Opinion
DOCKET NO. A-2573-13T3
02-13-2015
RICHARD L. WALTER, JR. and PAULA L. MURRAY-WALTER, h/w, Plaintiffs-Appellants, v. ZACHARY L. GLEIT, M.D. and JOSEPH SHONKWILER, M.D., Defendants-Respondents.
Parker McCay, P.A., attorneys for appellants (Gary F. Piserchia, of counsel; Stacy L. Moore, Jr., on the brief). McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys for respondents (Peter L. Korn, of counsel and on the brief; William S. Mezzomo and Jennifer Schneider, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6807-12. Parker McCay, P.A., attorneys for appellants (Gary F. Piserchia, of counsel; Stacy L. Moore, Jr., on the brief). McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys for respondents (Peter L. Korn, of counsel and on the brief; William S. Mezzomo and Jennifer Schneider, on the brief). PER CURIAM
Plaintiffs Richard L. Walter, Jr. and Paula L. Murray-Walter appeal from an order of summary judgment dismissing their medical malpractice complaint against Zachary L. Gleit, M.D. and Joseph Shonkwiler, M.D. with prejudice for lack of personal jurisdiction. We affirm.
Plaintiff Richard L. Walter, Jr. was the recipient of medical care by defendant doctors. When we refer to plaintiff, it is to Mr. Walter.
Plaintiffs filed their complaint a day or so before the expiration of the statute of limitations alleging malpractice in connection with a hernia repair performed by defendants at New York-Presbyterian Hospital. Shortly after filing their answer, in which they asserted the affirmative defense of lack of personal jurisdiction, defendants moved for summary judgment on the same grounds.
Defendants supported their motion with their certifications. Dr. Gleit certified that he lived and worked as a general surgeon in New York, the only state in which he is licensed to practice medicine. He averred that he met in his New York office with plaintiff twice prior to the surgery and once afterward. Dr. Gleit certified that he did not personally solicit for out-of-state patients or referrals and that he was not aware of how plaintiff came to use his services. Dr. Shonkwiler certified that he was a surgical resident at New York-Presbyterian Hospital/Columbia University Medical Center when he assisted Dr. Gleit in plaintiff's hernia repair, and that he had no other contact with plaintiff. Dr. Shonkwiler averred he had never advertised his services as a physician in New Jersey or anywhere else.
After defense counsel twice consented to an adjournment of the motion, plaintiffs' counsel filed an untimely responsive brief and a cross-motion to amend the complaint to add the hospital and the trustees of Columbia University, defendants' employers. The response did not include a certification from plaintiff contesting the facts asserted by defendants or explaining how he came under the care of Dr. Gleit. Instead, plaintiffs filed a brief arguing that the motion should not be decided on the sole basis of "the self-serving affidavit[s]" of the doctors being sued for malpractice. Plaintiffs argued they should be allowed to conduct discovery for the purpose of developing "jurisdictional facts" before the court determined there was no personal jurisdiction over defendants. After hearing argument, the judge denied both motions without prejudice and allowed plaintiffs ninety days to conduct jurisdictional discovery.
Plaintiffs' counsel conducted no discovery whatsoever during that period. Over a month after the period expired, plaintiffs' counsel sent defense counsel discovery demands relating to some other case not involving these defendants and requested a date for Dr. Gleit's deposition more than thirty days hence.
Defendants renewed their motion for summary judgment. Plaintiffs filed a responsive brief seeking additional time to conduct the jurisdictional discovery, but again did not submit any certification explaining how plaintiff selected Dr. Gleit as his surgeon. After hearing argument, the judge granted defendants' motion, relying on our opinion in Baanyan Software Servs., Inc. v. Kuncha, 433 N.J. Super. 466 (App. Div. 2013).
In a brief but comprehensive opinion from the bench, the judge outlined the law on general and specific jurisdiction and applied it to the facts in the record. Although acknowledging the record's sparseness, the judge noted "[w]hat is clear and has not been contested is that there are no contacts . . . on the part of the defendants with the State of New Jersey." The judge noted that he had exercised his discretion to permit plaintiffs ninety days to take jurisdictional discovery without plaintiffs having asserted any basis on which to suggest the court could assert personal jurisdiction over defendants consistent with due process of law. Finding nothing in the record to suggest the court could lawfully assert personal jurisdiction over defendants, the judge concluded he was without any basis to compel their continued participation in the litigation.
