The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
BRENDA WATTS,
Plaintiff,
v. No. 20-cv-00452-WPJ-JFJ
FREEMAN HEALTH SYSTEM,
a Missouri Corporation,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTION TO DISMISS/TRANSFER
THIS MATTER comes before the Court1 upon Defendant Freeman Health System’s
(“Defendant”) Motion to Dismiss/Transfer this matter pursuant to 28 U.S.C. § 1406(a) and Fed.
R. Civ. P. 12(b)(3), filed November 4, 2020. Doc. 13. Plaintiff Brenda Watts (“Plaintiff”) timely
responded in opposition, Doc. 15, to which Defendant replied. Doc. 16.
BACKGROUND2
Plaintiff is a resident of Grove, Delaware County, Oklahoma. Doc. 11 at ⁋ 1 (First
Amended Complaint). In March of 2018, Plaintiff traveled approximately 35 miles to Joplin,
Missouri seeking treatment for a thyroid mass from Defendant. Id. at ⁋⁋ 18, 32. Defendant is a
health care company incorporated and headquartered in Missouri, that owns and/or leases and
operates medical facilities in Missouri, Kansas, Arkansas, and Oklahoma. Id. at ⁋⁋ 2–3. Plaintiff
was treated by Defendant’s employee, Dr. Scott McClintock. Id. at ⁋ 32. On April 10, 2018, Dr.
1 Chief United States District Court Judge William P. Johnson of the District of New Mexico was assigned this case
as a result of the Tenth Circuit Order designating Judge Johnson to hear and preside over cases in the Northern District
of Oklahoma.
2 The following facts derive from Plaintiff’s First Amended Complaint (Doc. 11), which, as the Court must on a
motion to dismiss, are taken as true, but only to the extent they are uncontroverted by the defendant’s evidence. See
Pierce v. Shorty Small’s of Branson, Inc., 137 F.3d 1190, 1192 (10th Cir. 1998).
McClintock performed a right thyroid lobectomy on Plaintiff at Freeman Hospital West in Joplin,
Missouri. Id. at ⁋ 33. Plaintiff alleges that, because of the April 10, 2018, procedure performed by
Dr. McClintock, her right vocal cords suffered nerve damage and were paralyzed. Id. at ⁋ 43.
Plaintiff alleges that Dr. McClintock should have known about and informed her of the injury to
her vocal cords when she presented to him on May 18, 2018, with complaints of hoarseness and
discomfort. Id. at ⁋⁋ 36–41.
Plaintiff filed this action on September 9, 2020, in the Northern District of Oklahoma. See
Docs. 2, 11. She alleges that Dr. McClintock’s failure to diagnose or inform her of the vocal cord
damage fell below the standard of care and resulted in injuries. Id. at ⁋⁋ 41, 48–52. Plaintiff invokes
this Court’s diversity jurisdiction under 28 U.S.C. § 1332 and concludes venue is proper here
because Defendant is considered a resident of this judicial district pursuant to § 1391(c)(2). Id. at
⁋⁋ 27, 30.
Defendant disagrees. Defendant argues that venue is not proper in the Northern District of
Oklahoma and that this Court does not have personal jurisdiction over it. See Doc. 13. In response,
Plaintiff points to her allegations in the Amended Complaint stating Defendant operates medical
facilities in Oklahoma and markets its health services in northeast Oklahoma via its website,
television advertisements, and a local directory. Doc. 11 at ⁋⁋ 3–13. Plaintiff argues these
allegations establish minimum contacts rendering Defendant subject to personal jurisdiction in
Oklahoma. See Doc. 15.
STANDARD
Where venue is improper, the district court “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). Plaintiff has the burden of establishing that venue is proper in this district.
Titsworth v. Hodge, 2018 WL 3312985, at *2 (E.D. Okla. July 3, 2018) (citing Graymore, LLC v.
