The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
Presently before the Court is Separate Defendant Dr. Penney Israel's Motion for Summary Judgment and, in the Alternative, the Motion of Defendants for Transfer to the United States District Court of New Mexico. After considering the issue, the Court concludes that Separate Defendant Dr. Penney Israel's Motion for Summary Judgment should be denied, and the Motion of Defendants for Transfer to the United States District Court of New Mexico should be granted.
Plaintiff alleges that on or about July 24, 2002, she was working as a nurse in the Emergency Room at the Northern Navajo Medical Facility in Shiprock, New Mexico. Defendant Penney Israel, a physician in the Emergency Room, was discussing a patient's lab results over the telephone with another physician. Plaintiff allegedly noticed that Dr. Israel was using the wrong patient chart and attempted to provide the correct chart to Dr. Israel. Then, Plaintiff alleges that "Dr. Israel, without provocation or privilege, suddenly and violently attacked the Plaintiff, grabbing her by the shoulder and then around her neck, slamming her in the wall and choking her." (Complaint, ¶ 13).
Plaintiff filed the Complaint on April 6, 2005, seeking $6,000,000.00 in damages, pursuant to the Federal Tort Claims Act (FTCA) and pendent state law claims alleging: (1) negligent training, supervision, and retention by Defendant United States; (2) intentional or negligent infliction of emotional distress by both Defendants; and (3) assault and battery by Defendant Israel.
On April 7, 2006, Separate Defendant Dr. Penney Israel filed her Motion for Summary Judgment and, in the Alternative, Motion of Defendants for Transfer to the United States District Court of New Mexico. As the basis of the motions, Defendant Israel asserts that the Court should dismiss this case because it does not have personal jurisdiction over her and that the Eastern District of Arkansas is not the proper venue for Plaintiff's claims against her. In the event that the Court does not dismiss the Complaint for lack of personal jurisdiction or improper venue, Defendants request that the case be transferred pursuant to 28 U.S.C. § 1404(a).
II. Motion for Summary Judgment
A. Personal Jurisdiction and Venue
Federal Rule of Civil Procedure12(g) states in relevant part:
If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.
Fed. R. Civ. P. 12(g). Plaintiff claims that Dr. Israel waived her objections based upon lack of personal jurisdiction and improper venue by failing to comply with this rule. While Dr. Israel is correct in her assertion that subsections (g) and (h)(1) of Federal Rule of Civil Procedure 12 do not provide for waiver if the omitted defense was not "then available" to the party who made the previous Rule 12 motion, the Complaint and Defendants' Motion to Dismiss filed by "defendants," pursuant to Rule 12(b)(1), make it clear that Dr. Israel was on notice that she was being sued in both her official and individual capacities, and that Defendants' Motion to Dismiss was on her behalf in both capacities. The Memorandum in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction states, "The defendants are the United States of America and Dr. Penney Israel, officially and individually."*fn1 Defendants then quote the portion of the Complaint which states, "To the extent that it is found that any act of Dr. Israel at any relevant time exceeded her authority, she is joined individually as well as in a pendent state claim, infra."*fn2
Defendants further state, "Plaintiff seems to recognize that her state-law claims against Dr. Israel individually, and her FTCA claims against the government do not create joint and several liability."*fn3 While the arguments to dismiss for lack of subject matter jurisdiction over the "claims against Defendant Dr. Elizabeth (Penney) Israel" seem to assume that Dr. Israel was acting in her official capacity, the motion requests "the individual defendant Dr. Penney Israel, officially and individually, should be dismissed from this cause of action." In Defendants' Reply Brief in Support of Motion to Dismiss, Defendants request that the "government's motion to dismiss the FTCA claims against it" be deferred pending a determination by the Court of the threshold issue of scope of employment. Defendants further state, "In the event the Court determines Dr. Israel was not acting within the scope of her employment for respondeat superior purposes, the motion to dismiss her FTCA claims would be moot," and have included a footnote stating, "It is unlikely that this Court would have personal jurisdiction over her."
This conclusion is further supported by the fact that Dr. Israel was operating under the assumption that the Federal Rule of Civil Procedure 12(a)(4) extension of time to file an answer until 10 days after notice of the Court's action denying the Motion to Dismiss applied to her Answer, as she filed her Motion for Extension of Time to File Answer ten days after the Court denied Defendants' Motion to Dismiss, approximately ten months after Plaintiff filed her Complaint, rather than 60 days after service of process under Federal Rule of Civil Procedure 12(a)(3)(B). Also, the defense of lack of personal jurisdiction was obviously available at that time, as evidenced by the fact that Dr. Israel's current counsel mentioned the possibility of the defense in a footnote in a reply brief.
Although Defendant Israel argues that the claims against her individually were "pled in the alternative,"*fn4 the Complaint states, "Plaintiff also brings pendent state claims against the separate defendant, Dr. Penny Israel in her individual capacity for assault and battery and intentional or negligent infliction of emotional distress." Furthermore, even if the language in the Complaint seems to conflict, it is clear that Dr. Israel operated under the assumption that she was a defendant in her individual capacity by the timing of the filing of her pleadings, as discussed above. Further, it is clear that the improper venue objection raised here was previously available to Defendant Israel, as it was clear that pendent state law claims were asserted against her. Dr. Israel should have included her objections based on lack of personal jurisdiction and improper venue in the original Motion to Dismiss filed by the "Defendants" to preserve these defenses. The Rule 12(b) defenses of lack of personal jurisdiction and improper venue were "then available" to Dr. Israel at the time the original Motion to Dismiss was filed on behalf of the United States and Dr. Israel. Additionally, the Court agrees with ...