United States District Court, District of Columbia
DR. SANJAY ARORA, Plaintiff,
BUCKHEAD FAMILY DENTISTRY, INC., et al., Defendants.
RANDOLPH D. MOSS United States District Judge.
pro so, Plaintiff Sanjay Arora brings this diversity
action against his dentist, the manufacturer of an allegedly
defective dental crown, and his dental insurer. Each of the
defendants has moved to dismiss, Dkts. 7, 11, and 19, and
Arora has moved for an extension of time to effect service,
Dkt. 14, for leave to file a second amended complaint, Dkt.
30, and to amend the civil cover sheet, Dkt. 13. For the
reasons discussed below, the Court concludes (1) that it
lacks personal jurisdiction over Arora's dentist and the
manufacturer of the dental crown and that Arora has yet to
establish that he has properly served his insurer; (2) that
Arora should be granted an extension of time to effect
service of process on his insurer; (3) that Arora's
motion for leave to amend should be denied without prejudice;
and (4) that there is no basis (or need) to permit Arora to
amend his civil docket sheet. Finally, the Court will issue
an order directing that the parties show cause why this
action should not be transferred to the United States
District Court for the Northern District of Georgia pursuant
to 28 U.S.C. 1406(a) and/or 28 U.S.C. § 1631.
purposes of considering the pending motions to dismiss and
Arora's related motion for leave to amend, the Court will
assume that the facts alleged in Arora's first amended
complaint and proposed second amended complaint are true.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(factual allegations must be taken as true for purposes of a
motion to dismiss); James Madison Ltd. by Hecht v.
Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)
(“Courts may deny a motion to amend a complaint as
futile . . . if the proposed claim would not survive a motion
to dismiss.”). Moreover, because Arora is proceeding
pro se, the Court must construe his pleadings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (“A document filed pro se is ‘to
be liberally construed' . . . and ‘a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.'”) (citation omitted). With these
principles in mind, the relevant facts are as follows:
he was living in Atlanta, Georgia, in late 2013, Arora sought
treatment for a cracked tooth from Dr. Travis Paige of
Buckhead Family Dentistry (“Buckhead”). Dkt. 6 at
4. Paige first installed a temporary crown and then, on
February 25, 2014, installed a permanent crown. Id.
at 5. The permanent crown, which was manufactured by Global
Dental Solutions LLC (“Global”), was supposed to
be made of a “high-noble metal” such as gold,
platinum, or palladium. Id. at 7, 9. As Arora
eventually discovered, however, the permanent crown was made
primarily of nickel, a potential irritant. Id. at 7,
9. Within days of the crown's installation, Arora
experienced severe discomfort and pain in the area
surrounding the affected tooth. Id. at 5-6.
Front-office staff at Buckhead assured Arora that his
reaction to the crown was normal, and Paige subsequently
tried filing the crown down to mitigate the irritation.
Id. at 6. Arora ultimately switched dentists and had
the crown removed and replaced with a non-metal alternative
in September 2014. Id. at 8. At all relevant times,
Cigna Health and Life Insurance Company (“Cigna”)
was Arora's dental insurance provider. Id. at 4.
Arora requested copies of all files relating to the
installation of the permanent crown, at which point he
discovered that Global had invoiced Buckhead for a “Non
Precious [metal]” crown with a primarily nickel and
chromium interior. Id. at 8-9; Dkt. 30-1 at 54.
subsequently moved to the Washington, D.C. area, and lived at
various addresses in Maryland, Virginia, and the District of
Columbia starting in August 2014. Dkt. 16 at 23 (Arora Aff.
