Levesque v. Fletcher Allen, et a l . 09-CV-055-SM 11/30/09 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Andre R. Levesque, Plaintiff

v. Civil No. 09-CV-055-SM Opinion No.

Fletcher Allen Health Care, Howard Center, Inc., Richard Munson, Robert Duncan, FNU Pellitier, Thomas Simpatico, and Sandra Steinqard, Defendants

O R D E R

Plaintiff Andre R. Levesque commenced this action pro se and

in forma pauperis for damages against defendants the State of

Vermont, the Vermont State Hospital, Fletcher Allen Health Care

("Fletcher Allen"), Howard Center, Inc. ("Howard Center"), and

various doctors employed by the State of Vermont, Fletcher Allen,

and Howard Center. Following a preliminary review, the

magistrate judge determined that Levesque's complaint was

facially adequate to allege state law tort claims against

Fletcher Allen, Howard Center, and the doctors, and directed that

they be served. Before the court are: (1) Dr. Sandra Steingard's

motion to dismiss for lack of personal jurisdiction and

insufficient service of process; (2) Howard Center's motion to

dismiss for lack of personal jurisdiction; and (3) a motion to dismiss for lack of personal jurisdiction brought by Fletcher

Allen and Drs. Munson, Duncan, and Simpatico, and a motion to

dismiss for insufficient service of process brought by Drs.

Munson, Duncan, and Simpatico.1 Levesque has not filed an

objection to any of the motions. For the reasons set forth

below, the motions are granted.

I. BACKGROUND

Levesque, a New Hampshire resident,2 was, at unspecified

times, a patient at Fletcher Allen and Howard Center, both of

which are located in Burlington, Vermont. Drs. Munson, Duncan,

and Simpatico treated Levesque at Fletcher Allen, while Dr.

Steingard treated him at Howard Center.

In his complaint, Levesque alleges that the doctors at

Fletcher Allen committed various torts in the course of providing

him with medical care.

1 The complaint also names Dr. Pellitier (first name unknown) as a defendant. Dr. Pellitier has not filed a motion in this case.

2 The complaint does not state whether Levesque was a resident of New Hampshire at the time of the allegedly tortious acts. When he filed his complaint, Levesque listed his address as 3 Clark A v e . in Loudon, New Hampshire. (Compl. (document no. 1), at 10.) Levesque later filed a change of address form listing his new address as a post office box in Ellenburg Center, New York, (document n o . 5.)

2 II. PERSONAL JURISDICTION

When, as here, a defendant contests personal jurisdiction,

the plaintiff bears the burden of establishing such jurisdiction.

Hannon v. Beard.

(1st Cir. 2008); see also

Sawtelle v. Farrell.

(1st Cir. 1995). When

the court decides the motion to dismiss without holding an

evidentiary hearing, the plaintiff must make a prima facie

showing that the court has personal jurisdiction over the

defendant. United Elec. Radio & Mach. Workers of Am. v. 163

Pleasant St. Corp. (Pleasant S t . I ),

(1st Cir.

1993) .

In applying the prima facie standard, the court takes the

facts affirmatively alleged by the plaintiff as true and

"construe[s ] them in the light most congenial to the plaintiff's

jurisdictional claim." Mass. Sch. of Law at Andover. Inc. v.

Am. Bar Ass'n,

(1st Cir. 1998). Nevertheless, a

plaintiff may not rest only on the pleadings but must base his

argument for personal jurisdiction on specific facts set forth in

the record. Pleasant St. I,

. In reviewing the

record, the court "'may consider pleadings, affidavits, and other

evidentiary material without converting the motion to dismiss to

a motion for summary judgment.'" ICP Solar Techs.. Inc. v. TAB

Consulting. Inc..

(D.N.H. 2006) (quoting

3 VDI Techs, v. Price,

(D.N.H. 1991)). The

court also considers uncontradicted facts brought forth by the

defendants. Mass. Sch. of Law.

. Although the

prima facie standard is a liberal one, the court need not

"■'credit conclusory allegations or draw farfetched inferences'’."

