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Latka v. Miles

United States District Court, Eastern District of North Carolina, Southern Division

March 26, 2015



LOUISE W. FLANAGAN, United States District Judge

This matter is before the court on defendant Dr. David Miles' ("Miles") motion to dismiss, pursuant Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6) (DE 16). Also pending before the court is defendant New Hanover Regional Medical Center's ("NHRMC") motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (DE 26). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge James E. Gates entered a memorandum and recommendation ("M&R") wherein it is recommended the court deny the motions to dismiss. Plaintiff filed a response to the M&R, [1]and defendants each filed separate objections to the M&R. Plaintiff subsequently responded to defendants' objections. In this posture, the issues raised are ripe for ruling. For the reasons stated below, the court will reject the recommendation of the M&R and grant the motions to dismiss.


Plaintiff, who proceeds pro se, commenced this wrongful death action on January 13, 2014, by filing a motion for leave to proceed in forma pauperis, attaching a copy of her proposed complaint. Two days later, order issued denying plaintiff s motion and directing she pay the filing fee by February 12, 2014. Plaintiff paid her filing fee and filed her complaint February 3, 2014.

Defendant Miles filed his motion to dismiss on April 10, 2014, arguing that 1) plaintiffs claims are barred by the statute of limitations; 2) the complaint fails to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure; 3) plaintiff lacks standing; 4) plaintiff fails to establish subject matter jurisdiction; and 5) plaintiff failed to effect proper service. On May 14, 2014, defendant MFRMC filed its motion to dismiss, raising arguments on similar grounds, with the exception of lack of service. Plaintiff timely responded to both motions, and subsequently filed a document titled "sur-reply."

Plaintiff appended a number of documents to her responses to defendants' motions to dismiss, including 1) a motion and order issued by the Superior Court of New Hanover County ( N.C. ), extending plaintiffs time to comply with Rule 9(j); 2) letters of administration over the estate of Leszek Latka, issued to plaintiff by the Clerk of the Superior Court of Brunswick County ( N.C. ); 3) renunciations of rights to qualify for letters testamentary or letters of administration, signed by Jason Latka and Jennifer Roth; and 4) waivers of personal representative's bond, signed by Jason Latka and Jennifer Roth. Additional documents, including pages from internet sites related to the signs of internal bleeding, and decedent's medical records, were made a part of her sur-reply.

The M&R, which issued February 9, 2015, construed the complaint to assert a claim for wrongful death, pursuant to section 28A-18-2 of the General Statutes of North Carolina. It concluded plaintiff had standing based on letters plaintiff submitted in response to the motions to dismiss, purportedly naming plaintiff as administrator of her husband's estate. The magistrate judge also rejected the assertion that plaintiffs failure to comply with section 28A-4-2(4) of the General Statutes of North Carolina[2] was a deficiency which stripped the court of jurisdiction. He further found plaintiff had properly invoked federal jurisdiction on the basis of diversity of citizenship, pursuant to 28 U.S.C. § 1332.

With respect to defendant Miles' assertion that plaintiff failed to comply with requirements for personal service, the magistrate judge recommended granting plaintiff an extension of 45 days to properly serve defendant Miles. Turning to the merits of plaintiff s claim, the magistrate judge found plaintiff in compliance with the statute of limitations, and further held that plaintiff sufficiently complied with Rule 9(j) of the North Carolina Rules of Civil Procedure.

Where there is no objection to the magistrate judge's summary of the allegations in plaintiffs complaint, the court hereby incorporates that portion of the M&R by reference. As pertinent here, plaintiffs husband, Lester Latka ("decedent"), was admitted to NHRMC on September 13, 2011 for a hernia operation. Defendant Miles performed the surgery, during which he also performed an ilionguinal neurectomy.[3] Also during surgery, defendant Miles used the drug Marcaine, which is a vasodilator, [4] and closed the incision without stopping the bleeding or achieving normal blood pressure. The next day, decedent began to show signs of internal bleeding, including an elevated heart rate, stomach distention, flank hematoma and ecchymosis, dark blood in his vomit and stools, nausea, and lack of appetite. No one at NHRMC addressed these signs. As a result, plaintiff s husband bled to death on September 18, 2011. Plaintiff alleges that she has lost her husband's earnings as a result of his untimely death, and that, as a result, her house was foreclosed upon, and further that "this forced me to move back to N.Y. with my family around." (Compl., 3) (DE 4).

Attached to the complaint is a document bearing the letterhead of Richmond Surgical Associates PLLC, purportedly written by Frederick L.H. Sabido, M.D., a member of the Faculty of the American College of Surgeons and a Clinical Assistant Professor of Surgery at the College of Medicine at the State University of New York Downstate Medical Center. In his letter, Dr. Sabido states that a variety of errors occurred during the surgery, including specific allegations that decedent's treatment failed to meet the standard of care in several areas, including the use of thrombin spray, the failure to transfuse platelets, the injection of marcaine, the failure to achieve normal blood pressure before leaving the operating room, and the fact that it took "extra time" to perform the ilioinguinal neurectomy. (Id., 1-2).


A. Standard of Review

The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for "clear error, " and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

A Rule 12(b)(1) motion challenges the court's subject matter jurisdiction, and the plaintiff bears the burden of showing that federal jurisdiction is appropriate when challenged by the defendant. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). A district court may address lack of subject matter in two ways: the court may find insufficient allegations in the pleadings, viewing the alleged facts in the light most favorable to the plaintiff, or, after an evidentiary hearing, the court may weigh the evidence in determining whether the facts support the jurisdictional allegations. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). Under the former analysis, "all the facts ...

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