Gray, 2007 WL 1059004, at *14 (D. Colo. April 6, 2007)); see also Pierce v. Shorty Small’s of
Branson, Inc., 137 F.3d 1190, 1192 (10th Cir. 1998). In assessing whether a plaintiff has met this
burden, the facts alleged in the complaint are taken as true, but only to the extent they are
uncontroverted by the defendant’s evidence. See Pierce, 137 F.3d at 1192. Further, the Court may
consider evidence outside the complaint such as a party’s affidavits. See id. The standards for
deciding a motion to dismiss for improper venue are generally the same as for deciding a motion
to dismiss for want of personal jurisdiction. Titsworth, 2018 WL, at *3.
DISCUSSION
Plaintiff, a citizen of Oklahoma, is suing Defendant, a citizen and resident of Missouri, for
events that substantially occurred in Missouri. For the reasons explained below, such scenario is
insufficient to establish proper venue and personal jurisdiction over the Defendant in the Northern
District of Oklahoma.
I. Venue
To determine if transfer is appropriate under Section 1406, the Court must first determine
whether venue is proper or improper in the Northern District of Oklahoma. The question of
whether venue is proper in a particular federal district court is governed by 28 U.S.C. § 1391.
Section 1391 states that a civil action may be brought in:
(1) a judicial district in which any defendant resides, if all defendants are residents of
the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of the property that is subject of the
action is situated; or
(3) if there is no district in which any action may otherwise be brought as provided in
this section, any judicial district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b). The parties agree Section 1391(b)(1) governs this dispute. See Doc. 15, at 4;
Doc. 15, at 2 n.1. The Court, then, must determine if the Defendant is a resident of Oklahoma.
Section 1391(c)(2) provides:
For all venue purposes – an entity with the capacity to sue and be sued in its
common name under applicable law, whether or not incorporated, shall be deemed
to reside, if a defendant, in any judicial district in which such defendant is subject
to the court’s personal jurisdiction with respect to the civil action in question . . . .
28 U.S.C. § 1391(c)(2). Therefore, to determine if the Defendant is a resident of the Northern
District of Oklahoma for venue purposes, the Court must determine if it is subject to this Court’s
personal jurisdiction with respect to this civil action.
II. Personal Jurisdiction
“The Due Process Clause of the Fourteenth Amendment constrains a State’s authority to
bind a nonresident defendant to a judgment of its courts.” Walden v. Fiore, 571 U.S. 277, 283
(2014). The law of the forum state and constitutional due process limitations govern personal
jurisdiction in federal court. Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247
(10th Cir. 2000). Oklahoma’s long-arm statute, 12 O.S. § 2004(F), provides that “[a] court of this
state may exercise jurisdiction on any basis consistent with the Constitution of this state and the
Constitution of the United States.” Tarver v. Ford Motor Co., 2016 WL 7077045, at *2 (W.D.
Okla. Dec. 5, 2016) (quotation omitted). The long-arm statute is coextensive with the constitutional
limitations imposed by the Due Process Clause. Id. (citing Rambo v. Am. S. Ins. Co., 839 F.2d
1415, 1416 (10th Cir. 1988)).
There are two types of personal jurisdiction: “‘general’ (sometimes called ‘all-purpose’)
jurisdiction and ‘specific’ (sometimes called ‘case-linked’) jurisdiction.” Bristol-Myers Squibb
Co. v. Super. Ct. of Cali., 582 U.S. 255, 262 (2017) (citing Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 918 (2011)).
A. General Jurisdiction
“[A] court may assert [general] jurisdiction over a foreign corporation ‘to hear any and all
claims against [it]’ only when the corporation’s affiliations with the State in which suit is brought
are so constant and pervasive ‘as to render [it] essentially at home in the forum state.’” Daimler
AG v. Bauman, 571 U.S. 117, 122 (2014) (quoting Goodyear, 564 U.S. at 919). Absent exceptional
circumstances—“where a corporation’s operations in a forum other than its formal place of
incorporation or principal place of business [are] so substantial and of such a nature as to render
the corporation at home in that State”—a corporation is only at home in its state of incorporation
and principal place of business. Daimler, 571 U.S. at 137–39, 139 n. 19 (citing Perkins v. Benguet
Consol. Min. Co., 342 U.S. 437 (1952)); see also Thompson v. Ford Motor Co., 2019 WL 4645446,
at *2 (D. Colo. Sept. 24, 2019).
