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Peggy Barnhart, Independent v. Covenant Care Midwest

April 2, 2012

PEGGY BARNHART, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF SAMUEL G. BARNHART, SR., DECEASED, PLAINTIFF,
v.
COVENANT CARE MIDWEST, INC., D/B/A CEDAR RIDGE HEALTH & REHAB CENTER, D/B/A FRIENDSHIP HOME, AND D/B/A HIGHLAND HEALTH CARE CENTER; COVENANT CARE, INC.; COVENANT CARE, LLC; CENTRE PARTNERS MANAGEMENT, LLC; COVENANT CARE'S SENIOR MANAGEMENT; COVENANT CARE CALIFORNIA, INC.; COVENANT CARE CALIFORNIA, LLC; ROBERT LEVIN; AND ANDREW F. TOROK, DEFENDANTS.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the court on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction filed by defendant Robert Levin (Doc. 24). Levin seeks dismissal of the claims brought against him by plaintiff Peggy Barnhart. Barnhart filed a response (Doc. 29), to which Levin further replied (Doc. 30).

This case arose after plaintiff's husband, Samuel G. Barnhart, Sr., passed away from medical complications upon receiving treatment at Cedar Ridge Health and Rehab Center ("Cedar Ridge") in Lebanon, Illinois. Plaintiff, as the independent administrator of her husband's estate, filed a multiple-count complaint (Doc. 2-1, 2-2) against several entities and individuals associated with Cedar Ridge, including Robert Levin. Plaintiff's complaint set forth a survival action (Count XV) and a wrongful death action (Count XVI) against Levin.

A. Burden of Proving Personal Jurisdiction

When personal jurisdiction is challenged under Rule 12(b)(2), the plaintiff bears the burden of establishing personal jurisdiction over a defendant. Purdue Research Found. v. Sanofi-Syntholabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003) (citing Central States, S.E. & S.W. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 939 (7th Cir. 2000)). If there are material facts in dispute regarding the Court's jurisdiction over a defendant, the Court may hold an evidentiary hearing at which the plaintiff must establish jurisdiction by a preponderance of the evidence. Purdue Research, 338 F.3d at 782 (citing Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002)). Alternatively, the Court may decide the motion to dismiss without an evidentiary hearing based on the submitted written materials so long as it resolves all factual disputes in the plaintiff's favor. Purdue Research, 338 F.3d at 782 (citing RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997)); see Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir.), cert. denied, 131 S. Ct. 567 (2010). If the Court consults only the written materials, the plaintiff need only make a prima facie showing of personal jurisdiction. Purdue Research, 338 F.3d at 782 (citing Hyatt, 302 F.3d at 713); Tamburo, 601 F.3d at 700. Here, the Court considers only the written materials and therefore, the plaintiff's burden is to make a prima facie showing of personal jurisdiction.

B. Facts

The Court may receive and weigh affidavits to determine whether it has personal jurisdiction. Nelson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir. 1983). The Court takes as true all well-pleaded facts and resolves all factual disputes in the plaintiff's favor, but the Court accepts as true any facts contained in the defendant's affidavits not refuted by the plaintiff. See Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir. 2010), cert. denied, 131 S. Ct. 567 (2010) (citing Purdue Research Found. v. Sanofi-Syntholabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003)); RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir.1997). Thus, once the defendant has submitted affidavits or other evidence in opposition to the exercise of jurisdiction, the plaintiff must go beyond the pleadings and submit affirmative evidence supporting the exercise of jurisdiction. Purdue Research, 338 F.3d at 782-83.

The following relevant facts are derived from Levin's affidavit and are not refuted by further evidence from the plaintiff:

 Levin is not an Illinois citizen.  Levin's business office is located in Viejo, California.  Levin is not the owner, operator, or licensee of Cedar Ridge.  Levin does not hold the license to Cedar Ridge.  Levin is not a medical professional and has not provided medical care to any residents at Cedar Ridge.  Levin has not done business in Illinois since 2006.

The following relevant facts are alleged in the plaintiff's complaint and are not refuted by evidence from Levin:

 Defendant Covenant Care Midwest, Inc. ("Midwest), a California corporation, is the owner and operator of Cedar Ridge, a long-term nursing care facility in Lebanon, Illinois.*fn1

 Levin is an officer and governing board member of Cedar Ridge.  Levin is an owner and officer of another entity that serves on the governing board of Cedar Ridge.  Levin controlled and directly participated in the operation, planning, management and quality control of Cedar Ridge, including but not limited to: the budget; the hiring and retention of the Administrator and the Director of Nursing; the level of nursing staff; training of nursing staff; resident census goals; creation and implementation of policies and procedures; the entity providing therapy services; the pharmacy that provided medications to the residents; the contents of the resident contract; the consultants and outside contractors; marketing; quality assessment; and regulatory compliance.  Levin is an officer of, owner of, investor in, or engaged in a joint enterprise with several entities associated with this lawsuit.

Although the plaintiff confusingly uses interchangeably, the Court understands the tw the names Midwest and Cedar Ridge o ...


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