Gilbert-Cohen v. Carthage Area Hospital, Inc.

Gilbert-Cohen v. Carthage Area Hosp., Inc., No. 20-1-10 Wmcv (Wesley, J., June 28, 2010)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
WINDHAM COUNTY
JENNIFER GILBERT-COHEN,
Plaintiff
WINDHAM SUPERIOR COURT
v. DOCKET NO. 20-1-10 Wmcv
CARTHAGE AREA HOSPITAL, INC.
Defendant.
ORDER ON MOTION TO DISMISS
FOR LACK OF PERSONAL JURISDICTION
Jennifer Gilbert-Cohen, a Vermont resident, was briefly employed as a midwife
by Carthage Area Hospital (hereinafter “the hospital”), a community hospital located in a
rural area near Syracuse, New York. After her employment was terminated, Gilbert-
Cohen brought this action in Vermont, alleging several claims against the hospital arising
from her employment and discharge. Currently pending is the hospital’s motion to
dismiss for lack of personal jurisdiction. See V.R.C.P. 12(b)(2). Concluding that the
hospital did not direct its activities towards residents of Vermont in a manner so as to
purposely avail itself of the privileges of conducting activities here, the Court GRANTS
the hospital’s motion to dismiss for lack of personal jurisdiction.
Background
When a motion to dismiss for lack of personal jurisdiction is decided without an
evidentiary hearing,1 the plaintiff is required to make only a prima facie showing of
personal jurisdiction. See Northern Security Ins. Co. v. Mitec Electronics, Ltd., 2008 VT
96, ¶ 14, 184 Vt. 303, 310. The court’s approach is essentially the same as that taken on
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Neither party requested an evidentiary hearing.
a motion for summary judgment: it views the pleadings, affidavits, and exhibits in a light
most favorable to the plaintiff and gives her the benefit of all reasonable doubts and
inferences. See id. Nonetheless, as with a motion for summary judgment, defendant’s
uncontroverted evidence may be considered, and an assertion by the plaintiff about the
defendant “upon information and belief” is not sufficient to controvert the defendant’s
affidavit testimony about a matter within its actual knowledge. Cf. Levy v. Town of St.
Albans Zoning Board of Adjustment, 152 Vt. 139, 145 (stating same in context of
summary judgment motion).
Viewing the parties’ allegations and evidence in this manner, it appears that
Gilbert-Cohen was alerted to the possibility of temporary employment at the hospital by a
third-party independent medical recruiter, and indicated that she would be interested.
The recruiter advised Gilbert-Cohen to contact the hospital directly, but this approach
proved unproductive. At some point, however, the independent medical recruiter
contacted Walter Becker, the hospital’s CEO, and asked if the hospital needed midwives
and would like a list of potential candidates. Becker said yes, and the recruiter sent the
list, which included Gilbert-Cohen. Becker then called Gilbert-Cohen in Vermont to
invite her to come to Carthage for an interview. Following the interview, Becker called
Gilbert-Cohen in Vermont to offer her the position, and then sent her a proposed contract.
The hospital negotiated the contract with Gilbert-Cohen’s Vermont attorney, and sent her
a credentialing packet and employment packet in Vermont. The contract was for full-
time employment as a midwife in the rural area of Carthage, near Syracuse, New York.
Nonetheless, the hospital knew that Gilbert-Cohen intended to remain a resident of
Vermont.
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Analysis
Vermont’s long-arm statute confers jurisdiction to the full extent allowed by the
due process clause of the federal constitution. See, e.g., Mitec, 2008 VT 96, ¶ 14, 184 Vt.
303, 310. Thus, the personal jurisdiction inquiry focuses on the International Shoe test
for due process -- whether the defendant has sufficient contacts with the state that the
exercise of jurisdiction does not “offend traditional notions of fair play and substantial
justice.” Id., quoting International Shoe Co. v. Washington, 326 U.S. 316 (1945). The
test is essentially one of reasonableness: Are the defendant’s actions toward and
connections with the state such that the defendant should reasonably anticipate being
haled into court there? See Dall v. Kaylor, 163 Vt. 274, 276 (1995). The reasonableness
test is generally met when the defendant has “purposefully availed” itself of the forum by
purposefully directing its activities towards residents of the forum state, and the litigation
arises from those activities. See Dall, 163 Vt. at 276.
It is undisputed that the defendant hospital has never marketed its services in
Vermont, which is the most common way a non-resident corporate defendant
purposefully directs its activities toward Vermont. See, e.g., Dall, 163 Vt. at 275-77
(Vermont court may exercise jurisdiction over Maryland horse farm that is in business of
selling horses and regularly advertises its horses in nationally circulated magazines; “It is
hardly unfair for defendants to defend themselves in jurisdictions where they choose to
advertise their products.”).
Nonetheless, Gilbert-Cohen argues that an exercise of personal jurisdiction over
the hospital would be reasonable in Vermont because the hospital solicited and recruited
her as an employee, contacted and sent her materials in Vermont, negotiated with her
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Vermont lawyer, and entered into the employment contract with her knowing she was a
Vermont resident and intended to remain one. The Court considers the first circumstance
– the solicitation and recruitment, if any – to be the pivotal one. The United States
Supreme Court has made it clear that a foreign defendant’s contract with a forum resident
is not alone a sufficient basis for an exercise of personal jurisdiction. Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 478 (1985); Conti v. Pneumatic Products Corp., 977 F.2d
978, 982 (6th Cir. 1992). Moreover, “’the Court long ago rejected the notion that personal
jurisdiction might turn on ‘mechanical’ tests, or on ‘conceptualistic theories of the place
of contracting or performance.’” Burger King, 471 U.S. at 478-79. After all, the test is
essentially one of reasonableness based on purposeful availment; so it makes sense in an
employment case that the focus is not on where the parties happened to be located at
various points in the contracting process; rather, it is on the degree to which the non-
resident employer solicited or initiated the employment relationship by targeting its
recruitment process to the plaintiff/resident in particular or to residents of the forum
generally.
