JOHN A. WOODCOCK, JR., Chief Judge.
In 2008, Dale Henderson flew to Florida for expensive back surgery at the Tampa facility of the Laser Spine Institute, hoping for recovery and reimbursement. He
The Court concludes that personal jurisdiction exists over the Defendants, that venue is proper in the District of Maine, and that the Florida statute of limitations is not applicable. However, the Court also concludes that the Plaintiff must first comply with the pre-litigation requirements of the Maine Health Security Act. Although the Court denies most of the motion to dismiss, it dismisses without prejudice the part of the motion that is based on the failure of the Plaintiff to comply with the Maine Health Security Act and stays the action to allow the Plaintiff to comply with the pre-litigation screening requirements of Maine law.
On December 2, 2010, Dale Henderson, a resident of Orrington, Maine, filed suit in Penobscot County Superior Court against Laser Spine Institute (LSI), a Florida limited liability company, and Dr. Stefan Prada, a Florida resident (collectively Defendants), in connection with medical treatment Mr. Henderson received from them. Mr. Henderson alleged fraud (Count I), breach of contract (Count II), unjust enrichment (Count III), unfair trade practices (Count IV), fraudulent concealment (Count V), negligent misrepresentation (Count VI), negligence (Count VII), intentional infliction of emotional distress (Count VIII), and negligent infliction of emotional distress (Count IX). Compl. (Docket #2). The Defendants removed the action to this Court on January 13, 2011. Notice of Removal (Docket # 1).
On January 24, 2011, the Defendants moved to dismiss for lack of personal jurisdiction and for change of venue, or alternatively, to dismiss the action for failure to comply with Florida's medical malpractice statute or the Maine Health Security Act (MHSA), 24 M.R.S. § 2501, et seq. Defs.' Mot. to Dismiss for Lack of Pers. Jurisdiction and for Change of Venue, or, in the Alternative, to Dismiss for Pl.'s Failure to Comply with Fla. Med. Malpractice Statutes or the Me. Health Sec. Act (Docket # 12) (Defs.' Mot.).
In September 2008, Dale Henderson, through his personal assistant, Judy Sawyer, contacted LSI, a limited liability company that provides spinal surgery services based in Tampa, Florida, seeking relief from chronic and nearly unendurable back
Later that month, LSI telephoned Mr. Henderson in Maine to schedule an appointment and discuss the costs of treatment. Id. ¶ 12. Mr. Henderson asserts that during that conversation, "Audrey," an LSI employee, assured him that his insurance would cover the treatment costs but informed him that he would have to pay $30,000 in advance. Id. ¶¶ 12-13. LSI sent a facsimile to Mr. Henderson, providing him with a list of hotels where he could stay while in Tampa, Florida for his treatment. Id. ¶ 14. LSI also faxed Mr. Henderson a patient registration package comprised of several forms for him to fill out and send back to LSI. Id. ¶ 15.
In early October 2008, Mr. Henderson traveled to Florida for treatment at LSI. Id. ¶ 17. On October 6, 2008, Mr. Henderson received a consultation at LSI and surgery was scheduled for the following day. Id. During the consultation, LSI informed Mr. Henderson that, in order for the first treatment to be effective, he would need a second treatment several days after the first. Id. The second treatment required a $25,500 advance. Id. ¶ 18. Mr. Henderson agreed to both treatments and asked Ms. Sawyer in Maine to wire the necessary funds to LSI in Florida. Id. ¶ 18-19. Concerned that the wired funds had not gone through properly, LSI communicated with Ms. Sawyer by telephone to obtain the funds for Mr. Henderson's further treatment. Sawyer Decl. ¶¶ 16-17. Mr. Henderson underwent the second treatment on October 14, 2008 and, several days later, returned to Maine. Henderson Decl. ¶ 23.
By December 2008, Mr. Henderson's back pain had returned. Id. ¶ 24. He made a number of calls to LSI in December 2008 and January 2009 to speak with Dr. Prada, but was unable to reach him. Id. ¶ 25. In January 2009, Dr. Prada telephoned Mr. Henderson in Maine and directed him to obtain another MRI and to send the results to him in Florida. Id. ¶ 26. Two weeks after sending the MRI results to Dr. Prada, Mr. Henderson, at LSI's direction and while in considerable pain, returned to Florida for another consultation at LSI which took place on February 18, 2009. Id. ¶¶ 27-29; Compl. ¶ 43. Even though Dr. Prada had the MRI results for approximately two weeks, Mr. Henderson believed he was reviewing them for the first time during the consultation. Id. ¶ 30. Dr. Prada informed Mr. Henderson that there were no further surgical treatments that LSI could provide him for his back condition but that he could administer a steroid injection for the pain. Id. Even though Dr. Prada conducted no physical examination of Mr. Henderson, he reached this conclusion in less than three minutes of reviewing the MRI results. Id. Mr. Henderson received the injection and returned to Maine, but he asserts he never would have traveled to Florida if he had known that the only available treatment was steroid injection because such a treatment was available in Maine. Id. ¶¶ 31-32.
During this same time, Mr. Henderson became concerned that his insurer, Aetna,
In February 2009, Aetna denied Mr. Henderson's claim for reimbursement. Id. ¶ 36. Ms. Sawyer again contacted LSI regarding Aetna's denial of Mr. Henderson's claim. Id. ¶ 37. Steven Torres, an LSI employee, advised Ms. Sawyer that Mr. Henderson should appeal Aetna's denial. Id. To assist with the appeal, Mr. Torres emailed Mr. Henderson's patient ledger to Ms. Sawyer in Maine. Id. ¶ 38. The patient ledger itemized the costs of treatment and detailed the services provided totaling $124,979.95, reduced by $55,500.00 to reflect Mr. Henderson's two advance payments. Id. In addition to the email, LSI faxed Ms. Sawyer in Maine a form letter to be edited and sent to Aetna. Ms. Sawyer completed and mailed LSI's form letter on February 27, 2009. Id. ¶ 39.
