Petition for Writ of Certiorari — Wolf v. Richmond County Hospital Authority

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S4- 1963

NO.

IN THE

Office -Suprerse Court, US.

FILE OD

MAY 30 198

ALEXANDER L STEVAS,

CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1985

ALAN W. WOLF AND GAIL S. WOLF,

Petitioners,

RICHMOND COUNTY HOSPITAL AUTHORITY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

Counsel of Record

A. CAMDEN LEWIS

DARYL G. HAWKINS

Post Office Box 11208

Columbia, South Carolina

(803) 771-8000

QUESTION PRESENTED

Whether these contacts are suf-

ficient to constitute "doing business" for

the purpose of South Carolina obtaining in

personam jurisdiction over a Georgia Hospital

under South Carolina's Long-Arm Statute

(South Carolina Code Section 36-2-802)?

1) Georgia Hospital in Augusta,

Georgia derives one fifth (1/5) of its income

from South Carolina residents and receives

payments from South Carolina welfare agen-

cies;

2) Georgia Hospital is listed in

the yellow pages of the telephone directory

for North Augusta, South Carolina, a City in

Aiken County, South Carolina;

3) Georgia Hospital is under

contract to provide laundry services to the

Edgefield County Hospital in South Carolina;

4) Georgia Hospital as a member of

the East Central Georgia Health Services

Agency, Inc., which district includes Aiken

County, South Carolina, willingly receives

special medical equipment to the exclusion of

Aiken County Hospitals, which equipment is to

be used for all citizens of the East Central

Georgia Hospital Services Agency, Inc.

Title of this case in this Court is:

ALAN W. WOLF AND GAIL S. WOLF,

Petitioners,

versus

RICHMOND COUNTY HOSPITAL AUTHORITY,

Respondent.

id,

TABLE OF CONTENTS

QUESTION PRESENTED... .... 2c ccccece eoece A

TABLE OF AUTHORTIES....cccccccccccsesee IV

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SURESOICTION. coscvcscssccccssccessssces |

STATUTES INVOLVED... cccccccccccsscces oe 2

STATEMENT OF THE CASE... cccccccsecccecse 2

ARGUE ccc eccccccsccccccccccessesccee §

CONCLUSION... ccccsccccccccccssccccesses L§

APPENDIX. .cccccccccccccccescccccccccess 1G

(a) OPINION OF THE FOURTH CIRCUIT

COURT OF APPEALS... cccccccccccccce L7

(b) ORDER OF THE DISTRICT COURT... 52

APFIDAVIT OF GERVICE. .ccsccscsassccccce 69

Lii

TABLE OF AUTHORITIES

Cases:

August--v--Parkinson, 734 F.2d 168

CSGR Cis SPSS bc cceccaceccessesscéess SS)

Cubbage -v- Merchent, 732 F.2d 1476

(9th. Cir. 1984) Cert. denied, U.S.

» £405 S.CE. LISD (C19TS)occcccecsers 12, 13

Gelineau -v- New York University

Hospital, 375 F. Supp. 661 (D.N.J.

LWres és 6a6 eeeeeerskekeseeee#8ee#8e?8e#e eeenteeeereesge#seeser#e#e?#e? 10

Helicopteros Nacionales de Columbia,

S.A.-v- Hall, U.S. 104 S.Ct.

1868 ei | Sper rrr rrr rer es eee ee 5

Hume -v- Durwood Medical Clinic, Inc.,

B.C. , 318 S.E.2d 119 (S.C. App.

SEK 66 6 SESS OURS ES 6S OS bE CO RES ES 13

International Shoe Co. ~-v- Washington,

326 U.S. 310 CEPGR P66 eeeteeeesbesenes 5, 13

Kathrein -v- Parkview Meadows, Inc.,

N.M. , 691 P.2d 462 (N.M. 1984). 12, 13

Lee -v- Walworth Valve Company, 482

Pade G22? CGEMs COE. LPF aheccccsccsecs 9, 18

Lemke -v- St. Margaret Hospital, 552

Fo SOOO. SSS (Hc Os EhAe APSSdeacccess Al

Worldwide Volkswagen -v- Woodson,

S44 U.S. 266 (has O ccccccccscccecseces 15

Statutes:

S.C. Code Ann Section 36-2-802

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners pray that a writ of cer-

tiorari issue to review the judgment of the

United States Court of Appeals for the Fourth

Circuit entered in the above-styled case.

OPINIONS BELOW

The Cpinion of the Fourth Circuit

Court of Appeals from which this Petition for

a Writ of Certiorari is derived is contained

in the Appendix. The case is reported in 745

F.2d 904 (4th Cir. 1984).

JURISDICTION

The Judgment of the Court of Appeals

for the Fourth Circuit was made and entered

on October 4, 1984. Thé Appellee's Petition

for rehearing was denied by a vote of seven

to four on March 6, 1985. The jurisdiction

of this Court is invoked under 28 U.S.C.

1254(1).

STATUTES INVOLVED

S.C. Code §36-2-802 (1976):

A Court may exercise personal juris-

diction over a person domiciled in, organized

under the law of, doing business, or main-

taining his or its principal place of

business in, this State as to any cause of

action.

STATEMENT OF THE CASE

In this action, the Plaintiffs seek

to recover damages for the severe injuries

inflicted on their infant son by the grossly

negligent actions of the agents of the

University Hospital, a facility owned and

operated by the Defendant. University

Hospital is located in Augusta, Georgia and

Plaintiffs were residents of Aiken, South

Carolina when this action was filed.

Jurisdiction in the United States District

Court for the District of South Carolina was

based upon diversity of citizenship. 28

U.S.C. §1332.

The Respondent filed a Motion to

Dismiss for lack of personal jurisdiction

purusant to Fed. R. civ. P. 12(b)2. This

Motion was denied by the District Court.

Jurisdiction was found to be properly before

the Court pursuant to the South Carolina

Long-Arm Statute, S.C. Code Ann. Section

36-2-802 (1976). On appeal, the United

States Court of Appeals for the Fourth

Circuit reversed the decision of the District

Court and granted Defendant's Motion to

Dismiss.

The request for a Writ of Certiorari

rests upon the question of what is meant by

"doing business" for purposes of obtaining in

personam jurisdiction under the South

Carolina Long-Arm Statute.

ARGUMENT

At issue before the Court is whether

a Georgia Hospital's contacts with the State

of South Carolina are sufficient to consti-

tute "doing business" for the purposes of

obtaining in personam jurisdiction under the

South Carolina Long-Arm_ Statute. The

granting of certiorari by this Court will

allow it to resolve the following issue which

is necessarily

comprised therein:

WHETHER A HOSPITAL AUTHORITY WHICH

INCLUDES TEKRITORY IN TWO STATES HAS

SUFFICIENT CONTACTS TO BE SUED IN

EITHER STATE?

