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McIver v. Arle

United States District Court, E.D. North Carolina

November 30, 2017

Shirley Verrette McIver, Plaintiff,
Steven W Arle, M.D.; Daniel Gordon, M.D.; and United States, Defendants.


          Kaymani D. West United States Magistrate Judge

          Report and Recommendation Plaintiff, proceeding pro se, filed this medical-malpractice action pursuant to the Federal Tort Claims Act (“FTCA”).[1] This matter is before the court on Defendant Daniel Gordon's Motion to Dismiss pursuant to Rule 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 37. On July 19, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedure and the possible consequences if she failed to adequately respond to the Motion to Dismiss, see ECF No. 38, and Plaintiff filed a Response to the Motion on July 28, 2017, ECF No. 40. Additionally, Defendant United States filed a Motion to Dismiss pursuant to Rule 12(b)(6), or in the alternative a Motion for Summary Judgment. ECF No. 44. After filing another order pursuant to Roseboro v. Garrison, 528 F.2d 309, see ECF No. 47, Plaintiff filed a Response to Defendant United States' Motion on September 26, 2017, ECF No. 49. No Defendant filed a Reply. This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(e), D.S.C.

         Because these Motions to Dismiss are dispositive, a Report and Recommendation (“R&R”) is entered for the court's review.

         I. Background

         Plaintiff, a resident of Bennettsville, South Carolina, filed this matter on April 18, 2017, alleging a malpractice claim against Defendants arising from cancer treatment that she received at veterans' medical facilities. ECF No. 1. After initial review of her Complaint, the undersigned authorized service upon Defendants Arle, Gordon, and the United States. ECF No. 19. Though Plaintiff initially named other parties as Defendants, the undersigned recommended that Defendants VA (Veterans Administration) and individuals Sengstaken, Acselrod, Sharma, and Lowe be dismissed without prejudice because Plaintiff acknowledges this action is properly before this court under the FTCA, and the only proper party in an FTCA action is the United States. ECF Nos. 23, 26. The district judge adopted the undersigned's recommendation that these parties be dismissed. ECF No. 50.

         In her Complaint, Plaintiff maintains that early detection of cancer and follow-up “would have save[d] less medical treatment and life complications.” ECF No. 1 at 7. Plaintiff represents that medical personnel, including Defendants Arle and Gordon, decided what course of treatment she should pursue after her first abnormal mammogram screening occurred in 2004 at Carolina Image in Fayetteville, North Carolina. Id. Further, Plaintiff alleges that other doctors prescribed her tamoxifen, and “in 2009, [she] received a letter that these medications together in some women show a recurr[e]nce of cancer.” Id.

         Plaintiff alleges that early detection and treatment of cancer would have saved a breast mastectomy; “lymphnode dissection secondary malig metastatic of neck, lungs, low back, upper back, bones and all body life fun[c]tions.” Id. at 8. Plaintiff reports she is experiencing mental disorders; must have ongoing cancer treatment; and that the cancer has “le[d] to terminal cancer.” Id. Plaintiff maintains she has endured pain and suffering and lost family time. Further, she represents that “the hardship i[m]pacted the family, where [she] lost [her] mother in 2009 from the life sentence given to Plaintiff and los[s] of time with [her] love[d] ones.” Id.

         II. Standard of Review

         Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, Plaintiff must only plead “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). In order for Plaintiff's Complaint to survive Defendants' Motions to Dismiss, Plaintiff does not need to plead detailed factual allegations in her Complaint. See Id. However, the United States Supreme Court has held that a plaintiff's grounds for relief requires more than just stating legal conclusions and elements of a cause of action. See Papasan v. Allain, 478 U.S. 265, 286 (1986) (noting that, on a motion to dismiss, a court is “not bound to accept as true a legal conclusion couched as a factual allegation.”). Plaintiff's complaint must contain sufficient factual allegations that make a claim for relief plausible, not just possible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp., 550 U.S. at 570. This court must accept Plaintiff's factual allegations as true and draw all reasonable inferences in her favor. See E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011).

         III. Analysis

         Two Motions to Dismiss are before the court. First, Defendant Gordon argues this court lacks personal jurisdiction over him and that “the only information in Plaintiff's Complaint . . . supports a finding that North Carolina is the proper forum for this lawsuit as against Dr. Gordon.” ECF No. 37 at 3. Additionally, Defendant Gordon maintains that “Plaintiff's Summons is to a North Carolina address, and her allegation [] Section III [of her Complaint] indicates that any alleged tortious act on the part of [Defendant] Gordon occurred in North Carolina.” Id. Additionally, Defendant Gordon argues that Plaintiff's Complaint fails to meet minimum pleading requirements and is untimely. Id. at 5-8. Finally, Defendant Gordon argues that in her Complaint Plaintiff is alleging medical malpractice and South Carolina state law requires Plaintiff to file a Notice of Intent to File Suit and an affidavit of an expert witness. Id. at 8. Defendant United States argues that the Complaint should be dismissed because Plaintiff failed to comply with South Carolina pre-suit requirements of including an expert affidavit to support her claims of medical malpractice (Defendant Gordon's final argument). ECF No. 44-1 at 5.

         A. Venue and Personal Jurisdiction

         The undersigned finds that the allegations in Plaintiff's Complaint fail to reveal any basis for this Court to obtain personal jurisdiction over any individual Defendant. Plaintiff is suing North Carolina residents and a VA medical facility located in North Carolina pursuant to the FTCA. Accordingly, it is the recommendation of the undersigned that this case be transferred in the interests of justice to the United States District Court for Eastern District of North Carolina for further handling. See 28 U.S.C. § 1406(a); see also Goldlawr v. Heiman, 369 U.S. 463 (1962); Porter v. Groat, 840 F.2d 255 (4th Cir. 1988); Glaxo Inc. v. Genpharm Pharmaceuticals, Inc., 796 F.Supp. 872, 877 (E.D. N.C. 1992).

         A bedrock requirement in any civil action is that the district court in which a Complaint is brought shall have personal jurisdiction over the persons of the defendants. Rule 4(e) Federal Rules of Civil Procedure (“Service Upon Individuals Within a Judicial District of the United States”) by its own title suggests that persons outside a given judicial district cannot be brought into ...

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