The appeals process with Aetna continued and in March 2009, Mr. Henderson employed the assistance of Maine attorney, Timothy Pease. Pl.'s Opp'n Attach. 3 ¶ 5 (Pease Decl.). Throughout the remainder of 2009, Mr. Pease was in contact with LSI in an attempt to have Aetna cover the LSI treatments. Id. ¶¶ 6-22. These contacts included numerous telephone calls and emails from LSI to Mr. Pease in Maine. Id. On October 23, 2009, Aetna denied Mr. Henderson's claim a second time because it determined that the treatments provided by Dr. Prada and LSI were "experimental or investigational." Henderson Decl. ¶ 49; Sawyer Decl. ¶ 29. Mr. Henderson requested an external review of the second denial, which Medwork Independent Review conducted. Henderson Decl. ¶ 50. On October 19, 2010, Aetna, LSI, and Mr. Henderson participated in a telephone hearing, and, nine days later, the independent reviewer issued a written decision denying coverage. Id. ¶¶ 50-51; Compl. ¶ 39. On November 20, 2009, Mr. Henderson and Mr. Pease held a conference call with the Director of Patient Financial Services for LSI, David Neal, in an effort to get additional information from LSI and discuss the level of care Mr. Henderson had received at LSI. Pease Decl. ¶¶ 7, 16. After the November 20 call, Mr. Neal emailed Mr. Pease indicating again that LSI would do its best to resolve Mr. Henderson's issues. Id. ¶ 17. On December 10, 2009, Dotty Bollinger, the Senior Vice President of Medical Operations at LSI, and Mr. Pease participated in a conference call to discuss information supplied by LSI to support Mr. Henderson's attempts for reimbursement from Aetna, as well as to discuss Mr. Henderson's treatment at LSI. Id. ¶ 19; Bollinger Decl. ¶ 1. The next day, Ms. Bollinger emailed Mr. Pease providing advice on tactics he could employ to obtain coverage from Aetna. Pease Decl. ¶ 20. She also offered to pay Mr. Henderson $10,000 for poor customer service he received from LSI. Id.
During these efforts to obtain reimbursement for the LSI treatments, Mr. Henderson traveled to Massachusetts to undergo further back surgery at the Lahey Clinic. Henderson Decl. ¶¶ 44. The treatment finally alleviated his chronic back pain and Aetna covered the Lahey Clinic procedures. Id. ¶¶ 44, 46.
The Defendants move to dismiss for lack of personal jurisdiction, asserting that LSI
Turning to specific personal jurisdiction, the Defendants provide three factors that must be considered: whether the claim directly relates to or arises out of Defendants' contact with the forum, whether the contact constitutes purposeful availment of the forum's laws, and whether the exercise of jurisdiction is reasonable. The Defendants assert that there is no nexus between Plaintiff's claim and their contact with the state of Maine. Id. at 9. They claim that Mr. Henderson's numerous causes of action all stem from events that occurred at LSI's facility in Tampa, Florida. Id. at 9-10. The Defendants contend that the "notions of fair play and substantial justice" weigh against this Court exercising specific personal jurisdiction. Id. at 10. They assert that it would be "onerous" for them to travel to Maine to appear and defend this matter. Id. at 11. Furthermore, the Defendants assert that Maine has no interest in adjudicating this dispute, as the events that prompted the Plaintiff's claims occurred outside the state's borders. Id. at 11.
The Defendants also contend that venue is not proper in this Court. In their view, the events giving rise to Mr. Henderson's claims all occurred in Florida. Consequently, the Defendants move to have the matter dismissed pursuant to Rule 12(b)(3), or transferred to an appropriate venue in Florida. Id. at 11-12.
Alternatively, the Defendants argue Plaintiff's claims are statutorily barred. The Defendants concede that under traditional choice of law rules, the statute of limitations of the forum determines the timeliness of an action, even if the substantive law of another state applies to the case. Thus, Maine's statute of limitations would normally apply to this matter. However, the Defendants cite Siegemund v. Shapland, 247 F.Supp.2d 1, 6 (D.Me. 2003), as reflecting an exception to the traditional rule where the claim is predicated on a foreign statutory enactment. Id. at 12. In the Defendants' view, Mr. Henderson's claims are predicated on Florida Statute § 95.11(4)(b)
The Defendants further argue that if the Court finds that Florida law does not apply, then the Maine Health Security Act (MHSA) governs his claims because they feature allegations of "professional negligence."
Mr. Henderson does not address the Defendants' general jurisdiction argument. Instead, he maintains that this Court has specific personal jurisdiction over the Defendants. Pl.'s Opp'n. at 2-3. Looking to Maine law, Mr. Henderson applies the three-part test outlined in Connelly v. Doucette, 909 A.2d 221 (Me.2006), and concludes that all three conditions for specific jurisdiction are satisfied because: "(1) Maine has a legitimate interest in the subject matter of the litigation; (2) the defendant, by his or her conduct, reasonably could have anticipated litigation in Maine; and (3) the exercise of jurisdiction by Maine's courts comports with traditional notions of fair play and substantial justice." Id. at 3, 9 (quoting Connelly, 909 A.2d at 223).
Regarding the first condition, Mr. Henderson argues that Maine has a legitimate interest in affording its citizens, such as Mr. Henderson, a forum to redress injuries caused by nonresidents. In addition, he says that Maine has an interest in the subject matter of this litigation because he suffered in Maine from the effects of the Defendants' negligent treatment, he underwent medical testing in Maine at the Defendants' direction, and many of the corresponding witnesses and medical records are located in Maine. Id. at 3-4. Moreover, Mr. Henderson asserts that Maine has an interest in protecting him from the economic harms he suffered at the hands of the Defendants due to their alleged misrepresentations regarding insurance coverage. Id. at 4.
Applying the second prong of the analysis, Mr. Henderson argues that the Defendants reasonably could have anticipated litigation in Maine because they were aware of the continuing detrimental impact their conduct was having in Maine. Id. Mr. Henderson submits that LSI falsely
As to the third part of the analysis, Mr. Henderson contends that the fair play and substantial justice inquiry is also met. Id. at 8-9. He submits that once the plaintiff has satisfied the first two prongs of the jurisdictional analysis, the burden then shifts to the defendant to prove that notions of fair play and substantial justice would be offended. Id. at 8. In his view, the Defendants cannot meet this burden as all factors weigh in favor of exercising jurisdiction. Id. at 9. Mr. Henderson asserts that the nature and purpose of the Defendants' contacts with Maine were "to induce [him] to travel to Florida to receive medical treatments, to ensure that those treatments were paid for in advance, and to obfuscate wrongdoing with regard to the issue of insurance coverage." Id. at 9. According to Mr. Henderson, all contacts LSI had with Maine are directly related to his cause of action.
