Gilbert-Cohen v. Carthage Area Hosp., Inc., No. 20-1-10 Wmcv (Wesley, J., June 28, 2010)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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                                                 STATE OF VERMONT
                                                 WINDHAM COUNTY

JENNIFER GILBERT-COHEN,
     Plaintiff
                                                                WINDHAM SUPERIOR COURT
                 v.                                             DOCKET NO. 20-1-10 Wmcv


CARTHAGE AREA HOSPITAL, INC.
    Defendant.


                                 ORDER ON MOTION TO DISMISS
                              FOR LACK OF PERSONAL JURISDICTION


           Jennifer Gilbert-Cohen, a Vermont resident, was briefly employed as a midwife

by Carthage Area Hospital (hereinafter “the hospital”), a community hospital located in a

rural area near Syracuse, New York. After her employment was terminated, Gilbert-

Cohen brought this action in Vermont, alleging several claims against the hospital arising

from her employment and discharge. Currently pending is the hospital’s motion to

dismiss for lack of personal jurisdiction. See V.R.C.P. 12(b)(2). Concluding that the

hospital did not direct its activities towards residents of Vermont in a manner so as to

purposely avail itself of the privileges of conducting activities here, the Court GRANTS

the hospital’s motion to dismiss for lack of personal jurisdiction.

Background

           When a motion to dismiss for lack of personal jurisdiction is decided without an

evidentiary hearing,1 the plaintiff is required to make only a prima facie showing of

personal jurisdiction. See Northern Security Ins. Co. v. Mitec Electronics, Ltd., 2008 VT

96, ¶ 14, 184 Vt. 303, 310. The court’s approach is essentially the same as that taken on


1
    Neither party requested an evidentiary hearing.
a motion for summary judgment: it views the pleadings, affidavits, and exhibits in a light

most favorable to the plaintiff and gives her the benefit of all reasonable doubts and

inferences. See id. Nonetheless, as with a motion for summary judgment, defendant’s

uncontroverted evidence may be considered, and an assertion by the plaintiff about the

defendant “upon information and belief” is not sufficient to controvert the defendant’s

affidavit testimony about a matter within its actual knowledge. Cf. Levy v. Town of St.

Albans Zoning Board of Adjustment, 152 Vt. 139, 145 (stating same in context of

summary judgment motion).

       Viewing the parties’ allegations and evidence in this manner, it appears that

Gilbert-Cohen was alerted to the possibility of temporary employment at the hospital by a

third-party independent medical recruiter, and indicated that she would be interested.

The recruiter advised Gilbert-Cohen to contact the hospital directly, but this approach

proved unproductive. At some point, however, the independent medical recruiter

contacted Walter Becker, the hospital’s CEO, and asked if the hospital needed midwives

and would like a list of potential candidates. Becker said yes, and the recruiter sent the

list, which included Gilbert-Cohen. Becker then called Gilbert-Cohen in Vermont to

invite her to come to Carthage for an interview. Following the interview, Becker called

Gilbert-Cohen in Vermont to offer her the position, and then sent her a proposed contract.

The hospital negotiated the contract with Gilbert-Cohen’s Vermont attorney, and sent her

a credentialing packet and employment packet in Vermont. The contract was for full-

time employment as a midwife in the rural area of Carthage, near Syracuse, New York.

Nonetheless, the hospital knew that Gilbert-Cohen intended to remain a resident of

Vermont.




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Analysis

       Vermont’s long-arm statute confers jurisdiction to the full extent allowed by the

due process clause of the federal constitution. See, e.g., Mitec, 2008 VT 96, ¶ 14, 184 Vt.

303, 310. Thus, the personal jurisdiction inquiry focuses on the International Shoe test

for due process -- whether the defendant has sufficient contacts with the state that the

exercise of jurisdiction does not “offend traditional notions of fair play and substantial

justice.” Id., quoting International Shoe Co. v. Washington, 326 U.S. 316 (1945). The

test is essentially one of reasonableness: Are the defendant’s actions toward and

connections with the state such that the defendant should reasonably anticipate being

haled into court there? See Dall v. Kaylor, 163 Vt. 274, 276 (1995). The reasonableness

test is generally met when the defendant has “purposefully availed” itself of the forum by

purposefully directing its activities towards residents of the forum state, and the litigation

arises from those activities. See Dall, 163 Vt. at 276.

       It is undisputed that the defendant hospital has never marketed its services in

Vermont, which is the most common way a non-resident corporate defendant

purposefully directs its activities toward Vermont. See, e.g., Dall, 163 Vt. at 275-77

(Vermont court may exercise jurisdiction over Maryland horse farm that is in business of

selling horses and regularly advertises its horses in nationally circulated magazines; “It is

hardly unfair for defendants to defend themselves in jurisdictions where they choose to

advertise their products.”).

       Nonetheless, Gilbert-Cohen argues that an exercise of personal jurisdiction over

the hospital would be reasonable in Vermont because the hospital solicited and recruited

her as an employee, contacted and sent her materials in Vermont, negotiated with her




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Vermont lawyer, and entered into the employment contract with her knowing she was a

Vermont resident and intended to remain one. The Court considers the first circumstance

– the solicitation and recruitment, if any – to be the pivotal one. The United States

Supreme Court has made it clear that a foreign defendant’s contract with a forum resident

is not alone a sufficient basis for an exercise of personal jurisdiction. Burger King Corp.

v. Rudzewicz, 471 U.S. 462, 478 (1985); Conti v. Pneumatic Products Corp., 977 F.2d

978, 982 (6th Cir. 1992). Moreover, “’the Court long ago rejected the notion that personal

jurisdiction might turn on ‘mechanical’ tests, or on ‘conceptualistic theories of the place

of contracting or performance.’” Burger King, 471 U.S. at 478-79. After all, the test is

essentially one of reasonableness based on purposeful availment; so it makes sense in an

employment case that the focus is not on where the parties happened to be located at

various points in the contracting process; rather, it is on the degree to which the non-

resident employer solicited or initiated the employment relationship by targeting its

recruitment process to the plaintiff/resident in particular or to residents of the forum

generally.

