Philips v. Pitt County Memorial Hospital, Inc.

• Court: District Court, D. Guam
• Decided: September 30, 2019
• Docket: 1:18-cv-00046
• Status: Unknown

Opinion

1 2 3 4 5 6 DISTRICT COURT OF GUAM 7 8 DR. SHERIF A. PHILIPS, CIVIL CASE NO. 18-00046 9 Plaintiff, 10 vs. REPORT & RECOMMENDATION re Motion to Dismiss (ECF No. 9) 11 PITT COUNTY MEMORIAL HOSPITAL, INC., PAUL BOLIN, RALPH WHATLEY, 12 DAVID CREECH and JAY SALSMAN, 13 Defendants. 14 15 Before the court is the Defendants’ Motion to Dismiss for Lack of Subject Matter 16 Jurisdiction Under Rule 12(b)(1), Lack of Personal Jurisdiction Under Rule 12(b)(2), Improper 17 Venue Under Rule 12(b)(3) and Failure to State a Claim Upon Which Relief Can Be Granted Under 18 Rule 12(b)(6) (“Motion to Dismiss”). See ECF No. 9. The motion has been fully briefed, and the 19 parties appeared for oral argument on June 7, 2019. See Minutes, ECF No. 35. Having read the 20 parties’ filings, reviewed relevant case law and considered the parties’ arguments, the court now 21 issues this Report and Recommendation. 22 NATURE OF PLAINTIFF’S ACTION 23 This appears to be the Plaintiff’s fifth attempt to re-litigate claims he previously brought in 24 both federal and state courts with regard to the suspension of his medical privileges at Pitt County 25 Memorial Hospital (“PCMH”) located in North Carolina. Because the Plaintiff is proceeding pro 26 se, the allegations in his Complaint seem somewhat rambling, but it appears that the Plaintiff is a 27 nephrologist who applied for active medical staff privileges at PCMH in 1995. Compl. at ¶13, ECF 28 No. 1. He was awarded privileges in 1996, id. at ¶14, and these privileges were renewed in 1 subsequent years. Id. at ¶¶15-19. 2 After the Plaintiff was named in a malpractice lawsuit in connection with his work that 3 resulted in a patient’s death and his suspension at two other facilities for failing to maintain records, 4 in 2004 PCMH’s Department of Risk Management began observation of the Plaintiff’s interactions 5 with patients at PCMH. The Plaintiff asserts that these actions were taken by his “economic 6 competitors” in the “wake of continuing criticism [that Plaintiff was] treating Medicare patients and 7 others patients without financial ability to pay for treatment at PCMH[.]” Id. at ¶23. Ultimately, 8 PCMH’s Board of Trustees imposed a 90 day suspension of the Plaintiff’s medical staff privileges, 9 with 31 days of “active suspension.” Id. at ¶¶40-41. 10 In 2005, Plaintiff filed suit in the U.S. District Court for the Eastern District of North 11 Carolina (hereinafter Philips I) against PCMH and Drs. Patel, Bolin, Whatley and Brown, 12 challenging his suspension. See Philips v. Pitt Cty. Mem’l Hosp., Inc., 503 F. Supp.2d 776 13 (E.D.N.C. 2007). The Plaintiff asserted claims pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1981, 14 in addition to bringing numerous state law claims. Id. at 779. The federal court dismissed the 15 federal claims for failure to state a claim upon which relief could be granted. Id. at 784. Having 16 dismissed the federal claims, the court also dismissed Plaintiff’s state law claims. Id. 17 During the pendency of Philips I, the Plaintiff filed a second lawsuit (Philips II) in 2007 18 again in the Eastern District of North Carolina after PCMH activated the remainder of the Plaintiff’s 19 90-day suspension and permanently suspended his medical staff privileges. See Philips v. Pitt Cty. 20 Mem’l Hosp., Inc., 503 F. Supp.2d 785 (E.D.N.C. 2007). He asserted a claim under § 1983, along 21 with claims for breach of contract and defamation against PCMH and Drs. Bolin and Whatley. Id. 22 at 786. The district court again dismissed the federal claim (finding the defendants were not state 23 actors) and also dismissed the state law claims. Id. at 787. 24 The Fourth Circuit affirmed the dismissals of Philips I and Philips II. See Philips v. Pitt 25 Cty. Mem’l Hosp., Inc., 572 F.3d 176 (4th Cir. 2009). The Plaintiff did not appeal the Fourth 26 Circuit’s decision. 27 In 2009, Plaintiff filed his third lawsuit, this time in state court (Philips III), against PCMH, 28 Drs. Bolin and Whatley and two other physicians involved in the corrective action process. See 1 Philips v. Pitt Cty. Mem’l Hosp. Inc., 731 S.E.2d 462 (N.C. Ct. App. 2012). The claims were 2 similar to the claims raised and dismissed in the federal courts with regard to the suspension and 3 revocation of his medical privileges. Id. The trial court dismissed the Plaintiff’s claims for fraud 4 and tortious interference with contract, and after further discovery, granted the defendants’ motion 5 for summary judgment on the remaining causes of action. Id. at 466. The North Carolina Court 6 of Appeals affirmed, and the North Carolina Supreme Court denied discretionary review. Id. at 473 7 and Philips v. Pitt Cty. Mem’l Hosp. Inc., 734 S.E.2d 862 (2012). The defendants thereafter filed 8 a motion seeking costs and attorneys’ fees, which the trial court granted. See Philips v. Pitt Cty. 9 Mem’l Hosp. Inc., 775 S.E.2d 882 (N.C. Ct. App. 2015). The Plaintiff appealed the order granting 10 attorneys’ fees and costs, but the North Carolina Court of Appeals affirmed and the Supreme Court 11 of North Carolina denied review. Id. 885, writ denied, review denied, appeal dismissed, 778 12 S.E.2d 84 (2015). 