Although Mr. Henderson concedes that Florida has an interest in the controversy because "most of the wrongful activities occurred there," he contends that these factors do not trump all the other factors weighing in favor of Maine exercising jurisdiction. Id. at 9. Regarding the convenience and fairness to both parties, Mr. Henderson asserts that LSI is a corporate entity and Dr. Prada is a practicing physician, suggesting they have the funds to travel to and litigate in Maine. Id. By contrast, Mr. Henderson explains that he has significant difficulty traveling and that enduring a long flight or drive would be particularly painful given his history of back pain. Id. Thus, Mr. Henderson concludes that convenience and fairness weigh in his favor. Id.
Turning to federal law, Mr. Henderson asserts that the three-part due process inquiry of specific jurisdiction is also satisfied because his claims are directly related to LSI's contacts with Maine, LSI's contacts constitute purposeful availment, and jurisdiction is reasonable under the First Circuit's "gestalt" factors. Id. at 10. Applying the first prong of the federal analysis, Mr. Henderson contends that LSI's direct contacts with Maine underlie the claims in his Complaint. Id. He cites the telephone calls LSI made to him in Maine to discuss his anticipated treatment and to confirm that his insurer would cover the cost of treatment, the contacts by LSI to Ms. Sawyer in Maine to ensure receipt of advance payment, and Dr. Prada's telephone call instructing Mr. Henderson to obtain an MRI and to have the results sent to him. Id. He asserts that he never would have traveled to Florida for treatment if he had not received these contacts from the Defendants. Id.
As to the second prong of the federal analysis, Mr. Henderson maintains that the Defendants' contacts with Maine represent
Turning to the third prong of the federal analysis, Mr. Henderson maintains that asserting personal jurisdiction over the Defendants would comport with notions of fair play and substantial justice. Id. at 14. Reviewing the so-called gestalt factors, Mr. Henderson explains that, having satisfied the first two prongs, it is the burden of the Defendants to make a "compelling case' that litigation in Maine would be unreasonable and unfair." He argues that the Defendants cannot shoulder this load. Id. at 13-14.
Mr. Henderson opposes the Defendants' motion to dismiss for improper venue. He asserts that venue is proper in the District of Maine because a substantial part of the events giving rise to his claims occurred in Maine pursuant to 28 U.S.C. § 1391(a)(2). Id. at 15. Mr. Henderson highlights his claims of fraud, unfair trade practices, fraudulent concealment, and negligent misrepresentation as claims arising directly from the Defendants' contacts with the District of the Maine. Id. Mr. Henderson also opposes their alternative request to have venue transferred to Florida, claiming that the Defendants cannot carry the "substantial burden" for a change of venue because "[w]itnesses are to be found in both Maine and Florida, as are documents and records." Id.
Turning to the Defendants' alternative motion for dismissal on substantive grounds, Mr. Henderson urges the Court to consider now only the jurisdictional question. Id. at 16. Nonetheless, he opposes the Defendants' assertion that the claims must be dismissed pursuant to Florida's two year statute of limitations. Id. Mr. Henderson also opposes the Defendants' contention that he has failed to comply with the MHSA and that dismissal is appropriate. Id.
Mr. Henderson disputes that the Florida medical malpractice statute applies and instead submits that Maine's six-year statute of limitations applies to this case. Id. He agrees with the Defendants that under the general choice of law rule, the statute of limitations of the forum controls, yet disagrees that the claims fall under the "foreign statutory enactment" exception to the traditional rule. Id. at 16-17. Mr. Henderson contends that none of the claims set forth in his Complaint is predicated on a foreign statutory enactment. Id. at 17. He argues that the statutory provision cited by the Defendants is merely "Florida's statute of limitations for causes of action other than for the recovery of real property" and that the substantive claims of his complaint arise under Maine common law. Id. Mr. Henderson reasons that if the case were transferred to Florida for lack of personal jurisdiction, choice of law rules would dictate that
Mr. Henderson asserts that the Maine Health Security Act (MHSA) does not apply to LSI as LSI is not "licensed or otherwise authorized by the laws of this State" as the Act requires for its application. Id. at 19. Mr. Henderson withdraws Count VII, his claim of negligence against Dr. Prada, as it is the only count that, in his view, could trigger the MHSA statute of limitations. Id. at 19-20.
"To hear a case, a court must have personal jurisdiction over the parties, `that is, the power to require the parties to obey its decrees.'" Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir.2009) (quoting United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 35 (1st Cir.1999)). On a motion to dismiss for lack of personal jurisdiction, pursuant to Rule 12(b)(2), "the plaintiff ultimately bears the burden of persuading the court that jurisdiction exists." Id. In resolving the issue, district courts have at their disposal "a trio of standards, each corresponding to a level of analysis, that might usefully be employed when a trial court comes to grips with a motion to dismiss for want of personal jurisdiction." Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir.1995). Of these standards—prima facie, preponderance-of-the-evidence,
Under the prima facie standard, a district court may consider "only whether the plaintiff has proffered evidence that, if credited, [is] enough to support findings of all facts essential to personal jurisdiction." Id. (internal quotation marks omitted). The court "must accept the plaintiff's (properly documented) evidentiary proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing." Id. (internal quotation marks omitted). The court also "construe[s those proffers] in the light most congenial to the plaintiff's jurisdictional claim." Id. The facts put forward by the defendant are considered "only to the extent that they are uncontradicted." Id. Applying this standard, the Court accepts as true the facts alleged in Mr. Henderson's pleadings, affidavits, and other documents, and construes them in a jurisdictionally friendly light. The Court also considers the uncontroverted facts asserted by LSI.
In any case arising under diversity jurisdiction, a federal court's jurisdiction is "the functional equivalent of a state court sitting in the forum state." N. Laminate Sales, Inc. v. Davis, 403 F.3d 14, 24 (1st Cir.2005) (internal quotation marks omitted). Therefore, to establish personal jurisdiction over the Defendants, Mr. Henderson must demonstrate that Maine's long-arm statute allows jurisdiction and that its exercise does not offend the Due Process Clause of the United States Constitution. See id. "[T]o insure maximum protection to citizens of this State," Maine's long-arm statute, extends "to the fullest extent permitted by the due process clause of the United States Constitution." 14 M.R.S. § 7040A(1). Because Maine's jurisdictional statute is coextensive with the limits of the Due Process Clause of the Fourteenth Amendment, the two inquiries merge. Harlow v. Children's Hosp., 432 F.3d 50, 57 (1st Cir.2005); see also Elec. Media Int'l v. Pioneer Commc'ns of Am., Inc., 586 A.2d 1256, 1256 (Me.1991). The due process inquiry thus determines the limits of the Court's jurisdictional reach in this diversity case.