Here, the Amended Complaint states Defendant is “incorporated under the laws of the state
of Missouri and head-quartered in Missouri.” Doc. 11 at ⁋ 2. Plaintiff does not allege or argue that
Defendant is considered “essentially at home” in Oklahoma. Therefore, taking Plaintiff’s
allegations as true, the Court does not have general jurisdiction over Defendant and the Court must
consider specific jurisdiction.
B. Specific Jurisdiction
“Specific jurisdiction is very different.” Bristol-Myers, 582 U.S. at 262. In order for a court
to exercise specific jurisdiction, the suit must arise out of or relate to the defendant’s contacts with
the forum. Id.; see also Daimler, 571 U.S. at 127. In other words, there must be “an affiliation
between the forum and the underlying controversy, principally, [an] activity or an occurrence that
takes place in the forum State and is therefore subject to the State’s regulation.” Bristol-Myers,
582 U.S. at 262 (quoting Goodyear, 564 U.S. at 919) (internal quotation marks and brackets
omitted)). For this reason, “specific jurisdiction is confined to adjudication of issues deriving from,
or connected with, the very controversy that establishes jurisdiction.” Bristol-Myers, 582 U.S. at
262 (internal quotation marks omitted).
The specific jurisdiction analysis is a two-step inquiry. Benton v. Cameco Corp., 375 F.3d
1070, 1075 (10th Cir. 2004). First, the Court must consider “whether ‘the defendant’s conduct and
connection with the forum are such that he should reasonably be anticipated being haled into court
there.’” Id. (quoting World-Wide Volkswagen Corp. v. Woodsen, 444 U.S. 286, 297 (1980)).
Second, “if the defendant’s actions create sufficient minimum contacts, [the court] must then
consider whether the exercise of personal jurisdiction over the defendant offends traditional
notions of fair play and substantial justice.” Benton, 375 F3d at 1075 (internal quotation marks
omitted).
“The ‘minimum contacts’ standard requires, first, that the out-of-state defendant must have
‘purposefully directed’ its activities at residents of the forum state, and second, that the plaintiff’s
injuries must ‘arise out of’ defendant’s forum-related activities.” Dudnikov v. Chalk & Vermillon
Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir. 2008) (quoting Burger King Corp. v. Rudzewicz,
471 U.S. 462, 472 (1985)). Plaintiff focuses on Defendant’s conduct she contends was
purposefully directed towards Oklahoma. See Doc. 15, at 8–15. In contrast, Defendant emphasizes
that Plaintiff’s alleged injuries do not arise out of its forum-related activities. See Doc. 16, at 2–5.
Accepting without deciding that Defendant did purposefully direct its activities at residents
in Oklahoma, the Court concludes Plaintiff has not satisfied the second element of the minimum
contact standard, that her injuries must arise out of defendant’s forum-related activities. See
Bristol-Myers, 582 U.S. at 262 (“Specific jurisdiction is confined to the adjudication of issues
deriving from, or connected with, the very controversy that establishes jurisdiction.”). In Gray v.
Acadia Healthcare Company, Inc., the plaintiff initiated a suit in New Mexico against an
Oklahoma entity. 408 F. Supp. 3d 1250, 1252 (D.N.M. Oct. 1, 2019). The plaintiff was a resident
at the defendant’s hospital in Oklahoma when she was allegedly raped. Id. The defendant moved
to transfer venue arguing venue was improper in New Mexico. Id. The plaintiff argued the
defendant was subject to specific jurisdiction in New Mexico because “[d]efendant [] used the
New Mexico Children, Youth and Family Department (CYFD) as a referral source to place New
Mexico residents at its hospital and because [d]efendant [] had communications with CYFD about
placing [p]laintiff at [defendant’s] hospital.” Id. at 1253. The district court rejected this argument.