13 The Plaintiff filed a fourth lawsuit in 2015. See Philips v. N.C. State, No 5:15-CV-0095-F, 14 2015 WL 9462095 (E.D.N.C. Dec. 28, 2015). The Plaintiff returned to the U.S. District Court for 15 the Eastern District of North Carolina. Id. In addition to the defendants he previously named 16 (PCMH, Bolin and Whatley), the Plaintiff added new state defendants (the State of North Carolina, 17 North Carolina Court System and the North Carolina Agency) as well as the attorneys involved in 18 the original litigation. Id. at *4. The court dismissed all claims against the state defendants on 19 sovereign immunity grounds. Id. at *6. The remaining claims were dismissed with prejudice based 20 on res judicata or on statute of limitations grounds. Id. at *9. 21 In May 2018, PCMH filed a complaint in the Superior court of Guam, seeking to enforce 22 the North Carolina judgment that awarded attorneys’ fees and costs.1 23 On December 26, 2018, the Plaintiff filed the instant Complaint in this court. The Plaintiff 24 asserts this court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question). Compl. at ¶4A. 25 The Complaint asserts the Plaintiff “filed for fraud upon the court, Grant Relief under 28 U.S.C., 26 Due Process of law be allowed, Relief of orders in violation of the laws, Under Title 42 United 27 28 1 See Pitt Cty. Mem’l Hosp. v. Philips, Superior Court of Guam Civil Case No. 0478-18. 1 States Standard (sic)1983, Constitution Right and public Trust Action (28 U.S.C. § 1331), The 2 Right-To-Honest-Service Doctrine and Vagueness Doctrine Rooker-Feldman, Doctrine, 3 Discrimination, Retaliation and Harassment.” Id. at ¶1. The Plaintiff seeks to void the judgment 4 and orders of the courts of North Carolina and the Superior Court of Guam.2 5 In lieu of an answer, the Defendants have filed the instant Motion to Dismiss requesting that 6 the court dismiss this action on the following grounds: (a) lack of subject matter jurisdiction; (b) 7 lack of personal jurisdiction over Defendants; (c) improper venue; and (d) failure to state a claim 8 upon which relief can be granted. See Defs.’ Mot. Dismiss and Mem. P.&A. Supp. Mot. Dismiss, 9 ECF Nos. 9-10. 10 LEGAL STANDARDS3 11 A. Subject Matter Jurisdiction 12 Rule 12(b)(1) allows the court to dismiss a claim for lack of jurisdiction. “It is a fundamental 13 principle that federal courts are courts of limited jurisdiction.” Owen Equip. & Erection Co. v. 14 Kroger, 437 U.S. 365, 374 (1978). Thus, the plaintiff bears the burden of establishing subject 15 matter jurisdiction. Federal subject matter jurisdiction must exist at the time the action is 16 commenced. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 17 1380 (9th Cir. 1988). A court must presume lack of jurisdiction until the plaintiff establishes 18 otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); Scott v. Breeland, 19 792 F.2d 925, 927 (9th Cir. 1986) (The party seeking to invoke federal court jurisdiction has the 20 burden of establishing that jurisdiction is proper.). 21 A party bringing a Rule 12(b)(1) challenge to the court’s jurisdiction may do so either on 22 the face of the pleadings or by presenting extrinsic evidence for the Court's consideration. See White 23 v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (“Rule 12(b)(1) jurisdictional attacks can be either 24 25 2 See Pl.’s Scheduling and Planning Conference Report at 2, ECF No. 28. The Complaint does not clearly describe the relief sought by the Plaintiff. 26 27 3 The Defendants’ Motion to Dismiss asserts four grounds for dismissal. Because the first two grounds are dispositive of this matter, only the legal standards for subject matter and personal 28 jurisdiction are set forth below. 1 facial or factual”). “In a facial attack, the challenger asserts that the allegations contained in a 2 complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. 3 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In evaluating a facial attack to jurisdiction, the court 4 must accept the factual allegations of the complaint as true. See Lacano Invs., LLC v. Balash, 765 5 F.3d 1068, 1071 (9th Cir. 2014). However, legal conclusions in the complaint are not accepted as 6 true, even if they are cast as factual allegations. See id. 7 “By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by 8 themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. “With a 9 factual Rule 12(b)(1) attack . . . a court may look beyond the complaint to matters of public record 10 without having to convert the motion into one for summary judgment. It also need not presume the 11 truthfulness of the plaintiff[’s] allegations.” White, 227 F.3d at 1242 (internal citation omitted); see 12 also Thornhill Publishing v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir.1979). 13 In this case, the Defendants appear to argue that the allegations in Plaintiff’s complaint are 14 insufficient on their face to establish subject matter jurisdiction. Thus, the determination of whether 15 subject matter exists does not depend on resolution of a factual dispute, but rather on the allegations 16 in the Complaint. The court must assume the Complaint’s factual allegations to be true and draw 17 all reasonable inferences in Plaintiff’s favor. 18 B. Personal Jurisdiction 19 Defendants move to dismiss the Complaint for lack of personal jurisdiction pursuant to 20 Federal Rule of Civil Procedure 12(b)(2). The burden is on the Plaintiff to show that personal 21 jurisdiction exists. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). In evaluating a 22 motion to dismiss for lack of personal jurisdiction, “[t]he court may consider evidence presented 23 in affidavits to assist it in its determination and may order discovery on the jurisdictional issues.” 24 Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001) (citation omitted). 25 Where, as here, the court decides the motion to dismiss based on the pleadings and affidavits 26 submitted by the parties without conducting an evidentiary hearing, “the plaintiff need make only 27 a prima facie showing of jurisdictional facts to withstand the motion to dismiss.” Unocal, 248 F.3d 28 922 (quotation omitted). The court need “only inquire into whether [the plaintiff’s] pleadings and 1 affidavits make a prima facie showing of personal jurisdiction.” Cvaruth v. Int’l Psychoanalytical 2 Ass’n, 59 F.3d 126, 128 (9th Cir. 1995). The court must accept uncontroverted allegations 3 contained within the plaintiff’s complaint as true and must resolve conflicts between statements 4 contained within the parties’ affidavits in the plaintiff’s favor. Id.; Boschetto, 539 F.3d at 1015. 5 However, the court “may not assume the truth of allegations in a pleading which are contradicted 6 by affidavit.” Alexander v. Circus Circus Enters., Inc., 972 F.2d 261, 262 (9th Cir. 1992) 7 (quotation omitted). 8 When, as here, no federal statute governs personal jurisdiction, the court may exercise 9 personal jurisdiction over a defendant if (1) the applicable state long-arm statute permits it, and (2) 10 exercising that jurisdiction does not violate federal due process standards. Boschetto, 539 F.3d at 11 1015. Guam’s long-arm statute allows for the exercise of jurisdiction “on any basis not inconsistent 12 with the Organic Act or the Constitution of the United States.” 7 Guam Code Ann. § 14109 (2005). 13 “Due to this broad-reaching statutory language, the effect is that the jurisdictional analysis merges 14 into a single step. That is, a court analyzing personal jurisdiction under Guam’s long-arm statute 15 simultaneously analyses the issue of constitutional due process.” Barnes v. Superior Court, 2012 16 Guam 11 ¶27. Thus, the court may exercise personal jurisdiction over a defendant if doing so 17 comports with federal constitutional due process. 18 The due process issue here is whether the Defendants’ contacts with Guam are of such 19 quality and nature that they could reasonably expect “being haled into court there.” World-Wide 20 Volkswagen v. Woodson, 444 U.S. 286, 297 (1980). Due process is satisfied “when in personam 21 jurisdiction is asserted over a non-resident corporate defendant that has certain minimum contacts 22 with [the forum] such that maintenance of the suit does not offend traditional notions of fair play 23 and substantial justice.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 24 (1984) (quotation omitted). 25 “There are two forms of personal jurisdiction that a forum state may exercise over a 26 nonresident defendant – general jurisdiction and specific jurisdiction.” Boschetto, 539 F.3d at 1016. 27 These forms of personal jurisdiction will be further discussed below. 28 /// 1 DISCUSSION 2 The Defendants’ motion seeks dismissal of this action on the following grounds: (a) lack 3 of subject matter jurisdiction; (b) lack of personal jurisdiction over Defendants; (c) improper venue; 4 and (d) failure to state a claim upon which relief can be granted. Because the first two grounds are 5 dispositive of this matter, only those issues are analyzed further below. 6 A. Whether the court has subject matter jurisdiction over this action 7 As noted previously, because the Plaintiff is proceeding pro se, his Complaint is not very 8 clear with regard to what claims he is asserting and what relief he seeks. The jurisdictional 9 allegations are set forth in paragraph 4 of the Complaint. This paragraph cites to “28 U.S.C. 10 § 1331,” which is the provision of federal law that discusses the court’s federal question 11 jurisdiction. Section 1331 provides that “[t]he district courts shall have original jurisdiction of all 12 civil actions arising under the Constitution, laws or treaties of the United States.” 28 U.S.C. § 1331. 13 A case “arises under” federal law either where federal law creates the cause of action or where 14 plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law. 15 Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 689-90 (2006). 16 Based on the allegations in the Complaint, the Plaintiff appears to be asserting a Section 17 1983 claim. See Compl. at ¶¶1 and 89 (“Plaintiff brings his claims pursuant to Title 42 U.S. Code 18 & (sic) 1983 for violations of Certain Protections guaranteed to plaintiff by the First, Fifth, Ninth 19 and Fourteenth Amendments of the federal Constitution.”), ECF No. 1. Section 1983 provides a 20 federal remedy for “the deprivation of any rights, privileges, or immunities secured by the 21 Constitution and laws.” There are two essential elements to a section 1983 action: first, that the 22 defendant acted under “color of law;” and, second, that the defendant’s conduct deprived the 23 plaintiff of a federally protected right. See 42 U.S.C. § 1983.4 24 25 4 Section 1983 provides 26 Every person who, under color of any statute, ordinance, regulation, custom, or 27 usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction 28 thereof to the deprivation of any rights, privileges, or immunities secured by the 1 Here, none of the Defendants are state actors for purposes of Section 1983 liability. This 2 has been the finding of the court in Philips I and Philips II. See 503 F. Supp.2d 776, 783-84 3 (E.D.N.C. 2007) and 503 F. Supp.2d 785, 787 (E.D.N.C. 2007), both aff'd, 572 F.3d 176 (4th Cir. 4 2009). Because the Plaintiff has already litigated this very issue (whether the Defendants are state 5 actors), the Plaintiff is barred by res judicata from re-litigating this issue before the court. The 6 Plaintiff has presented no new facts that would require a redetermination of this issue. Because the 7 Defendants are not state actors, Section 1983 is inapplicable. All the other claims asserted by the 8 Plaintiff do not arise under federal law. Accordingly, this court lacks federal question jurisdiction 9 over the Plaintiff’s claims. 10 Although there appears to be no federal question jurisdiction, the court may have diversity 11 jurisdiction over the matter. Based on the Complaint, the Plaintiff moved to Guam in 2007. 12 Compl. at ¶61, ECF No. 1. Assuming he is a citizen of Guam, the Defendants’ declarations indicate 13 that PCMH is a North Carolina Corporation with its principal place of business in North Carolina, 14 see Floyd Decl. at ¶4, ECF No. 11, and the individual defendants are citizens of either North 15 Carolina or Virginia. Bolin Decl. at ¶3, ECF No. 12, Whatley Decl. at ¶3, ECF No. 13, Creech 16 Decl. at ¶4, ECF No. 14, and Salsman Decl. at ¶3, ECF No. 15. The Complaint does not assert 17 diversity of citizenship between the parties, nor does it allege that the amount in controversy 18 exceeds $75,000.5 While the court could give the Plaintiff leave to file an amended complaint to 19 cure these deficiencies, amendment would be futile since the court lacks personal jurisdiction over 20 the Defendants, as will be further discussed in the next section. 21 /// 22 23 Constitution and laws, shall be liable to the party injured in an action at law, suit in 24 equity, or other proper proceeding for redress. 25 5 The Plaintiff’s 2nd Surreply appears to argue that this court has diversity jurisdiction. See Pl.’s 2nd Surreply at ¶3, ECF No. 22. The Plaintiff’s filing also asserts that jurisdiction properly 26 lies in this court because the Plaintiff could have removed the Superior Court action to this court. 27 Unfortunately, the Plaintiff never removed the Superior Court action to this court; he chose to file a Complaint instead. Accordingly, any argument that this court has jurisdiction based on the 28 removal statute (28 U.S.C. § 1446) is unavailing. 1 B. Whether the court has personal jurisdiction over the Defendants 2 As noted above, there are two forms of personal jurisdiction that a forum state may exercise 3 over a nonresident defendant – general jurisdiction and specific jurisdiction. These are further 4 analyzed below. 5 1. General Jurisdiction 6 “In the context of general jurisdiction, minimum contacts exist where a defendant has 7 ‘substantial’ or ‘continuous and systematic’ contacts with the forum state, even if the case is 8 unrelated to those contacts.” Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1171 (9th Cir 9 2006) (quoting Helicopteros, 466 U.S. at 415). “The standard for general jurisdiction is high; 10 contacts with a state must ‘approximate physical presence.’” Id. at 1169 (quoting Bancroft & 11 Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1086, 1086 (9th Cir. 2000)); see also Goodyear 12 Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011) (“For an individual, the 13 paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for a 14 corporation , it is an equivalent place, one in which the corporation is fairly regarded as at home”). 15 When using the minimum contacts test, factors to consider include: “whether the defendant 16 makes sales, solicits or engages in business in the state, serves the state’s markets, designates an 17 agent for service of process, holds a license, or is incorporated there,” as well as more generalized 18 considerations of “[l]ongevity, continuity, volume, economic impact, physical presence, and 19 integration into the state’s regulatory or economic markets.” Tuazon, 433 F.3d at 1172 (quotation 20 omitted). Ultimately, the outcome should turn on the “economic reality of the defendant’s activities 21 rather than a mechanical checklist.” Id. at 1173 (quotation omitted). 22 The Defendants argue there is no general jurisdiction over any of them. PCMH does not 23 maintain a registered agent for service in Guam. Floyd Dec. at ¶9, ECF No. 9. It does not own, 24 lease, possess or maintain any real or personal property in Guam and has not owned, leased, 25 possessed or maintained any real or personal property on island. Id. at ¶10. PCMH does not own, 26 lease, or maintain an office, residence or place of business in Guam and never has. Id. at ¶11. Nor 27 has it paid any taxes of any kind in Guam. Id. at ¶12. PCMH never had a Guam business license 28 and has never maintained any office, bank account, agent, employee or address in Guam. Id. at ¶15. 1 It has not and does not derive substantial revenue from goods used or consumed in Guam or 2 services rendered in Guam, nor has it signed any contracts regard a Guam entity. Id. at ¶¶17-18. 3 PCMH has never maintained a telephone listing Guam. Id. at ¶19. Finally, PCMH’s principals 4 were not located in Guam. Id. at ¶20. 5 Aside from the collection action in the Superior Court of Guam and defending against this 6 suit, PCMH’s contacts to Guam are neither continuous nor substantial. PCMH’s activities do not 7 constitute “conducting business” in Guam since it does not have an office in Guam, does not have 8 any employees or agents for service of process in Guam, does not own property in Guam, and has 9 never rendered any services in Guam. The Plaintiff does not refute any of the allegations in the 10 Floyd Declaration. PCMH’s limited contacts to Guam fall well short of the “continuous and 11 systematic” contacts that the Supreme Court and the Ninth Circuit have held to constitute sufficient 12 “presence” to warrant general jurisdiction. See Helicopteros, 466 U.S. at 416 (no jurisdiction over 13 foreign corporation that sent officer to forum for one negotiating session, accepted checks drawn 14 of an forum bank, purchased equipment from the forum, and sent personnel to the forum to be 15 trained); Cubbage v. Merchent, 744 F.2d 665, 667-68 (9th cir. 1984) (no jurisdiction over doctors 16 despite significant numbers of patients in forum, use of forum’s state medical insurance system and 17 telephone directory listing that reached forum); Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 18 1330-31 (9th Cir. 1984) (no jurisdiction over defendants despite several visits and purchases in 19 forum, solicitation of contract in forum which included choice of law provision favoring forum, and 20 extensive communication with forum). 21 Given that “[t]he standard for general jurisdiction is high,” requiring contacts which 22 “approximate physical presence” and “continuous corporate operations with [the] state,” Tuazon, 23 433 F.3d at 1169, the court finds that the Plaintiff has not met his burden of making a prima facie 24 showing that PCMH’s direct contacts with Guam are sufficient for the court to exercise general 25 jurisdiction over PCMH. 26 The same finding can be made with regard to the individual defendants. Defendant Bolin 27 has never visited Guam, never resided in Guam, and has had no contact with Guam. Bolin Decl. 28 at ¶4., ECF No. 12. Defendant Whatley has never visited Guam, never resided in Guam, and has 1 had no contact with Guam. Whatley Decl. at ¶4, ECF No. 13. Defendant Creech has never resided 2 in Guam and only visited Guam twice when he took a connecting flight through Guam en route to 3 another location, but he never left the airport on either occasions. Creech Decl. at ¶4, ECF No. 14. 4 Defendant Creech’s only other contact with Guam was through the mail – (1) to serve legal papers 5 on the Plaintiff via mail to the Plaintiff’s Guam residence and (2) to mail a letter to the Guam 6 medical board in 2007 at the request of the Plaintiff’s lawyer when the Plaintiff was applying for 7 his Guam medical license. Id. at ¶¶6-7. Finally, Defendant Salsman has never visited Guam, never 8 resided in Guam, and his only contacts with Guam were (1) to serve legal papers on the Plaintiff 9 vial mail sent to the Plaintiff’s Guam address and (2) limited to contact with Attorney Daniel 10 Berman as it related to collecting on the North Carolina state court judgment. Salsman Decl. at ¶¶5- 11 6, ECF No. 15. The Plaintiff has not met his burden of making a prima facie showing that any of 12 the individual defendants’ direct contacts with Guam are sufficient for the court to exercise general 13 jurisdiction over them. 14 Having found general jurisdiction lacking, the court will next analyze specific jurisdiction. 15 2. Specific Jurisdiction 16 Alternatively, the Plaintiff has the option of showing that the Defendants have sufficient 17 “minimum contacts” with Guam arising from, or related to, their activities on island. Courts apply 18 a three-part test for analyzing a claim of specific personal jurisdiction: 19 (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some 20 act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; 21 (2) the claim must be one which arises out of or relates to the defendant's 22 forum-related activities; and 23 (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. 24 Boschetto, 539 F.3d at 1016 (quotation omitted). 25 The Plaintiff bears the burden on the first two prongs. Id. “if the Plaintiff establishes both 26 prongs one and two, the defendant must come forward with a compelling case that the exercise of 27 jurisdiction would not be reasonable.” Id. (quotation omitted). 28 1 a. Purposeful Availment or Purposeful Direction 2 The requirement that the defendant do some act purposefully to avail himself of the laws 3 of the forum state ensures that a person is not hailed into court as the result of random, fortuitous, 4 or attenuated contacts or on account of the unilateral activity of third parties. Burger King Corp. 5 v. Rudzewicz, 471 U.S. 462, 474 (1985). The court must first examine whether the Defendants’ 6 activities were directed purposefully toward Guam. 7 To satisfy the first prong of the test for specific jurisdiction, a defendant must have either 8 purposefully availed itself of the privilege of conducting business activities within the forum or 9 purposefully directed activities toward the forum. Panavision v. Toeppen, 141 F.3d 1316, 1320 (9th 10 Cir. 1988). Purposeful availment typically consists of action taking place in the forum that invokes 11 the benefits and protections of the laws of the forum, such as executing or performing a contract 12 within the forum. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). 13 To show purposeful availment, a plaintiff must demonstrate that the defendant “engage[d] in some 14 form of affirmative conduct allowing or promoting the transaction of business within the forum 15 state.”Gray & Co. v. Firstenber Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990). 16 Purposeful direction exists when a defendant has committed an act outside of the forum state 17 that was intended to and does in fact cause injury within the forum. Calder v. Jones, 465 U.S. 783, 18 788-89 (1984). A purposeful direction analysis is most often used in suits sounding in tort. 19 Schwarzenegger, 374 F.3d at 1093. 20 In a specific jurisdiction inquiry, we consider the extent of the defendant's contacts with the forum and the degree to which the plaintiff's suit is related to those 21 contacts. “A strong showing on one axis will permit a lesser showing on the other. A single forum state contact can support jurisdiction if the cause of action arises out 22 of that particular purposeful contact of the defendant with the forum state.” 23 Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007) (quoting Yahoo! Inc. v. La Ligue Contre Le 24 Racisme Et L'Antisemitisme, 433 F.3d 1199, 1210 (9th Cir. 2006) (en banc) (internal citation, 25 quotation signals, ellipses, and brackets omitted). 26 Here, the Defendants’ activities in Guam are limited. PCMH took steps to register and 27 enforce the North Carolina state judgment, but these actions did not give rise to the Plaintiff’s 28 claims. The Plaintiff’s Complaint essentially asserts that the Defendants improperly suspended and 1 ultimately revoked his medical privileges at PCMH and that all the courts that have previously 2 reviewed his claims essentially got it wrong. The Ninth Circuit has specifically stated that “the 3 simple domestication of a foreign judgment . . ., standing along, is unlikely sufficient to confer 4 personal jurisdiction on the judgment creditor.” Menken v. Emm, 503 F.3d 1050, 1061 (9th Cir. 5 2007).6 Because the Plaintiff has not alleged any other actions in Guam by the Defendants aside 6 from PCMH’s attempt to register the North Carolina state court judgment, the facts before the court 7 are insufficient to confer personal jurisdiction over the Defendants. 8 Even PCMH’s contract with the Berman firm to represent it in the Superior Court action and 9 this court are not enough to show that PCMH “purposefully availed” itself of the privilege of 10 conducting business in Guam. See Roth v. Garcia Marquez, 942 F.2d 617, 621 (9th Cir. 1991) 11 (“the existence of a contract with a resident of the forum state is insufficient by itself to create 12 personal jurisdiction over the nonresident.”). 13 Another insignificant contact was the mailing of letters to Guam by Defendants Salsman and 14 Creech.7 Both sent legal papers by mail to Plaintiff’s Guam residence in an attempt to serve the 15 Plaintiff. See Creech Decl. at ¶6, ECF No. 14, and Salsman Decl. at ¶5, ECF No. 15. Additionally, 16 Defendant Creech wrote and sent a letter to the Guam Memorial Hospital Authority at the request 17 of the Plaintiff’s attorney (Deborah Meyer) so that the Plaintiff’s license application could be 18 processed. Creech Decl. at ¶7, ECF No. 2 and Ex. A thereto. “Ordinarily, ‘use of the mails, 19 telephone, or other international communication simply do not qualify as purposeful activity 20 invoking the benefits and protection of the [forum] state.’” Roth, 942 F.2d at 622. 