Due process "requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Astro-Med, 591 F.3d at 9 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). The Due Process Clause provides two bases by which a non-resident defendant may be subject to the jurisdiction of a court: general and specific jurisdiction. General jurisdiction exists for a "cause of action [which] may be unrelated to the defendant's contacts, [when] the defendant [has] continuous and systematic contacts with the state." Lechoslaw v. Bank of Am., N.A., 618 F.3d 49, 54 (1st Cir.2010) (quoting Harlow, 432 F.3d at 57). Specific jurisdiction requires that "the plaintiff's claim must be related to the defendant's contacts." Id.
The Defendants assert that the Court lacks both general and specific jurisdiction to hear this case. Defs.' Mot. at 3. Mr. Henderson contends that only specific jurisdiction exists. Pl.'s Opp'n at 2-14; Defs.' Reply at 1. The Court regards any assertion of general jurisdiction as waived and considers only specific jurisdiction. See Astro-Med, 591 F.3d at 19 ("[I]ssues adverted to ... in a perfunctory manner, unaccompanied by some developed argumentation, are deemed to have been abandoned"
The First Circuit has divided the specific jurisdiction and subsequent minimum contacts analysis into three inquires: (1) relatedness; (2) purposeful availment; and (3) reasonableness. See N. Am. Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8, 16 (1st Cir.2009) ("[A]llowing jurisdiction to be asserted as to a specific claim, can be established where the defendants availed themselves of the opportunity to do business in the state, the claim in question is related to that access and the so-called gestalt factors are consistent with requiring an out-of-state defendant to defend within the state.").
"[R]elatedness is the divining rod that separates specific jurisdiction cases from general jurisdiction cases.... [I]t ensures that the element of causation remains in the forefront of the due process investigation." Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 714 (1st Cir.1996) (citing Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 206 (1st Cir.1994)). The relatedness inquiry asks whether "the claim underlying the litigation directly arises out of, or relates to, the defendant's forum-state activities." Astro-Med, 591 F.3d at 9 (quoting N. Laminate Sales, 403 F.3d at 25). It is a "flexible, relaxed standard." N. Laminate Sales, 403 F.3d at 25.
The fact that the Defendants' Maine-based contacts occurred remotely, primarily through fax and telephone conversations, is not necessarily fatal to a finding of jurisdiction. The First Circuit explained that "forum-state contacts need not involve physical presence," Phillips Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 290 (1st Cir.1999), and "[t]he transmission of information into [the forum state] by way of telephone ... or mail is unquestionably a contact for purposes of [the jurisdiction] analysis." Sawtelle v. Farrell, 70 F.3d 1381, 1389-90 (1st Cir. 1995).
Count II of Mr. Henderson's Complaint alleges breach of contract. Mr. Henderson alleges two separate breaches: (1) a breach of the Defendants' agreement to "provide medically accepted treatment for Plaintiff's diagnosed condition"; and (2) a breach of their agreement to "take all reasonable actions to ensure Aetna covered the treatment Defendants provided to Plaintiff." Compl. ¶¶ 57-58. "To satisfy the relatedness prong this claim must arise out of or relate to [the Defendants'] contacts with Maine. This requirement is met in a breach of contract claim where [the Defendants'] forum-based activities are `instrumental either in the formation of the contract or in its breach.'" New Life Brokerage Servs., Inc. v. Cal-Surance Assocs., Inc., 222 F.Supp.2d 94, 102 (D.Me. 2002) (quoting Phillips Exeter, 196 F.3d at 289). However, "the mere existence of a contractual relationship between an out-of-state defendant and an in-state plaintiff does not suffice, in and of itself, to establish jurisdiction in the plaintiff's home state." Phillips Exeter, 196 F.3d at 290.
The Defendants' relevant forum-based activities consist of their communications with Mr. Henderson while he was in Maine before his initial trip to Florida in October 2008. However, not all communications between LSI staff and Mr. Henderson touch upon his breach of contract claim. It was not until September 2008—after several attempts by Mr. Henderson and his representatives to attract the Defendants' attention—that the relevant communications began. At this point, LSI finally returned Mr. Henderson's calls to discuss the cost of his potential treatment and to schedule an appointment. During that conversation, LSI represented to Mr. Henderson that he would have to pay $30,000 for his treatment in advance, but that his insurance provider, Aetna, would reimburse the costs and cover the treatment. Henderson Decl. ¶¶ 12-13; Sawyer Decl. ¶ 10. Shortly thereafter, LSI again contacted Mr. Henderson in Maine via facsimile with a list of hotels where he could stay while in Florida during his treatment. Henderson Decl. ¶ 14; Sawyer Decl. ¶ 10. LSI also faxed Mr. Henderson a patient registration packet with several forms for him to fill out and return to Florida.
The Court turns to Mr. Henderson's tort claims.
The Defendants' relevant in-state activities consist of LSI's communications through the telephone, email and facsimile directed into Maine before and after Mr. Henderson's initial treatment. In addition to the communications regarding Mr. Henderson's contract claim, the Defendants directed contacts toward Maine after Mr. Henderson's October 2008 treatment in Florida. For example, when Mr. Henderson's back pain returned and he repeatedly contacted LSI during December
The Defendants assert that their post-October 2008 contacts with Maine are "not relevant to the Court's inquiry because they took place well after the alleged wrongdoing in October 2008." Defs.' Mot. at 9 n.3. Presumably, the alleged wrongdoing to which the Defendants refer is the initial treatment Mr. Henderson received in Florida. They assert that evidence of post-tort contact after Mr. Henderson's initial trip to Florida is irrelevant to the specific jurisdiction analysis. Id. (citing Harlow, 432 F.3d at 61). However, the First Circuit's statements in Harlow were not so simplistic. The Court explained that the "specific jurisdiction analysis require[s] that the proper focus be on those contacts leading up to and surrounding the claimed injury...." Harlow, 432 F.3d at 61. Unlike this case, the bulk of post-tort evidence of contacts with Maine in Harlow was "simply not related at all to the alleged malpractice," and consisted of evidence of contacts between the defendant and Maine more than five years after the alleged tort occurred. Id.