S.C. Code Ann. Section 36-2-802

(1976) provides in relevant part "[A] court

may exercise personal jurisdiction over a

person...doing business...in this State as to

any cause of action." When exercising such

jurisdiction due process requirements are

satisfied when the person over whom jurisdic-

tion is asserted has established certain

minimum contacts with the forum such that

requiring him to defend his interests in the

forum State would not “offend traditional

notions of fair play and substantial

justice." International Shoe Co., -v-

Washington, 326 U.S. 310, 316 (1945). The

sufficiency of contacts threshold is ele-

vated, however, when the cause does not arise

in the forum state or derive from the foreign

corporations transactions in the State. In

Helicopteros Nacionales de Columbia, S.A. -v-

Hall, U.S. , 104 S.Ct. 1868 (1984), the

Supreme Court characterized the test to be

aplied in this situation to be whether the

contacts are of a "continuous and systematic"

nature.

The Fourth Circuit herein held that

the hospital's contacts were not purposeful,

Systematic or continuous enough to warrant

the exercise of jurisdiction in light of aue

process guarantees. The Fourth Circuit also

applied its own standard and held that the

contacts with the forum state were not

"fairly extensive" to warrant jurisdiction

since the cause of action arose outside of

the state. (Appendix 12). An analysis of

the differing decisions of the Circuits and

the State Courts of last resort, provides

ample reason why the Court should exercise

its discretion and establish a standard test

in order that uniform decisions may be ren-

dered in this much litigated area.

Before looking at the varying views

of the Courts, the "contacts" which were

found by the District Court must be con-

sidered.

l. The South Carolina Department

of Health and Environmental Control

(DHEC ) has authorized Augusta

Hospital to receive payments’ from

the State of South Carolina for

residents ot Aiken County, South

Carolina, seeking certain maternity

and neonatal services at University

Hospital.

2. University Hospital

received payments from Aiken County

Council as reimbursement for treat-

ment of residents of Aiken County

who are indigent.

3. Although Richmond County

Hospital Authority has no hospital

or medical facility located in South

Carolina, the University Hospital

does receive medicaid/medicare reim-

bursements for qualified South

Carolina residents treated at

University Hospital.

4. University Hospital is

listed in the yellow pages of the

telephone directory for North

Augusta, South Carolina, ae city

located in Aiken County, South

Carolina.

5. University Hospital is

under contract to provide laundry

services to the Edgefield County

Hospital in South Carolina.

6. University Hospital deri-

ves a substantial amount of revenue

from treatment of South Carolina

residents; defendant admitted in

Oral argument that approximately

one-fifth (1/5) of University

Hospital's income is cbtained from

South Carolina residents.

7. University Hospital is a

member of the East Central Georgia

Health Services Agency, Inc. This

agency was created to coordinate

health care needs in its district,

which district includes Aiken

County, South Carolina. This is the

only such district in South Carolina

that crosses state lines. While

this agency does not directly have

jurisdiction over patient admission,

the effect of University Hospital's

membership in the agency is to

require South Carolina residents in

Aiken County as a practical matter

to receive secondary and tertiary

level care from University Hospital.

This is because the agency has

jurisdiction over capital expen-

ditures and construction, as well as

issuing certificates of need. The

purpose of the agency is to avoid

duplication of expensive facilities.

Since University Hospital is well

equipped with such advanced medical

facilities and Aiken County Hospital

is also within the Agency's

district, Aiken Community Hospital

does not receive the advanced equip-

ment. The Agency's efforts to avoid

duplication therefore require Aiken

County residents to seek secondary

and tertiary level care from the

University Hospital in Augusta,

Georgia, since it is the closest and

most convenient facility of its

kind.

The Fourth Circuit seems to have

difficulty in applying a uniform test in its

own cases. In August -v- Parkinson, 734 F.2d

168 (4th Cir. 1984), the Court held that the

Virginia Courts may constitutionally exercise

in personam jurisdiction over an Arizona

insurance company that, by mail, solicited

change in policy coverage from a former

Arizona resident, now residing in Virginia,

who purchased the policy in Arizona. But

looking to the case at bar, the Court held

that the University Hospital's contacts were

not "fairly extensive" even though the seven

enumerated contects clearly are more exten-

sive than the solicitation in the August

case. In Lee -v- Walworth Value Company, 482

F.2d 297 (4th Cir. 1973), the Court held that

South Carolina has a legitimat~ interest in

affording its citizens redress for tortious

injury, even though the act occurred outside

of the state. The Court stated"...the fre-

quency and regularity of (the Defendant's)

activity in South Carolina make it fair to

hold it answerable in that state to Mrs.

Lee.” Lee at 300. But in the case at bar,

the Court made a complete turn-around and

held that even though approximately one-fifth

(1/5) of the Hospital's income is obtained

from South Carolina residents, the Hospital

has a contract to provide laundry services to

the Edgefield County Hospital in South

Carolina, and it advertised in the yellow

pages of the telephone directory for North

Augusta, South Carolina the contacts were de

Minimus and personal jurisdiction should be

denied.

The meaning of the word "solicit"

seems to give the Courts the greatest problem

when trying to decide whether contacts are

continious and systematic. In Gelineau -v-

New York University Hospital, 375 F. Supp.

661, 667 (D.N.J. 1974), the Court stated:

Unlike a case involving invo-

luntary interstate or international

economic activity. . . the residence

of a recipient of personal services

rendered elsewhere is irrelevant and

totally incidental to the benefits

provided by the defendant at his own

location. It is clear that when a

patient travels to receive pro-

fessional services without having

been solicited. . . then the client,

who originally traveled to seek ser-

vices apparently not available at

home, ought to expect that he will

have to travel again if he

thereafter complains that the ser-

vices sought by him in the foreign

jurisdiction were there rendered

improperly.

Solicitation, however, was found in

Lemke -v- St. Margaret Hospital, 552 F. Supp.

833 (8.D. Till. 1982). In this case plain-

tiff brought a wrongful death action in

Illinois against the defendant hospital which

was located in Indiana. The Court held that

the defendant was "doing business" in

Illinois because defendant regularly soli-

cited Illinois residents. The solicitation

determination was based on the fact that com-

pensation was received with Illinois public

and private finds, and that St. Margaret

Hospital placed advertisements in the Chicago

yellow pages. In the case at bar, the two

factors above were present along with others

but the Fourth Circuit still reversed,

holding that the defendant's contact was not

purposeful and significant.

In a recent Ninth Circuit opinion,

Cubbage -v- Merchent, 732 F.2d 1476 (9th.

Cir. 1984), cert. denied, U.S. » 105

S.Ct. 1359 (1985), that Court held that a

patient who was treated at a hospital just

over the State border can sue in his own

state. Similiarly, in a recent New Mexico

case, Kathrein -v- Parkview Meadows, Inc.,

N.M. , 691 P.2d 462 (N.M. 1984), the

Supreme Court of New Mexico held where the

defendant advertised its alcoholism treatment

center in the yellow pages of the Albuquerque

telephone directory and the defendant soli-

cited his referal of patients from an

Albuquerque director, this constituted mini-

mum contacts as required by International

Shoe, supra. Certainly, the seven contacts

established in the case at bar would easily

fit the criteria established in the Cubbage

and Kathrein cases.

