IN THE CIRCUIT COURT OF JACKSON COUNTY AT INDEPENDENCE, MISSOURl SAMUEL K. LIP ARl (Assignee of Dissolved Medical Supply Chain, Inc., v. NOVATION, LLC, et al., Plaintiff, Defendants. Case No. 0816-CV-04217 CURT NONOMAQUE AND ROBERT BAKER'S MOTION TO DISMISS PLAINTIFF'S PETITION FOR LACK OF PERSONAL JURlSDICTION AND FOR FAILURE TO STATE A CLAIM Pursuant to Missouri Rules of Civil Procedure 55.27(a(2 and 55.27(a(6, Defendants Curt Nonomaque ("Nonomaque" and Robert Baker ("Baker" (collectively "Defendants" submit this Motion to Dismiss Plaintiffs Complaint for Lack of Personal Jurisdiction and for Failure to State a Claim. 1. Plaintiff has sued Nonomaque and Baker, among numerous other individual defendants, corporations and other entities, under Missouri antitrust law and Missouri common law theories. Plaintiff seeks several billions of dollars in damage allegedly arising from the obstruction of Plaintiffs efforts to enter the Missouri healthcare supply market. 2. All of Plaintiffs claims against Nonomaque and Baker must be dismissed because this Court lacks personal jurisdiction over Nonomaque and Baker. 3. Nonomaque is a Texas resident who has never resided in Missouri. See Affidavit of Curt Nonomaque ("Nonomaque Aff." at '1 3 (Attached as Exhibit 1. Baker is an Illinois resident who likewise has never resided in Missouri. See Affidavit of Robert Baker ("Baker 100543901
Aff." at ~ 3 (Attached as Exhibit 2. Neither Baker nor Nonomaque has ever owned real or personal property located in Missouri. Nonomaque Aff. at ~ 3; Baker Aff. at '13. Neither Baker nor Nonomaque has solicited a contract with a resident of Missouri. Nonomaque Aff. at '1 6: Baker Aff. at ~ 6. Furthermore, neither individual has ever maintained a mailing address or phone number in Missouri, see Nonomaque Aff. at '1 4; Baker Aff. at ~ 4, and neither has any personal employees or agents in Missouri. Nonomaque Aff. at'l 5; Baker Aff. at ~ 5. 4. There is no basis for the exercise of specific jurisdiction over either Nonomaque or Baker. Indeed, Plaintiffs Complaint does not allege that Nonomaque or Baker performed any tortious act, transacted any business, or engaged in any conduct in Missouri. issue in this case do not relate to any contacts of Defendants with the forum. Thus, the claims at Thus, the Missouri long arm statute, MO. REV. STAT. 506.500, does not confer upon this Court in personam jurisdiction over Nonomaque or Baker. 5. Moreover, this Court cannot exercise general jurisdiction over these Defendants. Neither Defendant has the minimum contacts with Missouri necessary for general jurisdiction. Neither Defendant has had anything approaching continuous and systematic contacts with Missouri so that they could anticipate being haled into Court in this forum. 6. Finally, the exercise of personal jurisdiction over Baker and Nonomaque would offend traditional notions of fair play and substantial justice. 7. Subject to their Motion to Dismiss for Lack of Personal Jurisdiction, Defendants join in the Motion to Dismiss for Failure to State a Claim filed by Defendants Novation, LLC, VHA lnc., University Healthsystem Consortium, VHA Mid-America LLC; Thomas Spindler. Robert Bezanson, Gary Duncan, Maynard Oliverius; Sandra Van Trease; Charles Robb. Michael Terry, Cox Health Care Services of the Ozarks Inc.; Saint Luke's Health System Inc. and 1OO~.j39.0 1 2