Mr. Henderson's Complaint alleges tort claims stemming from the Defendants' representations that his insurer would reimburse the costs of his treatments and his claims that the Defendants performed medically unnecessary procedures on him. The contacts LSI had with the state of Maine after Mr. Henderson's October 2008 surgery concerned the effectiveness of the surgery, the possibility of additional treatment, and Mr. Henderson's attempts to obtain insurance reimbursement from Aetna. They are directly related to Mr. Henderson's tort claims and "form an important, or at least material, element of proof in the plaintiff's case." Mr. Henderson satisfies the first jurisdictional hurdle.
To satisfy the second prong of the minimum contacts analysis, "the defendant's in-state contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state's laws and making the defendant's involuntary presence before the state's courts foreseeable." Astro-Med, 591 F.3d at 10 (quoting N. Laminate Sales, 403 F.3d at 25). "The question is whether a defendant has followed a course of conduct directed at the society or economy existing within the jurisdiction of a given sovereign, so that the sovereign has the power to subject the defendant to judgment concerning that conduct." J. McIntyre Mach. Ltd. v. Nicastro, ___ U.S. ___, 131 S.Ct. 2780, 2789, 180 L.Ed.2d 765 (2011).
The purposeful availment inquiry ensures "that personal jurisdiction is not premised solely upon a defendant's random, isolated, or fortuitous' contacts with the forum state." Sawtelle, 70 F.3d at 1391 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). "The inquiry is `highly idiosyncratic, involving an individualized assessment and factual analysis
"The focus of the purposeful availment inquiry is the defendant's intentionality." Adams v. Adams, 601 F.3d 1, 6 (1st Cir.2010). "Voluntariness requires that the defendant's contacts with the forum state proximately result from actions by the defendant himself. The contacts must be deliberate, and not based on the unilateral actions of another party." Id. (emphasis in original) (quoting Phillips v. Prairie Eye Ctr., 530 F.3d 22, 28 (1st Cir.2008) (internal citations omitted)). "Promotional correspondence intended to solicit business represents voluntary availment of a forum, regardless of whether Plaintiff initiated the contact." Lucerne Farms v. Baling Techs., Inc., 226 F.Supp.2d 255, 260 (D.Me.2002).
Mr. Henderson initiated the contact with the Defendants when his personal assistant called the company in Florida. The company voluntarily returned his phone call and began a series of promotional correspondence—multiple phone calls, faxes, and emails—intended to solicit Mr. Henderson's business and induce him to come to Florida for LSI's advertised surgery. LSI actively worked with Mr. Henderson and his staff to facilitate his surgeries in Florida, including sending him a list of hotels where he could stay during his Florida treatment and working with him to persuade Aetna to pay for the treatments. Such intentional contacts with a potential patient-customer, although in response to Mr. Henderson's initial inquiry, constitute a voluntary solicitation of Maine business.
"Foreseeability requires that the contacts with the forum state be of a nature that the defendant could reasonably anticipate being haled into court there." Adams, 601 F.3d at 6 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)) (internal quotation marks omitted). See also Lucerne Farms, 226 F.Supp.2d at 260 ("Given these voluntary decisions to avail itself of the forum, Defendant should have reasonably anticipated litigation in Maine."). A "[d]efendant's continuing relationship with the forum indicates that litigation in Maine was foreseeable." Id. The foreseeability inquiry also "explores whether the defendant benefited from the forum-based contacts in a way that made jurisdiction foreseeable." New Life Brokerage, 222 F.Supp.2d at 106.
The Defendants voluntarily undertook their Maine contacts with the intention of becoming a provider of services to Mr. Henderson and so could reasonably anticipate being haled into court in this forum. Further, the Defendants embarked upon a continuing relationship with the forum through an exchange of phone calls, emails, faxes, payments, and other transmissions between Mr. Henderson in Maine and LSI in Florida. As medical providers, LSI and Dr. Prada also provided ongoing instructions for further testing in anticipation of the possible consequences of Mr. Henderson's surgery, including the event that happened—his back pain returning and necessitating further LSI treatments. Moreover, LSI clearly benefited from the Maine-based contact. The Defendants received at least $55,500
Mr. Henderson has more than just the traditional forms of purposeful availment to support his claim of personal jurisdiction over the Florida-based company. The Defendants also reached into Maine through national advertising, including the two ads that contributed to Mr. Henderson calling the institute: an advertisement in the DuPont Registry and one in the Sky-Mall catalog.
Nationwide advertising does not guarantee personal jurisdiction. The Supreme Court has not ruled specifically on jurisdiction based on national advertising, but it has sustained specific jurisdiction based on magazine distribution in forum states where the tort alleged is libel. See Keeton, 465 U.S. at 781, 104 S.Ct. 1473. Some of the Court's language suggests that personal jurisdiction could be sustained for other torts related to distribution within the forum state. For example, the Court noted that "the victim of any ... tort, may choose to bring suit in any forum with which the defendant has `certain minimum contacts such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" Id. at 780, 104 S.Ct. 1473 (quoting Int'l Shoe, 326 U.S. at 316, 66 S.Ct. 154). It held that where a defendant "has continuously and deliberately exploited [the forum state's] market, it must reasonably anticipate being haled into court there.... [Defendant] produces a national publication aimed at a nationwide audience. There is no unfairness in calling it to answer for the contents of that publication wherever a substantial number of copies are regularly sold and distributed." Id.
In a companion libel case to Keeton, the Court again upheld specific jurisdiction over a nationwide magazine in an out-of-state forum. Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). The Court rejected the magazine's assertion that "[t]he mere fact that they can foresee' that the article will be circulated and have an effect in [the forum state] is not sufficient for an assertion of jurisdiction." Id. at 789, 104 S.Ct. 1482. The Court stated that the responsible parties at the magazine "knew that the brunt of [their actions] would be felt by [the plaintiff] in the State in which she lives and works" so the magazine must "reasonably anticipate being haled into court there to answer for the truth of the statements made in their article." Id. at 790, 104 S.Ct. 1482.
