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James D. Dibdin v. South Tyneside Nhs Healthcare Trust

January 29, 2013

JAMES D. DIBDIN, PLAINTIFF,
v.
SOUTH TYNESIDE NHS HEALTHCARE TRUST, A UNITED KINGDOM FOUNDATION TRUST, ALAN RODGERS, AN INDIVIDUAL; RICHARD ELLIS, AN INDIVIDUAL; LORRAINE LAMBERG, AN INDIVIDUAL; FIELD, FISHER, WATERHOUSE, A UNITED KINGDOM LLP; SARAH ELLSON, AN INDIVIDUAL; ANDREW BAUM, AN INDIVIDUAL; REBECCA POULET, AN INDIVIDUAL; RYAN SOLICTORS, A UNITED KINGDOM LLP; MICHAEL RYAN, AN INDIVIDUAL; MARTIN FORDE, AN INDIVIDUAL; ELAINE MEEHAN, AN INDIVIDUAL; JOHN MURPHY, AN INDIVIDUAL; REBECCA TOWNSLEY, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

O

ORDER RE: DEFENDANTS' MOTIONS TO DISMISS FOR LACK OF JURISDICTION AND IN THE ALTERNATIVE, BASED UPON FORUM NON CONVENIENS [Docket Nos. 46, 48, 49]

On June 12, 2012, James Dibdin ("Plaintiff") filed his second amended complaint against South Tyneside NHS Foundation; Alan Rodgers; Richard Ellis; Lorraine Lambert; Field, Fish Waterhouse, LLP; Sarah Ellson, Andrew Baum; Rebecca Poulet; Ryan Solicitors LLP; Michael Ryan; Martin Forde; Elaine Meehan; John Murphy; Rebecca Townsley; and Ceri Floyd ("Defendants"). (See generally Second Amended Complaint ("SAC").) The complaint contains ten claims, some alleging liability for all Defendants.

Presently before the court is Defendants' motion to dismiss for Lack of Personal Jurisdiction, Forum non Conveniens, and Lack of Subject Matter Jurisdiction. Since this case involves multiple claims, multiple possible immunities, and multiple defendants with varying connections to California, the court will only address the forum non conveniens issue. As will be discussed infra, this case concerns events and hearings occurring almost entirely in England. Since it is immediately apparent that this case should be litigated in England, the Court GRANTS Defendants' motion to dismiss on grounds of forum non conveniens.

I. Background

Plaintiff is a California resident who is a licensed physician in this state. (SAC ¶ 5.) Defendants include individuals (all of whom reside in England), two solicitor firms (which are headquartered and have their principle place of business in England), and South Tyneside Hospital (which is part of the United Kingdom government's National Health Service (NHS)). (SAC ¶¶, 6-20.) Plaintiff's claims arise from his employment as a consultant pathologist at South Tyneside, the NHS hospital. (SAC ¶¶ 22-29.) Plaintiff alleges that during his employment another consultant pathologist, Dr. John Obafunwa, authored reports under Plaintiff's name, and that these reports had a 70% error rate. (Id. ¶ 28.) During a review of Plaintiff's work, South Tyneside Hospital attributed these reports to Plaintiff, despite allegedly knowing that Dr. Obafunwa was the true author. (Id.) South Tyneside Hospital allegedly concealed its knowledge of the reports' authorship, and Plaintiff did not discover what Dr. Obafunwa had done until 2009. (Id. ¶ 29.) South Tyneside Hospital filed a complaint against Plaintiff with the General Medical Council in the UK. (Id.) Two hearings were held to decide Plaintiff's fitness to practice medicine. (Id.) Plaintiff's license was revoked allegedly as a result of Defendants "directing, controlling, engaging in, ratifying, authorizing, or acquiescing in [] wrongful acts and omissions" related to Plaintiff's employment, during these hearings. (Id. ¶¶ 29, 37-38.) Not only has the revocation damaged Plaintiff's reputation, Defendants have also allegedly attempted to get the Medical Board of California to discipline Plaintiff further, and they have continued to contact potential employers about Plaintiff's suspension in the UK. (Id. ¶ 68, 96.)