¶¶ 7-8). He brought this lawsuit in September 2016
against Buckhead, Paige, Global, Brad Abramson (who serves as
Global's president), and Cigna. Dkt. 1 at 1. Shortly
after Global and Abramson moved to dismiss, Arora amended his
complaint as of right pursuant to Federal Rule of Civil
Procedure 15(a)(1). Dkt. 6. The amended complaint contains
ten counts: (1) fraud against Buckhead and Paige; (2)
negligent misrepresentation against Buckhead and Paige; (3)
unjust enrichment against Buckhead and Paige; (4) breach of
fiduciary duty against Buckhead and Paige; (5) negligence
against Buckhead and Paige; (6) breach of fiduciary duty
against Cigna; (7) negligent misrepresentation against Cigna;
(8) fraud against Global and Abraham; (9) unjust enrichment
against Global and Abraham; and (10) conspiracy against
Cigna, Paige and Buckhead. Id. at 11-27. In
response, Global and Abramson renewed their motion to
dismiss, Dkt. 7, and Buckhead, Paige, Dkt. 11, and Cigna,
Dkts. 18, 19, moved to dismiss. After briefing was completed
on those motions, Arora moved for leave to file a second
amended complaint. Dkt. 30. He has also moved to extend the
time for service of process, Dkt. 14, and to amend the civil
cover sheet, Dkt. 13.
Personal Jurisdiction Under the D.C. Long-Arm
Abraham, Buckhead, and Paige all move to dismiss on the
ground that this Court lacks personal jurisdiction over them
under the D.C. long-arm statute and the U.S. Constitution.
Dkt. 7 at 1; Dkt. 11 at 1. Because the Court concludes that
Arora has not alleged (or otherwise proffered) facts that
would, if true, establish personal jurisdiction over these
defendants under the D.C. long-arm statute, it need not reach
the constitutional question. See GTE New Media Servs.
Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir.
party asserting federal jurisdiction, Arora bears the burden
of “mak[ing] a prima facie showing of the
pertinent jurisdictional facts.” First Chi.
Int'l v. United Exch. Co., Ltd., 836 F.2d 1375, 1378
(D.C. Cir. 1988). “A court may dismiss the complaint if
it fails facially to plead facts sufficient to establish that
the Court has jurisdiction, but ‘where necessary, the
[C]ourt may [also] consider the complaint supplemented by
undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the [C]ourt's
resolution of disputed facts.'” Achagzai v.
Broad. Bd. of Governors, 170 F.Supp.3d 164, 173 (D.D.C
2016) (quoting Herbert v. Nat'l Acad. Of Scis.,
974 F.2d 192, 197 (D.C. Cir. 1992)). For the reasons
explained below, the Court can resolve the pending Rule
12(b)(2) motion based on the facts as Arora alleges them, and
without resolving any disputed issues of fact.
relevant here, the D.C. long-arm statute provides that
“[a] District of Columbia court may exercise personal
jurisdiction over a person, who acts directly or by an agent,
as to a claim for relief arising from the person's . . .
causing tortious injury in the District of Columbia
by an act or omission outside the District of Columbia if he
regularly does or solicits business, engages in any other
persistent course of conduct, or derives substantial revenue
from goods used or consumed, or services rendered in the
District of Columbia.” D.C. Code § 13-423(a)(4)
(emphasis added). Thus, where a party seeks to recover in the
District of Columbia for a tortious act or omission that
occurred in another jurisdiction, as Arora seeks to do here,
that party bears the burden of alleging and ultimately
demonstrating (1) that the allegedly wrongful act or omission
caused a “tortious injury in the District of
Columbia” and (2) that the defendant has established
significant ties to the District of Columbia by, for example,
engaging in some “persistent course of conduct”
in the jurisdiction. See Forras v. Rauf, 812 F.3d
1102, 1107-08 (D.C. Cir. 2016); Etchebarne-Bourdin v.
Radice, 982 A.2d 752, 761 (D.C. 2009). Although it is
far from clear that any of the defendants who have moved to
dismiss under Rule 12(b)(2) have significant ties to the
District of Columbia, see Dkts. 7, 11, the Court
need not resolve that question because Arora's efforts to
invoke § 13-423(a)(4) founder at the first step-he has
failed to allege, or otherwise to identify, any
“tortious injury” that he sustained in the
District of Columbia.
alleged injury is the damage to his gums caused by the
installation of a low-quality crown. That injury took place
in Georgia. The only harm Arora alleges that he suffered in
the District of Columbia is that he “continue[s] to
experience minor to moderate pain associated with” the
affected tooth. Dkt. 16 at 23 (Arora Aff. ¶ 7). By the
time he moved to the District of Columbia, he was no longer a
patient of Buckhead or Paige, he had no relationship with
Global or Abramson, and he was no longer insured by Cigna.
