GLORIA V. GOMEZ v. FELICIA WILSON (L-1065-20, MORRIS COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1061-20
GLORIA V. GOMEZ,
Plaintiff-Appellant,
v.
FELICIA WILSON, DDS, MS, MD,
and CLEAR CHOICE DENTAL
IMPLANT CENTERS,
Defendants-Respondents.
_______________________________
Submitted January 13, 2022 – Decided January 24, 2022
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-1065-20.
Gold, Albanese, Barletti & Locascio, LLC, attorneys
for appellant (Walter P. Laufenberg, on the brief).
Burns White LLC, attorneys for respondents (Ellen
Nunno Corbo, on the brief).
PER CURIAM
Plaintiff Gloria Gomez appeals from the Law Division's November 6,
2020 order granting defendants Felicia Wilson, DDS, MS, MD, and Clear
Choice Dental Implant Centers' motion to dismiss plaintiff's complaint on
jurisdictional grounds. We reverse and remand for further proceedings.
Gomez lives in Morris County, New Jersey. Wilson is a doctor of dental
surgery and owns the Clear Choice Dental Implant Center (Clear Choice)1
located in Fort Washington, Pennsylvania. Wilson is not a New Jersey resident.
In August 2016, Wilson began treating Gomez at the Fort Washington
facility. As part of this treatment, Wilson installed surgical dental implants in
Gomez's mouth. After the surgery, Gomez experienced pain and returned to
Wilson's Pennsylvania center. Gomez ended her treatment with Wilson on
March 13, 2017.
In May or June of 2018, Gomez began treating with Dr. Michael Gale in
Newark, New Jersey. Gale told Gomez that Wilson negligently performed the
implant surgery. 2
1
According to Wilson, Clear Choice is "a network of dental treatment centers
in which each center is separately owned and operated by local dental
specialists."
2
On October 14, 2020, Gale gave Gomez an Affidavit of Merit and opined that
Wilson's dental care "fell below the acceptable professional standards and
treatment practices for restorative dentistry."
A-1061-20
2
On May 15, 2020, Gomez filed a dental malpractice complaint in Morris
County against Wilson and Clear Choice. She incorrectly alleged in her
complaint that the dental surgery occurred in Essex County, New Jersey.
Defendants filed an answer and, among other things, asserted the court lacked
jurisdiction over Gomez's claims. Defendants then filed a motion to dismiss the
complaint on this ground.
In support of the motion, Wilson filed a certification on September 30,
2020, stating she "never owned, operated, or practiced in a Clear Choice . . .
Center, or any other office . . . in Essex County, New Jersey." She further stated
she had only treated Gomez at "the Pennsylvania location that [she] own[ed] and
operate[d]." Therefore, defendants asserted they had no contacts with New
Jersey sufficient to support this State's jurisdiction over the parties' dispute.
In response, Gomez submitted a copy of an internet listing for a Clear
Choice facility in Mount Laurel, New Jersey that listed Wilson as one of its
physicians. Gomez alleged defendants appeared to have a New Jersey location
at the time she filed her complaint and, therefore, this State had jurisdiction.
At oral argument, the motion judge broached the subject of the need for
jurisdictional discovery because it appeared that Wilson now owned or worked
at a Clear Choice facility in New Jersey. In response, defendants' attorney stated
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3
the Mount Laurel center began operating in November 2017 and that she had
access to the center's incorporation papers. Although the judge reserved
decision on defendants' motion, he stated he was "inclined to allow some
jurisdictional discovery to take place, because the information that's available
so far is coming from one direction . . . only, and that's . . . Wilson, through
[c]ounsel." The judge also proposed a discovery schedule.
However, in his subsequent written decision, the judge granted
defendants' motion to dismiss without permitting jurisdictional discovery. The
judge stated:
As to general jurisdiction, the [c]ourt concludes
that [d]efendants have insufficient contacts with New
Jersey that are continuous or systematic. While this
[c]ourt at first considered allowing limited
jurisdictional discovery to determine the full nature of
[d]efendants' contacts with the State of New Jersey, on
further consideration, there is no likelihood that such
limited discovery will prove fruitful. In support of a
finding of personal jurisdiction, [p]laintiff offers the
fact that . . . Wilson is listed as an "attending physician"
at [the Clear Choice Center] in Mount Laurel, New
Jersey . . . . However, [d]efendant[s] respond[] that the
Mount Laurel, New Jersey location was not established
until November 2017, more than seven months after
[Gomez's] last visit with the [m]oving [d]efendants in
Pennsylvania. At this stage, the [c]ourt cannot find, on
the few facts presented, that general jurisdiction exists.
[(emphasis added).]
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"Appellate review of a ruling on jurisdiction is plenary because the
question of jurisdiction is a question of law." Rippon v. Smigel, 449 N.J. Super.
344, 358 (App. Div. 2017) (citing Mastondrea v. Occidental Hotels Mgmt., S.A.,
391 N.J. Super. 261, 268 (App. Div. 2007)). For the following reasons, we
conclude that "the few facts presented" by defendants concerning the Mount
Laurel office were insufficient to support their motion to dismiss on
jurisdictional grounds. Therefore, we reverse the November 6, 2020 order
dismissing the complaint and remand for further proceedings.
"A defendant may move to dismiss a complaint on the ground of 'lack of
jurisdiction over the person[.]'" Id. at 358 (alteration in original) (quoting R.