The Fourth Circuit cited Hume -v-:_

Durwood Medical Clinic, Inc., $8. 9

318 S.E.2d 119 (S.C. App. 1984), which held

that where defendant Medical Clinic engaged

in a course of treatment of a South Carolina

resident in their offices in North Carolina

and provided follow-up care by mail and

telephone, these actions did not constitute

sufficient contacts for South Carolina to

exercise in personam jurisdiction. The South

Carolina Supreme Court has now accepted cer-

tiorari and that case is still pending.

The Circuits and the State Courts

are at both ends of the spectrum concerning

the sufficiency of minimum contacts. The

Fourth Circuit went so far as to belabor the

meaning of the word “require"™ in the seventh

enumerated factor in the case at bar. The

District Court in the case at bar held "as a

practical matter" that Aiken residents were

"required" to seek care at Richmond County

Hospital. The Court explained in its Order

that it meant it was far more convenient for

Aiken residents to go to Augusta than to any

South Carolina hospital with advanced facili-

ties. The Fourth Circuit completely ignored

this contact in order to strengthen their

position that personal jurisdiction was not

warranted in this case.

Considering the fact that the two

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cities are in different states but only

across the river from each other, the stan-

dard enunciated by this Court in Worldwide

Volkswagen <-v- Woodson, 444 U.S. 286 (1980),

is significant. The fundamental rule must be

tempered by considerations given to the con-

venience of the parties, the interstate judi-

cial system's interest in obtaining the most

efficient resolution of controversies, and

the shared interests of the states. in

furthering fundamental substantive social

policies. Id., at 292.

CONCLUSION

For the reasons stated above, the

Petition for Writ of Certiorari should be

granted.

Respectfully submitted,

A. CAMDEN LEWIS

DARYL G. HAWKINS

Post Office Box 11208

Columbia, S.C. (803) 771-8000

Attorneys for Petitioners

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 84-1024

ALAN W. WOLF and GAIL S. WOLF,

Appellees,

vs.

RICHMOND COUNTY HOSPITAL AUTHORITY,

Appellant.

Appeal from the United States

District Court for the District of

South Carolina, at Aiken. Charles

E. Simons, Jr. District Judge. (C/A

83-1533-6)

Argued: August 9, 1984

Decided: October 4, 1984

Before RUSSELL, HALL and CHAPMAN,

Circuit Judges:

Wyck A. Knox, Jr. (Ted H. Clarkson,

Knox & Zacks, P.C.; David A. Brown,

Henderson, Salley, Lynn, Farmer,

Brown & Tucker on brief ) for

Appellant; Daryl G. Hawkins (A.

Camden Lewis, Austin & Lewis. on

brief) for Appellees.

Camden Lewis, Austin & Lewis on

brief) for Appellees.

CHAPMAN, Circuit Judge:

The issue in this appeal is

whether a Georgia hospital's contacts with

the State of South Carolina are suf-

ficient to constitute "doing business" for

purposes of obtaining personal jurisdiction

under the South Carolina Long-Arm Statute.

We find that the hospital's contacts are not

purposeful, systematic or significant enough

to warrant the exercise of jurisdiction in

light of due process guarantees and this

court's standard that the contacts with the

forum state be "fairly extensive" when the

cause of action arises outside that

state. We, therefore, reverse the decision

of the district court and grant defendant's

motion to dismiss.

This is a diversity jurisdiction

case in which Alan and Gail Wolf allege that

their infant son was injured as a_ result of

actions taken by agents of £4University

Hospital, a public hospital located in the

City of Augusta and in Richmond County,

Georgia. The hospital is owned and operated

by the defendant, Richmond County Hospital

Authority (Hospital Authority), a public

authority created under _— the Georgia

Hospital Authorities Law. The Hospital

Authority originally instituted suit in the

Civil Court of Richmond County against the

Wolfs for nonpayment of a bill incurred at

University Hospital. The Wolfs answered and

counterclaimed with allegations of medical

malpractice. Georgia residents at the time

of the alleged malpractice and at the time

of the commencement and answer to the

Wolfs moved to Aiken County, South

Carolina before filing the present action.

Aiken County and Richmond County are

separated by the Savannah River, the

boundary between South Carolina and Georgia.

The defendant moved to dismiss this action

pursuant to Federal Rule of Civil Procedure

12(b)(2) for lack of personal jurisdiction.

Three affidavits were submitted to. the

district court, two from officials of

the South Carolina Department of Health

and Environmental Control (DHEC) and _ one

from the Executive Director of the

Richmond County Hospital Authority. Based

on these affidavits and on facts stated at a

hearing, the district court denied the motion

to dismiss. The court made the following

seven findings of fact:

l. The South Carolina Department

of Health and Environmental

Control (DHEC ) has authorized

Augusta Hospital to receive

payment from the State of South

Carolina for residents of Aiken

County, South Carolina, seeking

certain maternity and neonatal

services at University Hospital.

2. University Hospital

received payments from Aiken

County Council as reimbursement

for treatment of residents of Aiken

County who are indigent.

3. Although Richmond County

Hospital Authority has no hospital

or medical facility located in

South Carolina, the University

Hospital does receive

medicaid/medicare reimbursements for

qualified Sovth Carolina residents

treated at University Hospital.

4. University Hospital is

listed in the yellow pages of the

telephone directory for North

Augusta, South Carolina, a city

located in Aiken County, South

Carolina.

5. University Hospital is

under contract to provide laundry

services to the Edgefield County

Hospital in South Carolina.

6. University Hospital

derives a substantial amount of

revenue from treatment of South

Carolina residents; defendant

admitted in oral argument’ that

approximately one-fifth (1/5) of

University Hospital's income is

obtained from South Carolina

residents.

7. University Hospital is a

member of the East Central

Georgia Health Services Agency,

Inc. This agency was created to

coordinate health care needs in its

district, which district includes

Aiken County, South Carolina. fThis

is the only such district in South

Carolina that crosses state

lines. Whiie this agency does

not directly have jurisdiction

Over patient admission, the effect

of University Hospital's membership

in the agency is to require

South Carolina residents in Aiken

County as a practical matter to

receive secondary and tertiary!

level care from University Hospital.

This is because the agency has

jurisdiction over capital expen-

ditures and construction, as well

as issuing certificates of need.

The purpose of the agency is to

avoid duplication of expensive

facilities. Since University

Hospital is well equipped with such

advanced medical facilities and

&iken County Hospital is also within

the Agency's district, Aiken

Community Hospital does not

receive the advanced equipment.

The Agency's efforts to avoid

duplication therefore require

Aiken County residents to seek

lat oral argument the court was

informed that tertiary care is the highest

level of care avaliable at a hospital.

secondary and tertiary level

care from the University Hospital

in Augusta, Georgia, since it is the

closest and most convenient facility

of its kind.

The Hospital Authority makes’ two

arguments. First, it contends that the

district court's finding of fact that South

Carolina residents in Aiken County are

"required" to seek health care from

University Hospital is clearly erroneous.

