Opinion
Civil Action No. 04-2331-CM.
October 25, 2004
MEMORANDUM AND ORDER
Plaintiff Richard Moore brings the instant action, alleging state law negligence claims against defendants Richard Slovek, M.D., and Community Hospital Association (Community Hospital). This matter is before the court on defendant Richard Slovek, M.D. and defendant Community Hospital's Motions to Dismiss (Docs. 10 11).
I. Facts
The following facts are not in dispute. Plaintiff is a Kansas resident. Community Hospital is a Nebraska non-profit corporation organized and existing under the laws of the State of Nebraska. At all relevant times, Community Hospital was doing business in Red Willow County, Nebraska, as a hospital and medical treatment center. At all relevant times, Dr. Slovek was a resident of the State of Nebraska and an employee of Community Hospital. Dr. Slovek now resides in Stainslaus County, California. Dr. Slovek has never resided in Kansas.
In his Complaint, plaintiff alleges that on August 6, 2002, he fractured his left tibia and fibula near Atwood, Rawlins County, Kansas. Plaintiff was seen at the Rawlins County Health Center by Dr. Baskar. Plaintiff's fractured leg required surgery to repair. The necessary surgery could not be performed at Rawlins County Health Center. Community Hospital was the closest facility to Atwood, Kansas, that could provide the orthopaedic care plaintiff needed. Dr. Baskar contacted Community Hospital in Nebraska and was advised that Dr. Slovek could provide plaintiff with orthopaedic care and treatment in Nebraska. Plaintiff was transported, by ambulance, to Community Hospital, to be treated by Dr. Slovek. Later that day, Dr. Slovek performed an open reduction internal fixation of the plaintiff's left leg fracture. The surgery was performed at Community Hospital. Plaintiff was discharged from Community Hospital by Dr. Slovek on August 8, 2004.
Plaintiff returned to Community Hospital's Orthopaedic Clinic in McCook, Nebraska for follow-up care and treatment on August 12 22, October 1 14, November 11 22, and December 10, 2002. All of the treatment rendered to plaintiff by Dr. Slovek and Community Hospital, including surgery and follow-up care, occurred in the State of Nebraska.
Plaintiff filed the present medical malpractice action on July 16, 2004, contending that both Dr. Slovek and Community Hospital failed to comply with the applicable standard of care in their treatment of plaintiff. Plaintiff predicates subject matter jurisdiction in this court on the basis of diversity jurisdiction.
On July 19, 2004, plaintiff filed a civil action involving the same claims and parties as involved in the present action in the United State District Court for the District of Nebraska. Said action is entitled Richard M. Moore v. Richard W. Slovek, M.D. and The Community Hospital Association d/b/a McCook Community Hospital, Case No. 04-CV-323.
II. Discussion
Defendants argue both that this court lacks personal jurisdiction and that the District of Kansas is not a proper venue. In support of their motions to dismiss for lack of personal jurisdiction, defendants argue that their conduct does not come within any of the Kansas long-arm provisions and that a Kansas court's exercise of jurisdiction over them would not comport with due process. However, notwithstanding defendants' respective arguments concerning personal jurisdiction, the court concludes that venue in this court is not proper.
Venue in a diversity case is governed by 28 U.S.C. § 1391(a), which provides that the case may:
be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same state, (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 property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the actionis commenced, if there is no district in which the action may otherwise be brought.28 U.S.C. § 1391(a).
In McDonald v. Doolittle, 885 F. Supp. 233 (D. Kan. 1995), a Kansas resident brought a medical malpractice action in the United States District Court for the District of Kansas on the basis of diversity jurisdiction. Id. at 234. The defendant physician was a resident of Nebraska. The plaintiff alleged that the defendant, as the operating surgeon, was negligent in his care and treatment of her. All of the care and treatment provided to plaintiff by defendant occurred in Nebraska. The defendant moved the court to dismiss for lack of personal jurisdiction and improper venue.
Citing 28 U.S.C. § 1391(a), the court held that the District of Kansas was not a proper venue. Specifically, the court stated:
The only defendant to the instant action resides in Nebraska. The plaintiff pleads in her complaint that the alleged negligent acts occurred in Nebraska. The court knows of no reason why this actioncould not have been brought in Nebraska. For these reasons, the District of Kansas is not a proper venue.Id. The action was transferred to the District of Nebraska.
In the case at hand, the only defendants in this action are residents of Nebraska. The face of plaintiff's Complaint reveals that all of the alleged negligent acts giving rise to his action occurred in Nebraska. A proper venue exists for plaintiff to litigate his claims in Nebraska. In fact, plaintiff already has filed a Complaint in the District of Nebraska, asserting the same causes of action against the same Nebraska defendants. For these reasons, the court holds that venue in the District of Kansas is not proper and, accordingly, dismisses the instant action.
IT IS THEREFORE ORDERED that defendant Richard Slovek, M.D. and defendant Community Hospital's Motions to Dismiss (Docs. 10 11) are granted. This case is hereby dismissed.