In 1996, the First Circuit held that a Hong Kong hotel was subject to specific jurisdiction because it had purposefully availed itself of the Massachusetts forum. Nowak, 94 F.3d at 716-19. The Court found that "[w]hether prompted or unprompted, [the defendant hotel group's] ongoing correspondence and relationship with [the plaintiff's employer] designed to bring Massachusetts residents into Hong Kong, rendered foreseeable the possibility of being haled into a Massachusetts court." Id. at 717. Mentioning that the direct correspondence with the plaintiff's employer
Other circuit courts give national advertising varying degrees of weight in the purposeful availment analysis. Williams v. Bowman Livestock Equip. Co., 927 F.2d 1128, 1131 (10th Cir.1991) ("By itself ... national advertising that reaches the forum state is not always sufficient to establish minimum contacts"); Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Coop., 17 F.3d 1302, 1305 (10th Cir.1994) ("evidence of mere placement of advertisements in nationally distributed papers or journals does not rise to the level of purposeful contact with a forum required by the Constitution in order to exercise personal jurisdiction over the advertiser"); Mesalic v. Fiberfloat Corp., 897 F.2d 696, 700 (3rd Cir.1990) ("The marketing strategy provides, at best, tangential support for the assertion of personal jurisdiction. We have no evidence of [defendant's] solicitation in [the nationwide] magazine nor do we know how much business the [defendant] derives from its national advertising");
In U.S. S.E.C. v. Carrillo, 115 F.3d 1540 (11th Cir.1997), the Eleventh Circuit addressed a case with advertising similar to that of LSI's SkyMall solicitation. There, foreign defendants "placed advertisements promoting [their] securities in American Way, the complimentary in-flight magazine
The Carrillo Court went on to note that "[i]t is clear that the advertisements placed by [the defendant] in the complimentary magazine of American Airlines were reasonably calculated to reach readers in the American forum." Id. Even the Lacsa's World advertisements "were reasonably calculated to be read in the forum, in light of the fact that the ads and articles were in English and that the airline has numerous flights to and from the United States." Id. The court also found it "relevant to the purposeful availment inquiry that the advertisements were published on sixteen occasions in two separate magazines over a span of two years." Id.
The Carrillo defendants argued "that the advertisements constituted only fortuitous or random contacts with the United States because they were placed in the in-flight magazines of airlines that fly around the world." Id. at 1546 n. 8. The Court responded:
Id. It concluded that the advertisements and articles in the in-flight magazines constituted purposeful availment. Id. at 1546.
Here, Defendants advertised in a publication like SkyMall to reach potential patients who travel by air, which includes residents of every state. By their very nature, airline magazines and catalogues will be directed at forums other than Defendant LSI's home state of Florida. In effect, the Defendants want to have it both ways: for their medical practice, they purposefully avail themselves of national advertisements to attract and prosper from a national patient base, but for legal purposes, they insist their practice is merely local. As the Eleventh Circuit reasoned in Carrillo, by their placement in publications distributed in moving aircraft that are designed to reach multiple states and jurisdictions, LSI's ads "were reasonably calculated to be read" in Maine and by residents of Maine who are traveling elsewhere. The fact that the ads likely reached other forums through the same means does not defeat specific personal jurisdiction here in Maine.
Here too it is relevant to the Court's purposeful availment analysis that the Defendants advertised in at least one other publication that reached Maine residents. Like the defendants in Keeton, LSI produced a national publication—in the form of an advertisement—aimed at a nationwide audience. Although the advertisements placed by the Defendants in national magazines were not the direct cause of Mr. Henderson's injury, the Court has already determined that they are related to his surgery and subsequent lawsuit. As in Keeton and Calder, the Defendants here must answer for these advertisements when they knew that injuries could be felt by plaintiffs in the states where they live,
Further, this Court follows the First Circuit's example in Nowak. It does not matter whether Mr. Henderson prompted the initial LSI phone call. Because the Defendants' "ongoing correspondence and relationship" with Mr. Henderson was "designed to bring" him, a Maine resident, into Florida, this "rendered foreseeable the possibility of being haled into a [Maine] court." Like the Nowak Court, this Court adds to the traditional analysis of phone and mail correspondence the fact that the defendant also advertised in "national and international publications that circulated in" Maine. The Defendants are "purposefully deriv[ing] economic benefits" from their activities that deliberately reach Maine—LSI's advertising and contacts with Maine residents earned it at least two patients from this forum, Mr. Henderson and Mr. Anderson. The Court considers national advertising to be a relevant factor in determining whether the Defendants purposefully availed themselves of this forum.
The Defendants also operated a website aimed at bringing in patients from other states. The use of nationally accessible websites like this one further complicates the purposeful availment inquiry.
The First Circuit has held that "the mere existence of a website that is visible in a forum and that gives information about a company and its products is not enough, by itself, to subject a defendant to personal jurisdiction in that forum." Cossaboon, 600 F.3d at 35 (quoting McBee v. Delica Co., 417 F.3d 107, 124 (1st Cir. 2005)). "[G]iven the omnipresence of Internet websites today, allowing personal jurisdiction to be premised on such a contact alone would eviscerate' the limits on a state's jurisdiction over out-of-state or foreign defendants." McBee, 417 F.3d at 124.
A district court in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997) first articulated a personal jurisdiction analysis for websites, still used by many courts today. In Auburn Mfg. v. Steiner Indus., 493 F.Supp.2d 123, 129 n. 3 (D.Me.2007), Judge Singal described the Zippo test for Internet-based personal jurisdiction:
493 F.Supp.2d at 129 n. 3 (quoting Zippo, 952 F.Supp. at 1124). Judge Singal noted that although instructive, "the Court is reluctant to adopt the Zippo test because it is not clear why a website's level of
The Seventh Circuit discussed website-based personal jurisdiction in uBID v. GoDaddy, 623 F.3d 421 (7th Cir.2010).
In sustaining jurisdiction, the Court noted that "GoDaddy has thoroughly, deliberately, and successfully exploited the Illinois market.... This is a company that, like the national magazine in Keeton, has conducted extensive national advertising and made significant national sales." Id. The Court, relying again on Keeton, dismissed GoDaddy's arguments that its ads "are only part[] of a national advertising campaign and that it does not target its advertising toward Illinois residents in particular." Id. at 428.
"Consistent with the reasoning of Keeton, it is easy to infer that GoDaddy's national marketing campaign is intended to reach as large an audience as possible, including the 13 million potential customers in [Illinois]." Id. Although the Court expressed some "concern about adopting an overly expansive test of jurisdiction for internet-based commerce," it concluded that "[t]here is no unfairness in requiring GoDaddy to defend [a] lawsuit in the courts of the state where, through the very activity giving rise to the suit, it continues to gain so much." Id. at 432-33.
Even though the LSI website is not so interactive that it rises to the Zippo level of presumptively proper personal jurisdiction, it is more than a passive website
Because the District of Maine has not adopted the Zippo test, a broader look at the Defendants' use of the internet in their purposeful availment of Maine customers is appropriate. The Court notes that, like the defendant in uBID v. GoDaddy, the Defendants have conducted extensive national advertising and made significant national sales. The website campaign, like their national print marketing, is intended to reach a large national audience, including potential customers in Maine. LSI has successfully exploited at least part of the Maine market.