Second, defendant argues that, on the basis

of the district court's first six findings of

fact and other facts in the record,

Plaintiffs have not established "fairly

extensive" contacts of University Hospital

with the State of South Carolina

required for the exercise of personal juris-

diction.

The Hospital Authority contends that

there is no evidence in the record to support

the district court's finding of fact number

seven. In this finding the court considered

the relationship of the East Central

Georgia Health Services Agency, Inc. to

the provision of health care in the

Richmond County, Georgia and Aiken County,

South Carolina area and concluded that "the

effect of University Hospital's membership

in the [health services] agency is to

require South Carolina residents in Aiken

County as a practical matter to receive

secondary and tertiary level care from

University Hospital." In its final finding

of fact the court also stated that "{t]he

Agency's efforts to avoid duplication

therefore require Aiken County’ residents

to seek secondary and tertiary level care

from the University Hospital in Augusta,

Georgia, since it is the clo

sest and most convenient facility of its

kind." Plaintiffs argue that this finding

is supported by one of the affidavits and by

a factual allegation in their complaint

which, they contend, must be accepted as true

for purposes of a motion to dismiss.

Examining first the affidavits

presented to the district court, we find

that defendant submitted an affidavit in

which the affiant specifically stated that

"South Carolina residents are under no com-

pulsion or requirement to seek secondary and

tertiary level care from University

Hospital."2 This affidavit also provided

that "University Hospital has no obligation

to admit a patient who is a resident of South

Carolina." While conceding that Aiken

County residents are under no "compulsion"

to seek health care from University

Hospital, plaintiff argues that finding of

fact number seven is supported by paragraph

four of an affidavit prepared by the

DHEC's Division of Certification of Need of

2in his affidavit, the Executive

Director of the Hospital Authority stated:

South Carolina residents are

under no compulsion or requirement

to seek secondary and tertiary

level care from University

Hospital and the existence of

the East Central Georgia Health

Systems Agency, Inc., and membership

therein has no effect on where

patients are required to seek treat-

ment. The health system agencies

only have jurisdiction over capital

spending and construction, not over

patient admissions.

the Bureau of Health Facilities and Services

Development. This paragraph provides:

Aiken County is

included within the East

Central Georgia Health

Service Area which is the

only HSA that crosses

state lines in South

Carolina. Under the

Certificate of Need

program, the review and

approval of capital expen-

ditures and expansion of

hospital services for the

sole hospital located in

Aiken County, the Aiken

Community Hospital, would

take into consideration

facilities and services

available at Augusta

hospitals, including

University Hospital, and

the utilization of such

services by Aiken County

residents. Any unne-

cessary duplications would

be avoided. Likewise,

approval for the develop-

ment and expansion of ser-

vices in Augusta hospitals

would be based in part

upon the utilization of

those hospitals by Aiken

County residents.

In analyzing the affidavits, we

do not find that Aiken County residents

are “required" to seek care in Georgia. The

affidavits suggest that certain medical faci-

lities are available at University Hospital

that are not available at the hospital

located in Aiken County and that’ the

purpose of the health systems agency is to

avoid duplication of facilities and services

in an area. This planning function, however,

does not extend to controlling patient

admissions or assigning a certain person to a

certain hospital. Plaintiff seeks to

support the district court's conclusion

that "as a practical matter" Aiken

County residents are “required" to seek care

at University Hospital by pointing out that

the hospital is a thirty-minute drive from

Aiken whereas the other two cities in

South Carolina with equivalent facilities

are over an hour or two and one-half hours

away from Aiken. This fact, however, does

not establish that Aiken residents are

"required" to seek care at the hospital.

People and their physicians choose hospi-

tals for a variety of reasons. Proximity is

merely one of those reasons. We find that

use of the term “require," which has the con-

notation of certain persons being compelled

to go to certain hospitals, is not sup-

ported by the affidavits.

Plaintiffs also argue that’ the

finding is supported by their complaint in

which they allege that the citizens of North

Augusta and Aiken, South Carolina are "forced

to rely upon the University Hospital to pro-

vide them secondary and tertiary level care"

by the operation of the East Central Georgia

Health Planning Agency District. Plaintiffs'

argument with respect to the complaint is

that, on a motion to dismiss, the Plaintiffs'

”

“

factual allegations must be accepted as true.

This argument, however, overlooks

the fact that the allegation in the

complaint was controverted by Defendants'

affidavit (compare footnotes two and three,

supra). "In ruling on a_ motion to dismiss

for lack of personal jurisdiction, the alle-

gations of the complaint, except insofar as

controverted by the defendant's affidavit,

must be taken as true." Black v. Acme

Markets, Inc., 564 F.2d 681, 683, n.3

(Sth Circ. i977). The statement in defen-

dant's affidavit that "South Carolina resi-

dents are under no compulsion or requirement

to seek .. . care from University Hospital"

was not in turn controverted by statements in

plaintiffs' affidavits. See O'Hare

International Bank v. Hampton, 437 F.2d

1173 (7th Cir. 1971) (because affidavts filed

pursuant to Fed.R.Civ.P. 12(d) contained

contradictory factual allegations with

respect to personal jurisdiction, court

accepted as true for purposes of appeal,

facts related in plaintiff's affidavits

and complaint) Nor are the facts upon

which the jurisdictional issue is’. based

so closely intertwined with the facts

involving the merits of the case that a

decision on personal jurisdiction should

have been postponed until trial. See 2A _

Moore's Federal Practice 412.16 (1984); Hare

v. Family Publications Service, Inc., 334

F.Supp. 953, 956 (D.Md. 1971). Further, in

its order deciding the motion to dismiss the

district court made no mention of assuming

the truth of the allegation in plaintiff's

complaint.

When a presumption of validity is

not applied to the factual allegation in

paragraph Iv3 of plaintiff's complaint, we

3Pparagraph IV of the complaint provi-

are left with the definite and firm convic-

footnote 3 continued:

des:

In operating the said

University Hospital the defendant,

Richmond County Hospital

Authority, has_ significant con-

tacts with the State of South

Carolina, as University Hospital is

a regional referral medical center

servicing North Augusta and Aiken,

South Carolina and environs. It

lists University Hospital in the

telephone directories for North

Augusta and Aiken, South Carolina,

and otherwise promotes and

markets its services to citizens

of South Carolina. It regularly

receives,admits and treats patients

who are residents of the Aiken,

South Carolina area, anbd both

Aiken, South Carolina and Agusta,

Georgia are included in the East

Central Georgia Health Planning

Agency District by operation of

which the citizens of North Augusta

and Aiken, South Carolina are forced

to reyl upon the University Hospital

to provide them secondary and ter-

tiary level care, and the University

Hospital provides primary, secondary

and tertiary medical care to a

Significant number of citizens of

the Aiken, South Carolina area on a

regular basis, for which it receives

substantial federal funding, which

would not be available to it.

