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United States District Court, S.D. New York

January 7, 2004.

RICHARD HARTMAN, Plaintiff, -v- LOW SECURITY CORRECTIONAL INSTITUTION ALLENWOOD (A Federal Correctional Facility); SUSAN GERLINSKI, Warden; JOHN DeSANTIS, Administrator, Health Services; TAWFIG ANSARI, M.D., Chief Physician; D. BERTONE, R.N.; K. HEROLD, R.N.; F. FASCINA, P.A.; J. REASER, R.N.; JAMES REED, P.A.-C.; REGINA HENRY ALI, P.A.; CRAIG, Mr., P.A.; EDGARDO T. ONG, Supervising P.A.; EVANGELICAL HOSPITAL; DENNIS R. SMITH, M.D.; and PFIZER, INC., Pharmaceutical Manufacturer, Defendants

The opinion of the court was delivered by: DENISE COTE, District Judge


On July 29, 2003, Richard Hartman ("Hartman"), a former inmate in the federal prison at Allenwood, in White Deer, Pennsylvania, filed this civil action against the Allenwood Page 2 facility, certain of its officials and health care providers, Evangelical Hospital ("Evangelical"), Dr. Dennis Smith ("Smith"), a physician at Evangelical, and Pfizer, Inc ("Pfizer"). Evangelical has brought a motion to dismiss for lack of personal jurisdiction, among other grounds. Hartman has responded with a request that this action be transferred to the Middle District of Pennsylvania. For the following reasons, the motion to dismiss is denied, and the motion to transfer is granted.


  The complaint arises from medical care given to Hartman following his heart attack on July 29, 2001, while he was an inmate at Allenwood. It asserts that there is jurisdiction over the action based on federal question jurisdiction and because there is diversity jurisdiction over the tort claims against Evangelical, Smith and Pfizer.

  The first claim is brought against Allenwood and its employees for deliberate indifference to Hartman's medical condition, apparently in violation of Title 42, United States Code, Section 1983.*fn1 The second claim is brought against Evangelical and Smith for negligence. The third through seventh claims are brought against Pfizer for its breach of warranties, negligence and misrepresentations with respect to the drug Cardura. Page 3

  Evangelical is identified in the complaint as a Pennsylvania corporation doing business in that state. Evangelical was served on October 16, 2003, by hand delivery of a copy of the summons and complaint to its administrative offices in Kelly Township, Union County, Pennsylvania.

  Pfizer has answered the complaint. The time for most of the remaining defendants to move or answer has been extended to January 30, 2004. No other defendant has opposed the motions brought by either Evangelical or Hartman.


  Evangelical has moved to dismiss the claim against it for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process. Evangelical's moving papers establish that it transacts no business within New York and does not contract to supply goods or services in New York. It points out that the tort alleged against it was committed in Pennsylvania, and that the plaintiff has not alleged that Evangelical solicits business in or derives substantial revenue from services rendered within New York. Accordingly, Evangelical argues that there is no personal jurisdiction over it pursuant to New York's long-arm statute.

  In opposition, Hartman points out that he is a domiciliary of New York, that his choice of forum should be entitled to deference, and that jurisdiction may exist under New York's long-arm statute since discovery may establish that Evangelical derives significant income from the treatment of Allenwood Page 4 prisoners who are New York domiciliaries. See N.Y. C.P.L.R. § 302(a)(3) (McKinney 2001). Finally, he argues that a case may be transferred when a plaintiff has filed suit in an improper venue.

  Where there has been no discovery, "a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction." Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). Since there is no federal statute authorizing nationwide service for claims brought pursuant to Section 1983, 42 U.S.C. § 1983, personal jurisdiction must be established under the laws of the forum state of New York. Marsh v. Kitchen, 480 F.2d 1270, 1273 n.8 (2d Cir. 1973). New York's long-arm statute provides for personal jurisdiction over a non-domiciliary where, inter alia, the defendant has committed a tortious act "without the state causing injury to person or property within the state . . . if he . . . derives substantial revenue from goods used or consumed or services rendered, in the state." N.Y. C.P.L.R. § 302(a)(3).

  If jurisdiction is appropriate under the laws of the forum state, "the court must decide whether such exercise comports with the requisites of due process." Whitaker v. American Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001) (citation omitted). Under the Due Process Clause of the United States Constitution, an inquiry regarding personal jurisdiction has two parts, the minimum contacts inquiry and a reasonableness inquiry. Metropolitan Life, 84 F.3d at 567. The necessary minimum contacts may exist through either specific or general Page 5 jurisdiction. "Specific jurisdiction exists when `a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the forum'". Id. at 567-68 (citation omitted). To find specific jurisdiction, the Court must determine that "the defendant has `purposefully directed' his activities at residents of the forum, and the litigation results from alleged injuries that `arise out of or relate to' those activities." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). A defendant's conduct and connection with the forum must be such "that he should reasonably anticipate being haled into court there." Id. at 474 (citation omitted).

  Hartman has not made legally sufficient allegations of jurisdiction under New York's long-arm statute, N.Y. C.P.L.R. § 302. Hartman has not shown either that any tortious act by Evangelical caused injury to a person "within" New York, or that Evangelical derives substantial revenue from services rendered "in" New York. See N.Y. C.P.L.R. §§ 302(a)(2)-(3). Hartman's residence in New York is insufficient to establish that the injury to him was within New York since the medical services were performed upon him while he was in Pennsylvania. Whitaker, 261 F.3d at 209; Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 791 (2d Cir. 1999) (tortious act must have occurred in New York). Moreover, Hartman's speculation that Evangelical has received substantial income from services performed on New York residents does not address the statute's Page 6 requirement that the revenue be derived from services performed "in" New York.*fn2

  There being no jurisdiction over Evangelical in this district, it is necessary to consider Hartman's motion for a transfer of venue to the Middle District of Pennsylvania. A transfer to Pennsylvania may be made if it is in the interest of justice and if the case could have been brought in that district. "The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a). See Minette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993) (district court has discretion to dismiss or transfer action in the interest of justice).

  There is no dispute that this case could have been filed in the Middle District of Pennsylvania. Evangelical presents no reason not to transfer this case, other than pointing out that Evangelical sought the dismissal of the case, rather than its transfer. It is well established, however, that Section 1406(a) permits the transfer of a case even when the court in which the case was filed did not have personal jurisdiction over the defendant. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962); Fort Knox Music Inc. v. Baptiste, 257 F.3d 108, 111-12 (2d Cir. 2001). Page 7


  The motion to dismiss by Evangelical is denied, without prejudice to its renewal before the transferee court. The motion by the plaintiff to transfer this action to the Middle District of Pennsylvania is granted.


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