        Bearing in mind this analytic framework, the Court considers the hospital’s

actions in soliciting and recruiting Gilbert-Cohen. The hospital did not initiate the hiring

process by targeting Gilbert-Cohen specifically or the Vermont market generally.

Compare Vuylsteke v. Broan, 17 P.3d 1072, 1079 (Or. App. 2001) (New York employer

was subject to personal jurisdiction in Oregon where it specifically initiated contact with

resident plaintiff individually, due to her unique expertise, to entice her to return to the art

world of New York rather than remaining in Oregon where she had escaped to devote

herself to child-rearing); Hahn v. Vermont Law School, 698 F.2d 48, 52 (1st Cir. 1983)




                                               4
(defendant law school was subject to personal jurisdiction in Massachusetts based on its

efforts to serve market for legal education in that state; over the years students from

Massachusetts consistently comprise close to ten percent of class, VLS faculty visit

Massachusetts colleges for recruitment purposes, and school has placed advertisements in

Boston newspapers); Davis v. Baylor Univ., 976 S.W.2d 5, 13 (W.D. Mo. App. 1998)

(defendant university was subject to personal jurisdiction in Missouri where members of

its coaching staff had gone to forum state to actively recruit plaintiff, particularly since

recruitment of plaintiff was part of larger effort to recruit other students and student

athletes from forum state as well). Instead, the hospital was contacted by a third-party

who asked if it wanted a list of persons interested in a midwife position, the hospital

responded yes, and the hiring process began.2 Thus, even viewing the evidence favorably

to Gilbert-Cohen, it cannot be said that the hospital actively solicited or recruited her.

Rather, since the relationship between the parties started with the plaintiff indicating her

interest to a third party independent recruiter and the independent recruiter calling the

hospital, the only acts of solicitation or recruitment on the part of the hospital were the

call to invite Gilbert-Cohen for an interview and the call to offer her the job. Coupled

with the fact that the hospital has never solicited, recruited, or hired anyone else from

Vermont, these acts are not sufficient to constitute purposeful availment and make

jurisdiction here reasonable.


2
      In her affidavit, Gilbert-Cohen stated “upon information and belief” that the hospital hired
the recruiter who initially called her in Vermont. However, Becker’s affidavit states, based on
personal knowledge, that he did not initiate contact with or hire the recruiter, but was instead
called by her and asked if he would like a list of potential applicants for a midwife position; and
his testimony based on personal knowledge cannot be controverted by Gilbert-Cohen’s statement
based only “upon information and belief.” Cf. Levy, 152 Vt. at 145 (stating same in context of
summary judgment motion).



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       The Sixth Circuit reached the same conclusion in Conti v. Pneumatic Products

Corp., 977 F.2d 978 (6th Cir. 1992), a case similar to this one on its facts. There, the

former employee was an Ohio resident who implored the Court in Ohio to exercise

personal jurisdiction over a Florida employer. The plaintiff/former employee had sent his

resume to an executive recruiting firm he found listed in a directory of executive

recruiting firms advertised in the Wall Street Journal. The defendant employer hired this

recruiting firm to fill an executive position, and through them talked to the plaintiff in

Ohio several times and sent him written materials there. It mailed him airline tickets in

Ohio, conducted extensive contract negotiations with him there, and mailed an

employment contract offer letter to him there. The Court noted these contacts but

focused on the initiation of the relationship, concluding that the employer’s act of hiring a

recruiter who happened to have acquired the resume of the Ohio resident, and then

proceeding with the steps that resulted in hiring an Ohio resident, were not sufficient to

make an exercise of jurisdiction in Ohio fair. Indeed, the Court concluded that the

exercise of jurisdiction on such limited contacts would likely have an inhibiting effect

which “could unnecessarily restrict nationwide searches for candidates.” 977 F.2d at

983. Here, the argument for exercise of personal jurisdiction is factually weaker than in

Conti, because the employer in Conti had actually hired the recruiter who provided the

plaintiff’s name, while the hospital in this case had not hired the recruiter and simply

responded positively to an independent recruiter’s inquiry regarding interest. In any case,

the Court finds Conti persuasive. Accord Goodstein v. Regional Medical Services, 2010

WL 1856480 (W.D. Mich.).




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       In sum, the Court concludes that it would be unfair as well as unwise to assert

jurisdiction here over a rural community hospital in New York – a local institution

serving a local market a long way from Vermont – just because it was willing to hire a

Vermont resident who it determined to be the best applicant for the job. It is true, as

Gilbert-Cohen points out, that Vermont has an interest in pursuing justice for its residents

who are wronged. However, it does not have an interest in discouraging non-residents

from hiring residents by unreasonably exposing foreign employers to the threat of

litigation far from their places of business.

                                          ORDER

       WHEREFORE it is hereby ORDERED : The hospital’s motion to dismiss for

lack of personal jurisdiction is GRANTED.

       Dated at Newfane, Vermont, this ____ day of June, 2010.



                                                      ________________________
                                                          John P. Wesley
                                                          Presiding Judge




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