(Emphasis added)

tion that a mistake has been committed by

the district court in the conclusion

that South Carolina residents are

"required" to seek care at University

Hospital. United States oof America v.

United States Gypsum Company, 333 U.S.

364, 395 (1948). This finding of fact

pra therefore, clearly erroneous.

Iit

The question is whether, based on

the first six findings of facts which

defendant does not contest, the hospital

has sufficient contacts with South Carolina

to subject the Hospital Authority to personal

jurisdiction. Where federal jurisdictlon is

based on diversity of citizenship a two-part

test is to be applied to determine questions

of persczal jurisdiction. Hardy v Pioneer

Parachute Cos « 531 F.2d 193, 195 (4th

Cig. i976). First, whether there is statu-

tory authority for the exercise of jurisdic-

tion under the laws of South Carolina and

second, whether the exercise of jurisdiction

complies with federal constitutional

standards of due process. Id. The statutory

authority is clear. The Wolfs assert per-

sonal jurisdiction on the basis of S.C.Code

Ann. 36-2-802 which provides:

A court may exercise

personal jurisdiction over

a person domiciled in,

organized under the laws

of, doing business, or

Maintaining his or its

principal place of busi-

ness in, this State as to

any cause of action.

The long-arm statutes of South

Carolina have consistently been interpreted

to provide for jurisdiction to the full

extent permissible under the due _ process

clause of the fourteenth amendment.

Ratliff v. Cooper Laboratories, Inc., 444

F.2d 745, 747 (4th Cir. 1971)

The legal standard to be applied in

the due process analysis is well established.

Where the defendant is not present in the

forum, the defendant must have "certain

minimum contacts with [the forum state] such

that the maintenance of the suit does not

offend ‘traditional notions of fair play

and substantial justice.'" International

Shoe Co. v. Washington, 326 U.S. 310, 316

(1945). Within the broad principle of

International Shoe, different statutory pro-

visions and different standards apply in

cases where the contact with the state gives

rise to the putative cause of action

(S.C.Code Ann. 36-2-803) and where, as in

the instant case, Plaintiff's claims arise

totally outside of the state. (S.C Code.

Ann. 36-3-802). A more stringent standard

is applied when, as in the case at bar,

Section 36-2-802 is relied upon. Long v.

Baldt, 464 F.Supp. 269, 275, fn. 7 (D.S.C.

1979).

To establish personal jurisdiction

over an out-of-state defendant under the

"doing business" provision, the "contacts

between [the defendant] and the State must

be fairly extensive before the burden of

defendiny a suit there may be imposed upon it

without offending ‘traditional notions of

fair play and substantial justice.'"

(citations omitted) Ratliff, supra. ac 748.

See also O'Neal vv. Bicks Brokerage CO.»

537 F.2d 1266, 1268 (4th Cir. 1976)

("(T)he sufficiency of contacts threshold is

elevated when the cause does not arise in the

forum state or derive from the foreign cor-

poration's transactions in the state," citing

Lee v. Walworth Valve Co., 482 F.2d 297 (4th

Cir. 1973) and Ratliff, supra. The Supreme

Court has characterized the test to be

applied when a Plaintiff's claim does not

arise out of a defendant's activities in

the forum state as whether the contacts are

of a "“continuous and systematic" nature.

Helicopteros Nacionales de Colombia, S.A. v.

Hall, 104 S.Ct. 1868 (1984).

The three cases in which the

court has reviewed the questions of the

sufficiency of contacts necessary for per-

sonal jurisdiction and the fairness of

requiring a foreign defendant to litigate in

the courts of South Carolina, when the

cause of action arises in another state,

O'Neal, supra; Lee, supra; and Ratliff,

supra; provide the standard against which the

instant case should be examined. The facts

of the three cases were summarized in

O'Neal:

In Ratliff, the Court was pre-

sented with non-South Carolina

citizens seeking to maintain an

action in South Carolina District

Court against two pharmaceutical

companies for injuries occurring

in other states. Although cogni-

zant of the companies' minimum con-

tacts in the state, we concluded

that the suit could not be main-

tained in South Carolina because

the injury did not arise out of

activity in the forum state.

This decision was dictated by the

fact that South Carolina had no

nexus and plaintiffs were

attempting to avail themselves

of South Carolina's lengthy statute

of limitations.

In Lee, in contrast to Ratliff,

we held that suit could be main-

tained in South Carolina by the

executrix of an estate whose dece-

dent was killed on the high seas.

The executrix was a citizen and

resident of South Carolina as was

the decedent. Although

recognizing that the cause of action

did not occur in the forum state, we

nevertheless concluded that South

Carolina had a paternal interest in

the recovery by one of its citizens

of appropriate compensation. Lee,

supra. at 299. Walworth

Company did not maintain an office

in South Carolina, owned no property

in the state, and had no resident

sales pevsonnel. Walworth,

however, sent sales personnel to

South Carolina soliciting business

for approximately eighty (80) days

annually. This factor coupled

with sales exceeding one hundred

thousand dollars annually led us

to conclude that Walworth's con-

tacts were sufficient to fall within

the ambit of in personam jurisdic-

tion of South Carolina.

Applying these standards’ to

this appeal, we hold that Hicks'

contacts with South Carolina are

de minimis. The sole thread

linking Hicks to South Carolina is

arranging for the transportation

of cotton to South Carolina.

These transactions were conducted in

Mississippi with the Mississippi

agent of a South Carolina entity.

Over a three-year period, these

transactions occurred intermit-

tently resulting in meager

remuneration. Hicks has’- never

operated or established its

"presence" in South Carolina.

O'Neal, 537 F.2d at 1268.

The Wolfs' attempt to place

themselves within the factual situation

found in Lee; however, the facts do not fit.

In Lee we emphasized the State's paternal

interest in protecting its residents and

that such interest can be considered in

evvereioins whether South Carolina courts may

exercise jurisdiction over a nonresident cor-

peration. In Lee, however, there were other

facts that warranted the exercise of juris-

diction over the nonresident corporation.

For three years salesmen with the corporation

had spent approximately eighty days each year

soliciting * siness in the state and the

corporation had made sales amounting to

$100,000 to South Carolina customers, in _

Lee, the defendant contesting jurisdiction

had actively engaged in substantial com-

merce within the borders of South Carolina.

In the case at bar there has been no

finding that University Hospital ever

"solicited" business in South Carolina. The

affidavit submitted by defendant affirmed

that “University Hospital does not adver-

tise or otherwise solicit or encourage

South Carolina residents to seek treatment

at University Hospital."

The contacts cited in the first,

second, third and sixth findings of fact

establish that University Hospital treats

South Carolina residents and receives

payments (either from state or local govern-

mental bodies or from the residents them-

selves) for services rendered. The fourth

contact cited the listing of University

Hospital in the North Augusta, South

Carolina telephone directory does not indi-

eate a purposeful contact in order to

generate revenue but instead illustrates the

proximity of and the close ties existing bet-

ween Augusta, Georgia and North Augusta,

South Carolina. The court did not find that

University Hospital had obtained paid adver-

tisements in the North Augusta telephone

directory. See also Kennedy v. Ziesmann, 526

F.Supp. 1328 (E.D.Ky. 1981) (court found

that a telephone listing alone, without addi-

tional advertising or other solicitation did

not amount "in and of itself to regular soli-

citation of business" such that a physician

in a neighboring state would be subject to

jurisdiction in the state where the directory

was distributed).