“Plaintiff’s claimed injuries, however, do not arise out of a referral or [defendant’s]
communications with CYFD, but rather the alleged rape at [defendant’s hospital] in Ada,
Oklahoma.” Id. at 1253–54. The Court concluded it did not have specific jurisdiction over the
defendant rendering venue improper and transferred the case to the Eastern District of Oklahoma.
Id. at 1254–55.
In another case, an Oklahoma resident sued Sparks Health System and Fort Smith HMA,
LLC, Arkansas companies, along with doctors who resided in Arkansas in the Eastern District of
Oklahoma. Titsworth v. Hodge, 2018 WL 3312985, at *1 (E.D. Okla. July 3, 2018). The plaintiff
fell at his home in Oklahoma and traveled to Arkansas to seek treatment at Sparks Regional
Medical Center. Id. at *1.3 The defendants moved to transfer venue or dismiss for improper venue.
Id. Section 1391(b)(1) was not at issue the case. Id. at *2. The district court concluded that a
substantial part of the events or omissions giving rise to the claim did not occur in Oklahoma for
3 Fort Smith HMA, LLC—owned by Sparks Health System—ran Sparks Regional Medical Center.
purposes of Section 1391(b)(2). Id. at *3. The plaintiff argued that a substantial part of the events
or omissions occurred in Oklahoma because he made a call from his house in Oklahoma to one of
the nurses in Arkansas. Id. The district court rejected this argument, stating “the phone call made
by the [p]laintiff in Oklahoma is not a substantial part of events giving rise to the claims.” Id. The
district court further noted the plaintiff did not allege that any wrongdoing occurred in Oklahoma.
Id. Instead, “[t]he crux of the cause of action relates to the alleged negligent treatments in Ft.
Smith, Arkansas, and the phone call appears to be tangential to this treatment, rather than having
a close nexus to his claims.” Id. Even though personal jurisdiction was not disputed, the district
court considered it anyways. Id. Relying on the district court’s discussion concerning whether or
not a substantial part of the events occurred in Oklahoma, the court concluded “there is insufficient
relationship between the [p]laintiff’s cause of action and the [d]efendants’ contacts with
Oklahoma. Id. at *4. The district court went on to consider general jurisdiction and ultimately held
it did not have personal jurisdiction over the defendants. See id.
So too, here, is there an insufficient connection between Defendant’s Oklahoma activities
and Plaintiff’s claims. Thompson, 2019 WL 4645446, at *5 (“[T]here is not a sufficient connection
between [defendant’s] activities in Colorado and [p]laintiff’s claims—put differently, her injuries
did not arise out of [defendant’s] forum-related activities.”). Plaintiff’s alleged injury—paralyzed
vocal cords—did not arise out of Defendant’s Oklahoma related activities, i.e., Defendant’s
locations in Oklahoma; Defendant’s Oklahoma marketing efforts; or Defendant’s phone call to
Plaintiff in Oklahoma. This Court does not have specific jurisdiction over this controversy.
Therefore, Defendant does not reside in Oklahoma for venue purposes, and venue is improper in
the Northern District of Oklahoma.
Venue is proper in the Western District of Missouri. Defendant’s principal place of
business is in the Western District of Missouri (Doc. 13, at P 2) and the conduct resulting in the
alleged injuries occurred in the Western District of Missouri. The Court, in the interests of justice
and rather than dismissal, transfers the case to the United States District Court for the Western
District of Missouri. 28 U.S.C. § 1406(a).
CONCLUSION
IT IS THEREFORE ORDERED that Defendant Freeman Health System’s Motion to
Transfer is GRANTED IN PART AND DENIED IN PART. It is GRANTED such that venue
is transferred to the Western District of Missouri. It is DENIED such that the Court declines to
dismiss the action.
IT IS FURTHER ORDERED that the Clerk of the Court TRANSFER THE ABOVE-
CAPTIONED CASE to the United States District Court for the Western District of Missouri.
IT IS SO ORDERED.