Dkt. 6 at 8. The fact that he continued to suffer
“minor to moderate pain” as a result of the
injury that he sustained in Georgia does not qualify as a
separate injury occurring in the District of Columbia for
purposes of the D.C. long-arm statute.
relevant respects, this case is on all fours with this
Court's decision in Leaks v. Ex-Lax, Inc., 424
F.Supp. 413 (D.D.C. 1976). In that case, the plaintiff had an
adverse reaction to two Ex-Lax pills that she consumed while
in Phoenix, Arizona, in March 1974. Id. at 415. She
was treated in Phoenix and did not return home to the
District of Columbia until May 1974. Id. She
alleged, however, that she continued to suffer “extreme
physical and mental injury” and substantial financial
losses after returning to the District of Columbia, and that,
as a result, at least a portion of her “injury”
was caused in the District within the meaning of §
13-423(a)(4). Id. The Court disagreed, holding that
the plaintiff's position was not supported by either
“the plain meaning of” the statute or “the
pertinent legal authorities.” Id. As the Court
explained: “To allege that plaintiff's continuing
pain shifts the site of the injury to this [d]istrict would
also mean that any jurisdiction to which plaintiff has
travelled since she consumed the pills and which has a
similar long-arm provision would be an appropriate forum for
[the] lawsuit, for the continuing pain (the
‘injury' under plaintiff's reasoning) would
have been felt in any such potential forum.”
Id. Plaintiff's theory, in short, was at odds
with the ordinary meaning of the phrase “causing an
injury in the District of Columbia” and, in addition,
it proved too much.
25 years after Leaks was decided, the Court of
Appeals for the District of Columbia endorsed this reasoning,
embraced the distinction between “original
injury” and “secondary injury, ” and held
that “‘second injury' which follows [a]
plaintiff wherever she travels cannot form the basis for
personal jurisdiction over [an out-of-state]
defendant.” Etchebarne-Bourdin v. Radice, 754
A.2d 322, 328 (D.C. 2000); see also Etchebarne-Bourdin v.
Radice, 982 A.2d 752, 761 n.8 (D.C. 2009). Citing
Leaks, the D.C. Court of Appeals held that it is
“‘the original physical injury' [that] is
paramount in determining where the tortious injury has been
caused.” 754 A.2d at 327. Under that now-settled
principle of D.C. law, it is clear that Arora's alleged
tortious injury occurred in Georgia, where the defective
crown was installed, and not in Florida, Michigan, Germany,
Tennessee, Virginia, Maryland, or the District of
Columbia-all places where Arora traveled after sustaining his
injury and while still experiencing pain. Dkt. 16 at 23
(Arora Aff. ¶¶ 7-8).
argues that personal jurisdiction over Buckhead is proper
because he received several marketing emails from Buckhead
while living in the District of Columbia. Dkt. 16 at 10.
Those emails, however, had nothing to do with the tortious
conduct alleged in this action and thus cannot satisfy the
“transacting any business” or “contracting
to supply services” prongs of the D.C. long-arm
statute, which require that the “claim for relief
aris[e] from” that activity. See D.C. Code
§ 13-423(a)(1) & (2), (b). Because the emails did
not themselves cause any injury in the District of Columbia,
moreover, they also cannot satisfy the “injury”
requirement of the “tortious injury” prongs of
the long-arm-statute. See Id. § 13-423(a)(3)
also cites several personal jurisdiction cases in which
courts upheld the exercise of personal jurisdiction over
defendants who directed communications, including emails,
into the forum state. See Dkt. 16 at 11-12. But
those cases involved either the constitutional issue of the
minimum contacts necessary to satisfy due process, or
long-arm statutes more expansive than the District of
Columbia's, or specific factual allegations connecting
the defendants to the forum state that are not present here
(or all three). They do not address the question that is
dispositive here: whether the D.C. long-arm statute confers
personal jurisdiction over those who engage in medical
malpractice or other tortious conduct outside of the District
of Columbia, which does not cause an “original
injury” in the District.
Court, accordingly, concludes that D.C. the long-arm statute
does not authorize personal jurisdiction over ...