4:6-2(b)). The question of in personam jurisdiction "is 'a mixed question of law
and fact' that must be resolved at the outset, 'before the matter may proceed
. . . .'" Id. at 359 (quoting Citibank, N.A. v. Est. of Simpson, 290 N.J. Super.
519, 532 (App. Div. 1996)).
"When a defendant has maintained continuous and systematic activities in
the forum state, the defendant is subject to the state's 'general' jurisdiction on
any matter, irrespective of its relation to the state." Id. at 358-59 (quoting Lebel
v. Everglades Marina, Inc., 115 N.J. 317, 323 (1989)). For general jurisdiction
to apply, a defendant's activities must be "so 'continuous and systematic' as to
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render [it] essentially at home in the forum State." FDASmart, Inc. v. Dishman
Pharms. and Chems. Ltd., 448 N.J. Super. 195, 202 (App. Div. 2016) (alteration
in original) (quoting Daimler AG v. Bauman, 571 U.S. 117, 128 (2014)).
"However, when the cause of action arises directly out of a defendant's
contacts with the forum state, the state may exercise 'specific' jurisdiction over
a defendant who has 'minimum contacts' with the state." Rippon, 449 N.J.
Super. at 359 (quoting Lebel, 115 N.J. at 322). "The plaintiff 'bears the burden
of proof on the question of the adequacy of the . . . defendants' contacts to sustain
an exercise of specific jurisdiction.'" Id. at 360 (quoting Citibank, 290 N.J.
Super. at 533). "A conclusion of specific jurisdiction requires that the
'purposeful acts by the [defendant] directed toward this State' be of a kind that
'make[s] it reasonable for the [defendant] to anticipate being haled into court
here.'" Id. at 360-61 (alterations in original) (quoting Mastondrea, 391 N.J.
Super. at 268).
Pertinent to this appeal, when "[p]resented with a motion to dismiss on
the basis of lack of jurisdiction, a trial court must make findings of the
'jurisdictional facts,' because disputed 'jurisdictional allegations cannot be
accepted on their face . . . .'" Id. at 359 (quoting Citibank, 290 N.J. Super. at
532). "If the pleadings and certifications submitted to the trial court do not
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permit resolution of the jurisdictional question, the trial court must conduct a
'preliminary evidential hearing after affording the parties an appropriate
opportunity for discovery.'" Ibid. (quoting Citibank, 290 N.J. Super. at 532).
"Generally, the record must support the existence of disputed or conflicting facts
to warrant jurisdictional discovery." Ibid. (citing Reliance Nat'l Ins. Co. In
Liquidation v. Dana Transp. Inc., 376 N.J. Super. 537, 551 (App. Div. 2005)).
Applying these principles, it seems clear that New Jersey did not have
case-linked, specific jurisdiction of this matter because Gomez received all of
her dental treatment at Wilson's Clear Choice office in Pennsylvania. However,
we are convinced the record was not sufficiently developed for the motion judge
to conclude, as he did, that defendants were not subject to New Jersey's general
jurisdiction.
Gomez alleged that Wilson opened a Clear Choice center in New Jersey
in November 2017. Defendants essentially conceded this claim at oral argument
before the trial court, but they did not provide any further details concerning the
facility's ownership and operation.
In denying Gomez's request for discovery concerning the Mount Laurel
center, the judge overlooked the fact that plaintiff did not file her complaint
against defendants until May 15, 2020. Courts have held that the relevant time
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period for assessing minimum contacts in establishing general jurisdiction does
not end until the time the complaint is filed. See, e.g., Dutch Run-Mays Draft,
LLC v. Wolf Block, LLP, 450 N.J. Super. 590, 604 (App. Div. 2017) (stating
that "[t]he evidence does not demonstrate that at the time of suit, 'defendant
purposefully avail[ed] itself of the privilege of conducting activities within the
forum state, thus invoking the benefit and protection of its laws.'") (second
alteration in original) (emphasis added) (quoting FDASmart, 448 N.J. Super. at
202); see also Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569-
70 (2d Cir. 1996) (holding that courts "should examine a defendant's contacts
with the forum state over a period that is reasonable under the circumstances[,]
up to and including the date the suit was filed[,] to assess whether they satisfy
the 'continuous and systematic' standard.").
Thus, the relevant time period to determine whether New Jersey had
general jurisdiction began with Gomez's first visit to Clear Choice in August
2016 and ended on May 15, 2020, when she filed her complaint. The record
contains no information concerning defendants' activities in New Jersey
between November 2017 and May 15, 2020. The judge therefore should have
permitted the parties to develop any jurisdictional facts arising during this
timeframe through the discovery schedule he initially proposed.
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Under these circumstances, we are satisfied the matter was not ripe for
determination at the time defendants filed their motion to dismiss. Rather,
Gomez should have been granted an opportunity for jurisdictional discovery t o
explore defendants' activities in New Jersey after November 2017. Although
such discovery may ultimately result in a determination that New Jersey does
not have jurisdiction over defendants, Gomez should not have been deprived at
this early juncture from attempting to establish a sufficient basis to proceed. 3
Reversed and remanded. We do not retain jurisdiction.
3
In keeping with the motion judge's comments in his motion colloquy, the trial
court should promptly conduct a case management conference and direct the
parties to promptly exchange limited jurisdictional interrogatories and notices
to produce within fifteen days of the date of the conference and require each
party to respond within forty-five days thereafter.
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