Bearing in mind this analytic framework, the Court considers the hospital’s
actions in soliciting and recruiting Gilbert-Cohen. The hospital did not initiate the hiring
process by targeting Gilbert-Cohen specifically or the Vermont market generally.
Compare Vuylsteke v. Broan, 17 P.3d 1072, 1079 (Or. App. 2001) (New York employer
was subject to personal jurisdiction in Oregon where it specifically initiated contact with
resident plaintiff individually, due to her unique expertise, to entice her to return to the art
world of New York rather than remaining in Oregon where she had escaped to devote
herself to child-rearing); Hahn v. Vermont Law School, 698 F.2d 48, 52 (1st Cir. 1983)
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(defendant law school was subject to personal jurisdiction in Massachusetts based on its
efforts to serve market for legal education in that state; over the years students from
Massachusetts consistently comprise close to ten percent of class, VLS faculty visit
Massachusetts colleges for recruitment purposes, and school has placed advertisements in
Boston newspapers); Davis v. Baylor Univ., 976 S.W.2d 5, 13 (W.D. Mo. App. 1998)
(defendant university was subject to personal jurisdiction in Missouri where members of
its coaching staff had gone to forum state to actively recruit plaintiff, particularly since
recruitment of plaintiff was part of larger effort to recruit other students and student
athletes from forum state as well). Instead, the hospital was contacted by a third-party
who asked if it wanted a list of persons interested in a midwife position, the hospital
responded yes, and the hiring process began.2 Thus, even viewing the evidence favorably
to Gilbert-Cohen, it cannot be said that the hospital actively solicited or recruited her.
Rather, since the relationship between the parties started with the plaintiff indicating her
interest to a third party independent recruiter and the independent recruiter calling the
hospital, the only acts of solicitation or recruitment on the part of the hospital were the
call to invite Gilbert-Cohen for an interview and the call to offer her the job. Coupled
with the fact that the hospital has never solicited, recruited, or hired anyone else from
Vermont, these acts are not sufficient to constitute purposeful availment and make
jurisdiction here reasonable.
2
In her affidavit, Gilbert-Cohen stated “upon information and belief” that the hospital hired
the recruiter who initially called her in Vermont. However, Becker’s affidavit states, based on
personal knowledge, that he did not initiate contact with or hire the recruiter, but was instead
called by her and asked if he would like a list of potential applicants for a midwife position; and
his testimony based on personal knowledge cannot be controverted by Gilbert-Cohen’s statement
based only “upon information and belief.” Cf. Levy, 152 Vt. at 145 (stating same in context of
summary judgment motion).
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The Sixth Circuit reached the same conclusion in Conti v. Pneumatic Products
Corp., 977 F.2d 978 (6th Cir. 1992), a case similar to this one on its facts. There, the
former employee was an Ohio resident who implored the Court in Ohio to exercise
personal jurisdiction over a Florida employer. The plaintiff/former employee had sent his
resume to an executive recruiting firm he found listed in a directory of executive
recruiting firms advertised in the Wall Street Journal. The defendant employer hired this
recruiting firm to fill an executive position, and through them talked to the plaintiff in
Ohio several times and sent him written materials there. It mailed him airline tickets in
Ohio, conducted extensive contract negotiations with him there, and mailed an
employment contract offer letter to him there. The Court noted these contacts but
focused on the initiation of the relationship, concluding that the employer’s act of hiring a
recruiter who happened to have acquired the resume of the Ohio resident, and then
proceeding with the steps that resulted in hiring an Ohio resident, were not sufficient to
make an exercise of jurisdiction in Ohio fair. Indeed, the Court concluded that the
exercise of jurisdiction on such limited contacts would likely have an inhibiting effect
which “could unnecessarily restrict nationwide searches for candidates.” 977 F.2d at
983. Here, the argument for exercise of personal jurisdiction is factually weaker than in
Conti, because the employer in Conti had actually hired the recruiter who provided the
plaintiff’s name, while the hospital in this case had not hired the recruiter and simply
responded positively to an independent recruiter’s inquiry regarding interest. In any case,
the Court finds Conti persuasive. Accord Goodstein v. Regional Medical Services, 2010
WL 1856480 (W.D. Mich.).
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In sum, the Court concludes that it would be unfair as well as unwise to assert
jurisdiction here over a rural community hospital in New York – a local institution
serving a local market a long way from Vermont – just because it was willing to hire a
Vermont resident who it determined to be the best applicant for the job. It is true, as
Gilbert-Cohen points out, that Vermont has an interest in pursuing justice for its residents
who are wronged. However, it does not have an interest in discouraging non-residents
from hiring residents by unreasonably exposing foreign employers to the threat of
litigation far from their places of business.
ORDER
WHEREFORE it is hereby ORDERED : The hospital’s motion to dismiss for
lack of personal jurisdiction is GRANTED.
Dated at Newfane, Vermont, this ____ day of June, 2010.
________________________
John P. Wesley
Presiding Judge
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