Stormont-Vail Healthcare Inc. WHEREFORE, for all of the foregoing reasons, Defendants Nonomaque and Baker pray that this Court dismiss Plaintiffs claims against them and for all other relief to which they are entitled. 1200 Main Street Suite 2300 Kansas City, Missouri 64105 Phone: 816.283.4651 Fax: 816.421.0596 OF COUNSEL: Veronica S. Lewis Texas Bar No. 24000092 VINSON & ELKINS L.L.P. 3700 Trammell Crow Center 2001 Ross Avenue Dallas, Texas 75201-2975 214.220.7703 - Phone 214.999.7703 - Fax Kathleen Bone Spangler Texas Bar No. 00790333 VINSON & ELKINS L.L.P. First City Tower 1001 Fannin Street, Suite 2300 Houston, Texas 77002-6760 713.758.3610- Phone 713.615.5147 - Fax ATTORNEYS FOR DEFENDANTS CURT NONOMAQUE AND ROBERT J. BAKER 100543901 3
CERTIFICATE OF SERVICE The undersigned certifies a tru~ correct copy of the above and foregoing was mailed, by first-class United States mail, this L day of May, 2008 to the following: Sam Lipari 297 NE Bayview Lee's Summit, MO 64024 1005439.01 4
IN THE CIRCUIT COURT OF JACKSON COUNTY AT INDEPENDENCE, MISSOURI SAMUEL K. LIPARI (Assignee of Dissolved Medical Supply Chain, Inc., v. NOV ATION, LLC, et al., Plaintiff, Defendants. Case No. 0816-CV-04217 AFFIDAVIT OF CURT NONOMAQUE STATE OF TEXAS COUNTY OF DALLAS Before me, the undersigned notary public, on this day personally appeared Curt Nonomaque a person whose identity is known to me who, being sworn upon his oath to tell the truth, stated and deposed as follows: 1. My name is Curt Nonomaque. I am of sound mind and am competent in all ways to testify to the matters stated in this affidavit. I am over the age of twenty-one, and I have personal knowledge that the statements in this affidavit are true and correct. 2. I am the President and CEO ofvha Inc., which is headquartered in Irving, Texas. 3. I reside in Southlake, Texas. I have never resided in Missouri, nor have I owned real or personal property located there. 4. I have never maintained a mailing address or telephone number in Missouri. 5. I do not have any personal agents or employees in Missouri. 6. I have never solicited a contract with a resident of Missouri.
FURTHER AFFIANT SAYETH NOT. ROBERT J. BAKER SWORN TO and SUBSCRIBED before me, the undersigned authority, by Robert J. Baker on April 22,2008. ~rn.~ Notary Public in and for the State of Illinois Opn/;;;J..,200P OFFICIAL SEAl LORI M RICHAROS NOTARY PUllLIC STATE ~ IU.INOtS MY COfMSsKlN ejcpir S:04IfONO
IN THE CIRCUIT COURT OF JACKSON COUNTY AT INDEPENDENCE, MISSOURI SAMUEL K. LIPARI (Assignee of Dissolved Medical Supply Chain, Inc., v. NOV ATION, LLC, et al., Plaintiff, Defendants. Case No. 0816-CV -04217 AFFIDA VIT OF ROBERT J. BAKER STATE OF ILLINOIS COUNTY OF DU PAGE Before me, the undersigned notary public, on this day personally appeared Robert J. Baker a person whose identity is known to me who, being sworn upon his oath to tell the truth, stated and deposed as follows: 1. My name is Robert 1. Baker. I am of sound mind and am competent in all ways to testify to the matters stated in this affidavit. I am over the age of twenty-one, and I have personal knowledge that the statements in this affidavit are true and correct. 2. Until June 30, 2007, I was the President and CEO of University HealthSystem Consortium, which is headquartered in Oak Brook, Illinois. I retired from that position on June 30,2007. 3. I reside in Naperville, Illinois. I have never resided in Missouri, nor have I owned real or personal property located there. 4. I have never maintained a mailing address or telephone number in Missouri. 5. I do not have any agents or employees in Missouri. 6. I have never solicited a contract with a resident of Missouri.
FURTHER AFFIANT SAYETH NOT. &-~ CURTNONO~ ~ SWORN TO and SUBSCRIBED before me, the undersigned authority, by Curt Nonomaque on April ~, 2008.