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Franchini v. Sally Pipes

United States District Court, D. Maine

May 17, 2019

THOMAS FRANCHINI, D.P.M., Plaintiff,
v.
SALLY PIPES et al., Defendants.

          ORDER ON MOTIONS TO DISMISS

          George Z. Singal United States District Judge

         Before the Court are two Motions to Dismiss. The first (ECF No. 16), filed by Defendant Philadelphia Media Network, PBC (“PMN”), seeks dismissal for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). The second (ECF No. 17), filed by Defendants Pacific Research Institute (“PRI”) and Sally Pipes, seeks dismissal for lack of personal jurisdiction and failure to state a claim upon which relief can be granted. Fed R. Civ. P. 12(b)(2) & 12(b)(6). It also seeks dismissal under the anti-SLAPP statutes of Maine and California. 14 M.R.S.A. § 556; Cal. Civ. Proc. Code § 425.16. As explained herein, the Court GRANTS both Motions on personal jurisdiction grounds.

         I. LEGAL STANDARD

         “When a court's jurisdiction is contested, the plaintiff bears the burden of proving that jurisdiction lies in the forum state.” Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995). There are three recognized standards for determining whether the exercise of personal jurisdiction is lawful: the prima facie standard, the preponderance standard, and the likelihood standard. Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir. 1997); see Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145-147 (1st Cir. 1998) (outlining standards and circumstances under which they apply). “The prima facie standard is the most commonly used and is appropriate where” as here, “a case does not involve materially conflicting versions of the facts.” Rissman Hendricks & Oliverio, LLP v. MIV Therapeutics, Inc., 901 F.Supp.2d 255, 260 (D. Mass. 2012) (citing Foster-Miller, Inc., 46 F.3d at 145-146)).

         Under this standard, “the inquiry is whether the plaintiff has proffered evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction.” Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir. 2008). “It is not enough for [the plaintiff] to rely on unsupported allegations in [its] pleadings. Rather, [the plaintiff] must put forward evidence of specific facts to demonstrate that jurisdiction exists.” A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016) (internal citations and quotations omitted). In assessing this showing, the court must accept “properly documented” proffers as true and “construe them in the light most congenial” to the plaintiff. Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002) (internal citations and quotations omitted).

         “To establish personal jurisdiction in a diversity case, a plaintiff must satisfy both the forum state's long-arm statute and the Due Process Clause of the Fourteenth Amendment.” C.W. Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 65 (1st Cir. 2014). “Because the Law Court has deemed Maine's long-arm statute coextensive with the permissible exercise of personal jurisdiction under the Due Process Clause . . . the due process inquiry controls in the present case.” Lucerne Farms v. Baling Techs., Inc., 226 F.Supp.2d 255, 257 (D. Me. 2002).

         II. FACTUAL BACKGROUND

         Plaintiff Thomas Franchini is a board-certified podiatrist who resides in Connecticut. He is licensed to practice podiatry in Connecticut, Rhode Island, New York, and Massachusetts, and has expired licenses in good standing in the District of Columbia, Vermont, and Maine. Defendant PMN is a company organized and based in Pennsylvania, and which publishes The Philadelphia Inquirer and Philly.com. Defendant PRI is a non-profit corporation organized and based in California, and Defendant Sally Pipes is an employee of PRI who resides in California.

         From 2004 to 2010, Franchini worked as a podiatrist with the Department of Veterans Affairs at the VA Maine Healthcare System at Togus, in Augusta, Maine (“VA Togus”). Around April 2010, VA Togus reviewed Franchini's note-taking and preparation of medical records, criticized him for “the brevity of his procedure notes, ” and asked him to cease performing surgeries. (Compl. (ECF No. 1), PageID # 5.) On November 8, 2010, Franchini resigned from VA Togus. Then, after 2012, VA Togus and its representatives accused Franchini of numerous cases of substandard performance of procedures. Franchini maintains that those allegations are baseless and false. On or about November 10, 2017, PMN published an opinion article by Pipes entitled “The VA is a National Embarrassment, Not a Model to Emulate.” (Id. at PageID # 6.) According to Franchini, that article makes numerous false statements about his time at VA Togus, including that he “botched” procedures, and provides hyperlinks to two articles-one in USAToday and one in the Portland Press Herald-that make similar false claims. (Id.) On or about November 13, 2017, PRI published an article by Pipes also entitled “The VA is a National Embarrassment, Not a Model to Emulate.” (Id. at PageID # 10.) By Franchini's account, that article is “identical” to the PMN article down to the hyperlinks. (Id.)

         The PMN article begins by discussing dysfunction at the VA in general.[1] It then raises Franchini as an example and, as Franchini alleges, states that he “botched” certain surgeries while working for the VA. (Ex. A to Pl. Opp. (ECF No. 20), PageID # 142.) After that, the article concludes with further criticism of the VA and the author's opinion on a “single-payer” healthcare system. (Id.) The PMN article contains embedded links to a USAToday article and a Portland Press Herald article, which Pipes used as sources for the PMN article. (Pipes Decl. (ECF No. 17-1), PageID #s 77-78.) PMN published the PMN article not only in Philly.com, but also in print in the Philadelphia Inquirer on November 12, 2017. (Loomis Decl. (ECF No. 22-1), PageID # 199.) On that day, the Philadelphia Inquirer had one hard copy subscriber in Maine and forty-one Maine electronic subscribers. Of those electronic subscribers who received a digital replica of the November 12 publication, nine viewed the page containing the article. Also, 529 unique visitors viewed the article on Philly.com and eight of those were from Maine.[2]

         III. DISCUSSION

         Plaintiff does not contend that any of the Defendants are subject to general personal jurisdiction in Maine and, therefore, the Court need not address that type of jurisdiction. See Scottsdale Capital Advisors Corp. v. The Deal, LLC, 887 F.3d 17, 20 (1st Cir. 2018). Rather, Franchini asserts only that they are subject to specific personal jurisdiction, “i.e., jurisdiction over these defendants for the purpose of this specific lawsuit.” Id. To establish such jurisdiction, a plaintiff “must show that: (1) their claim directly arises out of or relates to the defendant's forum-state activities; (2) the defendant's contacts with the forum state represent a purposeful availment of the privilege of conducting activities in that state . . .; and (3) the exercise of jurisdiction is ultimately reasonable.” Id. In cases involving multiple defendants, “[e]ach defendant's contacts with the forum State must be assessed individually.” Calder v. Jones, 465 U.S. 783, 790 (1984). Here, Defendants all contend that Franchini has failed to meet his burden on personal jurisdiction.

         A. Relatedness

         To satisfy the relatedness prong, “the action must directly arise out of the specific contacts between the defendant and the forum state.” Sawtelle, 70 F.3d at 1389. “Here, plaintiff['s] claims all sound in tort, so to assess relatedness” the Court looks to whether “the plaintiff has established cause in fact (i.e., the injury would not have occurred ‘but for' the defendant's forum-state activity) and legal cause (i.e., the defendant's in-state conduct gave birth to the cause of action).” Scottsdale Capital Advisors Corp., 887 F.3d at 20-21 (internal citations and quotations omitted). ...


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