The only purposeful contact shown by

plaintiffs is the provision of laundry ser-

vices to the county hospital in Edgefield,

South Carolina. This contact is, however, de

minimis and the cause of action did not arise

from this contact. The seventh finding of

fact, excepting the portion that this court

finds clearly erroneous, describes the acti-

vities of the East Central Georgia Health

Services Agency and not activities initiated

by University Hospital. This finding shows

that the Hospital Authority is subject to

regulations imposed by the Congress of the

United States in regard to the development

and distribution of health care facilities.

See, 42 U.S.C. 300(1) -300(1)(4) (governing

the establishment and duties of health system

agencies). The fact that the Hospital

Authority complies with the requirements of

federal law and that this law

establishes an agency affecting both Georgia

and South Carolina does not indicate pur-

poseful, voluntary activity in South Carolina

on the part of the defendant.

Plaintiff also argues that’ the

hospital's contacts with South Carolina are

more extensive than those of the defendant in

O'Neal because University Hospital receives

one-fifth of its income from South Carolina

patients, as opposed to the “meager remunera—

tion" receiv . by the O'Neal defendant from

dealings in South Carolina. In making such a

comparison, however, the fundamental nature

of the defendant must be recognized. "Cases

involving medical services are quite dif-

ferent from those involving other commercial

activity." Hume v. Durwood Medical Clinic,

Inc., No. OL96, @iis. Go. at. 22 (8.€. Ce.

App. June ll, 1984). The cases from other

jurisdictions involving hospitals and physi-

cians are instructive. And, although federal

law is controlling on the issue of due pro-

cess, Amba Marketing Systems, Inc. v. Jobar

International, Inc., 551 F.2d 784,789 (9th

Cir. 1977), a recent decision of the South

Carolina Court of Appeals, Hume v. Durwood, _

Supra, is persuasive. Hume involved a medi-

cal malpractice action brought by the admi-

nistratrix of a South Carolina decedent

against, among others, a North Carolina cor-

poration doing business as a medical clinic

and certain North Carolina physicians.

Deposition testimony revealed the degree and

nature of the contacts between the defen-

dants, the decedent and the State of South

Carolina. The depositions reflected that,

although they had a number of patients from

South Carolina, the clinic and physicians did

not solicit business in South Carolina. None

of the clinic's staff physicians were

licensed to practice medicine in South

Carolina. The clinic and physicians billed

South Carolina patients by mail and one of

the physicians had written a letter to the

decedent in South Carolina furnishing medical

advice. Finding that the exercise of juris-

diction in South Carolina would not be con-

sonant with due process, the court quoted

from Gelineau v. New York University

Hospital, 375 F.Supp. 661, 667 (D.N.J.

1974):

Unlike a case

involving involuntary

interstate or inter-

national economic’ acti-

vity. . -the residence

of a recipient of personal

services rendered

elsewhere is’ irrelevant

and totally incidental to

the benefits provided by

the defendant at his own

location. It is clear

that when a patient tra-

vels to receive pro-

fessional services without

having been solicited...

then the client, who

originally traveled to

seek services apparently

not available at _ home,

ought to expect that he

will have to travel again

if he thereafter complains

that the services sought

by him in the foreign

jurisdiction were there

rendered improperly.

Hume, Slip op. at 22.

The court also approved the

reasoning of Gelineau that the state's

interest in insuring that its citizens do not

have to leave the state to file suit must be

balanced against the burden to those pro-

viding the medical services of having to

defend themselves in a foreign forum. Such

a burden might ultimately have the counter

productive result of reducing the availabi-

lity of medical services to residents of

the forum state. See also Wright v.

Yackley, 459 F.2d 28 (9th Cir. 1972); But see

Cubbage v. Merchent, 732 F.2d 1476(9th Cir.

1984) (Hug., J., dissenting). (majority

found "no evidence in the’ record" to indi-

cate that subjecting foreign defendants’ to

jurisdiction would have a "'chilling

effect'" on defendants' treatment of other

residents of forum state).

The Hume court concluded that the

conduct of the physicians and the clinic

did not show “an intent on their part

to purposefully avail themselves of the

privilege of providing medical services to

South Carolina residents on a systematic

basis." Id.

The cases relied on by the Wolfs in

which doctors or medical facilities were

found to be subject to the’ jurisdiction

of a foreign court are distinguishable

because, in these cases, the defendant either

actively solicited or encouraged the nonresi-

dent to travel to their facility for treat-

ment or had patient referral or transfer

contacts. Cubbage Vv. Merchent, — supra

(defendant physicians applied for and

received Medi-Cal numbers in order to receive

reimbursement from forum state for services

rendered to eligible residents of forum sta-

te; defendant hospital took out a paid

advertisement in yellow pages of

telephone directory distributed in forum

state); Lemke v. St. Margaret's Hospital, 552

F.Supp. 833 (N.D.I11. 1982) (finding of soli-

citation made by district court - defen-

dant advertised in forum state yellow

pages); Braman Vv. Mary Hitchcock

Memorial Hospital 631 F.2d 6 (2d Cir.

1980) (defendants, pursuant to agreements

with forum state hospitals, served as

consultants and supplied back-up services

to hospitals in forum state - on remand

district court instructed to determine

whether those and other contacts

distinguish the case from another case

where personal jurisdiction was not found

because the defendant Hospital did not have

"any agents in the forum state channeling

patients" to it); Soares V. Roberts, 417

F.Supp. 304 (D.R.I. 1976) (finding by

district court that nonresident Hospital

"knowingly solicited and facilitated

referrals of [forum state] residents on a

continuing basis" and placed advertisements

in its home-state newspaper and on television

which were widely received in the forum

state); S. R. V. City of Fairmont, 280

S.E.2d 712 (W. Va. 1981) (defendant medical

corporation found to derive a direct eco-

nomic benefit from solicitation made by an

abortion clinic in defendant's home state for

abortion business from forum state).

In conducting the due process analy-

sis and balancing issues of fairness and con-

venience to the parties, questions also arise

of whether the plaintiff would suffer

hardship in the event of dismissal and

whether there is “any other state whose

courts might provide a more likely

forum," Lee _v. Walworth Valve, supta,

482 F.2d at 299. In the instant case the

alleged cause of action arose in Georgia at a

time when plaintiffs were Georgia

residents, thus involving only Georgia

residents. An action, which is still

pending, was originally brought by the defen-

dant in a Georgia court of limited juris-

diction ($25,000). At oral argument this

court was informed that, in order to prevent

the statute of limitations from running,

plaintiff has filed an action in Richmond

County Superior Court, a court of unlimited

jurisdiction. It appears, therefore, that

dismissal of the case brought in South

Carolina will not prejudice the plaintiff and

that Georgia is the logical forum.

We conclude, therefore, Hospital

Authority lacks suff: cient contacts with the

State of South Carolina to be subject to the

jurisdiction of its courts. To do so would

place a burden upon the defendant incon-

sistent with "traditional notions of fair

play and substantial justice."

REVERSED.

IN THE DISTRiCT COURT OF

THE UNITED STATES APPEALS

FOR THE DISTRICT OF SOUTH CAROLINA

AIKEN DIVISION

Civil Action 83-1533-6

ALAN W. WOLF and

GAIL S. WOLF,

Plaintiffs,

-versus- ORDER

RICHMOND COUNTY HOSPITAL

AUTHORITY,

Defendants.

This matter comes before the court

on motion of the defendant to dismiss for

lack of personal jurisdiction pursuant to

Fed.R.Civ.P. 12(b)2. In this action plain-

tiffs, formerly Georgia residents but now

residents of South Carolina, seek to recover

damages for injuries allegedly inflicted on

their infant son by agents of University

Hospital, a facility owned and operated by

the defendant, Richmond County Hospital

Authority. The defendant is a_ public

authority created under the Georgia Hospital

Authorities Law. University Hospital is

located in Augusta, Georgia.

The relevant allegations of the

Compalint are as follows: Plaintiffs' son,

Stephen Collin Wolf, was delivered by

Caesarian Section at University Hospital in

Augusta, Georgia. The plaintiffs allege that

Stephen was born a normal, healthy child and

that the delivering physician left written

orders for his care. Plaintiffs further

allege that due to the Hospital's failure to

provide adequate medical care and attention,

the child is now severely retarded and has

developed other serious complications.

Plaintiffs further contend that while

University Hospital is located in the State

of Georgia, the contacts University Hospital

Maintains with the State of South Carolina

are such that University Hospital is doing

business in South Carolina.

The question therefore before the

court is whether Hospital is doing business

in the State of South Carolina so as to

invoke this court's jurisdiction under South

Carolina's Long-Arm Statute, S.C. Code Ann.

Section 36-2-802 (1976). Section 36-2-802

(1976) provides in relevant part "[{A] court

may exercise personal jurisdiction over a

person. . .doing business. . .in this State

as to any cause of action." This court

concludes that University Hospital is doing

business in South Carolina so as to confer

this court's jurisdiction under Section

36-2-802 (1976).

The test for doing business within

the meaning of Section 36-2-802 was given in

Ratliff v. Cooper Laboratories, Inc., 444

F.2d 745 (4th Cir. 1971). In Ratliff the

Fourth Circuit declared that if a plaintiff's

injury does not arise out of some thing done

in the forum state, then other contacts bet-

ween the corporation and the state must be

fairly extensive. 444 F.2d at 748. That

court has also stated that "the sufficiency

of contacts threshold is elevated when the

cause does not arise in the forum state or

derive from the foreign corporation's tran-

Sactions in the state." O'Neal v. Hicks

Brokerage, 537 F.2d 1266, 1268 (4th Cit.

1976).

To determine what is "fairly exten-

Sive" the courts have differed to the stan-

dards imposed by the Due Process Clause of

the United States Constitution. Ratliff v.

Cooper, supra; O'Neal v. Hicks’ Brokerage

Company, supra; Nelepovitz v. Boatwright, 442

F.Supp. 1336 (D.C.S.C. 1977). As stated in

O'Neal, “South Carolina has extended the

jurisdiction of its courts to the outer peri-

meter allowed by due process." 537 F.2d at

267-268. The modern test for constitutional

assertion of personal jurisdiction over non-

residents was first espoused in International

Shoe Co. v. Washington, 326 U.S. 3160 (1945),

and remains the law in South Carolina today.

Shealey v. Challenger Manufacturing Co., 304

F.2d 102 (4th Cir. 1962). In International

Shoe, the United States Supreme Court held

that due process requires that before a

defendant who is not present in the forum

state may be subjected to the personal juris-

diction of that forum state, he must have

contacts with it such that maintenance of

the suit does not offend "traditional notions

of fair play and_ substantial justice.

International Shoe, 326 U.S at 316.

Therefore, since the defendant is not present

in South Carolina and the cause of action did

not arise in South C-solina, constitutionally

subjecting the defendant to jurisdiction in

this state requires the plaintiffs to show

defendant has sufficient contacts with the

State of South Carolina so as not to offend

"traditional notions’ of fair play and

substantial justice."

The University Hospital's contacts

with the State of South Carolina clearly

exceed the "fairly extensive" test set out in

the Ratliff case. The following list is

illustrative:

1. The South Carolina Department of

Health and Environmental Control (DHEC) has

authorized Augusta Hospital to receive

payment from the State of South Carolina for

residents of Aiken County, South Carolina,

NO a ee ee ee ee ee ee

seeking certain maternity and neonatal ser-

vices at University Hospital.

2. University Hospital received

payments from County Council as reimbursement

for treatment of residents of Aiken County

who are indigent.

3. Although Richmond County

Hospital Authority has no hospital or medical

facility located in South Carolina, the

University Hospital does receive

medicaid/medicare reimbursements for

qualified South Carolina residents treated at

University Hospital.

4. University Hospital is listed in

the yellow pages of the telephone directory

for North Augusta, South Carolina, a city

located in Aiken County, South Carolina.

5. University Hospital is under

coutract to provide laundry services to the

Edgefield County Hospital in South Carolina.

6. University Hospital derives a

Substantial amount of revenue from treatment

of South Carolina residents; defendant

admitted in oral argument that approximately

one-fifth (1/5) of University Hospital's

income is obtained from South Carolina resi-

dents.

7. University Hospital is a member

of the East Central Georgia Health Services

Agency, Inc. This agency was created to

coordinate health care needs in its district,

which district includes Aiken County, South

Carolina. This is the only such district in

South Carolina that crosses state lines.

While this agency does not directly have

jurisdiction over patient admission, the

effect of University Hospital's membership in

the agency is to require South Carolina resi-

dents in Aiken County as a practical matter

to receive secondary and tertiary level care

from University Hospital. This is because

the agency has jurisdiction over capital

expenditures and construction, as well as

issuing certificates of need. The purpose of

the agency is to avoid duplication of expen-

Sive facilities. Since University Hospital

is well equipped with such advanced medical

facilities and Aiken County Hospital is also

within the Agency's district, Aiken Community

hospital does not receive the advanced equip-

ment. The Agency's efforts to avoid duplica-

tion therefore require Aiken County residents

to seek secondary and tertiary level care

from the University Hospital in Augusta,

Georgia, since it is the closest and most

convenient facility of its kind.

Although it is true that “the suf-

ficiency of contacts threshold is elevated

when the cause of action does not arise in

the forum state or derive from the foreign

corporation's transactions in the _ state."

O'Neal at 1268; nevertheless, the contacts

that University Hospital maintains with South

Carolina clearly reach the elevated level.l

The rationale of the court in Lee v.