II. The Court may Dismiss on Grounds of Forum non Conveniens Without Engaging in Other Threshold Issues.

A court has authority to decide a defendant's forum non conveniens plea before deciding any other threshold matter:

[A] district court has discretion to respond at once to a defendant's forum non conveniens plea, and need not take up first any other threshold objection. In particular, a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant if it determines that, in any event, a foreign tribunal is plainly the more suitable arbiter of the merits of the case.

Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 425 (2007). As the Ninth Circuit has recognized,"the Supreme Court offered the lower courts a practical mechanism for resolving a case that would ultimately be dismissed." Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1088 (9th Cir. 2009). Dismissal without consideration of personal jurisdiction or subject matter jurisdiction is especially proper when those issues are difficult to determine, and when the case for dismissal on forum non conveniens grounds is clear. Sinochem, 549 U.S. at 436.

As analyzed infra, it is clear to this court that this case should be dismissed on forum non conveniens. Thus, concerns for "judicial economy" weigh heavily in favor of immediate dismissal. See id. at 432. Additionally, subject matter and personal jurisdiction are difficult to decide in this case. The court need not go into detail on these issues, because doing so would betray the concern for judicial resources that underlie Sinochem. 549 U.S. at 432. Some explanation, though is warranted.

Regarding personal jurisdiction, there are fifteen Defendants. Some are individual defendants, who are employed by different organizations, and some are organizations (e.g. a government hospital and a law firm). (SAC ¶¶, 6-20.) First, the Defendants have varying connections to California. Some have never been to the state. (See e.g., Rodgers Decl. ¶ 3.) One of the Defendants is a law firm with an office in this state. (Reply Memorandum for Defendants Field Fisher Waterhouse LLP, Sarah Ellson, Andrew Baum, Ryan Solicitors, Michael Ryan, Elaine Meehan, Ceri Floyd, and Rebecca Townsley at 9:13-18.) Defendants South Tyneside Hospital and Alan Rodgers are alleged to have recruited Plaintiff from California, but no analogous allegation is made against the Defendants unaffiliated with the hospital. (SAC ¶ 7). Second, it is a close call whether Plaintiff has made only conclusory or insufficiently specific allegations about many Defendants' contacts with California. Swartz v. KPMG LLP, 476 F.3d 756, 766 (9th Cir. 2007) (holding that "mere bare bones assertions of minimum contacts with the forum or legal conclusions unsupported by specific factual allegations will not satisfy a plaintiff's pleading burden" (internal quotations omitted)). Plaintiff alleges that Defendants have tried to contact the Medical Board of California to seek further disciplinary action against him. (SAC ¶ 96). Plaintiff's complaint, though, is unclear whether the Defendants actually did contact the Board, and what actions constitute Defendants' attempted contact. Likewise, Plaintiff claims that Defendants have contacted his potential employers to impugn his reputation. (See id.) It is unclear which employers Plaintiff references, and whether they are located in California. For these reasons, the issue of personal jurisdiction is nebulous.

Deciding subject matter jurisdiction would likewise be an extensive undertaking. Some Defendants are claiming full liability protection under the sovereign immunities act. Some are claiming protection under the litigation privilege. Likewise, defendants Rebecca Poulet and Martin Forde assert that each of Plaintiff's eight claims against them are factually insufficient. In light of the different privileges that might be available to different Defendants, and the number of claims at issue here, engaging in the "arduous inquiry" of subject matter jurisdiction in this case would be an inappropriate use of this court's resources. Sinochem, 549 U.S. at 436.

III. Analysis

The doctrine of forum non conveniens permits discretionary dismissals on a case by case basis. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981). The party moving for forum non conveniens dismissal must demonstrate two things: (1) the existence of an adequate alternative forum; and (2) that the balance of relevant private and public ...


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