I d . (quoting Ticketmaster-New York. Inc. v. Alioto,

(1994) ) .

Moreover, " /it is the plaintiff's burden to demonstrate the

existence of every fact required to satisfy both the forum's

long-arm statute and the Due Process Clause of the

Constitution'." Negron-Torres v. Verizon Commc'ns, Inc..

, 24 (1st Cir. 2007) (quoting United States v. Swiss Am.

Bank, L t d .,

(1st Cir. 2001)). New Hampshire's

long-arm statute authorizes jurisdiction to the full extent that

due process allows; therefore, the sole inquiry in this case is

whether the exercise of personal jurisdiction comports with due

process. See Phillips Exeter Acad, v. Howard Phillips Fund.

Inc.,

(1st Cir. 1999); Sawtelle,

.

"A district court may exercise authority over a defendant by

virtue of either general or specific jurisdiction." Mass. Sch.

of Law.

. A court has specific jurisdiction

4 "■'where the cause of action arises directly out of, or relates

to, the defendant's forum-based contacts'’." Negron-Torres. 478

F.3d at 24 (quoting United Elec. Radio & Mach. Workers of Am. v.

163 Pleasant St. Corp. (Pleasant S t . II).

, 1088-89

(1st Cir 1992)). A court has general jurisdiction where the

defendant has engaged in "continuous and systematic" activity in

the forum state. Negron-Torres. 478 F.3d at 25. For both

general and specific jurisdiction, due process requires that

there exist "■'minimum contacts' between the nonresident defendant

and the forum . . . 'such that the maintenance of the suit does

not offend traditional notions of fair play and substantial

justice'." I d . at 24 (quoting Int'l Shoe Co. v. Washington.

(1945)).

III. DISCUSSION

Levesque has submitted nothing to support his jurisdictional

claims, and the complaint asserts no facts tending to show that

any of the defendants have the necessary contacts with New

Hampshire. Indeed, Levesque has not even objected to the pending

motions to dismiss. Based on this record, Levesque has not met

his burden to show that this court may exercise personal

jurisdiction over any of the defendants. Nevertheless, for the

sake of completeness, the personal jurisdiction analysis for each

defendant follows.

5 In determining whether specific personal jurisdiction

exists, courts apply the three-pronged test of relatedness,

purposeful availment, and reasonableness. See Mass. Sch. of Law.

. The relatedness prong asks "whether the

plaintifft's] claim arises out of, or relates to, [the]

def endant ['’s ] in-forum activities." Sawtelle,

.

The purposeful availment prong asks whether "■'the defendant's

in-state contacts . . . represent a purposeful availment of the

privilege of conducting activities in the forum state.'"

(quoting Pleasant Street II, 960 F.2d at 1089). Finally, the

reasonableness prong asks whether exercising jurisdiction over

the defendant would be reasonable in light of the Gestalt

factors. Sawtelle,

.

1) Dr. Sandra Steingard

Nothing suggests that the claims against Dr. Steingard are

related in any way to her contacts with New Hampshire. Dr.

Steingard is a licensed physician practicing in Vermont. She is

employed by the Howard Center, which is also located in Vermont.

Any alleged tort committed by Dr. Steingard occurred, if at all,

while Levesque was a patient of hers in Vermont. Moreover,

Levesque has not shown that Dr. Steingard purposefully availed

herself of doing business in New Hampshire. Dr. Steingard does

not solicit business in New Hampshire, does not maintain an

6 office in New Hampshire, and does not treat patients in New

Hampshire. Finally, this court need not consider reasonableness

in light of the Gestalt factors because "the Gestalt factors come

into play only if the first two [prongs] of the test for specific

jurisdiction have been fulfilled." Pleasant Street II, 960 F.2d

at 1091 n.ll.