Plaintiffs never asserted any theory in the trial court for asserting personal jurisdiction over defendants. At oral argument on the first motion, the judge posited a theory based on the television commercials the hospital aired in New Jersey. He mused that if plaintiff contacted the hospital in response to its solicitation, and the hospital referred plaintiff to Dr. Gleit, then he would have to consider whether the arrangement could be considered as the doctor having undertaken purposeful acts in New Jersey sufficient to establish the minimum contacts necessary to support specific jurisdiction. Plaintiff, however, never certified, nor even suggested, he got to Dr. Gleit through the hospital.
Plaintiffs appeal raising one issue for our consideration.
IT WAS AN ABUSE OF DISCRETION BY THE TRIAL COURT TO DISMISS PLAINTIFFS' COMPLAINT WITH PREJUDICE BASED UPON LACK OF IN PERSONAM JURISDICTION WHERE, UNDER THE UNIQUE CIRCUMSTANCES PRESENTED HERE, PLAINTIFFS DID NOT HAVE THE OPPORTUNITY TO CONDUCT ANY DISCOVERY ON THE JURISDICTIONAL ISSUES; THE TRIAL COURT IGNORED THE FUNDAMENTAL CONCEPT THAT THE COURTS EXIST TO DO JUSTICE, NOT BLINDLY AND PERFUNCTORILY FOLLOW THE RULES OF COURT.
We disagree.
Plaintiffs view this, erroneously, as a simple matter of the court having abused its discretion in refusing a discovery extension. Even were we to agree that the case should be viewed through that lens, we would have a difficult time concluding the court abused its discretion in light of plaintiffs' counsel's failure to conduct any discovery without good cause. But the case cannot properly be viewed from that perspective at this juncture.
In order to support the exercise of long-arm jurisdiction over an out-of-state defendant under R. 4:4-4, the record must establish the defendant has purposefully availed himself of the privilege of engaging in activities in New Jersey, thereby gaining the benefits and protections of our laws. Waste Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106, 120-21 (1994), cert. denied sub nom., WMX Techs., Inc. v. Canadian Gen. Ins. Co., 513 U.S. 1183, 115 S. Ct. 1175, 130 L. Ed. 2d 1128 (1995). "In that way defendants are protected against being haled into court in a foreign jurisdiction solely on the basis of random, fortuitous, or attenuated contacts or as a result of the unilateral activity of some other party." Id. at 121.
As noted by the trial court, neither the allegations of the complaint, the proposed amended complaint nor anything else in the record established a basis for asserting personal jurisdiction over these defendants. Plaintiffs make no argument to the contrary on this appeal. Notwithstanding, the trial court allowed plaintiffs a ninety day period to conduct jurisdictional discovery. See Wilson v. Paradise Vill. Beach Resort & Spa, 395 N.J. Super. 520, 525 (App. Div. 2007). As noted above, plaintiffs' counsel failed to avail himself of that opportunity. Because neither plaintiff filed a certification in opposition to defendants' renewed motion, the court was again faced with a motion by defendants asserting lack of personal jurisdiction and opposition by plaintiffs that failed to plead or assert any basis for asserting personal jurisdiction over those defendants.
At argument on the renewed motion, the judge questioned whether that had been an appropriate exercise of discretion on his part given plaintiffs' failure to allege or plead any facts asserting personal jurisdiction. See Blakey v. Cont'l Airlines, 164 N.J. 38, 71 (2000) (discussing the plaintiff's burden to allege or plead sufficient facts with respect to jurisdiction). We do not address that issue.
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When a defendant asserts lack of personal jurisdiction, it is the plaintiff's burden to demonstrate the defendant's contacts with New Jersey are sufficient to confer personal jurisdiction on the court, which it must do through sworn statements. Jacobs v. Walt Disney World, Co., 309 N.J. Super. 443, 454 (App. Div. 1998). "In the early stages of a proceeding 'where the factual record consists of only pleadings and affidavits, plaintiff's burden is satisfied by establishing a prima facie case of jurisdiction.'" Ibid. (quoting Cresswell v. Walt Disney Prod., 677 F. Supp. 284, 286 (M.D.Pa. 1987)).
Although plaintiff complains of the trial court's failure to allow him additional time for jurisdictional discovery, no discovery was necessary for him to explain how he came under Dr. Gleit's care and if it was through some solicitation by Dr. Gleit or the hospital in New Jersey. The case had been pending for over a year at the time of its dismissal and defendants had been pressing the lack of personal jurisdiction for almost nine months. We agree with the trial judge that plaintiffs' failure to assert even a prima facie case of personal jurisdiction within that period left the court no basis to compel defendants' continued participation in the litigation.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION