Van Dorn v. Lerman

• Court: District Court, D. New Hampshire
• Decided: November 14, 1997
• Docket: CV-97-345-M
• Status: Published

Opinion

Van Dorn v. Lerman CV-97-345-M 11/14/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Edward M. Van Dorn, Jr.

v. Civil No. 97-345-M

Sidney Lerman

O R D E R

Plaintiff, Edward M. Van Dorn, Jr., a New Hampshire lawyer,

hired defendant, Sidney Lerman, an opthamologist, to evaluate

certain aspects of a product liability suit in which Mr. Van Dorn

represented the plaintiff, and, if appropriate, to provide expert

opinion testimony. The product liability suit ended when summary

judgment was granted in favor of the defendant; the court

determined that Dr. Herman's proposed expert opinion testimony

did not satisfy the admissibility prerequisites established in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993). Grimes v. Hoffmann-LaRoche, Inc., 907 F. Supp. 33

(D.N.H. 1995). Thereafter, Dr. Lerman brought suit in New York

state court to recover fees he claimed were owed him for expert

services he provided Van Dorn in the Grimes case.

Mr. Van Dorn also filed suit — in this court, alleging that

Dr. Lerman was negligent and breached his contract to provide

expert witness services in the Grimes case. Dr. Lerman now moves

to dismiss the complaint for lack of personal jurisdiction or for

improper venue. Dr. Herman's undisputed systematic and

continuous contacts with New Hampshire during the performance of his contractual obligations in the Grimes case, including

providing opinions and advice to Mr. Van Dorn by telephone and

mail and by participating in a telephonic hearing with Judge

Barbadoro, appear to provide sufficient contacts to meet the

tripartite test for personal jurisdiction. See Sawtelle v.

Farrell, 70 F.3d 1381, 1388-89 (1st Cir. 1995); see also Burger

King v. Rudzewicz, 471 U.S. 462, 476 (1985). For the same

reasons, venue is likely to be appropriate in the district of New

Hampshire. See 28 U.S.C.A. § 1391(a).

The court declines, however, to make a final determination

as to either personal jurisdiction or venue because the parties'

pleadings raise an obvious question as to whether the court

should abstain from further action in this suit. See, e.g..

Brooks v. New Hampshire Supreme Court, 80 F.3d 633, 638 (1st Cir.

1996) (discussing circumstances under which a federal court

should decline to proceed in light of the familiar Younger

abstention principles). It appears that Dr. Herman's suit, filed

in New York state court, raises the same or very similar issues

as Mr. Van Dorn raises here. It also seems that the New York

state court action is currently pending and that resolution of

the contract claims may implicate important state interests. It

also seems probable that Dr. Herman's suit was filed first,

though that is unclear.

The court directs the parties to address the question of

abstention as follows. If the parties agree that abstention is

appropriate, they may file a joint stipulation to that effect.

2 If the parties do not agree, plaintiff shall file a well-

supported memorandum of law showing cause why the court should

not abstain, and defendant shall file a memorandum of law setting

forth his position on the matter. The memorandum shall be filed

simultaneously on or before December 19, 1997.

For the foregoing reasons, the defendant's motion to dismiss

is denied without prejudice. Parenthetically, the parties'

report of their planning meeting is insufficient in that it does

not include proposed deadline dates, and, therefore, is returned.

It may be refiled, if necessary, with appropriate information

within 10 days following resolution of abstention issue.

SO ORDERED.

Steven J. McAuliffe United States District Judge

November 14, 1997

cc: Arend R. Tensen, Esq. Mark C. Rouvalis, Esq.