holding that although during a four (4) month period approximately twenty-six percent (26%) of an Arizona hospital's patients were from California and an Arizona doctor saw roughly one-hundred twenty (120) patients per week, of whom about twelve percent (12%) were California residents, no general personal jurisdiction existed over hospital or doctor in California the court
How later courts described this case
- holding that although during a four (4) month period approximately twenty-six percent (26%) of an Arizona hospital's patients were from California and an Arizona doctor saw roughly one-hundred twenty (120) patients per week, of whom about twelve percent (12%) were California residents, no general personal jurisdiction existed over hospital or doctor in California the court
- holding that California had jurisdiction over Arizona hospital and its doctors where they recruited business in California and participated in California's Medi-Cal program
- holding forum state did not have general jurisdiction over doctors although they had a significant number of patients in the forum, used the forum’s state medical insurance system, and were listed in a telephone directory that reached forum
- holding that plaintiffs malpractice claim arose out of defendant’s solicitation of patients from California
Written by the judges who cited it.
The opinion
OPINION AND ORDER ON PETITION FOR REHEARING
KILKENNY, Circuit Judge:
Due to an oversight on the part of our Clerk’s office, counsel for the appellee hospital were not notified of the time and place of oral argument. This oversight was not called to our attention until the hospital filed its petition for a rehearing on our opinion, Cubbage v. Merchent, 732 F.2d 1476 (CA9 1984). To remedy this oversight, we arranged for counsel for both the *673 hospital and Cubbage to present their arguments in a telephone conference.
During the course of the argument, counsel for the hospital cited Ballard v. Fred E. Rawlins, Inc., 101 Ill.App.3d 601 , 56 Ill.Dec. 940 , 428 N.E.2d 532 (1981); NTN Bearing Corp. of America v. Charles E. Scott, Inc., 557 F.Supp. 1273 (N.D.Ill.1983); Guerrero v. Copper Queen Hospital, 112 Ariz. 104 , 537 P.2d 1329 (1975), and Ada Carol Thompson v. Sun City Community Hospital, 142 Ariz. 1 , 688 P.2d 647 (1983) (in banc). In Ballard it is clear that the Illinois court did not have before it a factual background such as ours. There seemed to be no showing of a major influx of residents of Missouri into Polaski County, Illinois, nor was there any evidence that the physician in question had advertised in the yellow pages or that the yellow pages had been widely distributed in Missouri. For that matter, the ultimate holding of the court was that “the relative convenience of the location of the Illinois tribunal is not sufficient to establish personal jurisdiction over the defendants.” 101 Ill.App.3d at 602 , 428 N.E.2d at 534 (emphasis supplied). Moreover, the only evidence seeming to link the defendant to Illinois was that he asked the patient for the name of a drug store close to the patient and that such drug store was located in Illinois. 101 Ill.App.3d at 604 , 428 N.E.2d at 535 . The ease of Lemke v. St. Margaret Hospital, 552 F.Supp. 833 (N.D.Ill.1982), in which the same court held that an Indiana doctor who regularly treated Illinois patients solicited by his Indiana hospital could be deemed to be “doing business” in Illinois for purposes of personal jurisdiction, is much closer to our facts than Ballard and fully supports our position. Ballard is therefore of no help to the hospital in this case.
The hospital next cites to NTN Bearing Corp., 557 F.Supp. 1273 , in which an Illinois manufacturer brought suit in the Northern District of Illinois against an Ohio distributor regarding allegedly unpaid commissions. The court in NTN Bearing held that Scott, Inc. did transact business in Illinois within the meaning of the Illinois long-arm statute. In passing on the issue, the court said:
It does not offend traditional notions of fair play and substantial justice to require Scott, Inc. to come once more to Illinois to defend a suit based upon a contract under which it has so frequently and willingly come to Illinois. We conclude that our exercise of jurisdiction over defendant is proper.
Id. at 1277 . In the final analysis, the ultimate decision of the court turned on the issue of venue, rather than on jurisdiction. See 557 F.Supp. at 1277-80 . NTN Bearing supports our original opinion rather than the hospital’s position.
The hospital also argues that under Guerrero v. Copper Queen Hospital, 112 Ariz. 104 , 537 P.2d 1329 (1975), where an Arizona statute was construed as requiring all state-licensed hospitals to provide emergency care, the hospital here was required to accept Cubbage as a patient. In Guerrero , as here, the proximity of the hospital to the international border presented “special problems to it and to other hospitals similarly situated.” 112 Ariz. at 107 , 537 P.2d at 1332 . This, of course, would apply to the hospital before us. We find no discernible distinction between an international and a state border in this situation. As mentioned in the opinion, over 25% of the hospital’s patients during the four month period were residents of California. As a resort community, Parker can expect a large influx of Californians throughout the year. When the hospital located itself in that position, it was obviously fully aware of the fact that many Californians would be using its facilities.
Ada Carol Thompson v. Sun City Community Hospital, 142 Ariz. 1 , 688 P.2d 647 (1983) (in banc), an opinion by the Supreme Court of Arizona, merely affirms Guerrero , holding that it was the public policy of that state that a state-licensed hospital may not deny emergency care to an indigent patient without valid cause. The holding in Thompson does not detract from federal courts’ ability to effectuate the public policy of the state of California *674 to secure jurisdiction under its long-arm statute over citizens of Arizona living along its border and doing business with its citizens.
In any event, the hospital’s theory that Arizona statutes would make its citizens, including the hospital, immune from liability under the California long-arm statute if, as we hold, the California long-arm statute gives jurisdiction to California courts under the facts and circumstances of this case is without merit. Neither the legislature nor the courts of Arizona can interfere with that jurisdiction. We have considered peripheral arguments made by the hospital’s counsel, but find them equally without merit.
What is said in Ballard in connection with the Illinois long-arm statute being coextensive with the jurisdiction permitted under the United States Constitution is destroyed by the same court’s decisions in Green v. Advance Ross Electronics Corp., 86 Ill.2d 431 , 56 Ill.Dec. 657 , 427 N.E.2d 1203 (1981), and Cook Associates, Inc. v. Lexington United Corp., 87 Ill.2d 190 , 57 Ill.Dec. 730 , 429 N.E.2d 847 (1981), each of which held in substance that the Illinois long-arm statute is not coextensive with the Due Process Clause of the United States Constitution. Consequently, what is said in Ballard to the contrary is not controlling.
After due consideration, the panel votes to deny the petition for rehearing and Judges Hug and Boochever vote to deny the suggestion for a rehearing in banc. Judge Kilkenny recommends rejection of the suggestion for a rehearing in banc.
The full court has been advised of the suggestion for an in banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing in banc. FRAP 35(b).
Judge Hug continues to dissent for the reasons expressed in the dissent to the original opinion.
The petition for rehearing is denied and suggestion for a rehearing in banc is rejected.