Walworth Valve Company, 482 F.2d 297 (4th

Cir. 1973), is supportive of this view. In

Lee the plaintiff, a South Carolina resident,

was the executrix of her husband's estate.

Her husband had been killed on the high seas

as a result of a defective valve manufactured

by the defendant. The defendant moved to

dismiss the action for lack of jurisdiction.

The court denied the motion and stated:

The interest of South Carolina is

substantial, however, for it has a

paterral interest in the recovery by

one of its citizens of appropriate

compensation, if there is a substan-

tive cause of action. To the extent

that Mrs. Lee, or she and her depen-

dents, deprived of the support of

lfhe defendant has urged Ratliff v.

Cooper, 444 F.2d 745 (4th Cir. 1971) as sup-

port for its theory that the elevated level

her husband, might become a public

charge or charges, South Carolina

has an immediate interest in her

vindication of any private right of

action she may have for the wrongful

death of her husband.

- « «+ Our holding in Ratliff was

dictated by the fact that South

Carolina had no interest in or con-

nection with the controversy. The

out-of-state plaintiffs sought to

maintain the action in South

Carolina solely for the purposes of

footnote | continued:

of minimum contacts has not been met. The

Ratliff decision, however, is easily

distinguishable from the case at bar.

Ratliff involved two plaintiffs who sued two

drug manufacturers for injuries sustained by

their products. The plaintiffs had no con-

nection whatsoever with South Carolina. The

plaintiffs were not South Carolina residents

and their causes of action arose outside of

the State of South Carolina. As the court

states in Ratliff:

Plaintiffs' only interest in South

Carolina in its relatively long statute of

limitations (six years), and Plaintiffs' only

contact with South Carolina is the bringing

of these lawsuits for the sole purpose of

availing themselves of that statute - the

limitation periods have run in all other sta-

tes having any connection with the claims

presented.

Such is not the case in the action at bar.

availing themselves of South

Carolina's relatively long statute

of limitations...

- « « The frequency and regularity

of (the defendant's) activity in

South Carolina make it fair to hold

is answerable in that State to Mrs.

Lee."

The frequency and regularity of

defendant's activity in South Carolina and

with South Carolina residents make it fair to

hold it answerable in South Carolina.

Jurisdiction by South Carolina

Courts over the defendant is further

buttressed by the fact that foreseeability is

important in a due process analysis. As

stated by the Supreme Court in World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286

(1980), the foreseeability that is critical

to due process analysis is whether the defen-

dant's conduct with the forum state is such

that he should reasonably anticipate being

haled into court there. World-Wide at 567.

University Hospital has such a regular course

of conduct with South Carolina that being

haled into court in this State should come as

no surprise.

The recent case of Lemke v. St.

Margaret Hospital, 552 F.Supp. 833 (N.D. Ill.

1982), further supports this conclusion. In

Lemke the court held that an Indiana doctor

who regularly treated Illinois patients in a

hospital located in Indiana that regularly

treated and solicited patients could be

deemed to be "doing business" in Illinois for

purpose of personal juris-diction. The court

declared:

a ee ae eee

- « « to the extent that the hospi-

tal regulary solicits and refers

Illinois patnents[sic] for Dr.

Patel, as a member of the hospital

staff, he may be considered as pur-

posefully holding himself out to

Illinoise residents as a provider of

medical care. 552 F.Supp. 833, 838.

(1982).

The Lemke court continued:

- « « it appears that a significant

Ete eb Se Oe, a ea NA

Se Bm

Sl ER BR Te Sa ET ast: soit Pattee Des

a ei.

portion of the patients he treats

live in nearby Illinois. Thus, it

should be of no surprise when one of

his Illinois patnents bring suit.

552 F.oupp. at 839.

It is in this state border context

and with university Hospital's continuous and

multiple contacts with South Carolina citiz-

nes that form the basis of jurisdiction.2

2pefendant cites the case of Kennedy

v. Zeisman, 526 F.Supp. 1329 (E.D.Ky. 1981)

for the proposition that merely because a

physician's name is listed in a foreign sta-

te's phone book, the physician is not subject

to suit in that state. This court agrees

that this alone is not sufficient to confer

jurisdiction in South Carolina. In the case

at bar, however, a phone listing is not the

sole contact University Hospital has with the

State of South Carolina. This court does not

hold that each individual contact University

Hospital has with South Carolina is alone

sufficient to confer jurisdiction. What this

court does hold is that looking at all of the

contacts University Hospital has with the

State of South Carolina, it does not offend

"traditional notions of fair play and

substantial justice," to subject them to suit

here. International Shoe, 326 U.S. at 316.

Therefore, jurisdiction is properly

before the court and the Motion to Dismiss is

denied.

This court is of the_- opinion,

however, that this Order involves controlling

question of law to which is a substantial

difference of opinion. An immediate appeal

from the ground for Order may materially

advance the ultimate termination of the liti-

gation, therefore, pursuant to 28 U.S.C.

Section 1292(b), I hereby certify this Order

for application to the Court of Appeals for

an immediate appeai.

AND IT IS SO ORDERED.

Columbia, S. C.

October 25, 1983. Charles E. Simons, Jr.

UNITED STATES DISTRICT

JUDGE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NO. 84-1024

ALAN W. WOLF and GAIL S. WOLF,

Appellees,

ICHMOND COUNTY HOSPITAL AUTHORITY,

Appellant.

Appeal from the United States

District Court for the District of South

Carolina, at Aiken. Charles E. Simons, Jr.

District Judge.

The appellee's petition for

rehearing and suggestion for rehearing en

banc were submitted to this Court. In a

requested poll of the Court, Judges Widener,

Murnaghan, Sprouse and Ervin voted to renear

the case in banc; and Judges Winter, Russell,

Hall, Phillips, Chapman, Wilkinson and

Sneeden voted against rehearing the case in

banc. As a majority of the judges voted to

deny rehearing in banc, and

As the panel considered the petition

for rehearing and is of the opinion that it

should be denied,

IT IS ADJUDGED AND ORDERED that the

petition for rehearing and suggestion for

rehearing in banc are denied.

Entered at the direction of Judge

Murnaghan.

For the Court,

March 6, 1985 John M. Greacen, Clerk

AFFIDAVIT OF SERVICE

In accordance with Rules of the

Supreme Court of the United States, I hereby

certify that I have this l7thday of June, 1985

mailed the required copies of this Petition

for Writ of Certiorari in the Clerk's Office

of the Supreme Court of the United Stated and

further certify that I have mailed this l7thiay

of June, 1985 three copies to Wyck A. Knox,

Jr., Esquire and Ted H. Clarkson, Esquire, of

the Law Firm of KNOX & ZACKS, P.C., Attorneys

for the Respondent, Post Office Box 2043,

Augusta, Georgia 30903.

py: Aarhus ¢- LS FOOe,

Lawyers Printing Co.

Post Office Box 1645

Richmond, Virginia 23219

This the l7thday of June , 1985.

Sworn to before thisl7 day of June , 1985.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.