21 22 6 In Menken, the plaintiff, a judgment debtor, brought an action in Arizona state court against the judgment creditor, the judgment creditor’s husband, and business for which she was 23 president, alleging negligence, interference with contractual relations, civil extortion and violation of Arizona statute prohibiting improper recording of document claiming an interest in real property. 24 Id. at 1054. The state court action was then removed to the federal court, and the district court 25 dismissed for lack of personal jurisdiction. Id. The Ninth Circuit eventually reversed the district court’s finding of a lack of personal jurisdiction over the judgment creditor. Id. at 1062. The 26 appellate court found that the judgment creditor there did more than merely domesticate a foreign judgment in Arizona. After “domesticating the judgment[, the defendant] then attempt[ed] to 27 extract a greater payment than that lawfully due under the Nevada judgment.” Id. at 1061. 28 7 Defendant Creech was counsel to PCMH in the Philips I and II matters. 1 Simply put, the facts and circumstances clearly show that none of the Defendants 2 purposefully availed themselves of the privilege of doing business in Guam or that they 3 purposefully directed their actions to cause injury in Guam. The Plaintiff has failed to satisfy this 4 first prong of the specific jurisdiction test. 5 b. Claim Arises Out of Forum-Related Activities 6 The second prong of the test for specific jurisdiction requires that the claim be one that 7 arises out of or relates to the defendant’s activities in the forum. “In determining whether [a 8 plaintiff’s] claims arise out of [a defendant’s] forum-related conduct, ‘the Ninth Circuit follows the 9 ‘but for’ test.’ Hence, [a plaintiff] must show that he would not have suffered an injury ‘but for’ 10 [a defendant’s] forum-related conduct.” Menken, 503 F.3d at 1058. 11 Here, the Plaintiff’s claims concerning the suspension and revocation of his medical 12 privileges do not arise out of or relate to the Defendants’ activities in Guam. These claims have 13 nothing to do with the Defendants minimal contacts with Guam. The Plaintiff’s alleged injuries 14 occurred years prior to the Defendants’ limited activities in Guam. The Plaintiff has failed to meet 15 his burden of satisfying the second prong of the specific jurisdiction test. 16 c. Reasonableness of Exercise of Jurisdiction 17 Finally, the third prong of the test for specific jurisdiction provides that the exercise of 18 jurisdiction must comport with fair play and substantial justice. Panavision, 141 F.3d 1320. To 19 determine whether the exercise of jurisdiction over a non-resident defendant would be reasonable, 20 courts consider the following seven factors: 21 (1) the extent of the defendant[’s] purposeful interjection into the forum state’s affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of 22 conflict with the sovereignty of the defendant[’s] state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the 23 controversy; (6) the importance of the forum to the plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum. 24 Core-Vent Corp. V. Nobel Indus., 11 F.3d 1482, 1487-88 (9th Cir 1993). There is a presumption 25 that the exercise of jurisdiction is reasonable when the first two prongs of the specific jurisdiction 26 test have been met. Schwarzenegger, 374 F.3d at 802. 27 In evaluating the above factors, it appears that exercising jurisdiction over the Defendants 28 1 would not be reasonable. As discussed previously, Defendants have not purposefully interjected 2 themselves into Guam’s affairs and their contacts with Guam can be characterized as minimal. It 3 would pose a substantial burden for the Defendants, particularly the individual defendants, to 4 defend themselves in Guam since they are residents of Virginia and North Carolina. PCMH is a 5 North Carolina corporation with its principal place of business in North Carolina. A vast majority 6 of the records relating to this dispute as well as many of the witnesses are located in North Carolina. 7 And, as noted by the Defendants, “[n]o forum appears to be convenient and efficient in this case,” 8 because most if not all of the Plaintiff’s claims have been adjudicated or the statute of limitations 9 has run. 10 Overall, the Plaintiff has failed to meet his burden of making a prima facie showing of 11 sufficient minimum contacts with Guam to establish either general or specific personal jurisdiction 12 over the Defendants. 13 C. Whether dismissal or transfer of this action is appropriate 14 Having determined that it lacks personal jurisdiction over the Defendants, the court must 15 next decide whether to dismiss the case or transfer it to another jurisdiction, perhaps North Carolina 16 since the underlying actions occurred there. This issue is directly related to the third ground in the 17 Defendants’ Motion to Dismiss based on improper venue. 18 “Whenever a civil action is filed in a court . . . and that court finds that there is a want of 19 jurisdiction, the court shall, if it is in the interest of justice, transfer such action . . . to any other such 20 court in which the action could have been brought at the time it was filed . . . .” 