"For purposes of the general jurisdiction analysis, [the First Circuit] consider[s] all of a defendant's contacts with the forum state." Cossaboon, 600 F.3d at 29; see also New Life Brokerage, 222 F.Supp.2d at 107 ("the totality of contacts is sufficient to establish purposeful availment"). It makes sense then, in a specific jurisdiction analysis, for the Court to also consider all of the Defendants' contacts with the forum state that relate to the suit at hand. The sum of these contacts weighs in favor of specific personal jurisdiction. The Defendants' Maine contacts include: (1) the traditional contacts of phone, email, and faxed solicitations to Mr. Henderson; (2) the nationwide advertising placed in traditional magazines and farflung in-flight catalogues; and (3) the semi-interactive website claiming to have helped "tens of thousands of people—from all 50 states." Employing a factual analysis focused on the precise mix of contacts that characterize this case, the Court finds that the Defendants' contacts with the state of Maine constitute a purposeful availment of this forum. Mr. Henderson has satisfied his prima facie burden.
The existence of minimum contacts does not end the specific jurisdiction analysis. "Personal jurisdiction may only be exercised if it comports with traditional notions of `fair play and substantial justice.'" Nowak, 94 F.3d at 717 (quoting Int'l Shoe, 326 U.S. at 320, 66 S.Ct. 154). "Gauging fairness requires an assessment of reasonableness." Harlow, 432 F.3d at 67 (quoting Ticketmaster, 26 F.3d at 210).
"To evaluate the reasonableness requirement, the Supreme Court has provided
Harlow, 432 F.3d at 67 (citing Burger King, 471 U.S. at 477, 105 S.Ct. 2174). To prevail on this prong, the defendant "must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Keds Corp. v. Renee Int'l Trading Corp., 888 F.2d 215, 220 (1st Cir.1989) (quoting Burger King, 471 U.S. at 477, 105 S.Ct. 2174).
The Defendants protest that it "would be onerous for Defendants ... to appear and defend this matter in Maine." Yet, the First Circuit observed that "it is almost always inconvenient and costly for a party to litigate in a foreign jurisdiction." Nowak, 94 F.3d at 718 (citing Pritzker v. Yari, 42 F.3d 53, 64 (1st Cir.1994)). Thus, "this factor is only meaningful where a party can demonstrate some kind of special or unusual burden." Pritzker, 42 F.3d at 64. The Defendants have made no such showing of a special or unusual burden here. Mr. Henderson, however, has demonstrated his own strong interest in obtaining convenient and effective relief in his home state.
As to the second factor, the Defendants contend that Maine does not have an interest in adjudicating this dispute because all activities that support Plaintiff's claim occurred outside of Maine. However, Mr. Henderson is a resident of Maine and the state "has an interest in providing its citizens a means of redress against nonresidents." McCain Foods Ltd. v. Lamb-Weston, Inc., No. 91-0066-B, 1992 WL 219010, at *1 (D.Me. May 5, 1992) (citing Elec. Media Int'l v. Pioneer Commc'ns of Am., Inc., 586 A.2d 1256, 1259 (Me.1991)); see also Burger King, 471 U.S. at 473, 105 S.Ct. 2174, 2182 ("A State generally has a manifest interest' in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors."). Because Maine has such a manifest interest in protecting its citizens against out-of-state corporations, as codified in the wording of its long-arm statute, the Court determines that this factor favors jurisdiction.
Fourth, "nothing about this case suggests that [this Court] will have any difficulty rendering effective relief" if Mr. Henderson prevails on his claim. See Jet Wine & Spirits, Inc. v. Bacardi & Co., Ltd., 298 F.3d 1, 12 (1st Cir.2002); Adelson v. Hananel, 652 F.3d 75, 84-85 (1st Cir.2011). Fifth and finally, although Florida also has a significant interest in the medical procedures performed within its borders, the Court sees no evidence that exercising jurisdiction in Maine would offend due process or be contrary to traditional notions of fair play and substantial justice. "Besides, given the relatedness and purposeful availment demonstrated here, the weight of this one factor within
On balance, the gestalt factors point to jurisdiction in the District of Maine being reasonable. Personal jurisdiction over the Defendants is proper.
The Defendants argue for dismissal of Mr. Henderson's Complaint on the grounds that venue is not proper in the District of Maine. Title 28 of the United States Code, § 1391(a) governs venue in civil actions, such as this one, where jurisdiction is founded only on diversity of citizenship. 28 U.S.C. § 1391(a). It provides that a civil action may be brought in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." Id. § 1391(a)(2).
The First Circuit has said that in determining whether a forum "is a district in which a substantial part of the events occurred, [the court should] look not to a single triggering event' prompting the action, but to the entire sequence of events underlying the claim." Astro-Med, 591 F.3d at 12 (quoting Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 42 (1st Cir. 2001)). Not only does the First Circuit endorse this "holistic view of the acts underlying a claim," but it stresses that the court is "not required to determine the best venue, merely a proper venue." Id.; see also Uffner, 244 F.3d at 43 ("[T]he general purpose of statutorily specified venue [is] `to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial.'" (quoting Leroy v. Great W. United Corp., 443 U.S. 173, 183-84, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979))).
Here, most of the wrongful acts claimed by Mr. Henderson took place, at least in part, in Maine. Looking to the entire sequence of events underlying his claim, many of the claims arise out of the Defendants' contact with Mr. Henderson in Maine—fraud, unfair trade practices, fraudulent concealment, and negligent misrepresentation, as well as breach of the part of the contract that promised the Defendants would take all reasonable actions necessary to ensure insurance coverage. Given that a substantial part of Mr. Henderson's claims took place in this state, the Court retains venue in the District of Maine.
Even if venue is proper in the District of Maine, the Defendants request that the Court transfer venue to the appropriate district in Florida. The change of venue statute, 28 U.S.C. § 1404, provides,
After considering the plaintiff's choice of forum and the convenience of parties and witnesses, "the factors to be considered by the court include the availability of documents; the possibility of consolidation; and the order in which the district court obtained jurisdiction." Coady, 223 F.3d at 11. Beyond that, the court has discretion. See Demont & Assocs. v. Berry, 77 F.Supp.2d 171, 173 (D.Me.1999) ("Wisely it has not been attempted to catalogue the circumstances which will justify or require grant or denial of transfer. Given the statutory standards the decision is left to the sound discretion of the trial judge." (quoting 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 3847, at 368 (2d ed. 1986))).
The Court has noted that it is almost always inconvenient for one of the parties to travel to an out-of-state forum for litigation. One side has witnesses in Maine; the other side's are likely in Florida. The Defendants have failed to make the requisite showing of inconvenience to themselves or their witnesses to overcome the strong presumption in favor of Mr. Henderson's choice of forum. The motion to transfer venue is denied.
The Defendants are not done. They argue that Mr. Henderson's claims are barred because he failed "to comply with Florida statutes governing medical malpractice actions."
Federal jurisdiction in this case is premised on diversity of citizenship so the Court applies state substantive law. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Maine's choice of law rules thus apply.
The foreign statutory enactment exception would permit application of Florida's statute of limitations only if a Florida statute created the present cause of action. See Tornesello v. Tisdale, 948 A.2d 1244, 1250 (Me.2008) (citing Johanson, 785 A.2d at 1246; Hossler v. Barry, 403 A.2d 762, 765 (Me. 1979)). Florida statutory law did not create the right sought to be enforced here. Mr. Henderson's "suit is not predicated upon a foreign statutory enactment without which no action could be maintained"; all of his claims "rest upon common-law principles" of tort, contract, and Maine law. See id. (citing Hossler, 403 A.2d at 765; Johanson, 785 A.2d at 1246). Because the suit is predicated upon the common law and not on Florida statutory law,
The remaining statute of limitations question concerns whether the MHSA applies,
The MHSA mandates that before a plaintiff may file suit against a medical provider, the plaintiff must present the claim to a duly authorized pre-litigation screening panel and receive a decision. Kidder v. Richmond Area Health Ctr., Inc., 595 F.Supp.2d 139, 142-43 (D.Me.2009) (citing 24 M.R.S. §§ 2853(1), 2903(1)); see also Daigle v. Maine Med. Ctr., Inc., 14 F.3d 684, 687 (1st Cir.1994) ("By its terms, the Act requires parties to submit medical malpractice claims to a prelitigation screening panel as a condition precedent to court access, unless both sides agree to bypass the panel hearing."). Failure to file the requisite pre-litigation notice "constitutes a bar to a civil action under the MHSA." Kidder, 595 F.Supp.2d at 143.
However, the MHSA's "mandatory provisions ... apply only to actions for professional negligence." Brown v. Augusta School Dept., 963 F.Supp. 39, 40
"Professional negligence within the meaning of the MHSA is also defined very broadly." Id. The Maine Law Court has read the "or otherwise" language as "reflect[ing] a legislative intent that the MHSA `occupy the field with regard to actions against health care providers.'" Id. (quoting Musk v. Nelson, 647 A.2d 1198, 1201 (Me.1994)). "[T]he Legislature essentially made the MHSA applicable to any case that could implicate medical malpractice insurance." Id. The Law Court has thus "found the [M]HSA's procedural requirements and limitations period to be applicable in a wide variety of contexts." Butler v. Killoran, 714 A.2d 129, 132 (Me. 1998).
Under this broad reading, the MHSA governs all of Mr. Henderson's claims given that they are related to the medical treatment provided by the Defendants and could implicate medical malpractice insurance.
Whether Count IV—the allegation of unfair trade practices pursuant to 5 M.R.S. § 213—falls within the MHSA is less clear. Nevertheless, because Mr. Henderson is likely to pursue his other claims before the MHSA designated panel, the Court will not reach whether Count IV would be included as an action of professional negligence. There is no evidence that Mr. Henderson complied with the MHSA's notice and screening provisions for these professional negligence claims.
The Court turns to the question of remedy. A defense of failure to comply with the notice and screening provisions of the MHSA is analogous to a defense predicated on insufficient service of process or lack of subject matter jurisdiction. Demmons v. Tritch, No. 06-140-B-W, 2007 WL 777541, at *4 (D.Me. Mar. 1, 2007) (citing Dutil v. Burns, 687 A.2d 639, 641 (Me.1997)). As explained by the Law Court, "[d]ismissal is not required by the statute so long as an action is commenced before the expiration of the statute of limitations." Brand, 697 A.2d at 848 (holding that the lower court erred in denying plaintiff's request for a stay of the court proceedings that would permit her to serve the written notice of claim required by the MHSA).
The Court concludes that Mr. Henderson must submit his claims to a prelitigation screening panel in compliance with the MHSA before bringing suit in this Court. See Hewett v. Inland Hosp., 39 F.Supp.2d 84, 88 (D.Me.1999). The Court further concludes that it may exercise personal jurisdiction over the Defendants, that venue is proper in the District of Maine, and that the cited Florida statutes do not apply. However, Mr. Henderson has failed to comply with the mandatory provisions of the MHSA. Following the Law Court's lead in Brand, the Court denies LSI's motion to dismiss and stays this action to allow Mr. Henderson to complete the mandatory pre-litigation screening under the MHSA. The Court will require a report from Plaintiff's counsel every six months as to the status of the pre-litigation screening process and upon completion of that process will schedule a conference of counsel to resolve future proceedings in this Court.
The Court DENIES Defendants' Motion to Dismiss for Lack of Personal Jurisdiction and for Change of Venue, or in the Alternative to Dismiss for Failure to Comply with Florida Medical Malpractice Statutes or Maine Health Security Act, except it DISMISSES without prejudice the Defendants' Motion to Dismiss for failure to comply with the Maine Health Security Act (Docket # 15). The Court STAYS further proceedings in this case until the parties complete mandatory pre-litigation screening under the Maine Health Security Act. The Court ORDERS the Plaintiff to file a report regarding the status of the pre-litigation screening process with the Court every six months from today's date. If the Plaintiff fails to initiate a pre-litigation screening on a timely basis, the case will be subject to dismissal. The Court
SO ORDERED.
Id. at 145-46 (quoting Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 676 (1st Cir.1992)). Because the standard requires "a full-blown evidentiary hearing at which the court will adjudicate the jurisdictional issue definitively before the case reaches trial," the First Circuit warns that it "must be used discreetly." Id. at 146.
Foster-Miller, 46 F.3d at 146. Under this standard, the court asks "whether the plaintiff has shown a likelihood of the existence of each fact necessary to support personal jurisdiction." Id. (quoting Boit, 967 F.2d at 676).
