.1968).

Preterm

In Kouffman, supra, the Court also found insufficient the Rhode Island contacts of Massachusetts-based New England Medical Center. In that case the medical facility had not solicited any patients; its only direct contact with the forum state consisted of the purchase of laboratory supplies from two Rhode Island suppliers to take out of the state. The Court characterized this relationship with the forum as one of "passive purchaser", see Whittaker Corp. v. United Aircraft Corp., 482 F.2d 1079 (1st Cir. 1973), and emphasized that this relationship had no direct connection either to plaintiff or the alleged tortious conduct.

In contrast, Preterm has engaged in a continuous relationship with the forum state at least since late 1973 for the purpose of soliciting and facilitating referrals of Rhode Island residents to its Massachusetts facility. This relationship has a direct connection with the case at bar, since plaintiff Katherine Soares falls within the class of persons Preterm's appeal was designed to reach.²

Preterm, according to the affidavit of its Executive Director, has placed advertisements describing its services in local college newspapers and, on December 9, 1973, in the Providence Sunday Journal. Preterm has received patient referrals from a number of Rhode Island medical, university, and community organizations, and employs a community relations administrator on its staff to keep such groups informed of its services. This individual has travelled to Rhode Island one time each in 1974 and in 1975 to perform such duties.

Preterm has also caused advertisements for its services to be placed in a Boston-based newspaper and broadcast by a Boston-based television station which are both widely received in Rhode Island. The foregoing recitation of direct attempts to solicit Rhode Island patients compels the Court to conclude that the Rhode Island impact of these Boston-originated advertisements was neither unforeseen nor fortuitous. See McFaddin v. National Executive Search, Inc., 354 F.Supp. 1166 (D.Conn.1973); Livingston v. Weis, Voisin, Cannon, Inc., 294 F.Supp. 676 (D.N.J.1968). But compare Scheidt v. Young, 389 F.2d 58 (3d Cir. 1968). Partly as a result of all these efforts, a total of 418 Rhode Island residents obtained abortions at Preterm in the nine-month period between March 1 and November 30, 1975, which represents 5% of all abortion patients treated in that period.

These undisputed facts lead the Court to conclude that Preterm, by knowingly soliciting Rhode Island residents on a continuing basis to utilize its medical facilities, has "purposefully availed itself of the privilege of conducting activities within the forum State," Hanson v. Denckla, supra, and has submitted itself to the jurisdiction of the Rhode Island courts at least as to those individuals whose business the solicitation was designed to obtain. Cf. Riverhouse Publishing Co. v. Porter, supra at 8 and n. 8.

In reaching this conclusion, the Court is well aware that it does not comport with what has been termed the "well established rule that the occasional business visit of an officer of the corporation or the mere solicitation of business, without more, is not enough" to confer personal jurisdiction over a foreign corporation. Aquascutum of London, Inc. v. S/S American Champion, 300 F.Supp. 26, 29 (S.D.N.Y. 1969) (emphasis added). Indeed that "rule" has been recited without further analysis by this...