28 U.S.C. § 1631; 21 see also 28 U.S.C. § 1406(a) (“The district court of a district in which it filed a case laying venue 22 in the wrong . . . District shall dismiss, or it be in the interest of justice, transfer such case to any 23 district or division in which it could have been brought.”) “Transfer is appropriate . . . if three 24 conditions are met: (1) the transferring court lacks jurisdiction; (2) the transferee court could have 25 exercised jurisdiction at the time the action was filed; and (3) the transfer is in the interest of 26 justice.” Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 2001) (citation omitted). This rule 27 is mandatory; if the conditions are met, “[t]he statute requires transfer.” Costlow v. Weeks, 790 F.2d 28 1486, 1488 (9th Cir. 1986). “When determining whether transfer is in the interest of justice, courts 1 have considered whether the failure to transfer would prejudice the litigant, whether the litigant 2 filed the original action in good faith, and other equitable factors.” Cruz-Aguilera, 245 F.3d at 3 1074. “Normally transfer will be in the interest of justice because normally dismissal of an action 4 that could be brought elsewhere is time-consuming and justice-defeating.” Id. (quoting Goldlawr 5 Inc. v. Heiman, 369 U.S. 463, 467 (1962)). 6 As discussed above, the court lacks personal jurisdiction over the Defendants. Although 7 North Carolina may have personal jurisdiction over the Defendants, transferring this action to that 8 state would be futile since both the federal and state court have already dismissed nearly identical 9 claims raised by the Plaintiff in those courts. A transfer to North Carolina would not be in the 10 interest of justice, and accordingly, the court recommends that the Chief Judge dismiss this action. 11 D. Whether the court should grant the Defendants’ request for sanctions 12 Finally, at the hearing on the Motion to Dismiss, the Defendants requested for the first 13 time that the court impose sanctions8 on the Plaintiff for allegedly lying to the court in stating 14 that the instant action is unrelated to the prior cases he filed and for filing this lawsuit for the 15 purpose of unnecessarily delaying the collection action against him. 16 Rule 11(b) of the Federal Rules of civil Procedure permits a court to sanction attorneys or 17 unrepresented parties who submit pleadings for an improper purpose, that contain frivolous 18 arguments or arguments that have no evidentiary support. This rule provides: 19 (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper – whether by signing, filing, submitting, or later advocating 20 it – an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the 21 circumstances: 22 (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; 23 (2) the claims, defenses, and other legal contentions are warranted by 24 existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; 25 (3) the factual contentions have evidentiary support or, if specifically so 26 identified, will likely have evidentiary support after a reasonable opportunity 27 28 8 Mr. Berman asked the court to impose a $10,000 sanction, to throw the Plaintiff in jail until it is paid, and to otherwise sanction him in some meaningful way. Dr. Sherif Philips v. Pitt Cty. Mem'l Hosp., Inc., Paul Bolin, Ralph Whatley, David Creech and Jay Salsman. Civil Case No. 18-00046 Report and Recommendation re Motion to Dismiss page 17 of 17 1 for further investigation or discovery; and 2 (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of 3 information. 4 |] Fed. R. Civ. P. 11(b). 5 Before sanctions can be imposed, “[a] motion for sanctions must be made separately from 6 |] any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The 7 || motion must be served under Rule 5[.]” Fed. R. Civ. P. 11(c)(2). Here, the Defendants failed to file 8 || aseparate motion for sanctions that complies with the requirements of Rule 11(c)(2). Accordingly, 9 || the court recommends that the Chief Judge deny the request for sanctions against the Plaintiff. 10 CONCLUSION 11 Based on the above, the court finds a lack of federal question jurisdiction and personal 12 || jurisdiction over the Defendants. Based on these findings, there is no need for the court to address 13 || the other grounds raised in the Motion to Dismiss. Accordingly, the court recommends that the 14 || Chief Judge grant the Motion to Dismiss. Because the Defendants failed to comply with 15 |} Rule 11(c)(2), the court further recommends that the Chief Judge deny the Defendants’ oral request 16 || to impose sanctions against the Plaintiff. 17 IT IS SO RECOMMENDED. 18 19 /s/ Joaquin V.E. Manibusan, Jr. | U.S. Magistrate Judge 20 & Dated: Sep 30, 2019

22 23 NOTICE 24 Failure to file written objections to this Report and Recommendation within 25 fourteen (14) days from the date of its service shall bar an aggrieved party from attacking such Report and Recommendation before the assigned 2% United States District Judge. 28 U.S.C. § 636(b)(1)(B). 27 28