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Arora v. Buckhead Family Dentistry, Inc.

United States District Court, District of Columbia

June 26, 2017

DR. SANJAY ARORA, Plaintiff,


          RANDOLPH D. MOSS United States District Judge.

         Proceeding pro so, Plaintiff Sanjay Arora brings this diversity action against his dentist, the manufacturer of an allegedly defective dental crown, and his dental insurer.[1] 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.

         I. BACKGROUND

         For 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:

         While 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.

         Arora 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.

         II. ANALYSIS

         A. Personal Jurisdiction Under the D.C. Long-Arm Statute

         Global, 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. 2000).

         As the 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.

         As 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.

         Arora's 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.

         In 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.

         Almost 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).

         Arora 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) & (4).

         Arora 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).[2] 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.

         The Court, accordingly, concludes that D.C. the long-arm statute does not authorize personal jurisdiction over ...

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