2) Howard Center

Howard Center is located in Vermont and rendered services to

Levesque in Vermont, so any tort Howard Center allegedly

committed occurred, if at all, in Vermont. Further, Levesque has

failed to show that Howard Center purposefully availed itself of

the privilege of conducting business in New Hampshire. The mere

act of treating Levesque, a patient who may have been a New

Hampshire resident at the time of the alleged malpractice, does

not plainly subject Howard Center to jurisdiction in New

Hampshire. See Harlow v. Children's Hosp.,

(1st

Cir. 2005) ("Jurisdiction . . . does not travel with the

plaintiff patient wherever [he] goes.").

3) Fletcher Allen Defendants

The allegations against the Fletcher Allen defendants relate

to treatment Levesque received from Fletcher Allen, which is also

located in Vermont, and from Drs. Munson, Duncan, and Simpatico,

7 all of whom are board-certified psychiatrists in Vermont.

Nothing in the record suggests any contacts with, or acts through

which the Fletcher Allen defendants purposefully availed

themselves of doing business in New Hampshire.

"The standard for evaluating whether . . . contacts satisfy

the constitutional general jurisdiction test /is considerably

more stringent' than that applied to specific jurisdiction

questions." Noonan v. Winston Co..

(1st Cir.

1998) (quoting Glater v. Eli Lilly & Co..

(1st

Cir. 1984)). Levesque has not satisfied the test for specific

jurisdiction with respect to any of the defendants; therefore, he

cannot satisfy the more stringent test for general jurisdiction.

In short, Levesque's complaint contains no facts showing that any

of the defendants have the type of "continuous and systematic"

contacts with New Hampshire necessary for the exercise

of general jurisdiction. Negron-Torres. 478 F.3d at 25.

Levesque has failed to satisfy the test for both specific

and general jurisdiction. Accordingly, the motions to dismiss

for lack of personal jurisdiction (document nos. 13, 16, 20) are

granted. The claims against Drs. Steingard, Munson, Duncan, and

Simpatico are also subject to dismissal for insufficient service

of process.

Pursuant to Rule 4 of the Federal Rules of Civil Procedure,

service of process is effective if it is made in a manner

consistent with either federal law or the law of the state where

service is made. See F e d . R. C i v . P. 4(e) (l)-(2) . Vermont law

and federal law authorize service of process to be made in a

nearly identical manner — by delivering a copy of the summons and

complaint to the individually personally, by leaving a copy of

each at the individual's dwelling or usual place of abode, or by

delivering a copy of each to an agent authorized to receive such

process. See F ed . R. Civ. P. 4(e)(2)(A)-(C); Vi. R. Civ. P.

4(d) (1) .

In this case, neither Dr. Steingard nor Drs. Munson, Duncan,

and Simpatico were served in a manner consistent with Federal

Rule 4(e)(2) or Vermont Rule 4(d)(1). The complaint and summons

was not delivered to any of the doctors personally, was not left

at their usual places of abode, and was not delivered to an agent

authorized to accept service on their behalf. Instead, Cristan

9 Chandler, an attorney for Vermont State Mental Hospital,J

accepted service on the doctors'’ behalf. Cristan Chandler was

not authorized to accept service on the doctors' behalf. None of

the doctors are employed by the State of Vermont or Vermont State

Mental Hospital, and no other agency relationship is suggested by

the record. See Vi. R. Civ. P. 4(d) (1) .

Accordingly, the motions to dismiss for insufficient service

of process (documents no. 13 and 20) are also granted. Finally,

Defendant Pellitier was not served within the time allowed (and

no bases upon which to exercise personal jurisdiction over

Pellitier is apparent). The complaint is dismissed in its

entirety.

SO ORDERED.

Smeven J< McAuliffe Chief Judge November 30, 2 0 09

cc: Andre R. Levesque, pro se Nicole Andreson, Esq. Kenneth C. Bartholomew, Esq. Paul B. Kleinman, Esq. Sarah S. Murdough, Esq.

J The Process Receipt and Returns for Drs. Munson, Duncan, Simpatico, and Steingard indicate that service of the complaint and summons was sent to 103 S. Main St. in Waterbury, Vermont, which is the address of Vermont State Mental Hospital, (documents no. 8, 10, 11, 12.) Cristan Chandler of the legal department is listed as the individual served. Id.

10